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Haralson County v. Lee11/12/2003
Jimmy E. Lee claims that his shoulder replacement surgery is compensable under the Workers' Compensation Act, OCGA § 34-9-1, et seq. The Haralson County Board of Commissioners and the Association of County Commissioners of Georgia ("Haralson County") appeal from the superior court's order reversing the award of the appellate division of the State Board of Workers' Compensation ("Board"), which affirmed the Administrative Law Judge's ("ALJ") award denying Lee's claim that Haralson County pay for his shoulder replacement surgery. The ALJ denied the claim finding that Lee sustained a new accident and injury and that any aggravation of Lee's pre-existing condition amounted to a new injury. Haralson County contends that the superior court failed to apply the "any evidence" standard of review. We granted Haralson County's application for discretionary appeal, and we reverse.
Construed in a light most favorable to Haralson County, as the party prevailing before the Board, the evidence is as follows. Lee began having problems with his left shoulder in 1982. He began working for Haralson County in 1989 as the chief appraiser and sustained a compensable on-the-job injury on June 3, 1993, when he reached down to open a desk drawer and felt a pop in his left shoulder. Lee received authorized treatment from Dr. Ralph Fleck.
Lee was terminated from his employment with Haralson County on January 11, 1994, for reasons unrelated to his on-the-job accident and injury. Subsequently, Lee began working full-time for his own business, Jimmy Lee Construction Company, which he had been operating on a part-time to full-time basis for approximately 30 years. Lee testified that, while he basically did supervisory work, he occasionally performed masonry work such as laying cinder blocks and bricks.
Lee continued to receive treatment from Fleck. On May 3, 1995, Fleck diagnosed arthritis and prescribed cortisone injections. Lee returned to Fleck on June 14, 1995, complaining of recurrent pain in his shoulder. Fleck administered a cortisone shot and noted that Lee "has still been working building houses." On January 25, 1996, Lee was holding a tool box in his right hand and was either reaching for a level or lifting a level when he felt an excruciating pain in his left shoulder. On January 31, 1996, Fleck noted that Lee's pain continued. On February 21, 1996, Fleck noted that Lee was getting a degenerative shoulder condition. Fleck subsequently recommended that Lee undergo shoulder replacement surgery. On May 14, 2001, Lee filed a claim seeking the payment of medical bills and a determination of whether the shoulder replacement surgery recommended by Fleck was compensable. Haralson County filed a notice to controvert, arguing that Lee sustained a new accident and injury on January 25, 1996.
At the hearing held on Lee's claim, Fleck testified that Lee's need for shoulder replacement surgery was due to the 1993 injury and probably due to some pre-existing problems in the shoulder. Fleck further testified that in October 1994, he made a note saying that he did not feel Lee was a candidate for shoulder replacement surgery. Fleck also testified that he had written a letter in October of 1996 indicating that the January 1996 incident was not a new injury, but an aggravation of a pre-existing condition. According to Fleck, Lee's work in construction aggravated the shoulder and probably caused it to be more painful. When asked whether the need for shoulder replacement surgery was a direct and proximate result of the June 1993 incident of reaching to pull open a desk drawer, Fleck testified that he did not think the June 1993 incident was a direct cause as Lee had a pre-existing problem which was "going to
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