STARWOOD HOTELS & RESORTS Et Al. v. LOPEZ. , 813 S.E.2d 792 ( 2018 )

FIFTH DIVISION
MCFADDEN, P. J.,
RAY and RICKMAN, 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
May 15, 2018
In the Court of Appeals of Georgia
A18A0552. STARWOOD HOTELS & RESORTS et al. v. LOPEZ.
RICKMAN, Judge.
In this workers’ compensation action, claimant Mariana Marcel Lopez sought
a reinstatement of temporary total disability benefits from her former employer
Starwood Hotels & Resorts Worldwide, Inc., and its insurance company, American
Zurich Insurance Company c/o Sedgwick CMS (collectively “Starwood”), alleging
that she had suffered a change in condition for the worse. The administrative law
judge (“ALJ”) issued an award granting Lopez temporary total disability benefits and
also concluding that Starwood’s request for a hearing amounted to a controvert of the
claim, entitling Lopez to choose her own treating physician, with Starwood liable for
the payment of all outstanding and reasonable necessary medical expenses. Starwood
appealed the award to the Appellate Division of the State Board of Workers’
Compensation (the “Board”) and the Board affirmed the award of temporary total
disability benefits. However, the Board reversed the finding of the ALJ that Lopez
was entitled to choose her own physician and, accordingly, found that Starwood was
not liable for the medical expenses from unauthorized providers.
Lopez appealed the Board’s decision reversing the ALJ’s finding that she was
entitled to choose her own physician to the superior court. The superior court
affirmed the award of temporary total disability benefits, but reversed the Board’s
finding that because Starwood controverted the claim, the employee was entitled to
treatment from a physician of her choice with Starwood liable for all outstanding
medical bills. We granted Starwood’s application for discretionary review and, for the
following reasons, we affirm in part and reverse in part.
In reviewing a workers’ compensation award, this Court must
construe the evidence in the light most favorable to the party prevailing
before the appellate division. In addition, the findings of the State Board
of Workers’ Compensation, when supported by any evidence, are
conclusive and binding, and neither the superior court nor this Court
may substitute itself as a factfinding body in lieu of the State Board. But
erroneous applications of law to undisputed facts, as well as decisions
based on erroneous theories of law, are subject to a de novo standard of
review.
2
(Citation and punctuation omitted.) The Medical Center v. Hernandez, 319 Ga. App.
335-336 (1) (734 SE2d 557) (2012).
So construed, the record shows that Lopez worked as a banquet server at a
hotel owned by Starwood. On July 6, 2014, Lopez slipped and fell on her elbow.
Although Lopez experienced pain in her elbow, she did not seek immediate medical
attention because she thought the problem would resolve itself. A few days after the
accident, the employee’s supervisor insisted that she see a doctor.
Lopez was shown the approved panel of physicians by the director of Human
Resources for Starwood and she initially went to a medical center where it was
confirmed that she suffered a right elbow fracture. Lopez then followed up with an
approved orthopedic specialist (“the treating physician”) who treated her with
painkillers, a sling, and physical therapy. Lopez’s condition improved and in
November 2014, the treating physician authorized her return to full duty work.
Starwood paid Lopez temporary total disability benefits for the period of July 13,
2014 through November 24, 2014.
When Lopez returned to work, the hotel had changed management from
Starwood to Expotel Hospitality Services, LLC.1 Lopez was assigned to a different
1
Expotel is not a party to this appeal.
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position which required fewer physical duties. However, Lopez experienced pain in
her right elbow and, in July 2015, stopped working due to the severity of the pain.
While working for Expotel, Lopez began treatment with two physicians she selected
herself without approval from Starwood or Expotel.
On June 29, 2015, Lopez sought the reinstatement of temporary total disability
benefits from Starwood as a result of her July 2014 injury. Subsequently, in January
2016, Starwood filed a WC-14 hearing request, seeking a determination as to whether
it was still liable for benefits.2
Following a hearing, the ALJ found that Lopez suffered a change in condition
for the worse and issued an award granting her total temporary disability benefits.
Additionally, the ALJ concluded that Starwood’s WC-14 hearing request amounted
to a controvert of the claim, entitling Lopez to choose her own treating physician
effective the date of the filling of the hearing request, with Starwood liable for the
payment of all outstanding and reasonably necessary medical expenses.
2
This filing is not included in the record but the ALJ took judicial notice of the
document. In its brief on appeal, Starwood challenged the existence of the document
because it is not in the record, but appeared to concede the point at oral argument.
Regardless, the argument lacks merit. In its award, the ALJ clearly stated that it was
taking judicial notice of Starwood’s WC-14 hearing request. See OCGA § 24-2-201
(c) (“A court may take judicial notice, whether or not requested by a party.”).
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Starwood appealed this award to the Board. The Board agreed with the ALJ’s
finding that Lopez experienced a change in condition for the worse. However, the
Board concluded that the ALJ erred by finding that Starwood’s WC-14 request for an
opportunity to prove that it was no longer responsible for benefits amounted to a
controvert of the claim. Specifically, the Board highlighted that Starwood “did not
controvert medical treatment, nor did it otherwise deny any request by [Lopez] for
additional treatment from an authorized provider.”
Lopez appealed the Board’s award to the superior court. In an order drafted by
Lopez’s counsel, the superior court affirmed the finding of both the ALJ and the
Board that Lopez suffered a change in condition for the worse. The superior court
noted that it was applying a de novo standard of review to the issue of whether the
WC-14 hearing request filed by Starwood constituted a controvert of Lopez’s claim.
The court then reversed the Board’s decision, finding that Starwood did controvert
the claim and thus Lopez was entitled to treatment from a physician of her choice and
Starwood was liable for all outstanding medical bills since the date of Starwood’s
filing of the WC-14 hearing request.
1. In several enumerated errors, Starwood contends, inter alia, that the superior
court erred by concluding that Lopez was entitled to choose her own physician and
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that Starwood was liable for all of her outstanding medical bills since the date of the
filing of its WC-14 hearing request. Specifically, Starwood argues that the superior
court was without authority to substitute its own its own findings and/or judgment for
that of the Board. We agree.
“The role of the superior court in reviewing a decision from the [Board] . . . is
not to return to the original findings of the ALJ and evaluate whether that decision
was supported by a preponderance of the evidence, but to review the [Board’s] order
and make a determination as to whether it is supported by any evidence.” Owens-
Brockway Packaging v. Hathorn, 227 Ga. App. 110, 111 (488 SE2d 495) (1997). “If
the [Board’s] reweighing of the evidence led to a conclusion different from that
reached by the ALJ, the superior court is obligated to affirm it if there is any evidence
to support it.” Id.The record supports the Board’s findings that Starwood never controverted
medical treatment, denied any request by Lopez for additional treatment, or
obstructed any attempt by Lopez to get any treatment from an authorized provider.
Additionally, the record supports the Board’s finding that the WC-14 hearing request
was “an opportunity to prove that it was no longer responsible for benefits [which]
is not the equivalent of denying benefits in the absence of any evidence that benefits
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were actually denied.” Accordingly, the superior court erred in reversing the Board
by concluding that Lopez was entitled to treatment from a physician of her choice and
that Starwood was liable for all outstanding medical bills since the date of Starwood’s
filing of the WC-14 hearing request. See Medders v. Smith, 245 Ga. App. 323, 326
(1) (537 SE2d 153) (2000); see also Owens-Brockway Packaging, 227 Ga. App. at
111.
2. Starwood contends that the award of temporary total disability payments to
Lopez should be reversed. Specifically, Starwood argues that the ALJ, the Board, and
the Superior Court did not consider whether Lopez’s treatment with unauthorized
physicians was the cause of her disability. However, this argument was not raised in
any court below.
It is well settled that issues presented for the first time on appeal
furnish nothing for us to review, for this is a court for correction of
errors of law committed by the trial court where proper exception is
taken. Nor may [a defendant] alter the course of its arguments
mid-stream, raising issues on appeal that were not raised before the
[ALJ, the Board, or the superior court].
(Citations and punctuation omitted.) American Academy of General Physicians v.
LaPlante, 340 Ga. App. 527, 529 (1) (798 SE2d 64) (2017). Accordingly, this
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argument lacks merit. See American Academy of General Physicians, 340 Ga. App.
at 529 (1).
Judgment affirmed in part; reversed in part. McFadden, P. J., and Ray, J.,
concur.
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