Brown Mechanical Contractors, Inc. v. Maughon

728 S.E.2d 757, 317 Ga. App. 106, 2012 Fulton County D. Rep. 1803, 2012 WL 1948787, 2012 Ga. App. LEXIS 490
CourtCourt of Appeals of Georgia
DecidedMay 31, 2012
DocketA12A0782
StatusPublished
Cited by2 cases

This text of 728 S.E.2d 757 (Brown Mechanical Contractors, Inc. v. Maughon) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brown Mechanical Contractors, Inc. v. Maughon, 728 S.E.2d 757, 317 Ga. App. 106, 2012 Fulton County D. Rep. 1803, 2012 WL 1948787, 2012 Ga. App. LEXIS 490 (Ga. Ct. App. 2012).

Opinion

Boggs, Judge.

In this discretionary appeal, Brown Mechanical Contractors and Liberty Mutual Insurance Company (collectively “the employer”) appeal from a superior court order reversing the decision of the appellate division of the State Board of Workers’ Compensation (“the Board”) and reinstating the decision of the administrative law judge (“ALJ”) to award temporary total disability benefits. The employer contends that the superior court erred by applying a de novo standard of review instead of the “any evidence” standard of review. It also asserts that the trial court failed to review and revise an order prepared by Maughon’s attorney. We find merit in the employer’s standard-of-review argument and therefore reverse.

The issue in this workers’ compensation case is whether Maughon is entitled to temporary total disability benefits after he was laid off from his employment with Brown Mechanical on April 1, 2010. Brown Mechanical laid off Maughon for reasons unrelated to his disability. At the time of his lay-off, Maughon was working as a track hoe operator with restrictions against lifting, pushing, pulling or [107]*107carrying over 40 pounds with his right arm or hand and any over-the-shoulder height work with his right arm or hand. The restrictions resulted from an on-the-job injury that occurred on February 15, 2010. Following his lay-off, Maughon looked for work with “well over 100” employers between April 1, 2010 and October 20, 2010, the date of the hearing on his claim. Maughon provided a job search log documenting his activities during this time period. Maughon testified that he received three job offers that were rescinded after he disclosed his injury and work restrictions.

The ALJ determined that Maughon was entitled to temporary total disability benefits and rejected the employer’s argument that Maughon did not make a diligent job search. The employer appealed to the Board, which vacated the ALJ’s decision and denied Maughon’s claim for benefits.

The Board concluded that Maughon had not engaged in a diligent job search based upon the following facts: “110 searches over 144 ‘work days’ (excluding holidays and weekends) is not sufficient”; “engaging in a ‘job search,’ on average, less than one time per day is not a diligent job search”; Maughon’s work log showed a lack of follow-up with 22 potential employers; Maughon failed to search for periods of time lasting 27 and 18 consecutive days; Maughon lost two offered positions due to the need for surgery that had not been scheduled; Maughon’s job search concentrated on jobs involving physical labor when his employment history included managerial/sales experience; and Maughon’s failure to seek retail jobs supported an inference that he “was attempting to avoid being hired in order to bolster his claim for indemnity benefits.” Based upon all of these facts, the Board concluded that the record did not provide “support for ‘reasonable inferences’ to be drawn that his inability to find work is due to the work injury.”

Maughon appealed the Board’s ruling to the Monroe County Superior Court, which orally announced its decision to reinstate the ALJ’s award of temporary total disability benefits at the conclusion of a hearing. At the trial court’s request, Maughon’s counsel prepared an order concluding that the Board misapplied the Supreme Court of Georgia’s decision in Maloney v. Gordon County Farms, 265 Ga. 825 (462 SE2d 606) (1995), when it vacated the ALJ’s decision. The order prepared by counsel and adopted by the superior court concluded that the proper standard of review was de novo because the Appellate Division erred in applying the law, specifically the Supreme Court’s decision in Maloney, supra. According to the superior court, the Board established “a heightened burden of proof not required by Maloney.”

[108]*108This court granted the employer’s application for discretionary review, and we will first determine whether the superior court applied the proper standard of review.

1. In Maloney, supra, the Supreme Court addressed a claimant’s burden of proof in change-of-condition cases and held:

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. Once evidence is offered in support of the foregoing, the board may in its discretion draw reasonable inferences from that evidence that despite the claimant’s good faith efforts, his or her inability to obtain suitable employment was proximately caused by the continuing disability.

265 Ga. at 828. It also overruled our decisions in Aden’s Minit Market v. Landon, 202 Ga. App. 219 (413 SE2d 738) (1991), and Autolite v. Glaze, 211 Ga. App. 780 (440 SE2d 497) (1994), to the extent they “impose[d] an additional burden on the claimant to prove the reasons why he or she was not hired by a prospective employer.” 265 Ga. at 828. And, it concluded that in the case before it, Maloney had “proved by a preponderance of the evidence that she suffered an economic change in condition.” Id. It therefore reversed this court’s decision to reverse the ALJ’s decision to resume benefits that had been adopted by the Board and affirmed by operation of law in superior court. Id. at 828-829. See Gordon County Farms v. Maloney, 214 Ga. App. 253, 255 (1) (447 SE2d 623) (1994) (reversing award of benefits because employee failed to submit proof as to reasons why prospective employers failed to hire her), overruled by Maloney, supra. In Diamond Rug & Carpet Mills v. Moses, 221 Ga. App. 807, 809 (472 SE2d 565) (1996), we held that Maloney should also be applied to “all issues” cases like the one presently before us. Id. at 809 (“all issues” cases are ones in which the claimant did not miss seven days or more of work with the employer due to his injury before being laid off).

Following the Supreme Court’s decision in Maloney, this court has clarified the standard of review with regard to the issue of whether a claimant has established by a preponderance of the evidence that he has made a diligent, but unsuccessful effort, to [109]*109secure suitable employment. First,

[o]nce the claimant shows that she has made diligent but unsuccessful efforts to obtain suitable employment, the factfinder may, in its discretion, infer from the evidence that the claimant’s disability is the proximate cause of her unemployment. However, Maloney does not require the factfinder to draw this inference, and it is not an abuse of discretion for it to make an alternative inference. That is, the factfinder could properly infer that the claimant’s continuing unemployment was due to a number of reasons other than her disability. Thus, it is not necessarily sufficient for the claimant simply to show that she has unsuccessfully sought employment.

(Emphasis in original.) McEver v. Worrell Enterprises, 223 Ga. App. 627, 630 (1) (478 SE2d 445) (1996).

In a workers’ compensation case, the ALJ is the first factfinder, but its decision can be appealed to the Board. OCGA § 34-9-103

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728 S.E.2d 757, 317 Ga. App. 106, 2012 Fulton County D. Rep. 1803, 2012 WL 1948787, 2012 Ga. App. LEXIS 490, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-mechanical-contractors-inc-v-maughon-gactapp-2012.