In two cases within the past year, the Court of Appeals has returned to the framework laid down inMaloney v. Gordon County Farms,
In two cases within the past year, the Court of Appeals has returned to the framework laid down inMaloney v. Gordon County Farms, 265 Ga. 825, 462 SE2d 606 (1995), to examine whether claimants have conducted diligent job searches. As established in Maloney, the claimant in a change of condition case must prove that he “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;” this is what is commonly known as the Maloney Burden. In R.R. Donnelley v. Ogletree, 312 Ga. App. 475, 718 S.E.2d 825 (2011), and Brown Mech. Contrs., Inc. v. Maughon, 728 S.E.2d 757, 2012 Ga. App. LEXIS 490, (2012), the Court reached different conclusions regarding the claimants’ search for work, but both decisions provide further insight into evaluating whether the claimant will likely meet his Maloney Burden at a hearing.
In Ogletree, the claimant sustained a compensable injury, underwent surgery, and returned to light duty work until he was laid off several years later due to the employer’s reduced workload. The claimant’s evidence to support his Maloney Burden consisted of a list of 24 jobs, including quality control and government jobs within his physical restrictions, for which he submitted applications. Some prospective employers did not respond to his applications, and others responded via e-mail advising that the positions had been filled. The claimant did not meet with any of these potential employers and did not have any interviews, but testified that he followed the Georgia Department of Labor’s instructions during his job search.
The ALJ found that the claimant satisfied his burden of proof based upon this evidence, but on appeal before the Appellate Division the employer argued, and the Board agreed, that the claimant’s job search was not diligent, as he did not personally visit any potential employers and did not have any interviews. The Court of appeals disagreed with the Board. It read the Appellate Division’s Award as imposing an additional burden on the claimant, beyond what is required under Maloney, of securing interviews and in-person site visits with the prospective employers. The Court noted that the claimant, as an applicant, typically has no control over aspects of the hiring process such as opportunities for interviews, and there was no evidence in the record reflecting otherwise. Because in Maloney the Georgia Supreme Court overruled earlier cases imposing additional burdens on the claimant, burdens which often were outside of the claimant’s control or very difficult to prove, the Court in Ogletree reversed what it saw as the Board imposing a further burden on the claimant with respect to matters beyond his control.
The Court in Maughon reached an opposite result, concluding that a claimant who had contacted more than one hundred employers had not necessarily made a diligent search for work. In Maughon, the claimant sustained a compensable shoulder injury and continued working within restrictions as a track hoe operator until he was laid off for reasons unrelated to his disability. He then contacted in excess of one hundred potential employers over the six month period leading up to his hearing date. Following a hearing, the ALJ found that the claimant conducted a diligent job search and awarded TTD benefits, however the Board vacated the Award and denied indemnity benefits on grounds that the claimant’s search was not diligent and thus he failed to meet hisMaloney Burden.
The Board, in finding that the claimant’s job search was not diligent, relied upon factors including that 110 searches over 144 “work days” is not sufficient, that searching an average of less than once per day is not diligent, that the claimant failed to follow up with twenty-two employers, that he went periods of twenty-seven and eighteen consecutive days without searching, that he lost two offered positions because of a purported need for surgery which had not been scheduled, and that despite employment history in managerial/sales positions the claimant sough physical labor jobs and avoided retail jobs.
The Court of Appeals framed the issue as one involving whether the Board’s findings of fact and conclusions were supported by any evidence in the record. The Court stated that there was evidence in the record to support the conclusion that the job search was not diligent, including the fact that the claimant did not look for a job every business day, went periods of time without looking for work, did not following up with almost two dozen employers, and concentrated his search on jobs involving physical labor despite his employment background in other fields. Notably, the claimant submitted evidence that three employers withdrew job offers after learning about his injury, however the Court not persuaded by this evidence, and held that the Appellate Division was authorized to conclude that the claimant failed to conduct a diligent job search to obtain more suitable employment not involving physical labor. Finally, the Court distinguished the decision in Ogletree on grounds that in that case the Board had applied an erroneous legal theory in relying on factors outside the claimant’s control such as sitting for interviews, whereas in Maughon the claimant failed to engage in a diligent job search based upon factors that were within his control.
The usefulness of Maughon for employers and insurers will necessarily be dependent upon the specific facts and circumstances of each claim. Both of these cases reaffirm the fact-intensive scrutiny that applies in every situation involving a Maloney Burden. Ogletree is a cautionary reminder that neither the ALJ nor the Board may add further requirements to the Maloney Burden, even where the requirements seem more like common sense criteria. Maughon in particular demonstrates the unique details of a job search that might accumulate to hold down the claimant from meeting his burden of showing a diligent search. Both the Court of Appeals and the Board drew attention to the fact that the claimant searched for jobs outside of his background areas in retail, with the Appellate Division stating that “one can easily draw an inference that the Employee was attempting to avoid being hired in order to bolster his claim for indemnity benefits.”
Ultimately, Maughon is a favorable decision and possibly potent authority for employers and insurers. The language in the Board’s Award is often quite forceful, as when the Board states that “engaging in a ‘job search,’ on average, less than one time per day is not a diligent job search,” and may be indicative of a shift in the Board’s attitude toward what constitutes a “diligent” job search. At any rate, employers and insurers should certainly be encouraged that the Board refused to find that a 10-page laundry list of job searches is not a claimant’s silver bullet for slaying the Maloney Burden.