J & D TRUCKING v. Martin , 310 Ga. App. 247 ( 2011 )

Andrews, Judge.

At issue in this workers’ compensation appeal is whether attorney fees were properly assessed against the employer/insurer pursuant to OCGA § 34-9-108. After the Appellate Division reversed the administrative law judge’s (ALJ) assessment of attorney fees, and the Superior Court reversed the Appellate Division, the employer, J & D Trucking, and its workers’ compensation insurer, American Interstate Insurance Company, appealed. For the following reasons, we vacate the judgment of the Superior Court and remand.

Jimmy Martin was injured while working as the sole proprietor of J & D Trucking. J & D and American Interstate (the employer/insurer), agreed that Martin incurred a compensable injury, accepted the claim as “medical only,” and paid for medical treatment while Martin continued to work. The employer/insurer agreed that, after Martin underwent surgery for the injury, he was disabled and unable to work as a result of the injury from May 26, 2009 to July 13, 2009. Without filing a notice to controvert pursuant to OCGA § 34-9-221 (d), or paying any income benefits to Martin during his disability, the employer/insurer requested a hearing at which it contended that, because Martin had failed to prove he received any wages from J & D, there was no basis under OCGA § 34-9-260 for the calculation of average weekly wages and payment of temporary total disability income benefits pursuant to OCGA § 34-9-261. Martin countered at the hearing that he proved his average weekly wages; that he was entitled to income benefits; and that he was also entitled to an assessment of attorney fees against the employer/insurer pursuant to OCGA § 34-9-108 (b) (1) or (2) for defending the income benefits issue without reasonable grounds, or for failing without reasonable grounds to comply with OCGA § 34-9-221 governing payment of income benefits.

Under OCGA § 34-9-261, “[w]hile the disability to work resulting from an injury is temporarily total, the employer shall pay or cause to be paid to the employee a weekly benefit equal to two-thirds of the employee’s average weekly wage but not more than $500.00 per week. ...” The employee’s average weekly wage is calculated pursuant to methods set forth in OCGA § 34-9-260. To calculate income benefits payable to Martin, the ALJ used the method set forth in OCGA § 34-9-260 (1), which provides that, where the employee has worked

in the employment in which he was working at the time of the injury, whether for the same or another employer, during substantially the whole of 13 weeks immediately preceding the injury, his average weekly wage shall be one-thirteenth of the total amount of wages earned in such employment during the 13 weeks.

OCGA § 34-9-260 (1). The ALJ found that, during the 13 weeks prior to Martin’s injury, his sole proprietorship, J & D, produced an average gross income of $8,458.28 per week, and an average net income of $1,541.32 per week after deduction of business expenses. The ALJ further found that Martin’s practice in operating his sole proprietorship was to deposit all of the gross income into his only checking account which he then used to pay business and personal expenses. The employer/insurer contended that, despite evidence of the income deposited into Martin’s checking account, Martin issued no checks to himself for wages and therefore failed to prove that he received any wages from his business. The ALJ found that to accept this argument “would result in an absurdity” and “would require that [Martin] write himself periodic checks from his only checking account for ‘wages’ or ‘salary’ and then to deposit those checks back into the same checking account and use them to pay his business and personal expenses.” Accordingly, the ALJ rejected the employer/ insurer’s argument that, because Martin’s sole proprietorship made no payments to Martin specifically designated as wages or salary, he failed to carry the burden of proving his wages for the purpose of calculating benefits under OCGA § 34-9-260. Based on the evidence, the ALJ found that Martin proved by a preponderance of the evidence that he had an average weekly wage under OCGA § 34-9-260 sufficient to entitle him to disability income benefits pursuant to OCGA § 34-9-261 of $500 per week for the agreed period of disability. Because the ALJ also found under OCGA § 34-9-108 (b) (2) that the employer/insurer failed without reasonable grounds to comply with the provisions of OCGA § 34-9-221 requiring timely payment of income benefits or filing of a notice to controvert, the ALJ exercised his discretion to assess attorney fees against the employer/insurer and assessed fees in the amount of $12,690.

The employer/insurer appealed to the Appellate Division of the State Board of Workers’ Compensation claiming that the ALJ erred: (1) by finding that Martin proved his average weekly wage; and (2) by assessing attorney fees on the basis that the employer/insurer failed to comply with OCGA § 34-9-221 without reasonable grounds. Under OCGA § 34-9-103 (a),

the appellate division shall review the evidence and shall then make an award with findings of fact and conclusions of law. . . . The findings of fact made by the administrative law judge in the trial division shall be accepted by the appellate division where such findings are supported by a preponderance of competent and credible evidence contained within the records.

The Appellate Division found that the ALJ correctly ruled that Martin met the burden of proving his average weekly wage and accepted the ALJ’s findings of fact with respect to this issue. But based upon a review of the record, the Appellate Division found that the ALJ had no discretion to assess attorney fees because “we find the employer/insurer has not violated any provision of OCGA § 34-9-221 without reasonable grounds, and this claim has been defended reasonably as to determining the employee’s correct average weekly wage and what amount, if any, [of] temporary total disability income benefits were due.” As to this issue, the Appellate Division found that “the preponderance of competent and credible evidence in the record does not support” the ALJ’s findings of fact in support of the conclusion that the employer/insurer failed without reasonable grounds to comply with the provisions of OCGA § 34-9-221. Martin appealed to the Superior Court of Grady County, which reversed the Appellate Division and reinstated the assessed attorney fees.

“[I]f after assessing the evidence of record, the appellate division concludes that the award does not meet the [evidentiary standards of OCGA § 34-9-103 (a)], the appellate division may substitute its own alternative findings for those of the ALJ, and enter an award accordingly.” Bankhead Enterprises v. Beavers, 267 Ga. 506, 507 (480 SE2d 840) (1997). Where the Appellate Division rejects the ALJ’s findings of fact as not supported by the preponderance of competent and credible evidence in the record and substitutes its own findings of fact, those findings “cannot be disturbed as long as there is any evidence to support it because neither the superior court nor the appellate court has the power to find facts.” (Citations omitted.) Hallisey v. Fort Howard Paper Co., 268 Ga. 57, 58-59 (484 SE2d 653) (1997). After rejecting the ALJ’s findings of fact, however, the Appellate Division failed to make any substituted findings of fact. Accordingly, it is not possible for the Superior Court or this Court to review whether any evidence supports the Appellate Division’s conclusion that the ALJ had no discretion to assess attorney fees because the employer/insurer did not violate OCGA § 34-9-221 without reasonable grounds.¹

On this record, we vacate the judgment of the Superior Court reversing the Appellate Division and remand the case to the Superior Court with directions that the case be remanded to the Appellate Division for reconsideration in accordance with this opinion.

Judgment vacated and case remanded.

Smith, P. J., Barnes, P. J., Phipps, P. J., Mikell and Dillard, JJ., concur. McFadden, J., dissents.

1 Without making substituted factual findings, the Appellate Division could have accepted the ALJ’s findings of fact as supported by a preponderance of the competent and credible evidence, and ruled as a matter of law whether those facts showed the employer/insurer violated OCGA § 34-9-221 without reasonable grounds. That application of law to the accepted facts would have been subject to de novo review by the superior and appellate courts. Mechanical Maintenance v. Yarbrough, 264 Ga. App. 181, 183 (590 SE2d 148) (2003); Trent Tube v. Hurston, 261 Ga. App. 525 (583 SE2d 198) (2003).