Home Depot v. McCreary

In remanding for the Appellate Division to consider the conflicting evidence, the superior court did not reweigh evidence but properly remanded for the Appellate Division to correct an undisputed misstatement of fact, namely that no evidence supported plaintiff's claim that her work aggravated her head injury, because evidence showed otherwise.

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Cathy McCreary sought workers compensation benefits for a “fictional new injury,” contending that she suffered a closed-head injury at work in 2001 but kept working until she could work no longer in June 2003. The ALJ granted her medical benefits for the 2001 injury, but did not address the fictional new injury issue or McCreary’s claim for income benefits. Home Depot appealed and the Appellate Division reversed. McCreary appealed to the superior court, which remanded the case to the Appellate Division for further action. We granted Home Depot’s application for discretionary review of the superior court’s order, and upon review, we affirm. 1. Home Depot argues first that neither the Workers Compensation Board’s Appellate Division nor the superior court had subject matter jurisdiction to consider whether McCreary suffered a fictional new injury in June 2003 because McCreary did not cross-appeal the ALJ’s “denial of benefits on the June 27, 2003, date of injury.” McCreary responds that she argued the merits of her June 2003 fictional new injury before both the Appellate Division and the superior court, and Home Depot never raised the jurisdictional issue until its brief before this court. Further, the ALJ did not deny her claim for a fictional new injury; he simply did not address it at all.

Before 1994, an appeal of an ALJ award to the full Board of Workers Compensation “opened the entire case as a de novo proceeding.” Ga. Dept. of Revenue v. Hughes , 99 Ga. App. 127, 128 1 108 SE2d 184 1959. “Either party could have urged any question on the appeal that it could have urged in the original trial of the matter before the ALJ,” Id., and therefore a claimant could not dismiss his appeal to the Board when the employer had already argued to the Board that the ALJ erred in part, even though the employer had not cross-appealed. Atlanta Family Restaurants v. Perry , 209 Ga. App. 581 434 SE2d 140 1993 physical precedent only.

Home Depot v. McCreary

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