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Moffitt Construction9/11/2003
We granted Moffitt Construction's application for discretionary review to determine whether the superior court erred in remanding this case to the State Board of Workers' Compensation to consider certain medical evidence. For the following reasons, we conclude that the superior court erred and we reverse.
The record before us establishes that Willie Barnes sustained a compensable injury to his lower back in January, 2000, and received temporary total disability benefits. Moffitt Construction, Barnes' employer, subsequently suspended benefits, effective July 18, 2000, claiming that Barnes had experienced an improvement in his condition. In response to this suspension, Barnes filed a claim, alleging he had experienced a detrimental change in condition entitling him to a recommencement of benefits. He also requested the payment of certain medical expenses, a change in treating physicians, and an assessment of his attorney's fees for an unreasonable defense.
On December 4, 2001, an Administrative Law Judge held a hearing on the claim at which both sides presented medical evidence and testimony. The record was closed at the conclusion of the evidentiary hearing and the transcript of the hearing was filed with the Board on December 19, 2001. On February 11, 2002, the ALJ issued an award, finding that Moffitt met its burden of proving that Barnes experienced a change in condition for the better, and that Barnes failed to prove that he had sustained a change in condition for the worse. Accordingly, the ALJ denied Barnes' request for resumption of benefits and denied his request for attorneys' fees. Nonetheless, the judge ordered both parties' counsel to agree on a new neurosurgeon to evaluate Barnes, stating that he was entitled to additional evaluation by a neurosurgeon.
Barnes appealed the ALJ's award to the Appellate Division on February 25, 2002. Meanwhile, the parties complied with the court's directive and on April 10, 2002, Dr. Franklin Epstein first examined and evaluated Barnes. On May 8, 2002, the matter came before the State Board, which issued its decision on July 5, 2002, affirming the ALJ's award in full and denying Barnes' request for consideration of Dr. Epstein's report. In doing so, the Board noted that while Barnes had requested that "newly discovered evidence" be entered into the record, the more appropriate procedure would be for Barnes to introduce the report at a later hearing alleging a change of condition for the worse.
After the Board's decision was issued, Dr. Epstein evaluated Barnes again on July 17, 2002, noting: "Barnes has not received what I would consider wholly satisfactory care of his spinal problems." Barnes argues that this report substantially contradicted medical evidence which the ALJ had relied on in making his decision.
Barnes appealed the Board's decision to the superior court. The court held a hearing on September 16, 2002 and issued its order, stating the appellate division's award was largely decided based on a medical report "that was subsequently contradicted completely" by Dr. Epstein. The superior court remanded the case to the appellate division, ordered it to consider Dr. Epstein's report as newly discovered evidence, and further ordered it to redetermine whether the report of another doctor, Dr. Goodrich, "should be given any weight in determining the temporary total disability status" of Barnes. From that order, Moffitt filed its discretionary application.
Here, citing several cases including Distribution Concepts Co. v. Hunt, 221 Ga. App. 449 (471 SE2d 539) (1996), Moffitt argues that the superior court erred as a matter of law in remanding the case to the appellate division and ordering it
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