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ZAYTZEFF v. SAFETY-KLEEN CORP.6/28/1996
This is an appeal by appellants Gregory M. Zaytzeff and Sue Yang Zaytzeff from an order of the state court granting summary judgment in favor of appellee Safety-Kleen Corporation.
Appellant Gregory Zaytzeff (appellant) brought suit for damages sustained from injuries he received arising out of and in the course of his employment with appellee; appellant Sue Zaytzeff (appellant wife) sued as a co-plaintiff for loss of consortium. Appellant alleges that he was injured while cleaning up a toxic chemical spill for appellee without being issued either a respirator or protective clothing, other than gloves. Two members of management who were not wearing protective clothing or respirators also were present; one of these managers was performing the same task of scooping chemical-soaked dirt into metal barrels that appellant was performing.
Appellant initially filed a workers' compensation claim and the parties stipulated as to the jurisdiction of the State Board of Workers' Compensation, venue, coverage, general employment, and appellant's average wage; the primary issues of injury by accident arising out of and in the course of employment, notice, and disability were litigated before the ALJ. The ALJ conducted a hearing and found that appellant "has failed to show by a preponderance of the evidence that he suffered an injury by accident arising out of and in the course of his employment, or that he suffered an occupational disease as a result of his exposure to the perchloroethylene . . . the [appellant] has failed to sufficiently demonstrate that his various symptoms were caused by his exposure to the chemical." The ALJ further held that "while I find the evidence establishes that [appellant's] psychological problems are related to the exposure incident, I find that
these psychological problems are not compensable because . . . [appellant] has failed to show a physical injury resulting from the exposure. . . . Further, psychological problems cannot stand alone as an occupational disease. OCGA § 34-9-280." The ALJ entered an order denying all of appellant's claims; this award was not appealed within 20 days.
Subsequently appellants filed a complaint in state court; the appellees moved for summary judgment asserting that suit was barred by the exclusive remedy provisions of OCGA § 34-9-11, and that the ruling of the ALJ was now res judicata as to all issues concerned in the employee's claims against the employer. Held:
1. The applicable summary judgment standard is that of Lau's Corp. v. Haskins, 261 Ga. 491 (405 S.E.2d 474). Moreover, unsupported assertions of fact contained in the briefs of parties but not supported by evidence of record cannot be considered in the appellate process. Behar v. Aero Med Intl., 185 Ga. App. 845, 846 (1) (366 S.E.2d 223). While the ALJ's opinion is in the appellate record, only selected excerpts from the depositions of the appellants and no transcript of the hearing before the ALJ has been forwarded on appeal; neither are the medical reports of the various doctors in the appellate record. Failure to transmit to this court a record containing all relevant evidence pertaining to an appeal is a dangerous appellate practice. See generally Malin Trucking v. Progressive Cas. Ins. Co., 212 Ga. App. 273 (1) (441 S.E.2d 684); Nodvin v. West, 197 Ga. App. 92, 97 (3) (c) (397 S.E.2d 581). The order granting summary judgment expressly reflects that the trial court considered inter alia "the pleadings, motion, testimony and all other matters of record" in determining to grant appellee's motion for summary judgment. Thus, the material paucity of the appellate record before us alone could justify our affirmance of the trial court's judgment. Malin,
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