You are likely familiar with the Maloney burden, which requires an employee seeking recommencement of disability benefits to establish that he has suffered a loss
You are likely familiar with the Maloney burden, which requires an employee seeking recommencement of disability benefits to establish that he has suffered a loss of earning power as a result of an on-the-job injury, has continued physical restrictions as a result of that injury, and has made a diligent but unsuccessful search for suitable light duty employment. Maloney v. Gordon County Farms, 265 Ga. 825, 462 S.E.2d 606 (1995). If you are familiar with the Maloney burden, you are also probably familiar with the fact that what constituted a “diligent” search varied and often left Employers and Insurers feeling like the Maloney burden didn’t actually impose much of a burden on the Claimant to look for suitable employment at all. However, if the July 2011 opinion from the Appellate Division of the State Board of Worker’s Compensation in the Maughon v. Brown Mechanical Contractors, Inc., case is indicative of how the Court will interpret what constitutes a “diligent search for suitable employment” going forward, the burden on the Claimant to actually look for employment will be significant from now on.
In Maughon, the Appellate Division took a very close look at the Claimant’s efforts to secure suitable employment. The Claimant introduced evidence of 110 alleged searchs, a number that normally would have been automatically deemed diligent (especially when compared to the 6 searches conducted by the Claimant inMaloney but, the Appellate Division pointed out that it is not a matter of the number of searches. The question is whether the search was “diligent”.
In defining “diligent”, the Court first looked to the Merriam Webster dictionary definition of “characterized by steady, earnest, and energetic efforts” See generally Merriam-Webster Dictionary (2011). They then went on say that in addition to being “diligent” the search must also be in good faith.
Maughon’s 110 searches stretched over a period of 144 work days, meaning that the Claimant did less than one search per day. The Court broke down the number of searches, pointing out that there were several stretches, including one stretch of 27 days, in which the Claimant made no effort to look for work at all. The Court also noted that of the 110 potential employers, two asked the Claimant to check back at a later date. Yet, the Claimant’s job search log showed no evidence that he followed up with those two employers. Additionally, one potential employer asked the Claimant to provide a release to work, yet the Claimant provided no evidence to show that he followed up on this request, leading the Court to say that this could not be classified as an “earnest effort”.
The Claimant in the Maughon case focused his search on jobs requiring physical components that were outside of his restrictions, despite the fact that he had managerial and sales experience. The Court found it significant that the Claimant failed to fully explore potential work outside of a limited range of possibilities when he was qualified to work, and had worked, in other areas. Based on the totality of the evidence, the Court concluded that the Claimant’s efforts were not “diligent” and that he was, therefore, not entitled to a recommencement of disability benefits.
Whether the Maughon case is indicative of how the Board will interpret what constitutes a “diligent” job search going forward remains to be seen but, if it does, the Maloney burden has suddenly become a lot more “burdensome”, a factor that you will certainly want to consider in deciding whether to recommence disability benefits.