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WAGA-TV5/31/2002
he ALJ designated that amount as a credit for any disability benefits that might be payable in the future. The appellate division accepted the ALJ's findings of fact, making only two apparently minor clerical amendments.
The superior court, however, concluded on the basis of Smith, supra, that Yang's failure to receive any net income demanded a finding of no change in his condition from total disability. The superior court reasoned that operating an unprofitable business did not constitute a change of condition for the better. It therefore found that Yang remained totally disabled and was entitled to continue to receive benefits for total disability, and reversed the appellate division's holding that Yang was no longer totally disabled, affirming the decision otherwise. This appeal followed.
" he term `change in condition' means a change in the wage-earning capacity, physical condition, or status of an employee . . . which change must have occurred after the date on which the wage-earning capacity, physical condition, or status of the employee . . . was last established by award or otherwise." OCGA § 34-9-104 (a) (1). This language is a substantial change from the earlier version of this Code section, Ga. Code Ann. § 114-709 (Ga. L. 1968, p. 3, § 5), which defined a "change in condition" as "solely an economic change in condition occasioned by the employee's return or ability to return to work for the same or any other employer; or inability to work or continue to work for the same or any other employer, which inability is proximately caused by the accidental injury." See Maloney v. Gordon County Farms, 265 Ga. 825, 826-827 (462 SE2d 606) (1995). It is presumed that, in changing the language of this Code section to delete this language, the legislature intended to remove this provision and to change the effect of the statute. See Georgia Mental Health Institute v. Brady, 263 Ga. 591, 592-593 (2) (a) (436 SE2d 219) (1993). The legislature therefore deliberately and explicitly expanded the definition of "change of condition" to include wage earning capacity.
"Temporary total disability" is compensated as provided in OCGA § 34-9-261. "Temporary partial disability" is provided for in OCGA § 34-9-262, "where the disability to work resulting from the injury is partial in character but temporary in quality." The cases dealing with temporary partial disability recognize that this condition is judged by the employee's capacity for work, as provided in the statute itself, not his actual working status: "The employer is not liable for wage loss when there is no diminution of earning capacity." Wal-Mart Stores v. Harris, 234 Ga. App. 401, 402 (506 SE2d 908) (1998) (refusal of employment governed by OCGA § 34-9-240 (a).)
According to the statutory scheme, the ability to earn -- not the propensity to earn -- controls the issue presented in this appeal. Under the statutory language the legislature plainly intended a claimant's benefits to be reduced in these circumstances to an amount which is "able" to earn. It is not reasonable to conclude the claimant is able to earn nothing because is earning nothing. Mountainside Medical Center v. Tanner, 225 Ga. App. 722, 723 (484 SE2d 706) (1997).
The decision in Smith, supra, is not inconsistent with the holdings in Wal-Mart and Mountainside. Rather, the superior court misapplied Smith here because the facts presented there differ substantially from those surrounding Yang's injury. Smith injured his knee in 1982 and his employer paid benefits for temporary total disability. In 1985 he operated "a ceramics shop from which he had received revenues but no actual net income." Smith, supra, 185 Ga. App. at 869. In 1986, his empl
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