1999 STATE BOARD OF WORKERS’ COMPENSATION
CLAIMS/INSURER/SELF-INSURER WORKSHOP

“WHAT CONSTITUTES A DILIGENT JOB SEARCH?”

Robert D. Ingram
Alexander T. Galloway III
MOORE INGRAM JOHNSON & STEELE, LLP
192 Anderson Street
Marietta, Georgia 30060
770/429-1499

and

Kelly A. Benedict
CLEMENTS CLARK & SWEET PC
175 Trinity Avenue, SW
Atlanta, Georgia 30303
404/688-6700

 

“WHAT CONSTITUTES A DILIGENT JOB SEARCH?”

I. History and Background

O.C.G.A. § 34-9-104 provides that a change in condition means “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.”

Change in condition claims often involve the issue of whether or not the employee has conducted a “diligent job search” pursuant to the holding and Maloney v. Gordon County Farms.1 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. McKelvin2, 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.3 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.”4 In Bristol, the claimant suffered a compensable back injury, was paid benefits and returned to work with the same employer performing lighter duties.5 Subsequently, he was laid off due to lack of work.6 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.7

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. Landon8 In Aden’s, the claimant sustained 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.9 Subsequently, 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.10 After her termination claimant filed a Hearing Request for a change in condition in the worse seeking a resumption in temporary total disability payments.11 The administrative law judge ruled in her favor and this ruling was affirmed by both the full Board and the Superior Court.12

The Court of Appeals indicated that even where the claimant is terminated from subsequent employment because of their own misconduct, they may still be entitled to disability benefits if their disabilities prevent them from finding further subsequent employment.13 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.14 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.15

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 Americans with Disabilities Act, prospective employers were reluctant to complete such forms.

Ultimately, the Supreme Court’s decision in Maloney v. Gordon County Farms,16 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.17 At the hearing, the claimant testified that she completed an application at Burger King and received a job offer.18 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.19 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.20 The administrative law judge reinstated the claimant’s benefits and this ruling was adopted by the full board.21 On appeal to the superior court, the decision was affirmed by operation of law.22 The Court of Appeals, however, reversed, rejecting Maloney’s explanation as inadmissible hearsay.23

The Supreme Court of Georgia granted certiorari and reversed the decision of the court of appeals.24 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.25 Accordingly, the Supreme Court held that in order for a claimant to meet his/her burden to show a change in condition, they 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.26 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.27 Thus, the Supreme Court overruled that specific holding in Aden’s.28

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. The remainder of this paper will discuss what constitutes a “diligent” job search and the various appellate decisions issued since Maloney.

However, before discussing cases which consider the diligent job search issue, 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/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. Padgett29 However, the Supreme Court disagreed and reversed the Court of Appeals in Padgett v. Waffle House, Inc.30 holding that when the employer has terminated the injured worker because of their 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 their 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.

This paper will discuss only those situations where the employee has been terminated for reasons unrelated to his/her injury.

II. Diligent Job Searches

In Sadeghi v. Suad, Inc.31, claimant injured his back and received temporary total disability benefits.32 Subsequently, claimant returned to light duty work with a different employer.33 However, he eventually stopped working for the other employer on his own.34 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.35 The administrative law judge denied his claim for temporary total benefits and this ruling was upheld by the full board and the Superior Court.36 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., that he told his prospective employers about his injury and had not been hired by any of these employers.37 Because the ALJ the full board and the Superior Court relied upon Aden’s in reaching their decision, the Court of Appeals remanded the case for a new hearing to determine whether or not claimant’s search for suitable employment was diligent in light of the Supreme Court’s holding in Maloney.38

In Buckner v. Bibb Yarns, Inc. and Rouse v. Bibb Yarns, Inc.,39 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.40 Rouse suffered a compensable injury to his knee and returned to work for the employer light duty.41 When the employer was bought out by Aladdin Industries, all light duty employees were terminated including Buckner and Rouse42.

Both filed workers’ compensation claims and the administrative law judge 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.43 The Superior Court reversed this decision and reinstated the decision of the ALJ.44 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.45 However, the administrative law judge concluded in both cases that the employee failed to carry their burden of proof to show that jobs were available or that applications were not given or jobs not offered due to their physical limitations.46 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.47

In Harrell v. City of Albany Police Department48, 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.49

At the hearing, it was determined that claimant was terminated from his job 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.50 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, 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.51 Accordingly, the case was remanded to the Appellate Division for reconsideration of the facts based upon the Supreme Court’s decision in Maloney.52 Significantly, the Court of Appeals noted in its 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,53 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.54 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.55 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.56 The Superior Court reversed the decision based upon a work search log which was prepared by claimant and which was uncontradicted at the hearing.57 However, the Court of Appeals reversed the Superior Court and reinstated the ALJ’s award based upon the any evidence rule.58 The Court of Appeals held that there was evidence showing that claimant’s job search was not credible.59 Of significance was the fact that claimant made several verbal inquiries but submitted only one written application.60 Additionally, the claimant did not submit any written record of his job search for the five months preceding the hearing.61 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.62 Significantly, the hearing took place the day before the general election.63

In Diamond Rug & Carpet Mills v. Moses,64 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.65 At the hearing, Moses testified that he had filed applications or had spoken with at least fourteen different employers, but was unable to find a job.66 Initially, the ALJ ruled that claimant had not met his burden of showing why he was not hired based upon the holding in Aden’s.67 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.68 On remand, the Board vacated its previous order and awarded claimant temporary total disability benefits.69 This award was affirmed by the Superior Court.70

At issue on appeal was what standard of proof as required of the employee to meet his burden under Maloney.71 The Court of Appeals held that once evidence is offered that 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, 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.72 It has been argued that if the Board can draw reasonable inferences from 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 rehab 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.,73 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.74 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.75 Five months after returning to light duty work, the claimant was terminated for refusal to take a drug test.76 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.77

The appellate division accepted the ALJ’s findings but made other findings including evidence that when 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 claimant to have problems with fine motor functions.78 Based upon these additional findings, the appellate division concluded that the claimant failed to demonstrate that his impairment has hindered him from finding employment.79 The Superior Court affirmed this award based upon the any evidence rule and based upon the holding in Aden’s.80

On appeal to the Court of Appeals, claimant alleged that the Superior Court erred as a matter of law by applying the burden of proof set forth in Aden’s.81 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.82 It noted that Maloney still holds that claimant must show his inability to secure suitable employment was proximately caused by the work-related injury.83 Accordingly, the Court of Appeals held that despite the reference to the holding in Aden’s, the proper burden of proof was used.84

In T.V. Minority v. Chaffins,85 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.86 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.87 At the hearing, it was determined that claimant was restricted from driving, working in high places and around heavy machinery.88 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.89 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.90 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.”91 Accordingly, the Court of Appeals reversed and reinstated the holding of the ALJ and the Board denying claimant’s benefits.92

In McEver v. Worrell Enterprises,93 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 authorized treating physician released her to full time work with restrictions.94 Approximately one month after returning to light duty work, the claimant was terminated for reasons unrelated to her injury.95 Seven months after her termination, the authorized treating physician released claimant from his care with no PPD rating.96

At the hearing, claimant testified that she made a diligent but unsuccessful job search.97 Additionally, 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.98 His opinion, however, was based solely upon telephone conversations with prospective employers.99 Based upon this testimony, the ALJ awarded claimant benefits.100 The ALJ’s finding was based solely upon the expert testimony.101

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.102 The Superior Court affirmed the holding of the appellate division and the claimant appealed to the Court of Appeals.103 On appeal, the claimant argued that the Superior Court erred in applying the burden of proof in Aden’s.104 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.105 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.106 However, Maloney does not require such an inference.107 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.108

In Russ v. American Telephone and Telegraph,109 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, claimant was laid off and requested temporary total disability benefits alleging a change in condition for the worse.110 The ALJ denied claimant’s claim finding that she did not conduct a diligent search for suitable employment.111 However, the appellate division reversed and awarded temporary total disability benefits finding that she did conduct a diligent job search.112 The Superior Court then reversed the appellate division concluding that the ALJ’s findings were supported by a preponderance of competent and credible evidence.113 Claimant then appealed to the Court of Appeals.114 Based upon the any evidence standard, the Court of Appeals agreed with the full board and awarded claimant benefits.115 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.116 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 job from vocational experts).

In Risner v. Bulk Equipment Manufacturing, Inc.117 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.118 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.119 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.120 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.121

Finally, in Waycross Molded Products v. McKelvin,122 claimant injured his lower back and was paid benefits until same were suspended when the authorized treating physician 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.123 Subsequent to his termination, claimant developed more back pain after moving a sofa at home and the authorized treating physician gave him restrictions of carrying no more than fifty pounds.124 Claimant then sought to have his income benefits reinstated.125 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.126 The appellate division upheld this decision and the award was affirmed by operation of law due to the inaction of the Superior Court.127 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.128

III. 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 don’t 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, rather, 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 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.129 As the Supreme Court held in Padgett, if it is found that the employee was fired for reasons related to their injury, the employee need not conduct any job search whatsoever.130

Assuming that the employee was terminated for reasons unrelated to his/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 their client of the need to conduct a job search and keep a record of same. However, injured workers will not always follow their attorneys 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.131

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.132

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.133

4. If the employer or the employee intend to use expert testimony to support or refute an alleged diligent job search, the expert’s opinion cannot be based solely upon hearsay testimony. McEver v. Worrell Industries.134

5. One factor in determining whether a claimant has been diligent in their 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.135

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.136

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.137

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.138

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.139

10. The Board may consider evidence of the claimant’s non-job search activities in determining whether the claimant has been “diligent” in his/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.140

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/she made a diligent effort to obtain employment in order to receive disability benefits. Padgett v. Waffle House.141

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/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/she conducted a diligent job search when they were 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 with 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, 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/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/her activities subsequent to their separation from employment including recreational activities, civic activities, political activities, attending school, involvement in churches and synagogues, involvement with children in their 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/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 their work related injury and restrictions and, if so, what were the restrictions 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 authorized treating physician; (10) whether the claimant limited their 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 their 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 their response 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/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 their 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 followup on leads for suitable job opportunities which were forwarded to the claimant, this can be used as evidence showing a lack of diligence on the part of the claimant.

OFFERS OF EMPLOYMENT PURSUANT TO O.C.G.A. §34-9-240

In situations where an employee has lost time for work and is released to light duty, the employer must follow O.C.G.A. §34-9-240 in order to offer suitable employment to a claimant.

It should be noted that Board Rule 240 provides that the employer/insurer “should” provide to the claimant and the claimant’s attorney a copy of the job description at the time same is submitted to the authorized treating physician. It has been argued that because the Board did not employ the term “shall,” which would make this mandatory, the employer/insurer is not required to do so. However, we recommend that you comply with this rule to avoid any appearance of improper actions. In the event that an employer/insurer inadvertently fails to follow this requirement, we believe that same should not make the 240 job offer invalid.

If the employee fails to show up for the job and all requirements of O.C.G.A. §34-9-240 are met, the employer/insurer is entitled to suspend claimant’s benefits immediately effective the date of the refusal.

An interesting situation arises in situations where the employee was to be paid less pursuant to the light duty job offer than he was making prior to the injury. In those situations, had the employee accepted the job, he would have received pay for the job and temporary partial disability benefits. However, even though he would have otherwise been entitled to temporary partial disability benefits had he not refused the job, the employee’s refusal acts as a bar to any benefits as indicated in O.C.G.A. §34-9-240.

In the event that the employee returns to work, but works less than fifteen (15) actual days, the employer/insurer is required to reinstate benefits immediately. However, the employer/insurer can request a hearing and/or file an interlocutory motion requesting suspension of benefits for the unjustified refusal. Additionally, the employer/insurer can request a credit for benefits paid if the refusal was found unjustified. However, it is important to note that the fifteen (15) day rule requires fifteen (15) days of actual work, not fifteen (15) calendar days.

HYPOTHETICALS REGARDING DILILGENT JOB SEARCHES

The following is a series of hypotheticals regarding common situations encountered in change of condition cases where issues of diligent job searches arise:

1. Claimant, I.M. Lazee, was injured at work after he fell asleep. Mr. Lazee returned to work in a light duty position, but was ultimately fired for nodding off during work hours. After the claimant was terminated, he became hooked on daytime soap operas and the Jerry Springer Show which he stayed home and watched for three months. Eventually the claimant saw a TV commercial which informed him that “If you have been injured at work you deserve a cash settlement.” As a result, the claimant called a claimant’s attorney who requested a hearing seeking reinstatement of TTD benefits based upon a change in condition for the worse. A workers’ compensation hearing was scheduled three months after the claimant requested a hearing and at trial the claimant introduced evidence that he had contacted at least 10 employers a week for the two months immediately preceding the hearing.

Is Mr. Lazee entitled to benefits during the first four months while he was not searching for employment?

Is Mr. Lazee entitled to benefits for the two month period immediately preceding the hearing when he actively sought employment?

2. Assume that Mr. Lazee, after being fired for reasons unrelated to his injury, looked for work the next day and continues to look for work with prospective employers up until the date of the hearing. However, the claimant admitted that he never told the prospective employers about his work restrictions or injury, nor did he indicate same on his employment application.

What would you as an adjuster do in this situation?

How would a judge rule?

3. Homer J. Simpson is injured on the job when he falls asleep at the controls of the nuclear power plant banging his head on the instrument panel. Fortunately, severe brain damage was avoided, as Homer’s fall was cushioned by the jelly donut he left on the control panel. However, Homer was restricted to light duty work and returned to work guarding the company donuts. Eventually, Homer was fired for trying an experiment to make giant donuts by placing same in the nuclear reactor.

After a week of binge drinking at Mo’s Tavern, Homer decided to get on the ball and look for a new job. However, Homer decides that he is “sick and tired of doing menial work.” Therefore, Homer limits his job search to applications to become the vice president or president of a corporation, as he wants to start at the top of the ladder.

Is Homer entitled to benefits?

4. Going back to Mr. Lazee, assume that he looked for work immediately, but only for a short period of time and ultimately settles on self-employment cutting grass and being paid under the table. He indicates that this work has been very sporadic, but he has worked at least one day per week cutting grass since the time of his firing.

Is he entitled to benefits?

5. Assume that Mr. Lazee looked for work from day one and keeps track of his job search by documenting the name, address and telephone number and contact person with the employer, the date of the contact, what he told the employer regarding his restrictions and what the response was.

What would you do?

Is he entitled to benefits?

6. Suppose Mr. Lazee initially applies for unemployment benefits and receives same. As a requirement of the Georgia Department of Labor, Mr. Lazee does conduct a job search, but does so only to the extent that the labor department is satisfied and does not suspend his benefits.

What would you do in this situation?

Is he entitled to benefits?

7. Suppose Mr. Lazee looks for work the entire time he is out but only fills out two to three applications per month.

What do you do?

Is he entitled to benefits?

8. Suppose Mr. Lazee looks for work the entire time but only places telephone calls to prospective employers and does not fill out any applications.

What do you do?

Is he entitled to benefits?

9. Suppose Mr. Lazee looks for work the entire time he is out and fills out applications with all prospective employers indicating his work restrictions. However, it turns out that he only went to places which were not actually hiring at the time he filled out his application.

What do you do?

Is he entitled to benefits?

10. Julio Illegalis obtains employment with Simpson Construction Company utilizing a fake Social Security number and a fake drivers license during the application process. Julio is a native Mexican who is in the country illegally and who does not have proper documentation authorizing him to work. Julio injures his back while lifting lumber on the job site, receives medical treatment, and temporary total disability benefits for one month until he is released to return to light duty work with a 10 lb. lifting restriction. Julio returns to work for one month but is terminated after the employer learns from an anonymous tip that the claimant is an illegal alien. Simpson Construction Company continues to have light duty work available but can not offer it to the claimant because of his illegal alien status.

Is Julio entitled to reinstatement of TTD benefits based on a change in condition for the worse?

What if Julio refuses to answer questions about his work status pursuant to advice of his attorney on Fifth Amendment grounds that the answer to the question might tend to incriminate him?

11. Suppose Mr. Lazee is fired while receiving TTD benefits. His employer at the time of his injury presents him with a 240 return to work proposal. He returns to the light duty job offered under 240 and is fired again, allegedly for sleeping on the job.

Is he entitled to benefits?

Does he have to do a job search?

12. Assume I.M. Lazee injures his back while lifting some lumber for his employer Simpson Construction Company. The claimant receives treatment from the authorized treating physician who takes the claimant out of work for one month but then gives the claimant a light duty release with a 20 lb. lifting restriction. The claimant returns to work for Simpson Construction Company which is building barracks on a military base. After performing the light duty work for three weeks, Mr. Lazee brings a large quantity of marijuana with him to work and during lunch he and his fellow workers spend their break smoking marijuana. Following lunch, Mr. Lazee and four other co-workers improperly install scaffolding which eventually collapses injuring claimant Lazee and his four co-workers. Military personnel are called to the scene to attend to the injured workers while they await an ambulance. While at the scene, the military personnel smell marijuana, observe marijuana in the possession of the injured workers and determine from the slurred speech and dilated pupils of the workers that they are under the influence of marijuana. All five employees are then transported via ambulance to a hospital. Homer Simpson is told of the employees’ use of marijuana by military officials and demands that the medical personnel at the hospital conduct a drug test on all employees. However, the hospital has adopted a policy which prevents them from performing drug tests on patients injured in work related injuries because a positive drug test results in the claim being controverted and their bill not being paid. Accordingly, no drug test is performed on any of the injured workers. Homer Simpson is notified the next day that all of his government construction contracts are terminated because of the illegal drug use on the project site. Since the majority of Simpson Construction Company’s work is through government contracts, Simpson Construction Company goes out of business. All five employees are released from the hospital after one day with everyone being diagnosed with muscle strains and sprains. All employees are given light duty releases with 20 lb. lifting restrictions. After being out of work for three weeks, all of the claimants return to work with a new construction company but after working there for one month all five claimants are terminated because they are caught smoking pot on the job. The claimants now file a request for change in condition for the worse seeking TTD benefits and alleging that they have made a diligent job search but are unable to find work.

 

Who are the winners and losers?

 

ENDNOTES

1 265 Ga. 825, 462 S.E. 2d 606 (1995).

2234 Ga. App. 46, 505 S.E.2d 826 (1998)

3242 Ga. 287, 248 S.E. 2d 661 (1978).

4 Bristol, 242 Ga. at 287.

5Id. at 288.

6Id.

7Id.

8202 Ga. App. 219, 413 S.E.2d 738 (1991).

9Id.

10Id.

11Id. at 220.

12Id.

13Id.

14Id.

15Id.

16265 Ga. 825, 462 S.E.2d 606 (1995).

17Id.

18Id.

19Id.

20Id.

21Id. at 826.

22Id.

23Id.

24Id. at 829.

25Id. at 828.

26Id.

27Id.

28Id.

29Waffle House, Inc. v. Padgett, 225 Ga. App. 144, 483 S.E.2d 131 (1997).

30Padgett v. Waffle House, Inc., 269 Ga. 105, 498 S.E.2d 499 (1998).

31 219 Ga. App. 92, 464 S.E.2d 234 (1995).

32Id.

33Id.

34Id.

35Id.

36Id. at 93.

37Id.

38Id.

39219 Ga. App. 850, 467 S.E.2d 183 (1996).

40Id.

41Id.

42Id.

43Id.

44Id. at 851.

45Id.

46Id.

47Id. at 852.

48219 Ga. App. 810, 466 S.E.2d 682 (1996)

49Id.

50Id.

51Id. at 812.

52Id.

53221 Ga. App. 742, 472 S.E.2d 471 (1996).

54Id.

55Id.

56Id.

57Id. at 743.

58Id.

59Id. at 743-744.

60Id. at 743.

61Id.

62Id.

63Id.

64221 Ga. App. 807, 472 S.E.2d 565 (1996).

65Id.

66Id.

67Id.

68Id. at 808.

69Id.

70Id.

71Id.

72Id.

73222 Ga. App. 140, 473 S.E.2d 236 (1996).

74Id.

75Id.

76Id.

77Id. at 140-41.

78Id. at 141.

79Id.

80Id.

81Id.

82Id. at 141-42.

83Id. at 142.

84Id.

85223 Ga. App. 495, 479 S.E.2d 373 (1996).

86Id.

87Id.

88Id.

89Id.

90Id.

91Id. at 496.

92Id.

93223 Ga. App. 627, 478 S.E.2d 445 (1996).

94Id.

95Id.

96Id.

97Id. at 628.

98Id.

99Id.

100Id.

101Id.

102Id.

103Id.

104Id.

105Id.

106Id. at 630.

107Id.

108Id. at 631.

109228 Ga. App. 858, 493 S.E.2d 46 (1997).

110Id.

111Id.

112Id. at 859.

113Id.

114Id.

115Id. at 860.

116Id.

117229 Ga. App. 529, 494 S.E.2d 304 (1997).

118Id.

119Id.

120Id.

121Id. at 530.

122234 Ga. App. 46, 505 S.E.2d 826 (1998).

123Id. at 47.

124Id. at 47.

125Id.

126Id.

127Id.

128Id. at 48.

129269 Ga. at 107 (1998).

130Id. at 106.

131265 Ga. 825 (1995).

132219 Ga. App. 810 (1996)

133221 Ga. App. 742 (1996).

134223 Ga. App. 627 (1996).

135228 Ga. App. 858 (1997).

136223 Ga. App. 627 (1996).

137229 Ga. App. 529 (1997).

138221 Ga. App. 807 (1996).

139223 Ga. App. 495 (1996).

140223 Ga. App. 495 (1996).

141269 Ga. 105 (1998).