Clark v. Georgia Kraft Co.

• Decision Date: 17 April 1986
• Docket Number: No. 71696,71696
• Citation: 345 S.E.2d 61,178 Ga.App. 884
• Parties: CLARK v. GEORGIA KRAFT COMPANY et al.
• Court: Georgia Court of Appeals

Page 61

345 S.E.2d 61

178 Ga.App. 884

CLARK v. GEORGIA KRAFT COMPANY et al.

No. 71696.

Court of Appeals of Georgia.

April 17, 1986.

Rehearing Denied May 2, 1986.

Certiorari Denied June 3, 1986.

E. Earl Mallard, M. John Wilson, Monroe, for appellant.

Mallory C. Atkinson, Jr., Elton L. Wall, Macon, for appellees.

McMURRAY, Presiding Judge.

Workers' compensation. Claimant suffered a compensable injury on December 28, 1981. The injury necessitated the amputation of claimant's left arm above the elbow. Claimant was fitted with a myoelectrical prosthetic arm and he returned to work. At that time, the employer gave claimant a job in the shipping department where claimant experienced considerable difficulties when he worked. The work area was not air conditioned and the hot environment caused a severe rash near the harness of the prosthetic arm. Moreover, the myoelectrical device malfunctioned in the work area on account of perspiration. To remedy the situation, the employer proposed the creation of a courier position for claimant. In the new position, claimant would receive the same wage he was earning previously. The job called upon claimant to distribute mail inside the plant and to go on errands outside the plant in an air conditioned truck.

Claimant refused the proposed courier job as he maintained that the job was unsatisfactory because he would still be exposed to non-air conditioned areas in the plant and, more importantly, it offered no challenge and no opportunity for advancement. Thereafter, claimant ceased working because of the difficulties he encountered in the shipping department work area. Claimant sought the reinstatement of benefits alleging that he had undergone a change of condition for the worse. The employer acknowledged that claimant was unable to continue working in the shipping department, but defended the change of condition request, however, on the ground that it offered other work (the courier job) to claimant which was suitable to his capacity.

Following a hearing, the administrative law judge (ALJ) determined that the proffered employment was within claimant's physical capacities. Nevertheless, the ALJ concluded that claimant was justified in refusing the courier job because it did not provide "a reasonable opportunity for advancement and growth and a correlation with the [claimant's] interests and aptitudes." Accordingly, the ALJ found that claimant did undergo a change of condition. He ordered the resumption of temporary total disability benefits and vocational rehabilitation training for claimant.

The employer appealed the ALJ's award directly to the superior court. Holding that the facts did not show claimant justifiably refused the courier job, the superior court reversed the award of the ALJ. We granted claimant's application for a discretionary appeal and the case is here for review. Held:

OCGA § 34-9-240 provides: "If an injured employee refuses employment procured for him and suitable to his capacity, he shall not be entitled to any compensation at any time during the continuance of such refusal unless in the opinion of the board such refusal was justified." (Emphasis supplied.) Under this statute, the board is empowered to determine whether a refusal of employment is justified. See Hartford Accident & Indem. Co. v. Barfield, 89 Ga.App. 562, 80 S.E.2d 84. Such a determination is a discretionary one. Empire Glass, etc., Co. v. Bussey, 33 Ga.App. 464 (3), 126 S.E. 912. See Columbus Foundries v. Moore, 175 Ga.App. 387, 333 S.E.2d 212. In fact, the board is vested with a broad discretion in determining whether proffered employment is refused justifiably. See City of Atlanta v. Padgett, 68 Ga.App. 96, 109, 22 S.E.2d 197. In this regard, we note that the State Board of Workers' Compensation is an administrative agency, Cardin v. Riegel Textile Corp., ...