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WAGA-TV5/31/2002
Smith, Presiding Judge.
We granted the employer's application for discretionary appeal in this workers' compensation case to consider the superior court's application of Smith v. Lockheed-Georgia Co., 185 Ga. App. 869 (366 SE2d 178) (1988). Here, the superior court relied upon Smith to reverse the finding of the administrative law judge and the Appellate Division of the State Board of Workers Compensation that James Yang had undergone a change of condition from total disability to temporary partial disability. Because we conclude that Smith does not apply to the facts presented here, we reverse.
Yang was a cameraman for WAGA-TV. In December 1986, he was knocked down by two high school football players while filming a game. This incident damaged Yang's hip replacement dating from 1974 and resulted in surgery to install a new hip prosthesis. Yang returned to work at WAGA on a limited basis while receiving temporary partial disability benefits. In 1991, Yang's position at WAGA was eliminated, and he was laid off along with several other people. At that time, the employer voluntarily increased Yang's payments to temporary total disability.
As soon as he was laid off from WAGA, Yang began work for his own production company, Yang Communications, while continuing to receive temporary total disability payments. Yang Communications is wholly owned by Yang. He is its president, and his wife is the only other person who has worked for the corporation.
It appears undisputed that Yang has been working very actively on behalf of his corporation. While his wife has been involved in keeping the books, Yang has performed all other work for Yang Communications, including videotaping, photography, and post-production work for various films and commercials. He has traveled all over the world, including Taiwan, Panama, Canada, and Guatemala, on the corporation's business. It is undisputed that this work has generated substantial gross revenues, with customers paying up to $15,000 for a single project. Yang also sold subscriptions and wrote stories for a magazine, Pacific Times, in amounts ranging from $500 to $1,000 per month, and sold advertising in the magazine. The employer's expert testified that over $526,000 passed through Yang's personal accounts between 1991 and the hearing in 1998. Yang's testimony was contradictory regarding whether he or the corporation made money in 1993. At the hearing, however, he denied that the corporation made money, contending that he was still putting money back into the business and borrowing money to "make it grow." WAGA points out that it offered vocational rehabilitation assistance to Yang in 1993, but Yang objected and refused assistance because, as Yang testified, "I had the company going on strongly."
This litigation began when WAGA and its insurer, Travelers Indemnity, filed a petition alleging a change in Yang's condition for the better. After a hearing, the ALJ issued findings of fact and conclusions of law. He found that the original 1986 accident was a compensable on-the-job accident and injury. After making findings of fact regarding Yang's work and earnings with his corporation, the ALJ concluded that Yang was not totally disabled and had in fact been working since 1991. However, he also concluded that Yang had not received any actual income from the corporation but was going "into the hole" in order to keep it going. The ALJ found that Yang was entitled to temporary partial rather than total disability benefits because he had "returned to work." But because of the "extenuating circumstances" presented by the facts, the ALJ did not order Yang to repay the difference between the partial and total benefit payments. Instead, t
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