SECOND DIVISION
ANDREWS, P. J.,
MCFADDEN and RAY, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules/
March 25, 2015
In the Court of Appeals of Georgia
A14A1633. SAVE-A-LOT FOOD STORES et al. v. AMOS.
MCFADDEN, Judge.
This appeal is by an employer from a superior court order reversing an
administrative denial of workers’ compensation benefits to an employee. Although
the superior court ruled that the State Board of Workers’ Compensation held the
employee to an unfairly heightened standard of proof, a review of the decisions of the
appellate division and the administrative law judge shows otherwise. Accordingly,
we reverse.
1. Facts and procedural posture.
On appeal from an award of the Appellate Division of the State
Board of Workers’ Compensation, this [c]ourt examines the record to
see if there is competent evidence to support the award and construes the
evidence in a light most favorable to the prevailing party. It is axiomatic
that the findings of the State Board of Workers’ Compensation, when
supported by any evidence, are conclusive and binding, and that neither
the superior court nor this [c]ourt has any authority to substitute itself as
a fact finding body in lieu of the [b]oard. However, erroneous
applications of law to undisputed facts, as well as decisions based on
erroneous theories of law, are subject to the de novo standard of review.
Bonner-Hill v. Southland Waste Systems, 330 Ga. App. 151, 153 (___SE2d___)
(2014) (citations and punctuation omitted).
The record shows that James Amos sought workers’ compensation benefits,
claiming that he was disabled as the result of a work-related stroke. His employer,
Save-A-Lot Food Stores, and its workers’ compensation carrier, Old Republic
Insurance Company (collectively, “Save-A-Lot”), controverted the claim. A hearing
on Amos’ claim was held before an administrative law judge (“ALJ”).
At the hearing, Amos testified that on August 5, 2011, he was at work when he
became dizzy and flushed while unloading pallets of meat weighing between 15 and
60 pounds. He took a short break and then continued working, but found himself
miscounting items, losing his balance and becoming confused. He had a severe
headache, water was dripping from his right eye, and the left side of his body felt
weak. Amos was driven to the hospital, where he was admitted for three days.
Amos’ family doctor, Melanie Shorter, opined that Amos had suffered a stroke
and that job-related stress was a contributing factor that led to it. She also identified
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Amos’ tobacco use, uncontrolled diabetes, hypoadenia, inactivity, and family history
as other possible factors. Dr. Michael Frankel, a neurologist who specializes in
strokes and is the director of a hospital stroke and neuroscience center, testified that
Amos’ magnetic resonance imaging (MRI) testing and other medical records showed
no evidence of a stroke. Dr. Frankel further testified that it is not clear whether stress
is a real factor for stroke and that Amos had most of the other known significant risk
factors for stroke, including diabetes, family history and smoking. Another
neurologist, Dr. Abdul Qadir, who had treated Amos, found no objective evidence
that he had suffered a stroke and that the etiology of his symptoms was unclear. Dr.
Qadir further noted that Amos’ MRI did not demonstrate any stroke and he
questioned whether the incident had been initiated by a “vascular or hypoglycemic
event[.]”
Following the hearing, the ALJ entered an order denying Amos’ request for
benefits. The ALJ found that Amos had not shown that he suffered a stroke, and that
even if he had, the stroke was not caused by work stress. Accordingly, the ALJ
concluded that Amos was not entitled to workers’ compensation benefits because he
had “failed to prove by a preponderance of competent and credible evidence that he
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suffered a stroke arising out of, and in the course of, his employment with [Save-A-
Lot] on or about 8/5/2011.”
Amos appealed to the state board’s appellate division, complaining that the
ALJ had unfairly held him to a heightened standard of proof. Amos pointed to the
following portion of the ALJ’s order:
Employee has the burden of proof and must show that he sustained an
injury which arose out of and in the course of his employment and that
disability resulted from the injury. The standard of proof on all factual
questions is by a preponderance of the credible evidence. Employee is
required to meet a higher standard of proof to establish that his alleged
stroke is compensable. That proof must also be supported by medical
evidence. (Citations omitted, emphasis supplied.)
The appellate division affirmed the decision of the ALJ, finding that the
preponderance of competent and credible evidence showed that Amos had not
suffered a compensable injury. With respect to the “higher standard of proof”
language emphasized above, the appellate division ruled as follows:
To the extent that the administrative law judge referenced in paragraph
13 of the award that the Employee is required to meet a higher standard
of proof to establish that his alleged stroke is compensable in this case,
we find he so erred. As such, based upon the foregoing, the third
sentence of paragraph 13 of the findings of fact and conclusions of law
is stricken. (Citations omitted.)
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Amos then appealed to the superior court, which reversed the appellate
division. The court ruled that the ALJ’s “higher standard of proof” language was
erroneous and that the appellate division had recognized the error but had failed to
correct it. The court noted that the appellate division referred to “the wrong page and
paragraph of the original Award” and improperly adopted the ALJ’s factual findings.
Accordingly, the superior court reversed the appellate division’s award and remanded
the case to the state board “with instructions to conduct a new trial and issue new and
complete findings of fact and conclusions of law.”
Save-A-Lot filed an application for discretionary review of the superior court’s
order. This court granted the application, and Save-A-Lot then filed a timely notice
of appeal.
2. Burden of proof.
OCGA § 34-9-1 (4) provides that a compensable injury under the Workers’
Compensation Act does not include “heart disease, heart attack, the failure or
occlusion of any of the coronary blood vessels, stroke, or thrombosis unless it is
shown by a preponderance of competent and credible evidence, which shall include
medical evidence, that any of such conditions were attributable to the performance
of the usual work of employment.” (Emphasis supplied.) Thus, an employee seeking
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workers’ compensation benefits based on a stroke “must produce some medical
evidence to support a claim for benefits.” AFLAC v. Hardy, 250 Ga. App. 570, 571
(552 SE2d 505) (2001) (citation omitted) (involving heart attack).
Contrary to the finding of the superior court, the ALJ and the appellate division
did not impose on Amos a burden of proof higher than the applicable preponderance
of competent and credible evidence standard set forth in OCGA § 34-9-1 (4). A
review of the ALJ’s decision shows that he cited the appropriate preponderance of the
evidence standard three separate times. Moreover, the ALJ expressly concluded that
Amos had “failed to prove by a preponderance of competent and credible evidence
that he suffered a stroke arising out of his employment[.]” Thus, it is apparent that the
ALJ applied the correct standard of proof.
Although the ALJ did state, in the portion of its decision cited above, that
Amos was “required to meet a higher standard of proof to establish that his alleged
stroke is compensable,” the ALJ never identified any such higher standard of proof
beyond preponderance of the evidence. Rather, it is clear from the context of this
statement that the ALJ was merely referring to the statutory requirement that Amos
support his stroke claim with medical evidence. The ALJ supported the “higher
standard” sentence with a citation to AFLAC v. Hardy, supra, a case discussing the
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medical evidence requirement. Moreover, the ALJ expressly referenced that medical
evidence requirement in the next sentence, supported by a citation to OCGA § 34-9-1
(4).
Like the ALJ, the appellate division also identified and applied the correct
standard of proof. In its decision, the appellate division cited the correct standard
twice. It first emphasized that the ALJ had made his findings based on “a
preponderance of the competent and credible evidence.” (Emphasis in original.) The
appellate division then went on to conclude that, based on its review of the record,
the ALJ’s findings were supported “by a preponderance of competent and credible
evidence.” Nowhere in the appellate division’s decision is there any indication that
it applied an improper heightened standard of proof on Amos. On the contrary, the
appellate division took the extra step of actually finding that to the extent the ALJ’s
reference to a “higher standard of proof” could be considered error, it was struck.
We note that even this court, like the ALJ, has referred to the statutory
requirement of additional medical evidence in certain workers’ compensation claims,
such as heart attack and stroke, as being a “higher standard of proof.” In the case of
Parham v. Swift Transp. Co., 292 Ga. App. 53, 56 n. 3 (663 SE2d 769) (2008), which
did not involve an injury requiring medical evidence, this court distinguished AFLAC
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v. Hardy, supra, by noting that the injury at issue in that case “was a heart attack,
which requires that claimants meet a higher standard of proof to establish
compensability.” As with the ALJ in the instant case, this was not a reference to a
standard of proof higher than preponderance of the evidence, but was merely a way
of expressing the additional evidentiary requirement of medical evidence in such
cases. See generally East v. Stephens, 292 Ga. 604, 606 (740 SE2d 156) (2013) (when
a judgment is susceptible of two meanings, one of which would render it illegal and
the other proper, the construction which will render legal, if reasonably possible, shall
be given).
Because the appellate division’s decision did not apply the wrong standard of
proof and because there was evidence in the record to support the appellate division’s
ruling that Amos did not suffer a compensable, work-related injury, the superior court
was required to accept the appellate division’s findings. See Pitts v. City of Rome, 256
Ga. App. 278, 280-281 (1) (568 SE2d 167) (2002) (affirming denial of claim based
on stroke under “any evidence” standard where there were conflicting medical
opinions); Reynolds Constr. Co. v. Reynolds, 218 Ga. App. 23, 25-26 (459 SE2d 612)
(1995). The superior court’s ruling to the contrary was therefore erroneous and is
hereby reversed.
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Judgment reversed. Andrews, P. J., and Ray, J., concur.
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