Employee in Harris v. Eastman Youth Development Center ( A12A0580, April 16, 2012) injured her knee and developed low back pain which both ATP and ALJ found was due to the knee injury. Still, the ALJ denied the employee's request for surgery recommended by ATP and suggested a weight loss program. Employer paid for surgery, but the employee continued to have back pain. The ALJ denied two requests for catastrophic designation, and denied continued payment of the weight-loss program. The ALJ also found that any degeneration of the employee's back had resolved as a result of the knee surgery and the employee's continued pain was a result of her "morbid obesity." Therefore, the back injury was not causally related to her knee injury.
The employee appealed and the Appellate Division agreed that compensability of her back was not an issue before the ALJ and should not have been addressed, since the employee had not been given notice or an opportunity to be heard - and the ALJ had already determined that the back injury was causally related. The Appellate Division instructed the ALJ to rule on the CAT request without ruling on compensability of the back. Instead, with no new evidence, the ALJ again denied the CAT request and again addressed the compensability of the back. The employee appealed again, but the Appellate Division adopted the ALJ's award, and was affirmed by the superior court.
Citing Home Depot v. Pettigrew, 298 Ga. App. 501, 503 (1) (680 SE2d 450) 2009, the Court of Appeals found that the employee had neither notice nor an opportunity to be heard on the back issue, nor had she given express or implied consent for the issue to be heard. According to the court, "nothing in [the employee's] testimony or anything else in the hearing transcript suggests that the parties or the ALJ believed that compensability was an issue." Even on appeal, the employer focused on the evidence supporting CAT and not the compensability of the low back pain. There was no evidence that the parties or the ALJ ever mentioned the issue, and therefore no possibility of implied consent, which cannot arise in any event "if the parties do not squarely recognize the new issue as an issue in the trial." See Holliday v. Jacky Jones Lincoln-Mercury, 251 Ga. App. 493, 496 (1) (554 SE2d 286) (2001). The Court of Appeals remanded with a specific instruction for the ALJ to determine the CAT request without ruling on the compensability of the low-back pain.