Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

McCrary v. Georgia Employee Retirement System

Court of Appeals of Georgia, Third Division

March 13, 2019


          MCFADDEN, P. J., REESE and HODGES, JJ.

          REESE, JUDGE.

         The Appellant, Joann McCrary, appeals a judgment of the Superior Court of Fulton County that affirmed a ruling of the State Board of Workers' Compensation ("Board"), which denied certain benefits to her from her employer, the Georgia Employees' Retirement System ("the Appellee").[1] The Appellant contends that the superior court erred in affirming the decision of the Board to deny her request for a catastrophic designation of her job-related injury. For the reasons set forth infra, we affirm.

         Viewed in the light most favorable to the Appellee, as the party who prevailed before the Board, [2] the record reveals the following facts. From 2005 until 2011 when the Appellant had surgery on her right wrist, the Appellant worked for the Appellee as a customer service specialist. As a customer service specialist, the Appellant's duties consisted of taking incoming calls from employees inquiring about their benefits, typing up the information pertaining to the calls, and entering this data into the Appellee's system.

         During the course of her employment with the Appellee, the Appellant's right hand became swollen and painful, and she could "barely move [her] fingers[.]" The Appellant received treatment through the workers' compensation system from Dr. Joseph Wilkes. Dr. Wilkes performed surgeries on the Appellant's right wrist in February 2011 and in August 2011. The Appellant testified before the Administrative Law Judge ("ALJ") that after the surgeries, she could not type or use her right hand very well. She averred that she did not return to work after her surgeries and was terminated for failing to return to work when asked. On cross-examination, the Appellant testified that she submitted two separate applications to the Social Security Administration ("SSA") for benefits for problems with her right wrist and that both applications were denied.

         In 2015, Dr. Wilkes documented that the Appellant's disability was "permanent and stable[.]" In 2016, Dr. Wilkes wrote in a status report that "[the Appellant] is unable to type for any length of time and should be on no typing." The Appellee accepted the Appellant's workers' compensation claim as compensable, and the Appellee received medical care, temporary total disability benefits, temporary partial disability benefits, and permanent partial disability benefits. In 2016, the Appellant sought a designation of catastrophic injury and the payment of income benefits.

         At the hearing before the ALJ, the Appellant tendered a report completed by Dr. Frank Joseph based on an independent medical evaluation of her in September 2012. Dr. Joseph wrote that, "[a]t this time the patient clearly cannot return to her original job description. Realistically, the patient will probably never be able to return to work with any reasonable function of the right upper extremity. At best, the patient could return to work with no use of the right upper extremity on a permanent basis."

         The Appellant also tendered a November 2012 functional capacities evaluation ("FCE") report, in which the examiner found her to be "employable in a [s]edentary physical demand level, but the job must not require more than 30% use of her right upper extremity during the workday." Dr. Wilkes endorsed the findings of the FCE on May 9, 2016.

         In addition, the Appellant presented the testimony of a vocational expert, Mike McCord, who testified that, based upon his review, the Appellant was unable to do her prior work and she "was unable to do any work for which she's qualified that exists in substantial numbers." McCord stated that he did not consider any of the Appellant's other health-related conditions[3] to be disabling and only considered the compensable job-related injury in his assessment.

         On cross-examination, McCord testified that it was unlikely for the Appellant, as a person who is right-hand dominant but lacks the use of her right hand, and who is high school educated and computer literate, to find a job in the metropolitan Atlanta area. Also during cross-examination, McCord was asked about whether he considered any advanced computer technologies that might assist the Appellant and make her employable, such as voice recognition software. McCord responded that he had considered some adaptive technologies, but felt voice recognition software was not particularly accurate, that joy sticks or rollerballs would be difficult for the Appellant to use with her non-dominant, left hand, and that it would not be "feasible[ ]" for her to request that an employer buy software to allow her to work.

         The ALJ found that the Appellant failed to carry her burden of proving that she sustained a catastrophic injury as defined in OCGA § 34-9-200.1 (g) (6) (A). The Appellant appealed to the Appellate Division of the Board, which struck and amended certain findings of fact and conclusions of law by the ALJ, but adopted the ALJ's conclusion that the Appellant had failed to demonstrate a catastrophic injury. The Appellant appealed to the Superior Court of Fulton County, which affirmed the decision of the Appellate Division. This appeal followed. For the reasons set forth infra, we affirm.

In reviewing an award of workers' compensation benefits, both the superior court and this Court are required to construe the evidence in a light most favorable to the party prevailing before the State Board. It is axiomatic that the findings of the Board, when supported by any evidence, are conclusive and binding, and that neither the superior court nor this Court has any authority to substitute itself as a fact finding body in lieu of the Board. The question of whether the trial court applied the correct legal standard in evaluating the evidence, however, is one of law, which we review de novo.[4]

OCGA § 34-9-200.1 (g) (6) (A) states that one type of catastrophic injury is an injury

of a nature and severity that prevents the employee from being able to perform his or her prior work and any work available in substantial numbers within the national economy for which such employee is otherwise qualified; provided, however, if the injury has not already been accepted as a catastrophic injury by the employer and the authorized treating physician has released the employee to return to work with restrictions, there shall be a rebuttable presumption, during a period not to exceed 130 weeks from the date of injury, that the injury is not a catastrophic injury. During such period, in determining whether an injury is catastrophic, the board shall give consideration to all relevant factors including, but not limited to, the number of hours for which an employee has been released. A decision granting or denying disability income benefits under Title II or supplemental security income benefits under Title XVI of the Social Security Act shall be admissible in evidence and the board shall give the evidence the consideration and deference due under the circumstances regarding the issue of whether the injury is a catastrophic injury; provided, however, that no presumption shall be created by any decision granting or denying disability income benefits under Title II or supplemental security income benefits under Title XVI of the Social Security Act.

With these guiding principles in mind, we turn now to the Appellant's specific claims of error.

         1. The Appellant argues that the trial court erred in affirming the decision of the Board because the Board did not rely on competent evidence but instead, improperly relied upon "reasonable inferences" it claimed were drawn from the evidence. Specifically, the Appellant asserts that the Board relied upon its own experiences, not the undisputed evidence presented, in deciding that jobs were available to the Appellant in substantial numbers within the national economy pursuant to OCGA § 34-9-200.1 (g) (6) (A).

         The record shows that the ALJ discounted the testimony of the Appellant's vocational expert, McCord, in its decision, stating:

[he] testified that a person of [the Appellant's] skill cannot find a job, even in a city such as Atlanta, given her restrictions. He also opines that it would not be feasible to obtain a job where an employer would have to accommodate limitations with voice recognition technology that is "not particularly accurate." Also, devices such as joysticks and trackballs would require the use of the non-dominant hand which would prevent [the Appellant] from meeting any kind of production requirements.

         The ALJ's decision stated that it found "these opinions unconvincing, as accuracy can be attained with voice recognition software and as [McCord] appears to underestimate the ability of ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.