Textile Coating, Ltd. v. Ramirez , 223 Ga. App. 236 ( 1996 )

Blackburn, Judge.

Upon our grant of their application for discretionary appeal, Textile Coating, Ltd. and Liberty Mutual Insurance Company appeal the superior court’s order affirming the award of the appellate division of the State Board of Workers’ Compensation (Board). In the underlying workers’ compensation case, the Board affirmed the Administrative Law Judge’s denial of Ramirez’ change-in-condition claim. On appeal, the superior court reversed the Board’s decision because the ALJ had relied upon Aden’s Minit Market v. Landon, 202 Ga. App. 219 (413 SE2d 738) (1991), which was overruled by Maloney v. Gordon County Farms, 265 Ga. 825 (462 SE2d 606) (1995) after the ALJ’s decision was issued and affirmed by the Board. The superior court specifically directed that the case be remanded to the ALJ for consideration in view of Maloney. Upon remand to the Board, however, the Board concluded that sufficient evidence existed to determine whether Ramirez had met his burden in showing a change in condition under the standards set forth in Maloney. Without remand to the ALJ, the Board reinstated temporary total weekly income benefits to Ramirez. Its ruling was affirmed by the superior court, which specifically approved the Board’s action in ruling without remanding the matter to the ALJ and explained that its initial order had been based on its assumption of how the Board would handle the case on remand.

The issue presented is whether the Board was required to remand the case to the ALJ for additional factfinding. Textile Coating and Liberty Mutual claim the Board’s failure to do so deprived them of due process by preventing the employer from introducing additional evidence in light of Maloney. We find no error.

The question facing the ALJ in this case was whether Ramirez had been unable to find employment because of his injury. Aden’s, supra at 219; Maloney, supra at 827. When Ramirez originally presented his case to the ALJ, Aden’s required him to prove he had made a diligent but unsuccessful search for suitable employment and prove the reasons prospective employers had refused to hire him. Maloney eliminated this latter, requirement. Maloney, supra at 827-828. In its place, the Supreme Court gave the Board the power to infer from the employee’s lack of success that employers refused to hire him because of an injury. Id. at 828.

Under the present circumstances, the Board was not required to remand Ramirez’ case to the ALJ for an evidentiary hearing upon its determination that the claimant had met the reduced Maloney standard based upon the existing record. The Board must accept the ALJ’s findings of fact that are supported by credible evidence. OCGA § 34-9-103 (a). The ALJ had found that Ramirez had “sought employment at several possible employers and was rejected.” Reviewing the ALJ’s factual findings in light of Maloney, the Board specified that Ramirez had applied for several positions “in the textile and carpet industries in which he was previously employed.” The Board concluded that Ramirez’ job search had been diligent and inferred, as allowed by Maloney, that the prospective employers rejected him because of his injury.

The Board’s actions were within its statutory powers. OCGA § 34-9-103 (a); Harrell v. City of Albany Police Dept., 219 Ga. App. 810, 811-812 (2) (466 SE2d 682) (1996). Because the only question presented was one of applying known facts to a different legal standard, the Board was entitled to -make that determination. See Harrell, supra at 812 (2), in which we remanded a similar case to the Board for reconsideration in light of Maloney and Buckner v. Bibb Yarns, 219 Ga. App. 850 (467 SE2d 183) (1996), in which this Court approved the Board’s action in applying the lesser legal standard to the ALJ’s factual findings. See also Distribution Concepts Co. v. Hunt, 221 Ga. App. 449, 450 (2) (471 SE2d 539) (1996), noting the Board’s discretion in determining whether to remand a case to the ALJ for additional factual determinations. Unlike Sadeghi v. Suad, Inc., 219 Ga. App. 92, 93 (464 SE2d 234) (1995), the Board in this case possessed all the factual findings it needed to make the ultimate legal determination under Maloney, and remand to the ALJ for an evidentiary hearing was not required. The superior court did not err by approving the Board’s actions.

Judgment affirmed.

McMurray, P. J, Birdsong, P. J., Pope, P. J., Johnson, Smith, Ruffin and Eldridge, JJ, concur. Beasley, C. J., and Andrews, J., dissent.