Trial Notebook : Appeals – Full Board

Appeals: Full Board
  • "Findings of Fact made by an Administrative Law Judge must be accepted by the Appellate Division for such findings are supported by a preponderance of competent and credible evidence contained within the records. Thus, the Appellate Division must weigh the evidence and assess the credibility of witnesses and if it determines that the Award of the ALJ is supported by a preponderance of admissible evidence, it will be accepted. But, if after assessing the evidence of record, the Appellate Division concludes that the Award does not meet the statutes' evidentiary standards, the Appellate Division may substitute its own alternative findings for those of the ALJ, and enter an Award accordingly." Bankhead Enterprises v. Beaver, 267 Ga. 506, 480 S.E.2d 840 (1997).
  • On appeal to the full board, the full board cannot change a ruling unless it is to fix an obvious error in the record. See O.C.G. A. §34-9-103(b). Asplundh Tree Expert Co. v. Gibson, 204 Ga. App. 853, 420 S.E.2d 797 (1992).
Appeals to Full Board: Findings of Administrative Law Judge
  • The administrative law judge was, in this case, in the best position to determine the credibility and weight of the evidence of the record. See Johnson v. Weyerhaeuser Company, 231 Ga. App. 627, 499 S.E.2d 912 (1998); Metro Interiors, Inc. v. Cox, 218 Ga. App. 396, 461 S.E.2d 570 (1995) and Coats & Clark, Inc. v. Thompson, 166 Ga. App. 669, 305 S.E.2d 415 (1983)
Board Appeal Authorization
  • The Board's Appellate Division is authorized to review the evidence adduced before the ALJ, weigh that evidence, and assess witness credibility. If the Appellate Division determines that the preponderance of evidence supports the ALJ's decision, it will accept and affirm the Award. "But, if … the Appellate Division concludes that the Award does not meet [the applicable] evidentiary standards, [it] may substitute its own alternative findings for those of the ALJ, and enter an Award accordingly. The Appellate Division may "substitute its findings for those of the ALJ only when its alternative findings are supported by some evidence in the record." See Dallas v. Flying J, Inc., 279 Ga. App. 786, 632 S.E.2d 389 (2006).
Duty of Full Board
  • "The Board's Appellate Division is authorized to review the evidence adduced before the ALJ, weigh that evidence, and assess witness credibility. If the Appellate Division determines that the preponderance of evidence supports the ALJ's decision, it will accept and affirm that Award. 'But, if … the Appellate Division concludes that the Award does not meet [the applicable] evidentiary standards, {it] may substitute its own alternative findings for those of the ALJ and enter an Award accordingly.' The Appellate Division may 'substitute its findings for those of the ALJ only when its alternative findings are supported by some evidence in the record.'" Dallas v. Flying J, Inc., 279 Ga. App. 786, 632 S.E.2d 389 (2006). See also O.C.G.A § 34-9-103(a); Bankhead Enterprises v. Beavers, 267 Ga. 506, 507, 480 S.E.2d 840 (1997) and Chaparral Boats, Inc. v. Heath, 269 Ga. App. 339, 606 S.E.2d 567 (2004).
Full Board Decision Duties (Misstatement of Fact)

  • If an Award contains an "undisputed misstatement of fact … which we cannot say is immaterial as a matter of law, the case should be and is remanded to the [B]oard to correct its finding … and make an Award with the correct finding taking into consideration." Assurance Co. of America v. Shepherd, 155 Ga. App. 36, 270 S.E.2d 268 (1980). All cited in The Home Depot, et al. v. McCreary, 306 Ga. App. 805, 703 S.E.2d 392 (2010).
Good Language

  • "The Board is presumed to be expert in its field and it has extensive experience in analyzing the circumstances of employment, the duties of employees, and the scope of coverage under the applicable statutes. We defer to their opinion on all issues of fact." Mayor and Aldermen of the City of Savannah v. Stevens, 271 Ga. App. 137, 608 S.E.2d 748 (2004).
Interlocutory Appeal and Interlocutory Order
  • An appeal of an interlocutory order is unauthorized under the Workers' Compensation Act. Nowhere in our workers' compensation statute is there a provision for an interlocutory appeal. The statute plainly, clearly, and unambiguously prescribes that only a final award, order, judgment or decision of the board is subject to appeal of the Superior Court. The Workers' Compensation Act makes no provision for appeal to the Superior Court from a decision by the full board other than one which grants or denies compensation. See, GAC, Mfg./Processing v. Busbin, 233 Ga. App. 406, 504 S.E.2d 270 (1998). See, also, Augusta Coca-Cola, et al. v. Smalls, 260 Ga. App. 465, 579 S.E.2d 873 (2003).
Power and Duty of Full Board on Appeal from the Administrative Law Judge
  • In 1994 the legislature re-wrote O.C.G.A. § 34-9-103(a) to remove the provision allowing the Division to hear additional evidence, and to provide that "the findings of fact made by the administrative law Judge in the trial division shall be accepted by the appellate division where such findings are supported by a preponderance of competent and credible evidence contained within the records." Clinical Arts & C. v. Smith, 218 Ga. App. 681, 462 S.E.2d 757 (1995). This puts the responsibility on the appellate division to weigh the evidence and assess the credibility of witnesses and if it determines that the Award of the ALJ is supported by a preponderance of admissible evidence, it will be accepted. But, if after assessing the evidence of record, the appellate division concludes that the Award does not meet the statutes' evidentiary standards, the appellate division may substitute its own alternative findings for those of the ALJ, and enter an Award accordingly. All cited above in Bankhead Enters. v. Beavers, 267 Ga. 506, 480 S.E.2d 840 (1997). All cited in The Home Depot, et al. v. McCreary, 306 Ga. App. 805, 703 S.E.2d 392(2010).
  • Accordingly, under the 1994 revisions of scope of review of the appellate division, the appellate division has subject matter jurisdiction to reconsider all of the ALJ's findings. Once done, upon a timely application, the superior court also has subject matter jurisdiction to consider the appeal. All cited in The Home Depot, et al. v. McCreary, 306 Ga. App. 805, 703 S.E.2d 392(2010).
Remanding by the Superior Court to the Full Board
  • A remand by the Superior Court without a formal set-aside is "in effect" a set-aside. See, O.C.G.A. § 34-9-105(b) and see, Fulton County Board of Education v. Nathaniel Taylor, Jr., 262 Ga. App. 512, 586 S.E.2d 51 (2003).

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