Moore Ingram Johnson & Steele :: Marietta Georgia | Knoxville Tennessee

Managing Workers Compensation Costs

Robert D. Ingram
Kevin B. Carlock
Kim A. Brangham
Moore Ingram Johnson & Steele LLP
192 Anderson Street
Marietta, Georgia 30060
(770) 429-1499

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Table Of Contents

Introduction

Light Duty Assignments
Introduction

Create a Light Duty Job

Approval of a Light Duty Job by an ATP

Preparation of Board Form WC-240

Return to Work

Employee's Failure to Report to Light Duty Work

Employee's unsuccessful attempt to Return to Work

How to deal with Employees that you do not want back on the job

Vocational Rehabilitation

Introduction

Vocational Rehabilitation with the Employee's Agreement

Vocational Rehabilitation without the Employee's Agreement

Change in Condition
Introduction

Change in Condition for the Better

Change in Condition for the Worse

Change in Condition versus New Injury

Diligent Job Search

What does this Case Law Mean?

Defense Checklist for diligent job search cases

I. Introduction

There are numerous ways in which employers(1) can contribute to managing the cost of workers' compensation claims. It is important to be pro-active and aggressive with each claim in order to keep costs at a minimum. Although the suggestions outlined in this paper require time and/or expense to set up, the efforts will often pay dividends by pushing a claimant back to work or promoting settlement.

This paper will discuss a few of the ways in which worker's compensation costs can be controlled. The most effective tool for reducing or controlling costs is a light duty job. Offering each claimant a light duty assignment, once he or she obtains a light duty release from the authorized treating physician (hereinafter "ATP"), can contribute significantly to keeping costs down. Claimants who do not want to return to work and who disagree with their ATP about their ability to perform light duty work will generally attempt the job before quitting and alleging the injuries prevent their continued performance. If the employer believes the claimant did not make a good faith effort, it can request a hearing on the matter to suspend benefits. Vocational rehabilitation, in certain cases, can also aid in reducing costs. If the employer can get the claimant back to some type of suitable employment, then the benefits can be reduced or possibly even suspended. Finally, the employer can reduce workers' compensation costs by demonstrating that the claimant has undergone a change in condition for the better and is able to return to unrestricted work duties or that suitable employment is readily available to the claimant. Employers can also contest the claimant's efforts to reinstate suspended benefits when the claimant is alleging a change in condition for the worse by proving that the claimant failed to conduct a diligent job search.

These are just a few of the ways in which employer can attempt to control workers' compensation costs. All are discussed more fully below. Employers should never fall into the trap of believing there is nothing they can do to control workers' compensation costs once they have lost on the compensability issue.

II. Light Duty Assignments

A. Introduction

The most effective tool available to employer's in reducing exposure for workers' compensation disability benefits is found in O.C.G.A. §34-9-240, which requires claimants to make a good faith effort to return to work when a suitable job has been approved by the ATP and is offered to the claimant. This statute reads in pertinent part as follows:

"If an injured employee refuses employment procured for him or her and suitable to his or her capacity, such employee shall not be entitled to any compensation at any time during the continuance of such refusal unless in the opinion of the Board such refusal was justified."

O.C.G.A. §34-9-240(a).

The Workers' Compensation Act has always envisioned that employers should be able to suspend disability benefits to injured employees when light duty work suitable to the injured employee's medical restrictions is made available to the employee. However, prior to July 1, 1994, employers had no tools available to them to force the injured employees to at least attempt suitable employment without first hiring a lawyer and conducting a hearing as to whether the light duty job was in fact suitable for the injured employee based upon their medical restrictions. This changed on July 1, 1994, when the current version of O.C.G.A. §34-9-240 was approved by the legislature and signed by the Governor. Under the new statute and new Board Rule 240, employers were given a new method to unilaterally suspend disability benefits to injured workers under limited circumstances where the employee fails to attempt the light duty work offered by the employer.

Under the new statute and Board Rule, where an employee refuses employment suitable to the employee's medical restrictions according to the employee's ATP and where the light duty job was offered pursuant to the requirements of the statute and the Board Rule, the employer can automatically suspend the benefits without ever needing to hire an attorney or have a hearing conducted regarding the issue. The new rules eliminated the requirement that the employer first obtain a court order before being able to suspend the employee's disability benefits.

Employers should be eager to take advantage of Board Rule 240 provisions by creating and offering light duty work whenever possible. Numerous studies have shown that the longer non-catastrophically injured employees stay out of work receiving disability benefits the less likely it is that they will ever return to work. The Board Form 240 Light Duty Job Offer enables the employer to speed up the process of hopefully returning an injured employee to suitable employment prior to allowing the injured employee to become comfortable in their new disabled status.

The following is a summary of specific requirements the employer must meet in order to properly comply with O.C.G.A. §34-9-240 and Board Rule 240:

B. Create a light duty job

The employer should create light duty jobs for the injured employees any time it is practical to do so. If the employer is unsure as to what job duties are appropriate, the employer may want to consider having a job analysis prepared by a vocational rehabilitation counselor. Alternatively, the ATP may have the employee undergo a Functional Capacities Evaluation (hereinafter "FCE") which will more clearly spell out what job duties the employee is capable of performing. Both of these can be used by the employer to fashion a light duty job. Board Rule 202 specifically authorizes FCE's as part of an Independent Medical Examination (hereinafter "IME"), but the Board's interpretation of this Rule is that it does not allow adjusters to request FCEs. They still must be ordered by the ATP.

C. Approval of a light duty job by an ATP

Once a light duty job is created by the employer, with specific job duties, it should then be presented to the employee's ATP in writing for his or her approval. One must have the ATP's signature approving the light duty job. Furthermore, Board rules now require that a request for approval of a light duty job presented to the ATP must be copied to the claimant's attorney at the same time it is sent to the physician. Furthermore, Board Rule 200.1 now prevents the rehabilitation counselor or case manager from communicating with the ATP without notice and consent of the claimant's attorney. This Rule which was proposed by the claimants' attorneys requires defense attorneys to perform tasks which formerly were performed by rehab counselors.

D. Preparation of Board Form WC-240

The next step in complying with Board Rule 240 is to prepare a Board Form WC-240. Close attention should be paid to answer all the specific questions on the Board Form and to attach the light duty approval by the employee's ATP. The employer should also make sure the Board Form WC-240 is completed in full within sixty days of the ATP's written approval of the light duty job. It is important to note that all blanks on the Board Form WC-240 should be completed or answered by reference to attachments. Furthermore, the ATP's light duty job approval must be attached to the WC-240 when filing with the Board.

In order to set up a unilateral suspension of the injured employee's disability benefits based upon a Form WC-240 job offer, the form must include the following information as outlined in Board Rule 240:

(i) a description of the essential job duties to be performed, including the hours to be worked, the rate of payment, and a description of the essential tasks to be performed;

(ii) the written approval of the authorized treating physician(s) of the essential job duties to be performed;

(iii) the location of the job, with the date and time that the employee is to report to work."

Board Rule 240(b)(2).

Once the Board Form WC-240 is completed, it should then be submitted to both the employee and the employee's attorney. This is one requirement that is often overlooked. An astute claimant's attorney is aware of this requirement and can use it to prevent an employer from suspending benefits if the employee fails to show for work.

E. Return to work date

When determining the date and time for the employee to report to work as required on the Board Form WC-240, the employer should make sure the report date gives the employee at least ten (10) days advance notice. In other words, the employee must receive notice of the approved light duty offer by way of the Board Form WC-240 at least ten days before the employee is required to report to work. If no ten days advance notice is given, the employer loses its right to unilaterally suspend benefits if the employee does not report for work in which case it will be necessary to request a hearing to determine a change in condition and/or file a Motion to Suspend Benefits on a Board Form WC-102(g)(a).

F. Employee's failure to report to light duty work

Assuming Board Rule 240 is properly followed, if the employee fails to show for work, the employer may then unilaterally suspend the employee's benefits by filing with the State Board a Board Form WC-2 Notice of Suspension of Benefits and the completed Board Form WC-240 certifying that at least ten (10) days before the employee was required to report for work the employee was notified of the job offer

on a completed Board Form WC-240 mailed to the employee and the employee's attorney.

G. Employee's unsuccessful attempt to return to work

If the employee tries the light duty job, even for a period of fifteen (15) work days or less, but is allegedly unable to continue performing the job, income benefits must be automatically reinstated by the employer effective the date the employee ceased working by filing a WC-2 Notice of Recommencement of Benefits. In such case, it is necessary to either request a hearing to determine a change in condition or file a Motion to Suspend Benefits on a Board Form WC-102(g)(a). Where a Motion to Suspend Benefits is filed because the employee does not continue working for fifteen scheduled work days, the motion must also be accompanied by an affidavit from the employer setting forth the suitable employment that has been offered to the employee as set forth on Board Form WC-240. This affidavit must state that the offer is continuing and a description of the job and approval must be attached. The employee must also have been examined by the ATP within sixty (60) days prior to filing a motion for suspension of income benefits. The employee may object to the Motion to Suspend Benefits for failure to accept suitable employment by filing a Board Form WC-102(g)(b) with the Board within fifteen (15) days of the date of the certificate of service attached to the Motion.

In cases where either a Motion to Suspend Benefits is filed or hearing is requested based on the employee's unjustified refusal of suitable employment, the employer may also want to consider having the approved light duty job filmed by video tape. A co-worker can be filmed performing the essential job duties that have been approved by an ATP. Once the essential job duties have been video taped, same should then be presented to the ATP for his or her approval. This type of video tape is usually very persuasive as it gives the ALJ and ATP an opportunity to see the job and it eliminates a common argument by the claimant's attorney that the ATP approved the job without fully understanding what it required.

It is also a good idea for the employer's attorney to depose the employee after the employee refuses to continue with the approved light duty job in order to pin the employee down regarding the reasons he or she is allegedly unable to perform same. The deposition cannot be scheduled until a hearing is requested. Often, the employer's attorney can poke holes in the employee's reasons with the assistance of the ATP's report and the video tape.

One last word, it is always a good idea to attempt to create a light duty job pursuant to Board Rule 240 in order to push cases toward a resolution. Employees that are forced by way of Board Rule 240 to "work for their check" will be more inclined to reasonably resolve their workers' compensation claims. Otherwise, the employee can continue to draw income benefit checks without any effort on his or her part and no apparent end in sight for catastrophic cases and with only a 400 week cap for non-catastrophic cases. Therefore, it is advisable for the employer to pay close attention and monitor an employee's medical status and keep in close contact with the ATP to insure that the claimant's work status is continuously addressed. Board Rule 240 is a powerful tool which should be used every opportunity by the employer. However, close attention should be paid to all requirements as set forth above to ensure proper compliance.

H. How to Deal with Employees that you do not want Back on the Job.

All too often, employees who are injured on the job are also those employees whose job performance was marginal or barely satisfactory before the injury. Furthermore, many times the employees pursuing questionable workers' compensation claims are problem employees who should have never been hired by the employer. Nonetheless, once these problem employees, who are not seriously injured, file workers' compensation claims, the claims adjusters or professionals are expected to perform miracles by inexpensively resolving the claim without ever offering light duty work to the injured employee. Realistically, the best way to resolve questionable injury claims, where malingering on the part of the employee is suspected, is to offer light duty work to the employee who many times has no desire to return to work. Such an offer significantly diminishes the value of the workers' compensation claim because if the claimant is capable of performing the light duty job, then the employer should ultimately be able to suspend disability benefits to the employee.

Employers should resist the temptation to terminate problem employees once they file workers' compensation claims regarding questionable injuries simply as a means of eliminating problem employees. Employers would create much less exposure for themselves by dealing with the personnel issues surrounding a problem employee at a different time than while a contested workers' compensation claim is pending. Employers need to understand that they can be penalized in the workers' compensation system for terminating employees when they have not fully recovered from their injuries. If an employee is fired for reasons related to his injury or work restrictions when the employee still has not recovered from his work injury, the employer must then pay the employee temporary total disability benefits until the employee is fully recovered or returns to work with another employer earning as much as he or she did prior to the injury. However, the employee has no burden to go out and look for work with a different employer. If the employee is fired for reasons unrelated to his injury while still not recovered, he may be entitled to payment of temporary total disability benefits if he can show that he has looked, but he has not been able to find other suitable light duty work because of his injury or restrictions. Thus, terminating an employee before a full recovery may mean he or she gets paid workers' compensation benefits for not working at all.

If the employee is fired for reasons relating to his or her injury or restrictions, the employer may also be exposed to lawsuits and penalties under the Americans with Disabilities Act (hereinafter "ADA"). One should encourage employers to make light duty jobs available, even if the employer does not want to take the claimant back. Light duty job offers made to suspected malingers rarely result in long-term sustained return to work. Rather, it usually promotes settlement of the claim.

III. Vocational Rehabilitation

A. Introduction

Vocational Rehabilitation can be an effective tool for getting the claimant back to work by assisting in modifying jobs or work stations or in retraining or educating the claimant in alternative jobs. It may also provide an impetus for settling a claim. Unfortunately, it is not an option for every claim. If used effectively, vocational rehabilitation can serve to reduce workers' compensation costs by returning claimant's to suitable employment or promoting settlement.

Rehabilitation services are only mandatory for individuals who have sustained catastrophic injuries. O.C.G.A. §34-9-200.1. Parties in a non-catastrophic case may agree to voluntary rehabilitation services, and if they do, the agreement must be in writing. Rule 200.1. A catastrophic injury involves a spinal cord injury; multiple amputations; severe brain or closed head injury; second or third degree burns over twenty-five percent of the body as a whole or third degree burns to five percent or more of the face and hands; total or industrial blindness; or any other serious injury determined to be catastrophic by the Board.

Rehabilitation services include the goods and services necessary for vocational assessment and evaluation, guidance and counseling, vocational planning, training and placement. They also may include home or vehicle modifications that are reasonably necessary.

The Workers' Compensation Act specifically states that both the fees of rehabilitation suppliers and the reasonableness and necessity of their services shall be subject to the approval of the Board. Rehabilitation expenses should be limited to the usual, customary, and reasonable charges in Georgia, and they should not exceed the fee schedule listed under O.C.G.A. §34-9-205. The fee schedule allows an hourly rate of $60 per hour for non-catastrophic suppliers and $65 per hour for catastrophic suppliers. The fee schedule also limits the number of hours that can be charged for certain activities. Rehabilitation benefits are designed to assist the injured employee in returning to suitable employment. In most cases, the services of a rehabilitation supplier are never offered to an injured employee because the employee is restored to suitable employment soon after his accident through medical treatment and a routine course of recovery. However, if the disability continues for several months, then rehabilitation services may be appropriate.

Injured employees are now divided into three different groups, and their vocational rehabilitation services depends upon which group they are in. The groups and their entitlements are:

(1) Employees who were injured before July 1, 1992, are entitled to receive vocational rehabilitation services paid for by the employer. These services can include medical management, job search, placement and even training.

(2) Employees who were injured on or after July 1, 1992, are not entitled to vocational rehabilitation services unless the employee's injury is "catastrophic." The employer can volunteer to provide rehabilitation services to those employees whose injuries are not "catastrophic" but is not required to do so.

(3) Employees who were injured on or after July 1, 1992, and whose injuries are "catastrophic" are entitled to have immediate and full rehabilitation services provided for them by the employer.

Generally, insurers or servicing agents assess the employee's need for rehabilitation and complete the necessary paperwork for the appointment of a rehabilitation supplier. The rehabilitation supplier will then make contact with the employer in an attempt to return the employee to an appropriate job position.

B. Vocational Rehabilitation with the Employee's Agreement

Employees injured after July 1, 1992, but not catastrophically, do not have to agree to vocational rehabilitation and often do not. However, if the employee will agree to vocational rehabilitation in situations where the employer simply has no suitable work or will not take the employee back to work, vocational rehabilitation is often helpful in finding suitable work for the employee with another employer. Vocational rehabilitation suppliers can help the employee to search different sources for available jobs within the employee's restrictions. The rehabilitation supplier can also coach the employee in interviewing skills, go with the employee to job interviews, and help coordinate retraining of the employee in a new field if necessary thereby maximizing the employee's chances of returning to the workforce as quickly as possible.

C. Vocational Rehabilitation without the Employee's Agreement

Because employees and their attorneys sometimes do not want a successful return to the workforce since it reduces the value of their workers' compensation claim, many employees refuse to cooperate with vocational rehabilitation. When the employee will not agree to vocational rehabilitation, the employer can still employ the services of a vocational rehabilitation supplier, but the supplier cannot have any direct contact with the employee. The rehabilitation supplier can conduct labor market surveys and find specific jobs that are available within the employee's restrictions given by the treating physician. The rehabilitation supplier can also work with the employer to create jobs or modify existing jobs so that they are suitable for the employee's medical limitations. The rehabilitation supplier can then submit the information to the employer's attorney who conveys the information to the employee's attorney or employee if he or she has no attorney. If the employee refuses to even apply for any of the available jobs, then the employer may request a hearing to suspend the employee's benefits based on the availability of suitable light duty work. However, these hearings are extremely difficult to win because the Workers' Compensation ALJs often interpret the law in such a way that the employee has no burden to look for suitable work with other employers if the employer at the time of the accident has no light duty work available. Nevertheless, labor market surveys are often worth the risk if for no other reason than to put pressure on the employee to settle his or her claim. We have attached some sample Labor Market Survey reports prepared by Wright Rehabilitation Service, Inc. See Appendix A.

If the employee does pursue and apply for the available jobs found by the vocational rehabilitation supplier, he or she may actually get hired, thereby reducing or eliminating the employer's liability for income benefits. If the employee does not obtain a job out of those provided, additional job information can be provided periodically based on the vocational rehabilitation supplier's findings until the employee successfully obtains employment elsewhere or the case is settled.

IV. Change in Condition

A. Introduction

For purposes of managing workers' compensation costs, the issue of change in condition comes into play after benefits are being or have been paid to a claimant. A change in condition, governed by O.C.G.A. §34-9-104, is defined as "a change in the wage-earning capacity, physical condition, or status of an employee or other beneficiary covered by this chapter, which change must have occurred after the date on which the wage-earning capacity, physical condition or status of the employee or other beneficiary was last established by award or otherwise." Specifically, the courts in Georgia have defined a change in condition as primarily economic in nature. Additionally, in order for a change in condition to be found, indemnity benefits must have been paid to the employee by order of the Board or by agreement.

While there are no limits to the number of change in condition claims which may be filed by an employee or employer, there is a time limit. For accidents which occurred on or after July 1, 1990, the employee must file a claim for a change in condition within two years since the date of the last payment of income benefits pursuant to O.C.G.A. §34-9-261 (TTD) or §34-9-262 (TPD) was actually made, or within four years of the last payment if the benefits sought are solely PPD benefits. Payment for remedial medical treatment has no bearing on a change of condition claim.

It should be noted, however, that the running of the statute of limitations only affects the employer's obligation to pay indemnity benefits, not medical benefits. In other words, if the change in condition statute of limitations has run, the employer still has lifetime exposure for medical benefits.

B. Change in Condition for the Better

In situations where the employee has not returned to work, the employer will bear the burden of proof to show that the employee has undergone a change in condition for the better, thus allowing the employer to suspend income benefits. Generally an employer can meet this burden by showing that the employee has actually returned to work, the employee has the ability to return to work, or that the disability is not related to the on-the-job injury. The employer can also meet this burden using the incarceration or illegal alien defense.

There is one exception to the employer bearing the burden of proof. When the authorized treating physician has released the claimant to return to work with restrictions and the employer offers suitable employment within the restrictions and the claimant refuses to attempt the job, then the employer is allowed to suspend

benefits unilaterally, and the burden shifts to the claimant to prove that he is entitled to recommencement of benefits.

An employer may carry its burden of proving a change in condition for the better if the employer proves:

1. Claimant has actually returned to gainful employment;

2. Claimant has the ability to return to work and that suitable employment is available; or

3. Claimant's disability is not causally connected with the on-the-job injury.

When a claimant who has received TTD benefits returns to employment, the claimant is usually considered to have undergone a change in condition for the better.

Even if a claimant does not actually return to work, the employer may be able to show a change in condition for the better. The employer must have evidence of:

1. A physical change for the better;

2. An ability to return to work as a result of the physical change; and

3. The availability of work to terminate or reduce the loss of income resulting from the disability.

If the employer can show that the claimant is capable of performing normal duty unrestricted work, then the employer does not have to show the specific availability of suitable employment in order to carry its burden in proving a change of condition for the better. On the other hand, where the claimant has restrictions on his capacity to work, then the employer must show the availability of suitable work to carry its burden.

While the Court of Appeals has held that the employer need not show an actual offer of employment, the courts have not provided any guidance of what evidence (short of an actual offer) would be sufficient to meet the employer's burden. However, it is clear that the employee must be made aware of the suitable employment. The use of vocational experts to conduct labor market surveys within the claimant's restrictions, qualifications and geographic region can be helpful in identifying suitable employment.

C. Change in Condition for the Worse

In situations where the employee has returned to work (except in the WC-240 situation with the employee working less than 15 days) or where the ATP has released the claimant to work without restrictions, it is the employee who then bears the burden of proof to show that he is entitled to a recommencement of income benefits.

The claimant can meet this burden by showing total physical disability or partial physical disability coupled with economic disability. To show that there has been an economic change in condition for the worse, the claimant must show that his inability to secure suitable employment was proximately caused by his prior work-related injury. A claimant may obtain recommencement of disability benefits even if he has quit, been laid-off for reasons unrelated to the accident, been terminated for just cause unrelated to the accident, or been terminated due to his own misconduct.

Where a claimant seeks to prove an economic change for the worse in his condition as of the date that he stopped working, he must prove the following:

1. That he has a loss of earning power;

2. That he continues to have physical limitations due to the work-related injury;

3. That he diligently, but unsuccessfully, sought employment; and,

4. His inability to secure suitable employment elsewhere was proximately caused by his work-related injury.

If the claimant is capable of normal duty unrestricted work, then lack of suitable employment is irrelevant. The claimant would not be allowed to recover additional income benefits.

To carry his burden in proving a change in condition for the worse, the claimant must show that he unsuccessfully, but diligently, sought suitable employment. The courts have not clearly defined what actually constitutes a diligent job search. In Maloney v. Gordon County Farms, 265 Ga. 825 (1995), the claimant made six attempts to secure employment, and this was deemed a diligent search.

The following is a checklist of factors to be considered in seeking to develop evidence to defend a change in condition case where the employee (a) is injured on the job, (b) loses time from work, (c) returns to work, and (d) subsequently is separated from employment for reasons unrelated to his or her injury. In these situations, the claimant will generally be under an obligation to carry the burden of proving that a diligent job search was conducted in an effort to establish a causal link between the work related injury and the claimant's worsened economic condition in order to receive disability benefits.

D. Change in Condition versus New Injury

When a claimant sustains an initial on-the-job injury and returns to work until his condition diminishes to the point of disability, a question arises as to whether liability should be imposed for the initial injury or for the date of disability. If liability is imposed for the initial injury, then it will be imposed based upon a change in condition. If liability is imposed for the date of the disability, then the liability will be imposed based on a new accident (sometimes also referred to as "fictional new injury").

The above mentioned distinction is important because if the claimant is injured, returns to work, and continues working, his claim may be barred by the change in condition statute of limitations. The courts have attempted to avoid this by deciding that when an employee is injured, returns to work, and ultimately ceases working because of the aggravation of his preexisting condition through the performance of his post-injury work, then he may be deemed to have suffered from a "new accident" as of the date that he ceased working. The courts have developed this fictional new accident theory to avoid penalizing employees for continuing to work after an injury.

Where a claimant sustains a work-related injury, returns to work, and then his or her condition deteriorates to the point of disability, there are three possible results:

1. If the gradual worsening of his condition was at least partially attributable to his physical activity in continuing to work after his injury, the one year statute of limitations begins to run from the date the claimant was forced to stop working. The date of the "new accident" is the date the disability manifests itself.

2. 3. If the claimant sustains a second accident as the result of a specific job-related incident which aggravates a pre-existing condition which resulted from a prior accident, then the second accident which aggravated the pre-existing condition is a new injury.

4. If following a compensable injury the claimant returns to work performing his normal duties, then as a result of the wear and tear of ordinary life and the activity connected with performing his normal duties, his condition worsens to the point where he can no longer perform his normal work, this scenario is often deemed a change in condition.

There are also situations where an employee with light duty restrictions leaves his employment to secure new employment. Often times the claimant becomes disabled sometime after starting his new employment. In these scenarios, both employers are usually named as parties to the case and are left to fight over whether or not the claimant has suffered a new injury or a change in condition. Normally, absent a specific new accident with the new employer, the determination of this issue will rest on which job had more strenuous activities. If the new job has more strenuous activities, the claimant will usually be deemed to have suffered from a new accident.

These issues typically arise when the insurance companies for the employer change between the date of the initial injury and the date of disability.

E. Diligent Job Search

Change in condition claims often involve the issue of whether or not the employee has conducted a "diligent job search" pursuant to the holding in Maloney v. Gordon County Farms.(2) Usually situations involving the Maloney diligent job search occur when the employee: A) is injured on the job; B) loses time from work; C) returns to work; and D) subsequently goes out of work. However, as will be discussed later in the text, based upon the holding in Waycross Molded Products, Inc. v. McKelvin(3), these situations do not necessarily require that the employee return to work.

The evolution of the law on this subject started with the case of Hartford Accident and Indemnity Company v. Bristol.(4) In Bristol, the Court construed the former change in condition statute (code ann. §114-709, as amended in 1968) which provided that a change in condition "shall mean solely an economic change in condition occasioned by the employee's. . . inability to work or continue to work for [the] same or any other employer, which inability is proximately caused by the accidental injury."(5) In Bristol, the claimant suffered a compensable back injury, was paid benefits, and returned to work with the same employer performing lighter duties.(6) Subsequently, he was laid off due to lack of work.(7) The Supreme Court held that the claimant was required to show that his inability to secure suitable employment elsewhere was proximately caused by his previous accidental injury.(8) The employee's burden to show that his continued inability to secure suitable employment was proximately caused by his injury was increased by the Court of Appeals in the case of Aden's Minit Market v. Landon(9) In Aden's, the claimant sustained a compensable injury and was paid indemnity benefits which were converted to temporary partial disability benefits when the employer discovered that she returned to full time employment with another employer.(10) Subsequently, the claimant's new employer fired her when they learned she was working for them full time while at the same time receiving temporary total disability benefits.(11) After her termination, the claimant filed a Hearing Request for a change in condition in the worse seeking a resumption in temporary total disability payments.(12) The ALJ ruled in her favor, and this ruling was affirmed by both the full Board and the Superior Court.(13)

The Court of Appeals indicated that even where the claimant is terminated from subsequent employment because of her own misconduct, she may still be entitled to disability benefits if her disabilities prevent the employee from finding further subsequent employment.(14) However, the Court of Appeals in Aden's held that the burden was on the employees to prove that their inability to find full-time employment was proximately caused by their injury.(15) The Court of Appeals held that the claimant's testimony that she sought employment with several different employers was not enough to meet her burden because the record was silent regarding the reasons for her not being hired.(16)

This decision caused quite a clamor amongst the claimant's bar who argued that it would be nearly impossible to meet this burden if the employees were required to illicit the testimony from prospective employers with whom the claimant allegedly applied that their decision not to hire the claimant was due to limitations caused by the work related injury. The argument from the claimant's bar was persuasive because such testimony from prospective employers might have established a violation of the ADA.

As a compromise, the legislature amended O.C.G.A.§34-9-102 to allow employees to tender affidavits of prospective employers without personal appearance. This led to the creation of the infamous Board Form WC-102(k). Again, the claimant's Bar was not happy, complaining that because of concerns over suits under the ADA, prospective employers were reluctant to complete such forms. Ultimately, the Supreme Court's decision in Maloney v. Gordon County Farms,(17) resolved this issue. In Maloney, the claimant sustained a compensable injury to her shoulder, returned to light-duty work and was terminated for reasons unrelated to her injury. The claimant attempted unsuccessfully to obtain suitable employment elsewhere and filed a change in condition claim.(18) At the hearing, the claimant testified that she completed an application at Burger King and received a job offer.(19) However, when she advised Burger King that she had a previous Workers' Compensation injury and was incapable of performing full-duty work, the offer of employment was withdrawn.(20) The claimant also testified that she sought employment by completing applications with five other employers where she was required to disclose her physical limitations and received no job offers.(21) The ALJ reinstated the claimant's benefits, and this ruling was adopted by the full board.(22) On appeal to the Superior Court, the decision was affirmed by operation of law.(23) The Court of Appeals, however, reversed, rejecting Maloney's explanation as inadmissible hearsay.(24)

The Supreme Court of Georgia granted certiorari and reversed the decision of the Court of Appeals.(25) The Supreme Court noted that the holding in Aden's, supra, required evidence as to the motive and state of mind of the employer which was almost impossible to ascertain and which the prospective employer would certainly be reluctant to provide.(26) Accordingly, the Supreme Court held that in order for a claimant to meet his or her burden to show a change in condition, he or she must show three elements: 1) that he or she suffered a loss of earning power as a result of a compensable work-related injury; 2) that he or she continues to suffer physical limitations attributable to that injury; and 3) has made a diligent, but unsuccessful effort to secure suitable employment following termination.(27) The Supreme Court went on to hold that once such evidence is presented, the Board has discretion to draw reasonable inferences from the evidence that despite the claimant's good faith efforts, his or her ability to obtain suitable employment is proximately caused by the continuing disability.(28) Thus, the Supreme Court overruled that specific holding in Aden's.(29)

Maloney represents the current state of the law regarding diligent job searches. Since the decision in Maloney, there have been several cases litigated involving exactly what constitutes a "diligent" job search.

It is necessary to emphasize that the requirement of a diligent job search applies only in situations where the claimant is capable of performing light duty work and only in cases where the claimant was terminated for reasons unrelated to his or her injury. For a short period of time, the Court of Appeals changed the law indicating that even in cases where the claimant was fired for reasons related to the injury, a diligent job search was necessary. Waffle House, Inc. v. Padgett(30) However, the Supreme Court disagreed and reversed the Court of Appeals in Padgett v. Waffle House, Inc.,(31) holding that when the employer has terminated the injured worker because of his or her work-related injury, a causal link is established between the claimant's injury and the claimant's worsened economic condition. Since proximate cause is established between the injury and the worsened economic condition simply by virtue of the claimant's termination because of his or her work- related injury there is no need for the claimant to go further in an effort to establish causation by showing that a diligent job search was conducted. By proving the work related injury is the proximate cause of the termination, the claimant establishes the causal link between the injury and the worsened economic condition thereby entitling the claimant to benefits.(32)

In Sadeghi v. Suad, Inc.(33), claimant injured his back and received temporary total disability benefits.(34) Subsequently, the claimant returned to light duty work with a different employer.(35) However, he eventually stopped working for the other employer on his own.(36) Claimant then filed a claim seeking recommencement of temporary total disability benefits alleging that he was unable to find other suitable employment because of his injury.(37) The ALJ denied his claim for temporary total disability benefits, and this ruling was upheld by the Full Board and the Superior Court.(38) The Court of Appeals noted that claimant attempted to meet his burden by testifying that he had looked for light-duty work at over 100 places, including Suad, Inc., and that he told his prospective employers about his injury and had not been hired by any of these employers.(39) Because the ALJ, the Full Board, and the Superior Court relied upon Aden's in reaching their decisions, the Court of Appeals remanded the case for a new hearing to determine whether or not the claimant's search for suitable employment was diligent in light of the Supreme Court's holding in Maloney.(40)

In Buckner v. Bibb Yarns, Inc. and Rouse v. Bibb Yarns, Inc. ,(41) Buckner suffered a compensable injury to her hands and returned to work with the employer on light-duty status where she suffered another compensable injury to her knee.(42) Rouse suffered a compensable injury to his knee and returned to work for the employer light duty.(43) When the employer was bought out by Aladdin Industries, all light duty employees were terminated including Buckner and Rouse(44). Both filed workers' compensation claims and the ALJ ruled in favor of the employer holding that the claimants had not carried their burden of proof, but this decision was reversed by the Appellate Division.(45) The Superior Court reversed this decision and reinstated the decision of the ALJ.(46) In both cases, there was testimony from the claimants that they looked for work with prospective employers, informed the prospective employers of their physical limitations, and had not been offered a job.(47) However, the ALJ concluded in both cases that the employees failed to carry their burden of proof to show that jobs were available, or that applications were not given, or jobs were not offered due to their physical limitations.(48) Because the ALJ ruled the claimants made diligent job searches, but the ALJ relied upon Aden's, which was overruled by Maloney, the Court of Appeals reversed the decisions and affirmed the award of the Appellate Division.(49)

In Harrell v. City of Albany Police Department(50), the claimant suffered a compensable injury to his left foot and was paid temporary total disability benefits which were suspended when he returned to work with another employer as a corrections officer. Subsequently, the claimant was forced to resign from his subsequent employer because of a number of problems including the fact that he was caught sleeping on the job. The claimant filed a hearing request alleging that he had undergone a change in condition for the worse seeking commencement of temporary total disability benefits. During the trial the claimant's credibility was successfully attacked when he was confronted with several inconsistencies in his testimony. Despite the circumstances surrounding the claimant's termination from subsequent employment and his credibility problems, the ALJ determined the claimant had made a diligent but unsuccessful job search and awarded the claimant benefits.(51)

At the hearing, it was determined that claimant was terminated for sleeping on the job. In terms of his job search, it was determined that although claimant was qualified to work in jobs outside of law enforcement, he did not apply for any such jobs.(52) He also lied in his deposition when asked whether he had been charged with any crimes, and whether he had indicated physical restrictions on his employment applications. It was also determined that after an appeal of his termination from the subsequent employer that he was allowed to resign from that job because of procedural flaws surrounding his termination. A condition of his resignation included that he not apply for employment with the State of Georgia for a period of one year. It was determined that some of the jobs he applied for during that period were with the State of Georgia.

Despite this evidence, the ALJ determined that claimant had made a diligent but unsuccessful job search and awarded claimant benefits. The Appellate Division of the Board reversed the ALJ's award of benefits but incorrectly relied upon Aden's.(53) Accordingly, the case was remanded to the Appellate Division for reconsideration of the facts based upon the Supreme Court's decision in Maloney.(54) Significantly, the Court of Appeals noted in it's decision that the Appellate Division could properly find that the claimant had not made a diligent effort to secure suitable employment following his termination because after being terminated for cause he had not applied for permanent jobs outside of law enforcement or counseling despite the fact that he had experience in these areas and was qualified to work in these other areas of employment.

In LCP Chemicals v. Strickland,(55) claimant suffered a compensable injury to his right leg which was accepted as a medical only claim. Claimant returned to work approximately one week after the injury and was paid full wages until the plant at which he worked closed.(56) Subsequently, claimant filed a notice of claim seeking temporary total disability benefits from the date of the plant closing and temporary partial disability benefits for 2.25 weeks.(57) At the hearing, it was determined that after his injury, claimant was a member of and participated in two bowling leagues; he fished approximately four times per week; he ran for county commissioner following his injury; and he assisted his wife with the management of a trailer park.(58) The Superior Court reversed the decision based upon a work search log which was prepared by claimant and which was uncontradicted at the hearing.(59) However, the Court of Appeals reversed the Superior Court and reinstated the ALJ's award based upon the any evidence rule.(60) The Court of Appeals held that there was evidence showing that claimant's job search was not credible.(61) Of significance was the fact that claimant made several verbal inquiries but submitted only one written application.(62) Additionally, the claimant did not submit any written record of his job search for the five months preceding the hearing.(63) Additionally, during claimant's political campaign he raised ten to twelve thousand dollars, defeated his opponent in the primary election, spoke with the media, drove his truck with campaign signs mounted on it, and met with individuals to discuss issues of his campaign.(64) Significantly, the hearing took place the day before the general election.(65)

In Diamond Rug & Carpet Mills v. Moses,(66) the claimant injured his back and was released to light duty work. He continued working in his light duty position until he was terminated for cause for reasons unrelated to his disability.(67) At the hearing, Moses testified that he had filed applications or had spoken with at least fourteen different employers, but he was unable to find a job.(68) Initially, the ALJ ruled that the claimant had not met his burden of showing why he was not hired based upon the holding in Aden's.(69) This holding was affirmed by the Full Board, but was reversed by the Superior Court and remanded to the Board with instructions to consider the deposition testimony of an employer who testified that he would have offered claimant a job but could not because of his work restrictions.(70) On remand, the Board vacated its previous order and awarded claimant temporary total disability benefits.(71) This award was affirmed by the Superior Court.(72)

At issue on appeal was what standard of proof is required of the employee to meet his burden under Maloney.(73) The Court of Appeals held that once evidence is offered that the claimant suffered a loss of earning power as a result of a compensable work-related injury, continues to suffer physical limitations attributable to that injury, and has made a diligent but unsuccessful job search, then the Board has discretion to draw reasonable inferences from that evidence that the employee's inability to secure suitable employment was proximately caused by the disability.(74) It has been argued that if the Board can draw reasonable inferences from the evidence that the claimant's inability to obtain a job was proximately caused by the work-related disability, then the Board can likewise draw inferences in favor of the employer that the claimant is not making a diligent job search when the claimant refuses to follow-up on job leads identified by the employer's vocational rehabilitation consultant. The significance of the Moses case is that Moses' initial injury was medical only and the Court of Appeals held that the Maloney decision applies to both change in condition claims and all issues claims.

In Lukowski v. Capitoline Products, Inc.,(75) the claimant sustained a compensable injury to his left hand resulting in the amputation of a finger and two surgeries. While claimant had a significant PPD rating, he was able to return to work five months after the accident.(76) Although he returned to the same type of work which he had performed prior to the accident, he was hampered due to the condition of his hand.(77) Five months after returning to light duty work, the claimant was terminated for refusal to take a drug test.(78) At the hearing, claimant presented testimony of his unsuccessful job search and provided expert testimony from the vocational rehabilitation supplier who opined that he probably would have been able to secure employment but for his injury.(79)

The Appellate Division accepted the ALJ's findings but made other findings including evidence that when the claimant returned to work after the accident, he did not require any assistance in the performance of his job duties; that the vocational expert testified there were not many job openings because of the holiday season; that the vocational expert was not clear on the claimant's restrictions and took into consideration claimant's non-work-related problems with his other hand; that the vocational expert testified she was unable to determine whether claimant could perform the same job he was performing at the employer without first completing an analysis of the job; and that the claimant's treating physician indicated that claimant could perform manipulation of small objects while the vocational expert testified that she understood the claimant to have problems with fine motor functions.(80) Based upon these additional findings, the Appellate Division concluded that the claimant failed to demonstrate that his impairment hindered him from finding employment.(81) The Superior Court affirmed this award based upon the any evidence rule and based upon the holding in Aden's.(82)

On appeal to the Court of Appeals, the claimant alleged that the Superior Court erred as a matter of law by applying the burden of proof set forth in Aden's.(83) The Court of Appeals disagreed holding that Maloney overruled Aden's but only to the extent it imposed an additional burden on the employee to prove the reasons why he was not hired.(84) It noted that Maloney still holds that the claimant must show his inability to secure suitable employment was proximately caused by the work-related injury.(85) Accordingly, the Court of Appeals held that despite the reference to the holding in Aden's, the proper burden of proof was used.(86)

In T.V. Minority v. Chaffins,(87) claimant suffered an injury and received indemnity benefits until he was released to regular duty. Subsequently, he filed a hearing request alleging a change in condition.(88) The ALJ denied claimant's benefits finding that he failed to show a diligent job search and that his economic condition was caused by his self-imposed wage requirements and was unrelated to his physical condition.(89) At the hearing, it was determined that the claimant was restricted from driving, working in high places and around heavy machinery.(90) However, it was also determined that claimant continued to drive four wheel drive vehicles and build expert level model cars, building approximately sixty such model cars in 1994, the year after his accident.(91) The Full Board affirmed the ALJ's award, but the Superior Court remanded the case indicating that the issues were whether suitable employment was offered when the employee was not able to work.(92) However, the Court of Appeals held that the Superior Court improperly substituted it's own finding of fact when it indicated that claimant was "not able to work."(93) Accordingly, the Court of Appeals reversed and reinstated the holding of the ALJ and the Board denying claimant's benefits.(94)

In McEver v. Worrell Enterprises,(95) claimant suffered a compensable injury to her left hand, right leg, back and head during an automobile accident. Six weeks after the accident, the claimant's ATP released her to full time work with restrictions.(96) Approximately one month after returning to light duty work, the claimant was terminated for reasons unrelated to her injury.(97) Seven months after her termination, the ATP released claimant from his care with no PPD rating.(98)

At the hearing, the claimant testified that she made a diligent but unsuccessful job search.(99) Additionally, the claimant presented the testimony of a vocational rehabilitation supplier who testified that two of the prospective employers he contacted did not hire the claimant because of her limitations.(100) His opinion, however, was based solely upon telephone conversations with prospective employers.(101) Based upon this testimony, the ALJ awarded claimant benefits.(102) The ALJ's finding was based solely upon the expert testimony.(103)

The full Board vacated the ALJ's award based upon their conclusion that the expert's testimony was inadmissible because it was based solely upon hearsay.(104) The Superior Court affirmed the holding of the Appellate Division and the claimant appealed to the Court of Appeals.(105) On appeal, the claimant argued that the Superior Court erred in applying the burden of proof in Aden's.(106) However, the Court of Appeals held that Maloney did not completely eliminate the proximate cause element from the claimant's burden of proof; rather, Maloney only eliminated requirement that the claimant must produce direct evidence of proximate cause.(107) Maloney only holds that once the claimant puts forth evidence of a diligent but unsuccessful job search, the fact finder may in its discretion infer that the claimant's disability is the proximate cause of her inability to secure suitable employment.(108) However, Maloney does not require such an inference.(109) The Court of Appeals also held that while an expert may partially base his or her opinions on hearsay, an expert opinion may not be based solely upon hearsay unless such hearsay falls into one of the recognized exceptions to the hearsay rule.(110)

In Russ v. American Telephone and Telegraph,(111) claimant suffered a compensable injury to her back and returned to work on a half-day basis for four months when she returned to work on a full time basis. Subsequently, the claimant was laid off and requested temporary total disability benefits alleging a change in condition for the worse.(112) The ALJ denied the claimant's claim finding that she did not conduct a diligent search for suitable employment.(113) However, the Appellate Division reversed and awarded temporary total disability benefits finding that she did conduct a diligent job search.(114) The Superior Court then reversed the Appellate Division concluding that the ALJ's findings were supported by a preponderance of competent and credible evidence.(115) Claimant then appealed to the Court of Appeals.(116) Based upon the any evidence standard, the Court of Appeals agreed with the Full Board and awarded claimant benefits.(117) The findings noted by the Court of Appeals which were made by the Appellate Division were that while claimant was not qualified for the positions with AT&T for which she applied, she did apply for and interview for jobs with other employers and sent resumes to other employers whose names were provided by a vocational rehabilitation expert.(118) The Court of Appeals reversed the Superior Court and reinstated the Board's award in favor of the claimant because although the claimant did apply for an AT&T job for which the claimant was not qualified (not a diligent job search), the claimant did apply for other jobs whose names were provided by a vocational expert (diligence requires the claimant to apply for jobs from vocational experts).

In Risner v. Bulk Equipment Manufacturing, Inc.(119) the claimant suffered a compensable back injury and received income and medical benefits until he returned to light-duty work. Shortly after returning to light-duty work, claimant went home early complaining of back pain and returned to work two days later only to be terminated because he failed a drug test.(120) While the ALJ found that claimant clearly continued to suffer physical limitations from the injury and that he made a diligent but unsuccessful job search, the ALJ denied the claim because claimant lost his job for cause and ruled that his diminution in earning power was not due to his injury, but was rather due to his failing of the drug screen.(121) The appellate division reversed the award of the ALJ and awarded benefits holding that under Maloney, an employee who is terminated for cause can still show entitlement to benefits if he shows a diligent but unsuccessful job search.(122) Although the Superior Court reversed the full board's decision, the Court of Appeals agreed with the full board and reversed the Superior Court's decision and awarded claimant benefits.(123) Finally, in Waycross Molded Products v. McKelvin,(124) claimant injured his lower back and was paid benefits until same were suspended when the ATP released him to full duty work. Claimant reported to work based upon that release, but before he actually returned to work, claimant was terminated for reasons unrelated to his injury.(125) Subsequent to his termination, claimant developed more back pain after moving a sofa at home, and the ATP gave him restrictions of carrying no more than fifty pounds.(126) Claimant then sought to have his income benefits reinstated.(127) At the hearing, the ALJ awarded claimant benefits and ruled that because he had not actually returned to work before he was discharged for cause, he was not required to show a good faith job search pursuant to Maloney.(128) The Appellate Division upheld this decision, and the award was affirmed by operation of law due to the inaction of the Superior Court.(129) On appeal, the Court of Appeals held that the fact that claimant did not actually return to work before his termination is not a distinction from Maloney and does not excuse the requirement to conduct a diligent job search.(130)

F. What does this case law mean?

Unfortunately, most of the appellate decisions on this point report few facts surrounding the employee's job search and give little guidance as to what constitutes a "diligent" job search. Additionally, most of these cases do not report the details surrounding the termination except to indicate whether or not the termination was for cause.

In terms of whether the employee was fired for reasons unrelated or related to his or her injury, this will obviously be decided on a case by case basis. Obviously, in situations involving plant closings, etc., it should be fairly clear that the termination was not related to the injury. However, in situations which do not involve plant closings or mass layoffs, but involve only the termination of the injured worker, the issue becomes more difficult. In advising employers, it is important to let the employers know that they need to document any problems that they have with their employees. Each time an employee is written up for violation of work rules, tardiness, or absenteeism, etc., a note stating same needs to be placed in the claimant's personnel file. Prior to termination, it is also extremely helpful if the personnel file reflects that the employee was warned that any further violations could result in suspension or termination. This documentation is extremely vital in light of the Supreme Court's holding in Padgett v. Waffle House.(131) As the Supreme Court held in Padgett, if it is found that the employee was fired for reasons related to his or her injury, the employee need not conduct any job search whatsoever.(132)

Assuming that the employee was terminated for reasons unrelated to his or her injury, the next question is whether or not the job search was diligent. While there are still some claimants who fail to conduct any job search whatsoever, such cases are becoming increasingly rare, as any competent claimant's attorney will advise his or her client of the need to conduct a job search and keep a record of same. However, injured workers will not always follow an attorney's advice and will often make mistakes in their job search.

The lessons from the most significant cases are as follows:

1. In order to receive workers' compensation benefits based on a change in condition, "[a] claimant must establish by a preponderance of the evidence that he or she suffered a loss of earning power as a result of a compensable work related injury; continues to suffer physical limitations attributable to that injury; and has made a diligent, but unsuccessful effort to secure suitable employment following termination." Maloney v. Gordon County Farms, et al.(133)

2. The claimant's job search should not be limited just to areas of interest to the claimant if the claimant is qualified to work and has worked in other areas. Harrell v. City of Albany Police Department.(134)

3. Evidence showing a claimant's busy schedule and other activities during an alleged job search can be used to refute the claimant's claims that he was "diligent" in his search for jobs. LCP Chemicals v. Strickland.(135)

4. If the employer or the employee intend to use expert testimony to support or refute an alleged diligent job search, then the expert's opinion cannot be based solely upon hearsay testimony. McEver v. Worrell Industries.(136)

5. One factor in determining whether a claimant has been diligent in his or her job search is whether or not the claimant followed up on employment prospects provided to the claimant by a vocational/rehabilitation counselor. Russ v. American Telephone & Telegraph.(137)

6. The Maloney decision does not eliminate the proximate cause element from the claimant's burden of proof; it simply removes the requirement that the claimant produce direct evidence of proximate cause. McEver v. Worrell Industries.(138)

7. Even if the employee is discharged for cause such as failing or refusing a drug test, the employee may still be entitled to benefits. Risner v. Bulk Equipment Manufacturing, Inc.(139)

8. The diligent job search requirement applies in both change in condition cases and in all issue cases. In other words, when the claimant suffers a compensable work-related injury for which medical treatment only is rendered and for which the claimant suffers no lost time, and the claimant is eventually separated from employment, the claimant would still be under an obligation to prove he has made a diligent job search subsequent to his separation from employment. Diamond Rug & Carpet Mills v. Moses.(140)

9. If the claimant refuses to seek employment with employer because of self-imposed wage requirements established by the claimant, this may be considered as evidence showing the claimant's job search has not been "diligent". T.B. Minority v. Chaffins.(141)

10. The Board may consider evidence of the claimant's non-job search activities in determining whether the claimant has been "diligent" in his or her job search. For example, when the claimant demonstrates the ability to build sixty "expert level" model cars during the period of time the claimant was under an obligation to make a diligent job search, the Board may consider this as evidence that the job search was not diligent. T.B. Minority v. Chaffins.(142)

11. A workers' compensation claimant who is on restricted duty due to a compensable injury and who is discharged because of those restrictions is not required to show he or she made a diligent effort to obtain employment in order to receive disability benefits. Padgett v. Waffle House.(143)

G. Defense checklist for diligent job search cases

The following is a checklist of factors to be considered in seeking to develop evidence to defend a change in condition case where the employee (a) is injured on the job, (b) loses time from work, (c) returns to work, and (d) subsequently is separated from employment for reasons unrelated to his or her injury. In these situations, the claimant will generally be under an obligation to carry the burden of proving that a diligent job search was conducted in an effort to establish a causal link between the work-related injury and the claimant's worsened economic condition in order to receive disability benefits.

1. Gather evidence regarding claimant's separation from employment

As the case law demonstrates, an employee is not required to prove he or she conducted a diligent job search when the employee was terminated for reasons related to the job injury. Accordingly, the first step in defending change in condition cases should be to gather evidence establishing that the claimant's separation from employment was either due to the claimant's voluntary resignation or the claimant's own bad conduct resulting in the claimant being terminated for cause. All documentation surrounding the claimant's separation from employment should be obtained including any internal memorandum reprimanding the claimant or any performance evaluations documenting the reasons for the claimant's termination. Pertinent witnesses to the employer familiar with the circumstances surrounding the claimant's separation from employment should also be contacted and recorded statements obtained while their memories are still fresh and while the witnesses are still available.

2. Freeze the claimant's testimony

If the claimant requests a hearing based on a change in condition for the worse, then the claimant's deposition should be taken with the claimant being questioned in detail regarding the circumstances surrounding the claimant's separation from employment. The goal in the deposition would be to obtain an admission from the claimant that the claimant voluntarily resigned for reasons unrelated to his or her work-related injury, or an admission that the claimant was terminated because of wrongful conduct on the part of the claimant. The claimant should also be questioned extensively regarding his or her activities subsequent to the employee's separation from employment including recreational activities, civic activities, political activities, attending school, involvement in churches and synagogues, involvement with children in the activities (i.e., coaching team sports, assisting with Boy Scouts or Girl Scouts, etc.). As noted in the case law, a claimant's activity during the period when the claimant is under an obligation to conduct a diligent job search is a factor which the courts frequently consider in determining whether the search is "diligent".

The claimant should also be questioned extensively regarding his or her efforts in searching for employment. For example, the claimant should be required to provide the following: (1) names of all prospective employers contacted; (2) name of the contact person with the prospective employer; (3) how the names of the prospective employers were determined; (4) whether or not the claimant completed job applications and, if so, with who; (5) whether or not the claimant told the prospective employer about his or her work-related injury and restrictions and, if so, what restrictions were reported; (6) whether the prospective employer was in fact hiring; (7) whether the claimant searched the classifieds of local newspapers; (8) the claimant's experience and history with other jobs; (9) the claimant's qualifications for jobs within the restrictions imposed by the ATP; (10) whether the claimant limited his or her job search to specific occupations, positions, salary constraints or geographic locations.

3. Serve Interrogatories which are continuing in nature

Even if the claimant is questioned extensively regarding his or her job search, Interrogatories should be served on the claimant asking them to provide the names, addresses, telephone numbers, and contact persons with all prospective employers contacted by the claimant in seeking employment. Interrogatories are continuing in nature and impose an obligation on the claimant to seasonally update responses to the Interrogatories up until the time of the hearing should any additional information come into the claimant's possession which is responsive to the Interrogatory. Accordingly, if appropriate Interrogatories are served upon the claimant, defense counsel will be entitled to stay updated on the claimant's job search activities as the hearing approaches. Otherwise, defense counsel will have no way of monitoring the claimant's job search activities. Obviously, if the claimant reveals the names of prospective employers contacted subsequent to the deposition at the time of the hearing and defense counsel first learns of the name of the prospective employers during the hearing, there will be no opportunity to contact the prospective employers in order to verify the claimant's contact or the nature of the contact.

4. Verify claimant contacts with prospective employers

Obviously, an excellent way to undermine the claimant's testimony that he or she conducted a diligent job search would be to prove by testimony from employers, allegedly contacted, that in fact they were not contacted by the claimant. Favorable evidence can also be elicited from employers on the claimant's job search list when the claimants exaggerate their limitations or restrictions and/or otherwise demonstrate a half-hearted attempt to truly seek re-employment. For example, powerful rebuttal evidence can be developed from prospective employers when you uncover testimony like the following: (a) claimant showed up late for interview, (b) claimant improperly completed employment applications, (c) claimant dressed inappropriately for the interview, (d) claimant admitted to the employer that he really did not want the job, but he was applying only because he was required to do so, (e) claimant had unrealistic job demands, (f) claimant improperly narrowed the scope of his job search, (g) claimant passed upon positions suitable and within ATP imposed restrictions, (h) claimant established artificially high wage requirements, or (i) claimant otherwise impermissibly narrowed the scope of his job search.

An argument can also be made that a causal connection between the work-related injury and the claimant's failure to secure suitable employment is not established if the claimant failed to tell prospective employers about their limitations or work restrictions. This is true because it would be impossible to establish that the prospective employer failed to hire the injured worker because of his or her work-related injuries if the prospective employer did not even know of the injury or the limitations related to same.

5. Develop evidence showing suitable employment readily available in the claimant's geographic area

In demonstrating that the claimant's job search has not been "diligent", employers can offer evidence such as labor market surveys showing numerous employment opportunities suitable to the claimant. This testimony can be gathered by vocational experts who identify specific jobs suitable to the claimant's restrictions or limitations which are readily available in the market. These labor market surveys and job opportunities should be forwarded to the claimant's attorney along with the name of a contact person and a telephone number encouraging the claimant to contact the prospective employers. This could be a double-edged sword because if the claimant contacts the prospective employers without receiving a job offer it can be used as evidence establishing that the claimant was diligent in his job search. On the other hand, if the claimant fails to follow up on leads for suitable job opportunities which were forwarded to the claimant, then this can be used as evidence showing a lack of diligence on the part of the claimant.

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ENDNOTES

1. Throughout this paper "employer" will be used in referring to employers, insurers or third party administrators.

2. 265 Ga. 825, 462 S.E. 2d 606 (1995).

3. 234 Ga. App. 46, 505 S.E.2d 826 (1998)

4. 242 Ga. 287, 248 S.E. 2d 661 (1978).

5. Bristol, 242 Ga. at 287.

6. Id. at 288.

7. Id.

8. Id.

9. 202 Ga. App. 219, 413 S.E.2d 738 (1991).

10. Id.

11. Id.

12. Id. at 220.

13. Id.

14. Id.

15. Id.

16. Id.

17. 265 Ga. 825, 462 S.E.2d 606 (1995).

18. Id.

19. Id.

20. Id.

21. Id.

22. Id. at 826.

23. Id.

24. Id.

25. Id. at 829.

26. Id. at 828.

27. Id.

28. Id.

29. Id.

30. Waffle House, Inc. v. Padgett, 225 Ga. App. 144, 483 S.E.2d 131 (1997).

31. Padgett v. Waffle House, Inc., 269 Ga. 105, 498 S.E.2d 499 (1998).

32. The remainder of this paper will discuss only those situations where the employee has been terminated for reasons unrelated to his/her injury.

33. 219 Ga. App. 92, 464 S.E.2d 234 (1995).

34. Id.

35. Id.

36. Id.

37. Id.

38. Id. at 93.

39. Id.

40. Id.

41. 219 Ga. App. 850, 467 S.E.2d 183 (1996).

42. Id.

43. Id.

44. Id.

45. Id.

46. Id. at 851.

47. Id.

48. Id.

49. Id. at 852.

50. 219 Ga. App. 810, 466 S.E.2d 682 (1996)

51. Id.

52. Id.

53. Id. at 812.

54. Id.

55. 221 Ga. App. 742, 472 S.E.2d 471 (1996).

56. Id.

57. Id.

58. Id.

59. Id. at 743.

60. Id.

61. Id. at 743-744.

62. Id. at 743.

63. Id.

64. Id.

65. Id.

66. 221 Ga. App. 807, 472 S.E.2d 565 (1996).

67. Id.

68. Id.

69. Id.

70. Id. at 808.

71. Id.

72. Id.

73. Id.

74. Id.

75. 222 Ga. App. 140, 473 S.E.2d 236 (1996).

76. Id.

77. Id.

78. Id.

79. Id. at 140-41.

80. Id. at 141.

81. Id.

82. Id.

83. Id.

84. Id. at 141-42.

85. Id. at 142.

86. Id.

87. 223 Ga. App. 495, 479 S.E.2d 373 (1996).

88. Id.

89. Id.

90. Id.

91. Id.

92. Id.

93. Id. at 496.

94. Id.

95. 223 Ga. App. 627, 478 S.E.2d 445 (1996).

96. Id.

97. Id.

98. Id.

99. Id. at 628.

100. Id.

101. Id.

102. Id.

103. Id.

104. Id.

105. Id.

106. Id.

107. Id.

108. Id. at 630.

109. Id.

110. Id. at 631.

111. 228 Ga. App. 858, 493 S.E.2d 46 (1997).

112. Id.

113. Id.

114. Id. at 859.

115. Id.

116. Id.

117. Id. at 860.

118. Id.

119. 229 Ga. App. 529, 494 S.E.2d 304 (1997).

120. Id.

121. Id.

122. Id.

123. Id. at 530.

124. 234 Ga. App. 46, 505 S.E.2d 826 (1998).

125. Id. at 47.

126. Id. at 47.

127. Id.

128. Id.

129. Id.

130. Id. at 48.

131. 269 Ga. at 107 (1998).

132. Id. at 106.

133. 265 Ga. 825 (1995).

134. 219 Ga. App. 810 (1996)

135. 221 Ga. App. 742 (1996).

136. 223 Ga. App. 627 (1996).

137. 228 Ga. App. 858 (1997).

138. 223 Ga. App. 627 (1996).

139. 229 Ga. App. 529 (1997).

140. 221 Ga. App. 807 (1996).

141. 223 Ga. App. 495 (1996).

142. 223 Ga. App. 495 (1996).

143. 269 Ga. 105 (1998).