T. V. Minority v. Chaffins

Birdsong, Presiding Judge.

Jeffrey Chaffins suffered a work-related injury on March 26, 1993 and received workers’ compensation benefits until he was released to his regular job as an inspector with appellant T. V. Minority. He then filed an application to the State Board of Workers’ Compensation alleging a change of conditions as of August 26, 1993 or, in the alternative, seeking benefits and penalties under OCGA § 34-9-221. After a full hearing the ALJ denied Chaffins’ claim on finding that he “failed to show a sincere effort to obtain suitable employment” and that his “economic condition is caused by his own self-imposed wage requirements and is unrelated to his physical condition.” The ALJ noted that Chaffins is restricted from driving, working in high places and around heavy machinery, but nevertheless continues to drive four-wheel vehicles and to build “expert level model cars, using hobby knives, and painting his own decals. In 1994, [he] built approximately 60 model cars.”

The board adopted the ALJ’s findings and ruling. See OCGA § 34-9-103 (a). The superior court remanded the case, saying the issues are “whether suitable employment was offered and [sic] when the employee was not able to work, thus qualifying [him] for [temporary total disability and permanent partial disability] benefits and whether there has been compliance with OCGA §§ 34-9-263 and 34-9-221.” We granted this discretionary appeal. Held:

1. “In order to receive workers’ compensation benefits based on a change in condition, a claimant must establish by a prepojideran.ee of the evidence 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. Once evidence is offered in support of the foregoing, the board may in its discretion draw reasonable inferences from that evidence that despite the claimant’s good faith efforts, his or her inability to obtain suitable employment was proximately caused by the continuing disability.” (Emphasis supplied.) Maloney v. Gordon County Farms, 265 Ga. 825, 828 (462 SE2d 606).

In the first place, the premise on which the superior court remanded this case — that Chaffins was “not able to work” — is error as it is a substituted finding of fact. It is well settled that on appeal of an award or denial of workers’ compensation benefits, the superior court may not substitute its findings for the appellate division of the board’s findings of fact, and when sitting as an appellate body, it is bound by the “any evidence” standard of review and it is not authorized to substitute its judgment as to weight and credibility of the witnesses. American Intl. Adjusting Co. v. Davids, 202 Ga. App. 276, 277-278 (414 SE2d 292). The board concluded Chaffins was able to work. As this finding is supported by evidence, it is binding and the superior court had no power to change it.

Consistent with the law as stated in Maloney, the. board found that although Chaffins is able to work he had not made .sincere efforts to seek suitable employment and that his economic condition is caused by self-imposed requirements and is unrelated to his physical condition. These findings are supported by evidence and are binding. As there was evidence supporting the board’s findings and no error of law appears, the superior court was required to affirm the board’s denial of benefits.

2. As the denial of benefits is supported by evidence and law, no issue arises as to penalties under OCGA § 34-9-221.'

Judgment reversed.

Blackburn, J., concurs. Beasley, C. J, concurs specially.