Department of Public Safety v. Boatright

Deen, Presiding Judge,

dissenting.

I must respectfully dissent from the majority opinion. I would agree, of course, that ordinarily the superior court, when sitting as an appellate tribunal, must construe the evidence in the light most favorable to the party prevailing below, OCGA § 34-9-105, Fulmer v. Aetna Cas. &c. Co., 85 Ga. App. 102 (68 SE2d 180) (1951); and the Board’s findings of fact, when supported by any evidence, are conclusive and binding upon the appellate court. Howard Sheppard, Inc. v. McGowan, 137 Ga. App. 408, 410 (224 SE2d 65) (1976). The superior court is not authorized to substitute its judgment for that of the Board, Horton v. Ga. Power Co., 164 Ga. App. 252 (296 SE2d 798) (1982), and is authorized to reverse the Board’s award only when there is plain error of fact or an error purely of law. Crawford W. Long Hosp. v. Mitchell, 100 Ga. App. 276 (111 SE2d 120) (1959).

In the instant case the superior court’s reversal and remand represented errors of both fact and law. Dealing with the factual issue first, we find that the ALJ plainly erred in finding as fact that “claimant did not miss any work after [the] collision [of December 1,1984],” apparently with no regard to claimant’s testimony or to the testimony and official report of his supervisor, who of course had first-hand knowledge not only that the accident had occurred but that Boat-right’s physical condition had begun to deteriorate as of that time; and in further finding that “claimant has not as a fact sustained his burden of proof that he sustained any accidental injury which rose out of and in the course of his employment on December 5, 1986, or *617at any other time.” A review of the medical evidence of record reveals nothing that would support the ALJ’s findings as against the deposition testimony of either claimant or his supervisor. When competent and clearly admissible evidence is simply not addressed, then there can — and in the instant case, does — exist the likelihood of a “plain error of fact” which arguably is sufficiently prejudicial to warrant reversal of the Board’s award.

Moreover, the superior court correctly found that the ALJ had erred as a matter of law in holding that the statute of limitations had run before Boatright filed his workers’ compensation claim. Case law in this area has consistently held that when an employee receives a work-related injury but returns to work without receiving workers’ compensation benefits, and then suffers such worsening or aggravation of the injury as to render him unable to perform his ordinary work, his inability to work will be denominated a “new injury” or “new accident”; and the date on which the disability to work manifests itself will be considered the date of the “new injury.” Central State Hosp. v. James, 147 Ga. App. 308, 310 (248 SE2d 678) (1978). A “new injury” may consist of either (1) a gradual worsening of the employee’s physical condition, at least partially attributable to his continuing work after the original uncompensated injury; or (2) a specific job-related injury which aggravates a pre-existing uncompensated injury or condition. Slattery Assoc. v. Hufstetler, 161 Ga. App. 389 (288 SE2d 654) (1982); see also Dairymen, Inc. v. Wood, 162 Ga. App. 430 (291 SE2d 763) (1982). No proof of a specific “new injury” is required; a worsening of a previous uncompensated injury sufficient to produce disability is all that is necessary. Central State Hosp. v. James, supra; House v. Echota Cotton Mills, 129 Ga. App. 350 (199 SE2d 585) (1973). See also Zurich Ins. Co. v. Cheshire, 178 Ga. App. 539 (343 SE2d 753) (1986); Hartford Accident &c. Ins. Co. v. Mauldin, 147 Ga. App. 230 (248 SE2d 528) (1978); Liberty Mut. Ins. Co. v. White, 139 Ga. App. 85 (227 SE2d 886) (1976); National Union Fire Ins. Co. v. Johnston, 122 Ga. App. 332 (177 SE2d 125) (1970); Mallory v. American Cas. Co., 114 Ga. App. 641 (152 SE2d 592) (1966). Fireman’s Fund Ins. Co. v. New, 110 Ga. App. 596 (139 SE2d 343) (1964).

In the instant case it is uncontroverted that claimant had not filed for workers’ compensation benefits. The evidence of record makes it clear that claimant’s 1984 injury arose out of and in connection with his job; that his employer received timely actual notice; that his physical condition underwent obvious changes for the worse between the accident and his disability retirement; that he missed a great deal of time from work and incurred a great many bills because of his worsening condition; and that his workers’ compensation claim was filed in November 1986. Since by definition the date of his injury *618was the date of his disability retirement in December of 1986, the November 1986 filing of the claim was timely.

Decided September 7, 1988 Rehearing denied September 30, 1988 Charles W. Barrow, A. Martin Kent, Michael J. Bowers, Attorney General, for appellant. Rudolph J. Chambless, Vernon L. Chambless, for appellee.

I respectfully dissent. I am authorized to state that Presiding Judge Banke joins in this dissent.