Express Emp't Prof'ls v. Barker

862 S.E.2d 594

EXPRESS EMPLOYMENT PROFESSIONALS et al.

v.BARKER.

A21A0912

Court of Appeals of Georgia.

August 26, 2021

Robert B. Peery, Nichole Chang Novosel, for Appellant.

John Thomas Dufour, Carrollton, for Appellee.

Rickman, Chief Judge.

We granted Express Employment Professionals and New Hampshire Insurance Company, c/o Sedgwick CMS (collectively, the "Employer") discretionary review of a superior court order reversing a judgment of the State Board of Workers’ Compensation in favor of Terry Barker. For the reasons that follow, we reverse.

The record shows that Barker was an employee of Express Employment Professionals, a temporary employment agency. On August 14, 2018, he was assigned to work at a seafood processing and repackaging plant when he fell onto the left side of his hip, buttocks, and left wrist while attempting to move a bin of fish parts. Later that day he received treatment from Dr. Leslie Cottrell, complaining of pain in "his left hip and across his back." He did not inform Dr. Cottrell that he had a history of back pain, and she diagnosed Barker with a lumbar sprain and instructed him to begin physical therapy. Barker began receiving temporary total disability ("TDD") workers’ compensation benefits.

On August 21, 2018, Barker was again treated by Dr. Cottrell, again complaining of pain across his lower back, but he reported that his hip pain had resolved. Barker also complained of numbness in his fingers. Dr. Cottrell again diagnosed Barker with a lumbar strain. Later that day, Barker told his physical therapist that his lower back no longer hurt but that he was experiencing numbness and tingling in his hands. The therapist noted that the numbness in his hands did not correlate to his mechanism of injury. At physical therapy the next day, the therapist again noted that Barker no longer had back pain and that the "mechanism of injury, presentation [and] objective findings [did] not support" the symptoms of numbness in his hands, and recommended that Barker be discharged from therapy.

On September 14, 2018, Barker met with another physician, Dr. Chad Kessler, and complained of back pain and radiating bilatteral upper extremity pain with numbness and tingling. Dr. Kessler diagnosed him with a lumbar strain, gave him work restrictions, and instructed him to begin physical therapy. An MRI was performed on Barker in October 2018, which revealed multilevel mild lumbar facet arthropathy and mild curving of the lumbar spine, and Dr. Kessler opined that the MRI revealed arthritis. On October 26, 2018, Dr. Kessler placed Barker on maximum medical improvement, provided full duty work release, and stated that no follow-up was required. The Employer then suspended Barker's wage benefits.

Barker filed a motion seeking the recommencement of TTD benefits, which an administrative law judge ("ALJ") denied in April 2019. Barker was then examined by Dr. David Weiss, who opined that while Barker "has a constellation of symptoms ... many [of which] are not significant," that his "present symptoms are a direct result of his on the job injury." Barker then went to another doctor, Dr. Tariq Javed, who diagnosed Barker with lower back pain, lumbar facet arthropathy, and SI joint pain. After seeing these doctors, Barker fell at home in April 2019 when he slipped on a wet surface and landed on his left buttocks and hip, the same location of impact as his work injury, and a different doctor diagnosed him with midline low back pain and bilateral sciatica, with unspecified chronicity.

In August 2019, the ALJ held an evidentiary hearing to determine whether Barker was entitled to a resumption of TTD benefits. After the hearing, the ALJ concluded that Barker underwent a change in condition for the better on October 26, 2018 and did not require further medical treatment nor have any disability as a result of his work accident and injury. The ALJ also concluded that the fall that occurred at Barker's home on April 20, 2019 "appear[ed] to be the same as his original accident," "necessitated [Barker's] receiving treatment at the emergency room several days later," and was a nonwork related injury "which is now the cause of any need for medical treatment or any possible disability as it either aggravated, cause[d] or continued any back problems thus breaking any chain of causation which may have existed as is contemplated by [OCGA] § 34-9-204 (a)." Barker appealed the ALJ's ruling to the Appellate Division of the State Board of Workers’ Compensation ("the Board"), which affirmed the ALJ's decision and adopted its findings of fact and conclusions of law.

Barker appealed the Board's decision to the Superior Court of Carroll County. The superior court reversed the Board's findings that Barker experienced a subsequent, intervening accident which broke the chain of causation. The superior court also found that this conclusion was "judicially inconsistent" with the Board's other conclusion that Barker underwent a change of condition for the better on October 26, 2018, and would no longer be entitled to wage or medical benefits from that point forward. We granted the Employer's application for discretionary review, and this appeal followed.

It is well settled that the Board is authorized to assess witness credibility and weigh conflicting evidence. In contrast, neither the superior court nor this Court has any authority to substitute itself as a fact finding body in lieu of the Board. When reviewing a workers’ compensation award, we construe the evidence in a light most favorable to the party prevailing before the [Board's] appellate division and will uphold the [Board's] factual findings if there is any evidence to support them.

(Citations and punctuation omitted.) Waters v. PCC Airfoils, LLC , 328 Ga. App. 557, 562, 762 S.E.2d 617 (2014).

1. First, the Employer argues that the superior court erred in reversing the Board's award concluding that Barker underwent a change in condition for the better on October 26, 2018,...