                                FIFTH DIVISION
                               MCFADDEN, P. J.,
                            BRANCH and BETHEL, JJ.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                                http://www.gaappeals.us/rules


                                                                     March 16, 2018




In the Court of Appeals of Georgia
 A17A1469. CARTERSVILLE CITY SCHOOLS et al. v.
     JOHNSON.

      BETHEL, Judge.

      In this workers’ compensation action, an administrative law judge (“ALJ”) for

the State Board of Workers’ Compensation granted Celia Norris Johnson’s claim for

benefits after finding that she sustained an injury arising out of and in the course of

her employment. The Board’s Appellate Division (“Appellate Division”) reversed the

ALJ’s decision, finding no evidence to support the award, and denied benefits.

Johnson then appealed to the Superior Court of Bartow County, which reversed the

Appellate Division, thus reinstating the award of benefits to Johnson. Pursuant to a

granted application for discretionary appeal, Cartersville City Schools and

Technology Insurance Company (collectively, “Cartersville City Schools”) now
appeal, arguing the superior court made several errors in reaching its decision. We

affirm because the Appellate Division misconstrued the legal framework for

determining whether an injury arose out of employment and therefore rendered a

decision contrary to law.1

      Pursuant to OCGA § 34-9-103 (a), “[a]ny party dissatisfied with a decision of

an [ALJ] of the trial division of the State Board of Workers’ Compensation may

appeal that decision to the [A]ppellate [D]ivision of the State Board of Workers’

Compensation which shall have original appellate jurisdiction in all workers’

compensation cases.” “The Appellate Division is authorized to weigh the evidence

of record and assess the credibility of witnesses.” Stokes v. Coweta Cty. Bd. of Educ.,

313 Ga. App. 505, 506 (722 SE2d 118) (2012) (citation and punctuation omitted).

      If, after assessing the evidence of record, the Appellate Division
      determines that the findings of the ALJ were supported by a
      preponderance of the competent and credible evidence, the Appellate
      Division must accept the factual findings of the ALJ. But, if after
      assessing the evidence of record, the [A]ppellate [D]ivision concludes


      1
        We have circulated this decision among all nondisqualified judges of the
Court to consider whether this case should be passed upon by all members of the
Court. Fewer than the required number of judges, however, voted in favor of a
hearing en banc on the question of overruling St. Joseph’s Hospital v. Ward, 300 Ga.
App. 845.

                                          2
      the award does not meet the statute’s evidentiary standards, the
      [A]ppellate [D]ivision may substitute its own alternative findings for
      those of the ALJ, and enter an award accordingly.


Id. (citations omitted).

      Pursuant to OCGA § 34-9-105 (b), the parties have a right of direct appeal to

the superior court after a workers’ compensation decision becomes final at the

administrative level. “As a reviewing court, the superior court applies an any-

evidence standard of review to the Board’s findings of fact, construing the evidence

in the light most favorable to the party prevailing before the Board, and lacks

authority to substitute itself as a fact-finding body in lieu of the Board.” Stokes, 313

Ga. App. at 506 (citations omitted). But “erroneous applications of law to undisputed

facts, as well as decisions based on erroneous theories of law are subject to the de

novo standard of review” in the superior court. Home Depot v. McCreary, 306 Ga.

App. 805, 809 (2) (703 SE2d 392) (2010) (citation and punctuation omitted).

“Appeals to this Court are governed by the same standards of review as appeals to the




                                           3
superior court under OCGA § 34-9-105.” Stokes, 313 Ga. App. at 507 (citations

omitted).2

      Viewed in the light most favorable to Cartersville City Schools as the party

which prevailed before the Board’s Appellate Division, the record shows the

following. On October 7, 2014, Johnson was teaching fifth grade at Cartersville

Elementary School. While instructing the students, Johnson walked back to her desk

to put an image up on the smartboard. She then turned from her computer and desk

to walk back to the front of the classroom and fell, injuring her knee.

      Following the surgical repair of her knee, Johnson filed a workers’

compensation claim. At the administrative hearing on her claim, the only issue in

contention between the parties was whether Johnson’s knee injury arose out of her

employment or was a non-compensable “idiopathic” injury. The ALJ found Johnson’s

knee injury to be causally connected to her employment and granted workers’

compensation benefits. Specifically, the ALJ determined that Johnson’s necessary

swift movements and the configuration of her classroom caused her to “place acute

stress on her knee resulting in the injury she sustained.” The ALJ went on to find that

      2
         An appeal to this Court from a decision of a superior court reviewing a
decision of the Board is not a matter of right but rather is discretionary. OCGA § 5-6-
35 (a) (1). See also Stokes, 313 Ga. App. at 507.

                                          4
these “external factors . . . created a risk and caused a danger which was peculiar to

her work environment that causally connects her employment to her injury.”

       Cartersville City Schools appealed the decision to the Appellate Division,

arguing the ALJ erred in finding Johnson’s injury arose out of her employment and

was not idiopathic. The Appellate Division reversed the ALJ’s decision, finding no

evidence to support the ALJ’s determination that Johnson’s knee injury was caused

by her having to weave through the tight classroom configuration. The Appellate

Division further concluded that Johnson’s knee injury was not compensable because

“the act of turning and walking was not a risk unique to [her] work, and is a risk to

which she would have been equally exposed apart from the employment.” Rather, the

Appellate Division concluded that Johnson’s “injury was caused by an idiopathic

fall[.]”

       Johnson appealed to the Bartow County Superior Court, which reversed the

Appellate Division and reinstated the workers’ compensation award. In its order, the

superior court noted that the Appellate Division had employed an incorrect legal

standard regarding causation when reaching its decision, and reasoned that the

Appellate Division’s standard “would label any injury that could be incurred off-site

as ‘idiopathic.’” The superior court further held that there was no evidence to indicate

                                           5
that Johnson’s fall was idiopathic because her injury “arose out of her performing her

duties as a classroom teacher.” This appeal by Cartersville City Schools followed.

      Cartersville City Schools first argues that the superior court exceeded its

authority and (a) improperly shifted the burden of demonstrating an accident to it, (b)

deviated from the findings of fact reached by the Appellate Division, (c) improperly

re-weighed evidence, and (d) failed to view evidence in the light most favorable to

the party prevailing before the Appellate Division in violation of OCGA § 34-9-105

(c). Cartersville City Schools further argues that the superior court violated stare

decisis and applied a new legal standard in finding that Johnson did not sustain an

idiopathic injury.

      For an accidental injury to be compensable under the Workers’ Compensation

Act, the injury must not only occur in the course of the employment, but also must

arise out of the employment. OCGA § 34-9-1 (4). See also Chaparral Boats, Inc. v.

Heath, 269 Ga. App. 339, 340 (606 SE2d 567) (2004). Cartersville City School does

not dispute the finding that Johnson sustained her knee injury in the course of

employment because it occurred while she was teaching in her classroom. Rather, the

disputed issue is whether Johnson carried her burden of showing by a preponderance



                                          6
of the evidence that her accidental injury arose out of her employment. See Chaparral

Boats, Inc., 269 Ga. App. at 340.

      Pursuant to OCGA § 34-9-105 (c), in the absence of fraud, the factual findings

of the Appellate Division are conclusive, but its decision may be set aside if it is

found that the facts do not support the decision, there is not sufficient competent

evidence in the record to warrant making the decision, or the decision is contrary to

law, among other things. See OCGA § 34-9-105 (c) (3-5).

      Here, the superior court held that the Appellate Division’s conclusion that

Johnson’s fall was idiopathic was not supported by the evidence because her injury

“arose out of her performing her duties as a classroom teacher.” The superior court

further held that the Appellate Division employed the incorrect legal standard to

determine causation. The superior court held that an injury arises out of employment

where the injury results “from a risk reasonably incident to the employment” and

went on to note that “a risk is incident to the employment when it belongs to, or is

connected with, what a workman has to do in fulfilling his contract of service.” In

holding that the Appellate Division committed legal error in determining the correct

legal standard to apply when determining causation, the superior court stated that this



                                          7
Court’s decisions in Chaparral Boats3 and St. Joseph’s Hospital v. Ward4 would

“render almost any injury to be not compensable unless the employee is run through

by a patented, proprietary Hyster pole.” According to the superior court, the Appellate

Division’s construction of the term “idiopathic” used “a standard that would label any

injury that could be incurred off-site as idiopathic.” The superior court noted that this

was erroneous, and that “[s]imply because an injury could occur elsewhere does not

make it automatically ‘idiopathic.’” Thus, the superior court concluded, in rendering

its causation analysis, that the Appellate Division misapplied the legal term

“idiopathic.”

      In determining whether the superior court erred in reversing the Appellate

Division, we must consider whether the Appellate Division correctly applied the law,

and whether the record establishes some evidence that Johnson’s knee injury was not

compensable because it did not arise out of her employment. See Chambers v.

Monroe Cty. Bd. of Comm’rs, 328 Ga. App. 403, 403-404 (762 SE2d 133) (2014).

“The legal standard governing whether an injury arises out of employment is well

established.” Id. at 404.

      3
          269 Ga. App. 339 (606 SE2d 567) (2004).
      4
          300 Ga. App. 845 (686 SE2d 443) (2009).

                                           8
      For an accidental injury to arise out of the employment there must be
      some causal connection between the conditions under which the
      employee worked and the injury which [s]he received. The causative
      danger must be incidental to the character of the employment, and not
      independent of the relation of master and servant. The accident must be
      one resulting from a risk reasonably incident to the employment. And a
      risk is incident to the employment when it belongs to, or is connected
      with, what a workman has to do in fulfilling his contract of service. An
      injury arises out of the employment when a reasonable person, after
      considering the circumstances of the employment, would perceive a
      causal connection between the conditions under which the employee
      must work and the resulting injury.


Chaparral Boats, Inc., 269 Ga. App. at 340-41 (citations omitted). But

      [w]here the injury would have occurred regardless of where the
      employee was required to be located, and results from a risk to which
      the employee would have been equally exposed apart from any
      condition of the employment, there is no basis for finding a causal
      connection between the employment and the injury, and no basis for
      compensation under the positional risk doctrine. The general rule still
      applies that the injury does not arise out of the employment where the
      causative danger is not peculiar to the work in a way that causally
      connects the employment to the injury.


Id. at 343 (citations omitted). “The operative question is whether the claimant

performed the activity in furtherance of her job duties, and this is a question of fact

                                          9
that is committed to the fact-finder at the administrative level.” Chambers, 328 Ga.

App. at 406 (citing Harris v. Peach Cty. Bd. of Comm’rs, 296 Ga. App. 225, 228 (674

SE2d 36) (2009). “The claimant carries the burden of establishing causation.”

Hughston Orthopedic Hosp. v. Wilson, 306 Ga. App. 893, 895 (1) (703 SE2d 17)

(2010) (citation omitted). We defer to the factual findings of the Board where there

is any evidence to support it. Chambers, 328 Ga. App. at 407 (“It has been so

repeatedly held that where there is any competent evidence to sustain a finding by the

board such finding is conclusive and binding on a reviewing court, that no citations

are deemed necessary.” (citation omitted)). Neither the superior court nor this Court

may substitute its judgment for that of the Board with respect to the determination of

the factual cause of a claimant’s injury. Id. “To hold otherwise would work a dramatic

alteration in our long-standing ‘any evidence’ rule in this regard.” Id. While

conclusive if supported by any evidence, such factual determinations are not immune

from a legal review concerning the applicability of the law to the facts.

      “[T]he fact-finding body must in each case remain the final arbiter of the

compensability of the injury and of whether the claimant’s disability arose out of the




                                         10
employment as well as in the course of it,”5 and we agree that in this case the superior

court did not sufficiently defer to the fact-finding of the Appellate Division. However,

this does not end our inquiry. It remains the responsibility of this Court to review the

legal framework within which the fact-finder operated, and thus to define what

“arising out of” employment means as a matter of law.

      Here, the Appellate Division set forth the above referenced legal standard

regarding causation in its order. However, it erred in its analysis with respect to the

legal framework for determining whether an injury arises out of employment, and

relatedly, its determination of what constitutes an idiopathic injury. In its order, the

Appellate Division found that Johnson’s act of “turning and walking was not a risk

unique” or peculiar to her work, and was “a risk to which she would have been

equally exposed apart from the employment,” and that therefore her injury resulted

from an “idiopathic fall” and was not compensable.

      In so holding, it appears that the Appellate Division fell prey to the confusion

that our case law has sown. As a preliminary matter, in considering whether an injury


      5
       Harris, 296 Ga. App. at 229 (citation and punctuation omitted). See also
Chambers, 328 Ga. App. at 407 (deferring to fact-finding body’s determination of
whether injury had a causal connection to employment and therefore was
compensable).

                                          11
arose out of employment, the focus should be on the causal link between the injury

and the employee’s work-related conditions or activity. See Hennly v. Richardson,

264 Ga. 355, 356 (1) (444 SE2d 317) (1994); Fried v. U.S. Fid. & Guar. Co., 192 Ga.

492, 495-496 (15 SE2d 704) (1941); Chaparral Boats, 269 Ga. App. at 340-41; Davis

v. Houston Gen. Ins. Co., 141 Ga. App. 385, 386 (233 SE2d 479) (1977); Borden

Foods Co. v. Dorsey, 112 Ga. App. 838, 839 (3) (146 SE2d 532) (1965).6

       But where the Appellate Division erred, due in large part to the quagmire in

this area of the law, is in interpreting and applying what the Georgia Supreme Court

and our Court have meant in holding that injuries do not arise out of employment

where they “cannot fairly be traced to the employment as a contributing proximate

cause, and which comes from a hazard to which the workmen would have been

equally exposed apart from employment.” Fried, 192 Ga. at 495 (emphasis supplied).

See also Chambers, 328 Ga. App. at 404-405; Chaparral Boats, 269 Ga. App. at 343-

346.

       The Appellate Division overlooked the proximate cause requirement and

focused on the concept of equal exposure, interpreting it to mean that because

       6
        Borden was overruled by Johnson v. Publix Supermarkets, 256 Ga. App. 540,
541-42 (568 SE2d 827) (2002), which was later disapproved of by Chaparral Boats,
Inc., 269 Ga. App. at 346-347.

                                        12
Johnson could have fallen outside of work while walking and turning, as she did

while she was at work, and nothing particular about the classroom appears to have

caused the fall,7 that her injury resulted from an idiopathic fall and is not

compensable. But just because an employee could theoretically be exposed to a

hazard outside of work that mirrors that which he or she must face while at work does

not render an injury resulting from that workplace hazard non-compensable. See

Harris, 296 Ga. App. at 230. To hold otherwise would render virtually any case in

which an employee is walking, turning, or standing (or some combination of these

activities) while performing his or her job non-compensable. Thus, to the extent that

St. Joseph’s Hosp. v. Ward, 300 Ga. App. 845, 848 (1) (686 SE2d 443) (2009) holds

that an activity is not compensable because an employee could have engaged in the

activity giving rise to the injury outside of work,8 it must be and is overruled.

      7
        Johnson disputes this and argues that her knee injury resulted from her having
to weave through the tight classroom configuration at a rapid pace. The record shows
that Johnson testified that she was hurrying around her classroom while instructing
the children that day, and that she fell while navigating her way between the corner
of her desk and the table that was right next to it. But, we must accept the Appellate
Division’s factual determination on this part.
      8
        In St. Joseph’s Hospital, this Court opined that a nurse’s knee injury that she
sustained while turning to get a patient some water was not compensable because
“standing and turning” were not risks unique to her employment. 300 Ga. App. at
846, 848 (1).

                                          13
      Rather, to be a compensable injury that arises out of employment, the injury

must either be caused by activity the employee engaged in as part of his or her job,

or the injury must result from some “special danger of the employment[.]”9 U.S. Cas.

Co. v. Richardson, 75 Ga. App. 496, 499 (2) (43 SE2d 793) (1947) (employee

suffered a seizure and then struck his head on a sharp corner of a table present in the

workplace, causing a skull fracture and brain injury, which was compensable). See

also Harris, 296 Ga. App. at 228-230 (employee was carrying out job duties when

she bent over to pick up a pill and injured her knee). Compare Murphy v. ARA Servs.,

Inc., 164 Ga. App. 859, 861-863 (298 SE2d 528) (1982) (assault in the workplace did

not arise out of employment where it did not arise over any work-related dispute and

conditions were not such that they increased the risk of attack); Davis, 141 Ga. App.

at 385-87 (no evidence that back injury sustained while putting on a coat “was related

in any way to or caused by the peculiar nature of her duties”). That is, the activity or

hazard resulting in injury must be “incidental to the character of the business, and not

independent of the relation of master and servant.” Fried, 192 Ga. at 495.


      9
        For example, with respect to the positional risk doctrine, an injury may arise
out of employment if a duty related to the employment placed the employee in a
locale which exposed the employee to a common risk. See Chaparral Boats, Inc., 269
Ga. App. at 341-43.

                                          14
      For example, in Chaparral Boats, the employee’s knee injury she sustained

while walking across company property to “clock in” did not arise out of her work

and was not compensable because the injury did not arise from her engagement in

activity required for her work, and the injury did not result from a slip, trip, fall, or

contact with any hazard of her workplace. 269 Ga. App. at 339, 344 (1). Accord

Borden Foods, 112 Ga. App. at 839-840 (4).

      Further, an injury that occurs in the workplace but is idiopathic — meaning that

the injury is “peculiar to the individual or arises[s] spontaneously or from an obscure

or unknown cause”10 — and has no causal connection to workplace activity or

conditions, would not fall within the scope of the Workers’ Compensation Act.

Rather, in this context, idiopathy is used to describe injuries sustained at work that

are unrelated to, or do not occur while engaged in, work. Here, the undisputed facts

as found by both the ALJ and Appellate Division reveal that Johnson was actively

engaged in the movements and behaviors required of her as a classroom teacher when

she was injured as a result of one or more of those movements. This is not an

idiopathic injury.


      10
        Sturgess v. OA Logistics Servs., Inc., 336 Ga. App. 134, 138 n. 11 (784 SE2d
432) (2016) (citation and punctuation omitted).

                                           15
       Thus, because the Appellate Division misconstrued the legal framework for

determining whether an injury arose out of employment and therefore rendered a

decision contrary to law, the superior court was authorized to set aside the Appellate

Division’s decision. See OCGA § 34-9-105 (c) (5).

      Judgment affirmed. Branch, J., concurs. McFadden, P. J., concurs fully and

specially.




                                         16
 A17A1469. CARTERSVILLE CITY SCHOOLS et al. v.

       JOHNSON.



      MCFADDEN, Presiding Judge, concurring fully and specially.

      I write separately because the majority cites Chambers v. Monroe County Bd.

of Comm’rs, 328 Ga. App. 403) (762 SE2d 133) (2014). Certain language in

Chambers is in conflict with well-established standards of review in workers’

compensation cases. I am able to concur fully because the majority does not rely on

the incorrect language in Chambers. But my full concurrence is subject to the

qualification that this opinion may not be cited as an endorsement of that incorrect

language. See Court of Appeals Rule 33.2.

      In Chambers, this court held “that the superior courts (and this court) may not

substitute their judgment for that of the [Appellate Division of the State Board of

Workers’ Compensation] on the question of whether an injury arose out of the
claimant’s employment. To hold otherwise would work a dramatic alteration in our

long-standing ‘any evidence’ rule in this regard.” Id. at 407. To the extent this

language suggests that this court may not conduct a de novo review of the board’s

application of the law to undisputed facts on the issue of whether an injury arose out

of a claimant’s employment, it is in conflict with settled case law setting forth the

standards of review in such cases.

      The judicial standards of review governing workers’ compensation cases are

well-established.

      In reviewing a workers’ compensation benefits award, both this [c]ourt
      and the superior court must construe the evidence in a light most
      favorable to the party which prevailed before the [b]oard. 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
      [b]oard. However, we review de novo erroneous applications of law to
      undisputed facts, as well as decisions based on erroneous theories of
      law.

Sanchez v. Carter, 343 Ga. App. 187 (___ SE2d ___) (2017) (citations and

punctuation omitted; emphasis supplied). Accord Brasher v. US Xpress Enters., 328

Ga. App. 20, 21 (761 SE2d 448) (2014); Heritage Healthcare v. Ayers, 323 Ga. App.

172, 172-174 (746 SE2d 744) (2013).




                                           2
      “The issue of whether an injury arises out of and in the course of employment

and so is compensable under the workers’ compensation law is a mixed question of

fact and law. The finder of fact must first hear all the relevant evidence concerning

the injury and, after finding the facts with regard thereto, render a conclusion of law

on whether it was job-related.” Lavine v. American Ins. Co., 179 Ga. App. 898, 900

(348 SE2d 114) (1986) (citation and punctuation omitted). Accord Blair v. Georgia

Baptist Children’s Home & Family Ministries, 189 Ga. App. 579 (377 SE2d 21)

(1988); Knight v. Gonzalez, 181 Ga. App. 468, 469 (352 SE2d 646) (1987); Utz v.

Powell, 160 Ga. App. 888, 889 (1) (288 SE2d 601) (1982). See also Hennly v.

Richardson, 264 Ga. 355, 358 (444 SE2d 317) (1994) (dissent). But “where . . . the

facts in a workmen’s compensation case are undisputed, whether the injury arose out

of and in the course of employment is a question of law.” Parker v. Travelers Ins.

Co., 142 Ga. App. 711, 712 (1) (236 SE2d 915) (1977) (citation and punctuation

omitted). Accord Thornton v. Hartford Acc. &c. Co., 198 Ga. 786, 795 (32 SE2d 816)

(1945) (“The facts being undisputed, whether the injury arose out of and in the course

of the employment is a question of law[.]”); Lee v. Sears, 223 Ga. App. 897 (479

SE2d 196) (1996) (“Whether an injury arises out of and in the course of employment




                                          3
is generally a mixed question of law and fact. But where, as here, the material facts

are not in dispute, that issue may be determined as a matter of law.”).

      So in a case like this one, where the dispositive facts are undisputed and thus

the issue of whether an injury arose out of and in the course of employment is a

question of law, under the well-established standards of review recited above, this

court is required to conduct a de novo review of the board’s decision to determine

whether there had been an erroneous application of the law to those undisputed facts.

To the extent that Chambers, supra, can be read to suggest that this Court is bound

to uphold the board’s decision in such a case under the any evidence rule, it is

incorrect under our well-established case law.

      Nevertheless, as noted above, the majority in this case does not rely on the

incorrect language in Chambers. So I concur fully.




                                          4
