                             FOURTH DIVISION
                               DILLARD, C. J.,
                         DOYLE, P. J., and MERCIER, J.

                   NOTICE: Motions for reconsideration m us t be
                   physically re ceived in our clerk’s office within ten days
                   of the date of decision to be deemed timely filed.
                                   http://www.gaappeals.us/rules


                                                                        March 8, 2019




In the Court of Appeals of Georgia
 A18A2072. A. GARCIA TRUCKING & PRODUCE, LLC et al. v.
      SANDOVAL.

      MERCIER, Judge.

      Alleging that he sustained a back and leg injury while employed by A. Garcia

Trucking and Produce, LLC (“Garcia Trucking”), Jose Sandoval filed a claim for

workers’ compensation benefits. An administrative law judge (“ALJ”) awarded

benefits, finding that Sandoval proved a compensable injury and that he gave proper

notice of the injury to Garcia Trucking. The ALJ also assessed attorney fees and costs

upon finding that Garcia Trucking’s defenses of the claim were unreasonable, and

assessed penalties against Garcia Trucking based on its failure to timely controvert

Sandoval’s claim. Garcia Trucking appealed to the Appellate Division of the State

Board of Workers’ Compensation (the “Board”), which adopted the ALJ’s findings
and award as to compensability and notice, but found that an assessment of attorney

fees and costs was not warranted given the “conflicting evidence” and Garcia

Trucking’s “other defenses, which [the Board found] to have been closely contested

on reasonable grounds.” Sandoval appealed to superior court on the attorney fees

issue. The superior court stated that the Board “has some discretion” in assessing fees

and costs, but that such discretion is premised upon evidence to explain an

employer’s noncompliance with the statute; “Since the Board made no finding that

[Garcia Trucking’s] late controvert was with reasonable grounds, the Board erred in

reversing the ALJ’s award of assessed attorney fees and litigation costs.” Garcia

Trucking and its insurer, Guarantee Insurance Company, applied for discretionary

review of the superior court’s ruling regarding attorney fees. We granted the

application. For the reasons that follow, we reverse.

      Pursuant to OCGA § 34-9-105 (c), the findings made by the members of the

Board are, in the absence of fraud, conclusive. However,

      the [superior] court shall set aside the decision if it is found that: (1) [t]he
      members acted without or in excess of their powers; (2) [t]he decision
      was procured by fraud; (3) [t]he facts found by the members do not
      support the decision; (4) [t]here is not sufficient competent evidence in



                                             2
      the record to warrant the members making the decision; or (5) [t]he
      decision is contrary to law.


(Punctuation omitted.) In this case, the superior court based its decision on OCGA

§ 34-9-105 (c) (5).

      In reviewing a workers’ compensation award, “this Court must construe the

evidence in the light most favorable to the party prevailing before the [Board].”

Laurens County Bd. of Educ. v. Dewberry, 296 Ga. App. 204, 205-206 (674 SE2d

73) (2009) (footnote omitted). And, “the findings of the [Board], when supported by

any evidence, are conclusive and binding, and neither the superior court nor this

[C]ourt may substitute itself as a factfinding body in lieu of the [Board].” The Medical

Center, Inc. v. Hernandez, 319 Ga. App. 335 (1) (734 SE2d 557) (2012) (citation and

punctuation omitted). Erroneous applications of law to undisputed facts, as well as

decisions based on erroneous theories of law, are subject to de novo review. Renu

Thrift Store v. Figueroa, 286 Ga. App. 455, 456 (649 SE2d 528) (2007).

      The record shows that Sandoval worked for Garcia Trucking as a delivery truck

driver. His duties included loading and unloading merchandise and driving the delivery

truck. On October 29, 2014, approximately two and one-half years after he began

work at Garcia Trucking, Sandoval injured his lower back and right leg while lifting a

                                           3
50-pound box. Sandoval immediately told his supervisor (company owner Aureliano

Garcia) about his injury and asked to see a doctor, but Garcia told him to go home

and rest. Sandoval went home and missed two to three weeks of work due to the pain.

Lacking the money to seek treatment from the authorized panel physicians, and/or not

realizing that he could see the panel physicians, Sandoval went to a doctor at a clinic

that provided medical treatment for people with low income. He returned to work until

March 2015, when the pain became intolerable.

      P. B., who was employed as an accountant by a company associated with

Garcia Trucking and who knew Sandoval through his employment, testified that

Sandoval told her about his back pain sometime between May and August 2014.

Sandoval had pain medication that came from Mexico, and P. B. agreed to give him

injections of the medication when he needed them. P. B. began giving him injections

in May or June 2014. According to P. B., Garcia knew that she was giving Sandoval

injections for back pain.

      Garcia testified that he hired Sandoval as a favor to Sandoval’s uncle, that

Sandoval told him before he began working at Garcia Trucking that he had a “back

problem,” that he was giving himself injections of medication for pain, and that he

could not begin work until the following week because he was “waiting on some

                                           4
injections[.]” Garcia testified that it was not unusual for Sandoval to miss work prior

to October 2014 due to back pain. He added that Sandoval never reported an October

2014 work injury and “never said he got hurt.” According to Garcia, had Sandoval

told him of an injury, he would have sent Sandoval to a doctor.

      In April 2015, Sandoval filed a claim for income and medical benefits, alleging

a compensable injury on October 29, 2014, and an alleged fictional new accident on

March 13, 2015. He also sought continuing temporary total disability benefits from

March 13, 2015, as well as attorney fees, costs and late payment penalties under

OCGA §§ 34-9-108 (b) (1), (2), (4) and 34-9-221 (e). Garcia Trucking contended

Sandoval failed to give it proper notice of the claim and that any back pain predated

his employment.

      Following a hearing, the ALJ found that Sandoval was credible, that he met his

burden of proving a compensable accident on October 29, 2014, resulting in injury and

disability, and that Garcia Trucking had actual notice of the injury. The ALJ further

found “the Employer’s defense claiming the Employee failed to give notice of his

injury to the Employer to be unreasonable” and concluded that this unreasonable




                                           5
  defense served as a basis for the assessment of attorney fees and costs of litigation. 1

  The ALJ also awarded penalties based on Garcia Trucking’s failure to controvert

  Sandoval’s claim within 21 days of learning about the injury on October 29, 2014.2

  Garcia Trucking appealed the ALJ’s award to the Board.

          “After a review of the record as a whole, as well as the arguments presented,”

  the Board concluded that the ALJ correctly ruled that Sandoval suffered a

      1
        OCGA § 34-9-108 (b) (1) provides: “Upon a determination that proceedings have
been . . . defended in whole or in part without reasonable grounds, the administrative law
judge or the board may assess the adverse attorney’s fee against the offending party.”
OCGA § 34-9-108 (b) (2) provides: “If any provision of Code Section 34-9-221 [regarding
payment procedure and notice to controvert], without reasonable grounds, is not complied
with and a claimant engages the services of an attorney to enforce his or her rights under
that Code section and the claimant prevails, the reasonable quantum meruit fee of the
attorney, as determined by the board, and the costs of the proceedings may be assessed
against the employer.” OCGA § 34-9-108 (b) (4) provides: “Upon a determination that
proceedings have been . . . defended in whole or in part without reasonable grounds, the
administrative law judge or the board may, in addition to reasonable attorney’s fees, award
to the adverse party in whole or in part reasonable litigation expenses against the offending
party[.]”
      2
         See OCGA § 34-9-221 (d), providing that an employer must dispute the right to
compensation by filing a notice to controvert with the Board “on or before the twenty-first
day after knowledge of the alleged injury or death”; OCGA § 34-9-221 (e), providing, “[i]f
any income benefits payable without an award are not paid when due, there shall be added
to the accrued income benefits an amount equal to 15 percent thereof, which shall be paid
at the same time as, but in addition to, the accrued income benefits unless notice is filed
under subsection (d) of this Code section or unless this nonpayment is excused by the
board after a showing by the employer that owing to conditions beyond control of the
employer the income benefits could not be paid within the period prescribed.”

                                              6
compensable injury on October 29, 2014, and informed Garcia Trucking about his

injury, but found that the competent and credible evidence did not support the ALJ’s

finding that the employee was entitled to attorney fees:

       We find that the preponderance of the competent and credible evidence
       shows that the Employer had sufficient and timely notice of a claimed
       back injury in that it had enough information within thirty days after
       October 29, 2014, to investigate whether the Employee’s absence from
       work, subsequent return to work, and need for restricted work were
       related to a work injury. [Cit.] However, given the evidence, including
       conflicting evidence, regarding the extent and duration of the Employee’s
       pre-existing back condition and in light of the Employer/Insured’s other
       defenses, which we find to have been closely contested on reasonable
       grounds, we conclude that an assessment of attorney’s fees and costs of
       litigation are not warranted in this case.

       The superior court reversed the Board’s decision as to attorney fees and

litigation costs.

       1. Garcia Trucking contends that the superior court erred by reviewing the

Board’s decision under a de novo standard of review, when the issue on appeal was

whether there was any evidence to authorize the Board’s decision. We agree.

        The superior court stated in its final order that the only issue before it was

“whether the [Board] erred in reversing the [ALJ’s] award of assessed attorney’s fees

against [Garcia Trucking],” that the issue was one of law, and that a de novo standard

of review applied. However, whether the Board erred in reversing the ALJ’s award of

                                           7
  attorney fees depended on whether Garcia Trucking defended the claim without

  reasonable grounds. See OCGA § 34-9-108 (b) (1). Whether an employer has

  unreasonably defended against a claim is a factual determination, subject to the “any

  evidence” standard of review. Printpack v. Crocker, 260 Ga. App. 67, 72-73 (3) (b)

  (579 SE2d 225) (2003); Seabolt v. Beaulieu of America, 255 Ga. App. 750, 752 (566

  SE2d 444) (2002). Thus, the superior court erred in applying the de novo standard of

  review, and exceeded its authority in reversing the Board’s decision. The Supreme

  Court has held that

          if after assessing the evidence of record, the [Board] concludes that the
          award does not meet the [OCGA § 34-9-103 (a)] evidentiary standards,
          the [Board] may substitute its own alternative findings for those of the
          ALJ, and enter an award accordingly.

  Bankhead Enterprises v. Beavers, 267 Ga. 506, 507 (480 SE2d 840) (1997) (citations

  omitted).3

          In reaching its decision, the superior court found that “the Board made no

  finding that [Garcia Trucking’s] late controvert was with reasonable grounds.” But the


      3
         Under OCGA § 34-9-103 (a), “[t]he appellate division shall review the evidence and
shall then make an award with findings of fact and conclusions of law. . . .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.”

                                             8
  ALJ awarded attorney fees based on Garcia Trucking’s unreasonable defense, see

  OCGA § 34-9-108 (b) (1), not on its failure to timely controvert the claim.4 And, in

  reversing the fee award, the Board did not discuss the untimely controvert. Instead,

  it concluded that an assessment of attorney fees and costs was not warranted, given

  the conflicting evidence regarding the extent and duration of Sandoval’s pre-existing

  back condition and in light of Garcia Trucking’s other defenses, which the Board

  found were “closely contested on reasonable grounds.”

          The superior court’s role in this case was to review the Board’s decision and

  make a determination as to whether it was supported by any evidence. See generally

  Owens-Brockway Packaging v. Hathorn, 227 Ga. App. 110, 111 (488 SE2d 495)

  (1997). There was some evidence in the record to support the Board’s finding that

  Garcia Trucking raised a reasonable defense to the claim, and the Board exercised its

  discretion to reverse the attorney fee award. Because the Board did not base its

  decision upon an erroneous legal theory, but upon its factual findings that Garcia

  Trucking’s defense was reasonable, and there was evidence to support its findings,

  the superior court erred by reversing the Board’s decision. See generally Master Craft


      4
         The ALJ awarded penalties based on Garcia Trucking’s failure to timely controvert
the claim. See OCGA §§ 34-9-108 (b) (2), 34-9-221 (d).

                                            9
Flooring v. Dunham, 308 Ga. App. 430, 433-434 (708 SE2d 36) (2011) (the Board

is authorized to weigh conflicting evidence and draw different factual conclusions from

those reached by the ALJ).

      2. Based on our holding in Division 1, we do not reach Garcia Trucking’s

remaining claims of error.

      Judgment reversed. Dillard, C. J., and Doyle, P. J., concur.




                                          10
