concurring specially in part and dissenting in part.
“When the right point of view is discovered, the problem is more than half solved.” Ellison v. Ga. R. Co., 87 Ga. 691, 706 (6) (13 SE 809). In this claim for workers’ compensation benefits, the ALJ awarded certain medical benefits to claimant, Sergeant Willie James Barnes, and also assessed OCGA § 34-9-108 (b) attorney fees against the employer, the City of Atlanta Police Department (the “City”). The Appellate Division of the State Board of Workers’ Compensation adopted the award as its own. The City originally controverted all liability, contending in October 1991 that Sergeant Barnes “did not have an accident arising out of and in the course of [his] employment.” In a preliminary award entered November 2, 1992, the ALJ found that this notice to controvert was not timely under OCGA § 34-9-221 and Board Rule 221, which provide that a notice to controvert must be filed within 21 days of the employer’s awareness of injury. The City subsequently accepted compensability yet attempted to controvert in part, on the ground that Dr. Kim’s services “were not authorized.”
A so-called stipulation between the employer and the employee that John P. Lenhart, M. D. (but not necessarily his clinic) was expressly approved by the employer, whereas the evidence showed that much of the medical services were actually provided by Joon-Whee Kim, M. D. The letterhead of NMS Diagnostics lists Joon-Whee Kim, M. D. immediately beneath that of John P. Lenhart, M. D. Dr. Kim “is employed by Dr. Lenhart as an independent contractor.” Sergeant Barnes was instructed by Dr. Lenhart that Dr. Kim “is the doctor that [will] work with [him]. When [Dr. Lenhart is] not here, he will treat you.”
Applying Capital Atlanta v. Carroll, 213 Ga. App. 214, 216 (3) (a) (444 SE2d 592), and “ ‘longstanding board policy that an employer’s denial of all liability for an alleged workers’ compensation *143claim is a justifiable circumstance in which the selection requirements of Code Section 34-9-201 do not apply/ ” the ALJ concluded that treatment by Dr. Kim at Dr. Lenhart’s clinic was not unauthorized merely because the Board had not been petitioned by Sergeant Barnes for a change in physician. The legal effect of this mixed determination of fact and law is, in essence, a finding that the City is es-topped to deny authorized coverage. However, the superior court reversed and remanded on this point. The superior court, applying Lee Fabricators v. Cook, 203 Ga. App. 450 (417 SE2d 35), concluded that OCGA §§ 34-9-200 (b) and 34-9-201 (d) “ ‘prescribe the exclusive method for changing physicians or treatment, including any change affected by the referral of the employee by the employer-approved physician to another physician pursuant to OCGA § 34-9-201 (c).’ ” (Emphasis in original.) I agree with Sergeant Barnes that the superior court erred in remanding the case to the State Board. The evidence supports the determination by the ALJ that the employer is estopped to controvert on the ground that Dr. Kim is not an authorized physician. To the extent that estoppel is a factual question, both the superior court (acting in its appellate capacity) and this Court are bound by that finding of estoppel. OCGA § 34-9-105 (a). To the extent that estoppel is a question of law, it is incumbent upon the superior court and this Court to give great deference to the policy determinations of the agency charged with administering the workers’ compensation laws. See Environmental Waste Reductions v. Legal Environmental Assistance Foundation, 216 Ga. App. 699, 701 (2), 702 (455 SE2d 393). See also Mason v. Service Loan &c. Co., 128 Ga. App. 828, 829 (3), 831 (198 SE2d 391). As it is my view that the superior court erroneously ignored the finding of estoppel made by the ALJ, I do not join in the majority’s discussion of whether the latest enactments by the General Assembly are to be given retroactive or prospective application. In my view, the majority strays from the relevant inquiry by failing to address the binding effect of the City’s tardy initial notice to controvert. I disagree that the provisions of OCGA §§ 34-9-200 and 34-9-201 (requiring Board approval for a change of physicians) are applicable in the case sub judice and so I respectfully dissent from the judgment of affirmance.
“As a general rule, a claimant cannot change to a new treating physician without petitioning the board for approval under OCGA § 34-9-200 (b). Nonetheless, if the employer is failing to provide medical care, the claimant need not seek approval before going to a new doctor, and the employer cannot later complain that the treatment was unauthorized. This is because the statutory requirement of petitioning for approval of a change presupposes present treatment is being allowed and is appropriate only if existing medical assistance still continues.” (Citations and punctuation omitted.) Wright v. Overnite *144Transp. Co., 214 Ga. App. 822 (1), 823 (449 SE2d 167). At the time the ALJ decided the case sub judice, the General Assembly had “amended OCGA § 34-9-201 to specify that referrals for ancillary medical services do not require authorization from the Board, thereby legislatively overruling Lee Fabricators [v. Cook, 203 Ga. App. 450, supra] and Brown [v. Transamerica, IMS, 200 Ga. App. 272 (1) (407 SE2d 430)] as of July 1, 1994, the effective date of the bill. [Ga. L. 1994, p. 895, § 11 (b) (2).]” Capital Atlanta v. Carroll, 213 Ga. App. 214, 216 (3), 217 (3) (b), supra. Nevertheless, in its order of November 2, 1994, the superior court erroneously applied this legislatively overruled case law as authority requiring a remand in the case sub judice, and in this Court, the employer continues to cite this legislatively overruled case law. “[A] reviewing court should apply the law as it exists at the time of its judgment rather than the law prevailing at the rendition of the judgment under review. . . .” (Emphasis in original.) City of Valdosta v. Singleton, 197 Ga. 194, 206 (3), 208 (28 SE2d 759). Moreover, I agree with the ALJ that the employer’s original (and tardy) notice to controvert liability vel non acts as a waiver of the subsequently asserted position that Dr. Kim was not an authorized physician. “The law of workers’ compensation generally requires that the employee will be liable for non-authorized treatment if the expenses are incurred without giving the employer an opportunity to furnish treatment; if[, however, as in the case sub judice,] the employer does not adequately meet the duty of providing treatment the employee may make other arrangements and once treatment by a physician is undertaken an employer may not change positions and cut off the right to continue such treatment.” (Citation omitted.) Boaz v. K-Mart Corp., 254 Ga. 707, 709 (1), 710 (334 SE2d 167). “Since the award of the [ALJ, as approved by the Appellate Division,] was supported by ‘any evidence,’ an affirmance by the superior court was mandated.” Bel Arbor Nursing Home v. Johnson, 192 Ga. App. 454 (385 SE2d 315). In my view, the superior court erred in failing to affirm the award of medical benefits and further erred in failing to affirm the award of OCGA § 34-9-108 (b) attorney fees. Ordinarily, when a judgment is the result of an erroneous legal theory, a reversal is mandated. All Phase Elec. Supply Co. v. Foster & Cooper, Inc., 193 Ga. App. 232, 233 (2) (387 SE2d 429). As my colleagues in the majority would nevertheless affirm, I respectfully dissent.
Decided October 31, 1995 Reconsideration denied November 27, 1995. Robert R. Pagniello, Leslie A. Lunsford, for appellant. *145Bruce P. Johnson, for appellee.