dissenting.
The question is whether, on remand from the superior court in this case, the appellate division is finding facts or applying the law to facts found by the ALJ.
In order for claimants to carry their burden of showing a change in condition as a result of compensable injuries, they must show that their inability to secure suitable employment elsewhere was proximately caused by their previous accidental injuries. In Aden’s Minit Market v. Landon, 202 Ga. App. 219 (413 SE2d 738) (1991), this Court held that in order to meet this burden, it was necessary for claimants to show the reasons they were not hired by prospective employers. This holding was overruled in Maloney v. Gordon County Farms, 265 Ga. 825 (462 SE2d 606) (1995), wherein the Supreme Court held that in order to receive workers’ compensation benefits based on a change in condition, a claimant must establish that he or she suffered a loss of earning power as a result of a compensable work-related injury; continues to suffer physical limitations attributable to that injury; and has made a diligent, but unsuccessful effort to secure suitable employment following termination.
In this case, the ALJ found that the employee has ongoing symptoms causally related to his on-the-job injury, and that he sought employment at several possible employers and was rejected, but that this proof is not sufficient to meet his burden as the record is silent on the reasons why he was not hired by any of these other employers. The appellate division affirmed. The superior court reversed under Maloney. On remand, the appellate division accepted the ALJ’s findings and went on to state that a preponderance of the evidence shows that the employee has attempted a diligent, unsuccessful search and *239has met the standard for determining change-in-condition set out in Maloney.
The majority concludes that the appellate division was entitled to make that determination because the only question presented was one of applying known facts to a different legal standard. But the ALJ did not expressly find that the employee made a diligent job search. Thus the appellate division is improperly finding facts de novo.
The ALJ is the true factfinder without de novo factfinding by the appellate division of the Board, and the appellate division must accept the ALJ’s finding when “supported by a preponderance of competent and credible evidence contained within the record” (OCGA § 34-9-103). The appellate division cannot make findings of fact in the first instance when a different test is created by the Supreme Court and the case is remanded. The question is not whether there is enough evidence in the record for the appellate division to find that the claimant met his burden of proof under Maloney, but rather whether the factfinder, the ALJ, would so find. The inferences which may be drawn are to be drawn by the factfinder. When the Supreme Court said in Maloney that the “Board may draw reasonable inferences,” it had to have meant the ALJ, who constitutes a part of “the trial division” of the Board. OCGA § 34-9-103 (a).
This is not a question of whether the appellate division must strictly comply with the superior court’s remand order. It is rather a question of “who decides.” Who has the authority to make findings of fact about what claimant proved or did not prove? It is the ALJ. Whether the ALJ allows a reopening of the evidence is another question. The employer and the insurer say they must have opportunity to present more evidence, as a matter of due process, but the ALJ may decide he has enough to find claimant met his burden. Regardless, the issue of fact is to be decided by the ALJ.
The majority cites Harrell v. City of Albany Police Dept., 219 Ga. App. 810, 812 (2) (466 SE2d 682) (1996); Buckner v. Bibb Yarns, 219 Ga. App. 850 (467 SE2d 183) (1996); and Distribution Concepts Co. v. Hunt, 221 Ga. App. 449, 450 (2) (471 SE2d 539) (1996). In Harrell, we remanded to the appellate division for reconsideration in light of Maloney after holding that the appellate division was authorized to substitute its finding for that of the ALJ on the question of whether the employee made a diligent effort to secure suitable employment. In Buckner, the ALJ found that the employees made diligent but unsuccessful efforts to secure suitable employment elsewhere but that they had not carried their burden of proof under Aden’s Minit Market and Autolite v. Glaze, 211 Ga. App. 780 (440 SE2d 497) (1994). The appellate division distinguished these decisions and opined that Aden’s Minit Market should be limited to its facts and *240Autolite overruled. After they were overruled in Maloney, we affirmed the appellate division. In Hunt, the question was whether the appellate division had abused its discretion in refusing to remand the case to the ALJ for the consideration of testimony claimed to be newly discovered evidence.
Decided October 16, 1996. Kinney, Kemp, Pickell, Sponcler & Joiner, Maurice Sponcler, Jr., for appellants. Craig & Elrod, Gene F. Cantrell, for appellee.I am authorized to state that Judge Andrews joins in this dissent.