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Footstar9/1/2005
ANDREWS, P. J., PHIPPS and MIKELL, JJ.
Footstar, Inc., d/b/a Meldisco Shoe-Mart ("Footstar"), and Travelers Insurance Company ("Travelers") appeal the judgment of the Superior Court of Glynn County affirming the decision of the Appellate Division of the State Board of Worker's Compensation (the "Board"). The appellants contend that the trial court erred in concluding that the claim of the injured employee, Felicia Stevens, was compensable as a change of condition, rather than as a new injury. For reasons explained below, we find no error and affirm the judgment of the trial court.
It is the law in this state that if there is any evidence to support a finding of the Workers' Compensation Board, the superior court may not reverse the award unless errors of law were committed. Moreover, in determining whether evidence in the case meets the "any evidence" rule, the evidence will be construed in the light most favorable to the party prevailing before the oard and every presumption in favor of the Board's award is indulged.
(Citations omitted.) Calhoun v. Mergentine/KVN & Horn Fruin-Colnon, 165 Ga. App. 610-611 (1) (302 SE2d 401) (1983).
So viewed, the record shows that Stevens began working for Footstar in May 1978. At the time of the injury in question, Stevens was the manager of a K-Mart store shoe department which was operated by Footstar. As part of her job, Stevens unloaded cases of shoes into overhead bins. Some of the cases weighed over 30 pounds. She testified that the counters were over 72 inches high, and that she was "constantly" working in the overhead areas. She was injured on November 8, 1999, while putting merchandise into an overhead bin, when several cases fell, hitting her head, neck, and shoulder.
Travelers was the worker's compensation insurance carrier for Footstar at the time of the injury. Travelers accepted Stevens's claim as "medical only," because she continued to work for Footstar. According to Stevens, she was instructed to go to a medical clinic, where she was treated by Dr. Cindy Jurss. Travelers paid for the treatment. Stevens wished to continue working because she had two children to support, so Dr. Jurss "reluctantly" allowed her to continue at her regular job. Stevens had difficulty performing her work because of the injury. She testified that her district manager gave her a lot of leniency. According to Stevens, by 2001, she was unable to work a full eight-hour day. She used her vacation and sick leave "just to alleviate the aggravation" she experienced in her arm, neck, and shoulder.
On January 1, 2001, Liberty Mutual Insurance Company ("Liberty Mutual") replaced Travelers as Footstar's worker's compensation carrier. In August of that year, Travelers requested a hearing to determine which insurer was responsible for the cost of Stevens's continued medical treatment. The hearing took place on October 19, 2001, before Administrative Law Judge Jerome Stenger. In his award dated December 18, 2001, Judge Stenger made the following findings of fact: that Stevens had sustained a compensable injury on November 8, 1999; that she was not disabled because she continued to work for Footstar; and that Stevens had not sustained a new injury or had a new accident during Liberty Mutual's coverage. Judge Stenger concluded that Travelers was responsible for Stevens's continuing medical expenses. Travelers subsequently appealed, and on August 7, 2002, the Appellate Division adopted the award as its own.
After the hearing but before Judge Stenger had issued his award, Stevens's new physician wrote a note on November 30, 2001, specifying that Stevens should perform only light duty, with no lifting over 20 pou
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