AUTOZONE, INC. Et Al. v. MESA

SECOND DIVISION
MILLER, P. J.,
DOYLE and REESE, 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

September 8, 2017

In the Court of Appeals of Georgia
A17A1294. AUTOZONE, INC. et al. v. MESA.

REESE, Judge.

The Appellant, Autozone, Inc., seeks review of a judgment of the Superior

Court of Columbia County that reversed a ruling of the State Board of Workers’

Compensation (“Board”), which denied certain benefits to the Appellee, Eulalia

Mesa.1 The Appellant contends that the superior court misapplied the “any evidence”

standard when reviewing the Board’s ruling and erred in finding that the

Administrative Law Judge (“ALJ”), who initially denied the Appellee’s claim, acted

“contrary to law.” For the reasons set forth, infra, we reverse.

1
This Court granted the Appellant’s application for discretionary review.
 Viewed in the light most favorable to the Appellant, as the party who prevailed

before the Board,2 the record reveals the following, undisputed facts.3 In November

2010, while the Appellee was working for the Appellant as a clerk and delivery

driver, the truck the Appellee was driving was “rear-ended” by another car, and the

accident injured her back and neck. She was treated in an emergency room, followed

by outpatient treatment, during which several physicians diagnosed her with neck and

lower back pain. Shortly after the accident, the Appellee returned to fully paid, full-

time work for the Appellant in a light-duty status, performing only clerical duties

because her medication made her too dizzy to drive a delivery truck. In January 2011,

a treating physician cleared her to drive the delivery truck, and she resumed her

delivery duties for the Appellant.

The Appellee continued to receive physical therapy for lower back pain and,

in February 2011, received a lumbar magnetic resonance imaging (“MRI”) scan. After

reviewing the lumbar scan, one of the Appellee’s physicians, Dr. John Rumbaugh,

2
See YKK (USA), Inc. v. Patterson, 287 Ga. App. 537 (652 SE2d 187) (2007).
3
The parties in this case waived an evidentiary hearing before the ALJ and agreed
that the ALJ would base its ruling on the parties’ briefs, their joint stipulations to many of
the relevant facts, and the Appellee’s medical records. These facts are drawn from the
stipulations and medical records.

2
opined that the scan was “normal.” In June 2011, the Appellee was referred to Dr.

Allen Goodrich, who determined that her lumbar MRI scan showed a “completely

normal disk and spinal canal,” opined that she had reached her maximum medical

improvement, and released her to full work duties. Dr. Goodrich’s records from

August 2011 stated that, in his opinion, the Appellee had no conditions that required

surgical intervention.

In September 2011, the Appellee underwent another lumbar MRI scan. Dr.

Amar Rajadhyaksha opined that the scan showed no gross disc herniations, spinal

stenosis, or nerve root impingement, nor did it indicate any conditions that could be

actively treated. His physical examination of the Appellee showed no focal sacroiliac

joint tenderness, and the results of his clinical tests were negative. Based on these

findings, he placed the Appellee at maximum medical improvement with no work

restrictions and issued a zero percent impairment rating.

The same month, the Appellee was evaluated by a physical therapist, who

opined that, in order to address the Appellee’s lower back pain, she needed “skilled

rehabilitative therapy in conjunction with a home exercise program,” with visits to

the therapist three times a week for four weeks. According to the therapist, the

Appellee’s “[o]verall rehabilitation potential is good.” Despite the recommended

3
frequency of visits, however, the record does not show that the Appellee attended

more than one other physical therapy session, which was conducted a week after the

first.

In October 2011, the Appellee saw Dr. Tamar Ference, who ordered MRIs and

x-rays of the Appellee’s cervical and lumbar spine. The Appellee’s cervical spine

MRI showed “no significant abnormality.” Dr. Ference recommended that the

Appellee get physical therapy and that she not work until her condition improved.

In January 2012, the Appellee was examined by Dr. Jonathan Hyde, who

ordered a lateral lumbosacral x-ray that, upon review, he considered to be “normal.”

He also reviewed two separate MRIs performed in 2011 by prior physicians and

found no disc herniations or significant desiccation. Dr. Hyde recommended an

electromyogram (“EMG”) with nerve conduction study, the results of which were

determined to be “unremarkable.” Dr. Hyde also performed a diagnostic right

sacroiliac joint injection using fluoroscopy, and the Appellee reported that the

procedure provided one to two days of significant pain relief. Dr. Hyde opined that

the injection was diagnostically positive for sacroiliac dysfunctional pain. Dr. Hyde

recommended a surgical fusion of the Appellee’s right sacroiliac joint, also known

as arthrodesis, and classified her as “off work status.” The Appellee declined to

4
undergo the surgery and continued to work for the Appellant until March 2012, when

she stopped working, reportedly due to back pain. Dr. Hyde then restricted the

Appellee to light-duty work, and she received total temporary disability benefits until

April 2012.

The Appellee had three appointments with Dr. Hyde over the next two and a

half years to address her complaints of ongoing back pain. Following the Appellee’s

visit in May 2012, Dr. Hyde noted that “[t]his patient is fully capable of working

within the restrictions given. There is no change in restrictions. The only question is,

does she want to go back to work?” During the Appellee’s visit in September 2013,

Dr. Hyde ordered a lateral lumbosacral x-ray, and he concluded that the image

showed no changes from previous images of the same area that were considered

“normal.” During an appointment with the Appellee over a year later, in December

2014, Dr. Hyde did not conduct any additional tests, although he again noted that the

Appellee’s lumber MRIs from 2011 were “normal.” However, he recommended a

surgical sacroiliac joint fusion to address her right-side sacroiliac dysfunction pain.

The Appellee decided to have the surgery and sought approval for it under workers’

compensation.

5
 In April 2015, the Appellant sent the Appellee for an independent medical

evaluation (“IME”) with Dr. Peter Millheiser, who performed a physical examination

of the Appellee and reviewed her medical records from other treating physicians,

including Dr. Hyde, as well as all of the x-rays, MRIs, and test results. Dr. Millheiser

diagnosed the Appellee with a right sacroiliac joint sprain, a cervical sprain, and a

lumbar sprain. Still, he found no evidence of sacroiliac dysfunction or permanent

impairment. He opined that the Appellee was able to do regular daily activities and

regular work without restrictions, and concluded that she was at an “endpoint” in

treatment. The Appellee had no other medical appointments or treatment related to

her work injury after her examination by Dr. Millheiser in April 2015.

In addition to these facts, it is undisputed that, although the Appellee was

unemployed for two years after leaving her job with the Appellant in March 2012, she

became a nanny for a family with a six-year-old boy in March 2014, working six to

seven hours per day, five days per week caring for the boy and performing household

chores. It follows that the Appellee was employed as a full-time nanny at the time she

saw Dr. Hyde in December 2014 and Dr. Millheiser in April 2015, and was still

employed there in April 2016, after she filed the instant workers’ compensation claim.

6
 The Appellant denied responsibility for the Appellee’s sacroiliac joint fusion

surgery, and the parties agreed to have the ALJ resolve the matter on the submission

of briefs and documentary evidence alone, without a hearing, as the only issue to be

decided by the ALJ was whether the sacroiliac joint fusion surgery was reasonable

and necessary. After reviewing the evidence and the briefs, the ALJ denied the

Appellee’s request for benefits, finding that the surgery was not reasonable or

necessary. The ALJ based his finding “particularly” on Dr. Millheiser’s opinion that

the Appellee had no sacroiliac joint dysfunction as of April 2015. The ALJ explained

that he was not persuaded by Dr. Hyde’s opinion because Dr. Millheiser’s April 2015

opinion was supported by numerous earlier medical opinions finding no joint

dysfunction.

The Appellee appealed to the Board, which adopted the ALJ’s decision, finding

that the ALJ was in the best position to determine the credibility and weight of

evidence in the record. The Board adopted the ALJ’s findings of fact on the basis they

were supported by a preponderance of competent and credible evidence, and stated

that the ALJ appropriately applied the law to those findings.4

4
See OCGA § 34-9-103 (a) (If a ruling by the ALJ is appealed to the Board, the
ALJ’s findings of fact “shall be accepted by the [Board] where such findings are supported
by a preponderance of competent and credible evidence contained within the records.”).

7
 The Appellee sought review in the superior court,5 which set aside the Board’s

decision and ruled in favor of the Appellee. The court stated that it conducted only

a limited review of the factual findings of the ALJ and Board, acknowledging that

those facts were conclusive and binding upon the court if they were supported by any

evidence and the court was not authorized to substitute itself as a fact-finding body.

Even so, the court found that the record contained “no objective medical evidence”

that the proposed surgery was not “reasonably required and calculated to effect a

cure, give relief, or restore the [Appellee] to suitable employment.” The court

explained that Dr. Hyde based his diagnosis and recommendation for surgery on the

results of a diagnostic sacroiliac joint injection, unlike Dr. Millheiser, who performed

no “medical testing of any kind” on the Appellee but, instead, relied upon his physical

examination of the Appellee and his review of her medical records and test results.

The court also found that the decision of the ALJ and the Board was contrary to law,

because OCGA § 34-9-200 (a)6 requires an employer to provide benefits for treatment

5
See OCGA § 34-9-105 (b).
6
OCGA § 34-9-200 (a) (1) provides, in relevant part, as follows:
For all injuries occurring on or before June 30, 2013, . . . the employer shall
furnish the employee entitled to benefits under this chapter such medical,
surgical, and hospital care and other treatment, items, and services which are
prescribed by a licensed physician, . . . which in the judgment of the State

8
 to injured workers that is prescribed by a licensed physician in order to provide relief

for work-related injuries. The court expressed its concern that the Board relied on the

strength of Dr. Millheiser’s opinion in relieving the Appellant of its “obligation to

furnish medical treatment prescribed by the [Appellee’s] authorized treating

physician.” Consequently, the court set aside the Board’s decision and remanded the

case “for further review in keeping with the findings of this Court.” This appeal

followed.

In reviewing an award of workers’ compensation benefits, both
the superior court and this Court are required to construe the evidence
in a light most favorable to the party prevailing before the State Board.
It is axiomatic that the findings of the Board, when supported by any
evidence, are conclusive and binding, and that neither the superior court
nor this Court has any authority to substitute itself as a fact finding body
in lieu of the Board.7

Board of Workers’ Compensation shall be reasonably required and appear
likely to effect a cure, give relief, or restore the employee to suitable
employment.
7
YKK (USA), Inc., 287 Ga. App. at 537 (citations and punctuation omitted). See
OCGA § 34-9-105 (c) (4), (5) (The Board’s findings shall be conclusive upon the superior
court unless, inter alia, there is not sufficient competent evidence to warrant the Board’s
decision or the Board acted contrary to law.).

9
 “The question of whether the trial court applied the correct legal standard in

evaluating the evidence, however, is one of law, which we review de novo.”8 With

these guiding principles in mind, we turn now to the Appellant’s specific claims of

error.

In two related enumerated errors, the Appellant contends that the trial court

misapplied the “any evidence” standard of review to the conclusion by the ALJ and

Board that the joint fusion surgery was not reasonable or medically necessary.

According to the Appellant, the court improperly construed the “any evidence”

standard so that it was only required to consider medical opinions if they were

supported by “objective medical evidence.” Further, the Appellant argues that the

court erred in finding that the award of the ALJ and the Board was “contrary to law”

on the basis that the ALJ assigned greater weight to Dr. Millheiser’s opinion than to

Dr. Hyde’s opinion. The Appellant contends that the court’s order shows that it

impermissibly substituted its own judgment for that of the ALJ as to the weight to be

assigned to the conflicting opinions of Dr. Hyde and Dr. Millheiser.

8
Harris v. Peach County Bd. of Commrs., 296 Ga. App. 225, 225-226 (674 SE2d
36) (2009) (citation and punctuation omitted).

10
 It is axiomatic that, when a Board’s decision is appealed to the superior court,

the Board’s decision is deemed conclusive and may not be set aside unless the court

finds that there was insufficient competent evidence to support the decision, the

decision is contrary to law, or another specific statutory basis exists.9 In making this

determination, the court is not authorized to disregard competent evidence that it

believes is not credible, reweigh the evidence, or resolve conflicting evidence, as

these powers are reserved solely for the ALJ and the Board.10

In this case, there was substantial competent evidence to support the conclusion

of the ALJ and the Board that the joint fusion surgery was not reasonable or

medically necessary. As shown above, it is undisputed that all of the Appellee’s x-

rays, MRI scans, and nerve conduction tests were deemed “normal” and/or

9
See OCGA § 34-9-105 (c) (4), (5); see also OCGA § 34-9-105 (d) (“No decision
of the [B]oard shall be set aside by the court upon any grounds other than one or more of
the grounds stated in subsection (c) of this Code section.”).
10
See YKK (USA), Inc., 287 Ga. App. at 539 (2) (“It is well established that an award
of the Board will not be disturbed where there is any evidence to support it. It is within the
province of the Board to determine the weight and credit to be given to the testimony of
the witnesses, including the opinion testimony of physician witnesses, and to resolve issues
of fact arising from conflicts in the evidence. Furthermore, it is well settled that opinions
of medical experts are advisory only and may be accepted or rejected by the [B]oard.”)
(citations and punctuation omitted); see also Bibb County Bd. of Ed. v. Bembry, 286 Ga.
App. 878, 879-880 (650 SE2d 427) (2007) (It is within the province of the Board to
resolve issues of fact arising from contradictory opinions of physician witnesses.).

11
 “unremarkable.” Moreover, several physicians who examined the Appellee over the

years, in addition to Dr. Millheiser, found no pathology or other condition that

required joint fusion surgery. Thus, the superior court was not authorized to reverse

the ruling of the ALJ and the Board based upon a lack of supporting competent

evidence.11

Further, while Dr. Millheiser did not conduct any “objective” medical tests on

the Appellee, it is undisputed that he examined her and reviewed all of her medical

records and test results, including the results of the diagnostic injection that Dr. Hyde

apparently relied upon exclusively in making his diagnosis and recommendation for

surgery. Thus, both physicians relied upon the same results of “objective” medical

tests in reaching their opinions. It appears that they simply disagreed as to whether

the results of the diagnostic injection demonstrated the need for the recommended

surgery. As stated above, it was for the ALJ and the Board to determine which

opinion was more credible and resolve this conflict, not the superior court.12

11
See YKK (USA), Inc., 287 Ga. App. at 539 (2); Bibb County Bd. of Ed., 286 Ga.
App. at 881.
12
See YKK (USA), Inc., 287 Ga. App. at 539 (2).

12
 Consequently, we conclude that the superior court exceeded its authority when

it substituted itself as the factfinder in lieu of the ALJ and the Board and assigned less

credibility and weight to Dr. Millheiser’s opinion simply because the physician had

not conducted additional “objective” medical tests on the Appellee before reaching

a diagnosis.13 Because the court’s order was based upon an impermissible resolution

of a conflict in the evidence, it erred in reversing the decision of the Board.14

Judgment reversed. Miller, P. J., and Doyle, J., concur.

13
See Hughston Orthopedic Hosp. v. Wilson, 306 Ga. App. 893, 897 (1) (703 SE2d
17) (2010); Bibb County Bd. of Ed., 286 Ga. App. at 881.
14
See OCGA § 34-9-105 (c), (d); see also YKK (USA), Inc., 287 Ga. App. at 539-540
(2).

13