Seckinger Co. v. Foreman, 252 Ga. 540, 541 (2) ( 314 S.E.2d 891) (1984). See Sadeghi v. Suad et al., 219 Ga. App. 92, 93 ( 464 S.E.2d 234) (1995). PHIPPS, Judge.
In my view, the appellate division and the superior court erred in ignoring claimant's own testimony that she diligently but unsuccessfully sought suitable employment, after termination for cause unrelated to her previous compensable injury. The appellate division and the superior court erroneously analyzed this claim as if the testimony of Clem Boatright, a vocation rehabilitation expert, was the only competent evidence to establish a change of condition. That is an erroneous theory of law which requires reversal. In my view, the judgment of the superior court should be reversed and the case remanded to the appellate division for further proceedings which expressly incorporate the proper evidentiary test for a compensable change in condition as recently enunciated by the Supreme Court of Georgia. See, e.g., Sadeghi v. Suad, Inc., 219 Ga. App. 92, 93 ( 464 S.E.2d 234). As my colleagues in the majority would nevertheless affirm, despite the application of an erroneous legal theory by the appellate division and the superior court, I respectfully dissent. I am authorized to state that Presiding Judge Pope and Judge Blackburn join in this dissent.
See also Distribution Concepts Co. v. Hunt, 221 Ga. App. 449, 450 (2) ( 471 S.E.2d 539) (1996), noting the Board's discretion in determining whether to remand a case to the ALJ for additional factual determinations. Unlike Sadeghi v. Suad, Inc., 219 Ga. App. 92, 93 ( 464 S.E.2d 234) (1995), the Board in this case possessed all the factual findings it needed to make the ultimate legal determination under Maloney, and remand to the ALJ for an evidentiary hearing was not required. The superior court did not err by approving the Board's actions. Judgment affirmed. McMurray, P.J., Birdsong, P.J., Pope, P.J., Johnson, Smith, Ruffin and Eldridge, JJ., concur.