496 S.E.2d 905 | Ga. | 1998
We granted a discretionary appeal in this case to consider whether OCGA § 34-9-103 (a), as amended in 1994,
1. OCGA § 34-9-103 (a) provides in relevant part that
If an application for review is made to the appellate division within 20 days of notice of the award, the appellate division shall review the evidence and shall then make an award with findings of fact and conclusions of law. A copy of the award so made on review shall immediately be sent to the parties at dispute. Upon review, the appellate division may remand to an administrative law judge in the trial division any case before it for the purpose of reconsideration and correction of apparent errors and omissions and issuance of a new award, with or without the taking of additional evidence, or for the purpose of taking additional evidence for consideration by the appellate division in rendering any decision or award in the case. The findings of fact made by the administrative law judge in the trial division shall be accepted by the appellate division where such findings are supported by a preponderance of competent and credible evidence contained within the records.
In Bankhead Enterprises v. Beavers,
Contrary to Syntec’s contention, this statutory scheme does not unconstitutionally shift any burden of proof on review to the appellate division to a party who prevailed before the ALJ and who did not
Analyzed from a different perspective, the weakness of Syntec’s position is readily apparent. When the appellate division substitutes its findings for the ALJ’s findings, a superior court reviewing the appellate division’s findings must affirm “if there was evidence to support the appellate division’s substitute findings.” The fact that the superior court must affirm if there is evidence to support the appellate division — like the appellate division must affirm the ALJ’s findings where supported by a preponderance of competent and credible evidence — does not mean that the prevailing party, as the appellee on appeal, has a burden of proof on appeal to demonstrate that there is evidence to support the appellate division’s findings. Although the appellee may certainly wish to make such an argument, there is no impermissible shift of a burden of proof.
2. Having examined the record in the present case, we conclude that the appellate division did not impermissibly shift any burden of proof to Syntec.
3. Because the record does not reveal that Syntec contended, either before the superior court or the appellate division, that § 34-9-103 violated due process by permitting the appellate division to weigh the evidence and assess the credibility of witnesses, Syntec may not raise that issue on appeal.
Judgment affirmed.
Ga. L. 1994, p. 887, § 8.
Bankhead Enterprises v. Beavers, 267 Ga. 506, 507 (480 SE2d 840) (1997).
Id. at 507-508.
Id. at 507.
See Harrison v. Southern Talc Co., 245 Ga. 212, 213 (3) (264 SE2d 2) (1980); Blackston v. State Dept. of Nat. Resources, 255 Ga. 15, 18 (334 SE2d 679) (1985).