We granted Julian Dasher’s application for discretionary review to determine whether the superior court erred in affirming the award of the appellate division of the State Board of Workers’ Compensation.
Dasher was employed with the City of Valdosta (the City) as a landfill operator and foreman at one of the City’s landfills. On April 22, 1992, Dasher aggravated his pre-existing degenerative back condition when the tractor he had been driving ran into a ditch and he was forcibly thrown into its steering wheel. It is undisputed that this accident and Dasher’s back injury arose out of and in the course of his employment. Although Dasher experienced pain in his lower back which radiated into his left leg as a result of the accident, he continued to work and operate heavy equipment until April 24, 1992, the date of the scheduled closing of the landfill. Dasher’s position was eliminated as a result of the closing of the landfill and prior to the accident, he decided to retire rather than accept a comparable position at another landfill at a reduced salary. Since his retirement, Dasher has worked in his landscaping business performing the same type of work and operating the same type of equipment that he operated while employed with the City.
Following an administrative hearing, an administrative law judge (ALJ) denied Dasher’s
1. “The law is well established that a finding of fact by the full board, when supported by any evidence, is conclusive and binding upon the court, and neither the superior court nor the Court of Appeals has any authority to substitute itself as the fact finding body in lieu of the board.” (Punctuation omitted.)
Watson v. Universal Ceramics,
In all claims for compensation under Georgia’s Workers’ Compensation Act, the employee must carry the burden of proof and show that he sustained a disabling injury arising out of and in the course of his employment entitling him to compensation.
Scandrett v. Talmadge Farms,
The evidence viewed in the light most favorable to the City, the prevailing party before the Board, shows that the April 22, 1992 injury did not render Dasher totally disabled. Dasher continued to operate heavy equipment after the work-related accident during his employment with the City and in his own landscaping business. Additionally, the medical evidence in the record shows that Dasher is partially disabled as a result of the April 22, 1992 accident but does not indicate that Dasher has been totally disabled since he voluntarily retired from working with the City. In fact, Dasher’s decision to retire was based primarily on the lower salary associated with the proffered position and the anticipated effect of the salary upon his entitlement to social security benefits. The evidence of record demonstrates Dasher’s ability to work in some capacity and refutes his assertion that he is totally disabled. Although the ALJ and the Board applied an incorrect legal theory and based its denial of benefits on Dasher’s failure to seek suitable remunerative employment relying on our decision in
Employers Liability Assurance Co. v. Hollifield,
2. An employee is entitled to assessed attorney fees if the Board determines that a claim has been defended without reasonable grounds and if an employer unreasonably fails to comply with any provision of OCGA § 34-9-221. OCGA § 34-9-108. In light of the fact that Dasher has not shown that he is entitled to total disability benefits, and the City prevailed on its defense in this claim, it cannot be said that the City defended these administrative proceedings without
Judgment affirmed.