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Burns v. State of Georgia Department of Administrative Services

Court of Appeals of Georgia

March 5, 2015

BURNS
v.
STATE OF GEORGIA DEPARTMENT OF ADMINISTRATIVE SERVICES et al

Cert. applied for.

Workers' compensation. Fulton Superior Court. Before Judge Tusan.

Judgment reversed and case remanded.

LaVerne Burns, pro se.

Samuel S. Olens, Attorney General, Kathleen M. Pacious, Deputy Attorney General, Brown W. Dennis, Jr., J. Travis Hall, Assistant Attorneys General, for appellee.

McFADDEN, Judge. Andrews, P. J., concurs. Ray, J., concurs in judgment only.

OPINION

Page 734

McFadden, Judge.

This is a discretionary, pro se appeal from the superior court's order setting aside an award of temporary total disability benefits made to LaVerne Burns by the State Board of Workers' Compensation (the Board). As a threshold matter, Burns argues that defendants State of Georgia and the State of Georgia Department of Administrative Services (collectively, the employer) failed to timely appeal the award to the superior court. The record, however, shows otherwise. As to the merits, Burns argues that it was error for the superior court to set aside the award. We agree, because the superior court apparently [331 Ga.App. 12] did not have before her the transcript of the relevant evidentiary hearing when she ruled to set aside the award, and because the superior court incorrectly held that Burns had to demonstrate certain facts not required by the law. Accordingly, we reverse the superior court's order and remand the case to the superior court for further proceedings not inconsistent with this opinion.

1. Procedural posture.

Burns, a receptionist for the State of Georgia Department of Administrative Services, was injured at work in December 2009 when the chair in which she was sitting collapsed. She received workers' compensation benefits in connection with that injury. Nevertheless, she continued to work in her position until October 30, 2012, when the employer terminated her employment. Burns then sought temporary total disability benefits. See OCGA § 34-9-104. The employer challenged this request on the ground that Burns's employment was terminated for reasons unrelated to her injury and because she had not sought another job.

After an evidentiary hearing, an Administrative Law Judge (ALJ) awarded Burns temporary total disability benefits. The ALJ specifically found that Burns was a credible witness, that " the reasons given by the [e]mployer to justify [Burns's] termination were pretextual, and that [Burns] was terminated due to her work injury." Because the " real reason for [Burns's] termination [was] her work-related injury and claim," the ALJ determined that Burns had " carried her burden of proving, by a preponderance of the evidence, that she is entitled to temporary total disability benefits."

The employer appealed the award to the Board's Appellate Division, which found that the evidence authorized the award and upheld it. The employer then appealed the award to the superior court. The superior court rejected Burns's challenge to the timeliness of the appeal and held that, to obtain benefits, Burns was required to show either that she had searched for another position or that she had been working in a restricted capacity when her employment was terminated. Finding that Burns had not made either showing, the superior court set aside the award. The superior court expressly " d[id] not reach the ALJ's determination that the reasons given for ...


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