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WAGA-TV5/31/2002
oyer sought a change in condition hearing. The ALJ found that, retroactive to the beginning of his ceramics business, Smith was entitled to temporary partial disability payments rather than temporary total disability payments. Id. The appellate division affirmed, but the superior court reversed, holding that because the "`ceramics business had produced gross revenues greater than his average weekly wage at the time of the subject employment injury,'" Smith had undergone a change from temporary total disability to no disability. Id. This court reversed the superior court, holding that "the board acted properly in calculating the appellant's entitlement to further disability benefits on the basis of his net rather than his gross business earnings." Id. at 870.
Smith therefore addressed the improper use of gross earnings to disprove disability entirely, rather than the use of net earnings to argue total rather than partial disability, as Yang attempts to do here. The board's holding that Smith was partially rather than totally disabled was never challenged, because he was actually working although not producing income. His net income was used to calculate the amount of his disability payments, not the nature and extent of his disability.
Here, Yang's "wage-earning capacity" within the meaning of OCGA § 34-9-104 (a) (1) clearly has changed. Like Smith, he is actually working although the corporation for which he works is not presently producing income, and like Smith, his disability therefore is partial rather than total. Yang's choice to pursue a start-up venture of his own company and forego personal income in order to reinvest his earnings into the company, and his refusal of rehabilitation assistance in anticipation of his company's success, do not alter the fact that his capacity for remunerative employment has been substantially demonstrated by his extensive travel, work, and other activities on behalf of his company. These decisions do, however, affect the calculation of his benefits and whether he underwent a change of condition for the better, as the ALJ correctly concluded.
The superior court is substantially limited in its power to overturn the decision of the board. OCGA § 34-9-105 (c) (1) - (5). "Absent a legal error, review by a superior court is confined to a determination of whether any evidence supported the decision of the appellate division." (Citation and footnote omitted.) McCarty v. Delta Pride, 247 Ga. App. 734, 736 (1) (a) (545 SE2d 117) (2001). The board's decision that Yang's condition had changed from total to partial disability is supported by some evidence, and it therefore should have been affirmed by the superior court.
Judgment reversed. Eldridge and Ellington, JJ., concur.
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