VMW, Inc. v. Foster , 185 Ga. App. 405 ( 1987 )

Benham, Judge,

concurring in part and dissenting in part.

I agree that the superior court acted correctly in remanding the case for reconsideration in light of Mercer’s deposition testimony and, accordingly, that we should affirm the court’s judgment, but I disagree with the majority’s reasoning and direction. It is my opinion that the evidence, while not “newly discovered,” was still “additional evidence.” See Rule 103 (c) and (d) of the Rules and Regulations of the State Board of Workers’ Compensation, Appendix to OCGA Title 34, Ch. 9, as amended. Since the superior court’s act of remanding was correct, although not for the reason stated in its order, it should be affirmed, but without the direction as indicated by the majority. Matthews v. Matthews, 238 Ga. 201, 204 (232 SE2d 76) (1977). Moreover, I do not see that it will save the litigants time and resources or that it will expedite final resolution of the case to send it back to the board to act as the majority requires.

I am authorized to state that Presiding Judge McMurray joins in this opinion.