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L.C.P. CHEMICALS v. STRICKLAND6/3/1996
In this workers' compensation case, the ALJ denied Robert Strickland's claim for total disability benefits based on change in condition. The Appellate Division of the State Board of Workers' Compensation adopted the conclusions of the ALJ. The superior court reversed, and we granted the application for discretionary appeal filed by L.C.P. Chemicals, Strickland's employer, and its insurer, Insurance Company of North America.
Strickland suffered a compensable injury to his right leg on September 28, 1993 that was accepted as a medical only claim. He returned to work approximately one week after the injury. He was paid full wages until L.C.P. Chemicals, the plant at which he worked, closed on February 1, 1994. On March 7, 1994, he filed a notice of claim seeking total disability benefits from the date of the plant closing and temporary partial disability benefits for an additional 2.25 weeks. At issue before the ALJ was whether Strickland was entitled to benefits for a change in economic condition caused by the injury.
A claimant seeking benefits due to a change in economic condition under OCGA ยง 34-9-104 (b) "must establish by a preponderance of the evidence that he or she suffered a loss of earning power as a result of a compensable work-related injury; continues to suffer physical limitations attributable to that injury; and has made a diligent but unsuccessful effort to obtain employment following termination." Maloney v. Gordon County Farms, 265 Ga. 825, 828 (462 S.E.2d 606) (1995). With regard to the third element, the ALJ made the following findings: After his injury, Strickland was a member of two bowling leagues and bowled two nights per week until withdrawing in April or May of 1994; he fished about four times per week after the injury; he ran for county commissioner following his injury; and he assisted with management of a trailer park. The ALJ further
found that Strickland "did not appear to be actively seeking employment at the time of the hearing." The ALJ denied benefits, concluding that Strickland's testimony that he was unable to secure employment was not credible and that Strickland therefore failed to meet his burden of proving he was unable to find employment because of his injury.
The superior court reversed. A work search log prepared by Strickland detailed his job search. Because that log was uncontradicted in the hearing before the ALJ, the superior court found that the ALJ erroneously determined that Strickland's testimony about his job search lacked credibility.
When reviewing the decisions of the Board and ALJ, the superior court sits as an appellate body and is bound by the any evidence standard of review. Harris v. Seaboard Farms &c;, 207 Ga. App. 147, 150 (427 S.E.2d 524) (1993). It may not set aside an award merely because it disagrees with the conclusions of the Board and may not "substitute its judgment as to weight and credibility of the witnesses." Id. "The Board is the sole judge of the evidence, of the credibility of the witnesses, and as to what evidence it will credit as the basis for an award." (Citations and punctuation omitted.) Ero Indus. v. Phillips, 207 Ga. App. 432, 433 (1) (428 S.E.2d 396) (1993). See also Selfridge v. Morrison Cafeteria Co., 192 Ga. App. 469, 470 (1) (385 S.E.2d 137) (1989).
The record contains some evidence supporting the ALJ's finding that Strickland's testimony regarding his job search was not credible. Strickland did testify that he searched for employment since his injury, and he submitted a "record of work search" listing the inquiries he made in search of work between the date of the plant closing, February 2, 1994, through June 2, 1994. The record indicates that he mad
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