Workers'
Compensation Overview And Recent
Changes
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
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. McKelvin(2), 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. Landon(8) 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. Padgett(29)
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 Rouse(42).
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 Department(48),
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
