Harrell v. City of Albany Police Dept., A95A2670
| Decision Date | 09 January 1996 |
| Docket Number | No. A95A2670,A95A2670 |
| Citation | 466 S.E.2d 682,219 Ga.App. 810 |
| Parties | HARRELL v. CITY OF ALBANY POLICE DEPARTMENT et al. |
| Court | Georgia Court of Appeals |
Workers' Compensation. Dougherty Superior Court.
B.T. Edmonds, Jr., Albany, for appellant.
Gardner, Willis, Sweat & Goldsmith, Robert D. Goldsmith, Todd S. Handelman, Albany, for appellees.
We granted Harrell's application for discretionary appeal in this proceeding instituted by him for a recommencement of disability income benefits based on a change in condition.
On December 1, 1985, Harrell suffered a compensable injury to his left foot during the course of his employment as a city police officer. He was paid temporary total disability benefits, which were suspended effective August 29, 1989, because he returned to work as a State corrections officer earning an average weekly wage equal to or greater than his average weekly wage as a police officer. On May 16, 1992, Harrell stopped working.
In the hearing before the ALJ, Harrell testified on direct examination as follows. He left his job as a corrections officer because he was found sleeping on the job. He has subsequently worked for the City of Albany as a part-time security guard but no more than two or three times, and for no more than two or three hours each time. He has been seeking full-time employment.
On cross-examination, the following was elicited. Harrell has not applied for permanent jobs outside of law enforcement or counseling, although he is qualified to work and has worked in other areas. He gave untruthful deposition testimony when asked whether he had been charged with any crimes and whether he had indicated his physical limitations on all of his employment applications. Following an automobile accident, he falsely stated that he had not had any work-related accidents. He worked for the City of Albany as a security guard far more than he testified to on direct examination. After he was terminated for sleeping on duty, he appealed to the State Personnel Board and, because of procedural flaws surrounding his termination, he was allowed to resign on the condition he not seek re-employment with the State for a period of one year. Some of the jobs he applied for during that period were with the State.
The ALJ found that after leaving his job as a corrections officer, Harrell made a sincere but unsuccessful effort to find other employment suitable to his impaired condition. Citing Hartford Accident, etc., Co. v. Bristol, 242 Ga. 287, 248 S.E.2d 661 (1978), the ALJ concluded that Harrell carried his burden of showing that his inability to secure suitable employment was proximately caused by his previous accidental injury.
Upon a de novo consideration of the evidence, the appellate division concluded that Harrell failed to carry his burden of proving a change in condition. The appellate division found that Harrell's testimony was inconsistent and that his assertions concerning his inability to find work were unsupported by credible evidence. Citing Aden's Minit Market v. Landon, 202 Ga.App. 219, 413 S.E.2d 738 (1991), the appellate division concluded that Harrell had not met his burden of demonstrating that he made a sincere effort to find work and that he was not hired for reasons related to his job injury.
On appeal to the superior court, a timely order was not entered pursuant to OCGA § 34-9-105(b), and the decision of the appellate division was affirmed by operation of law. Despite the failure to complete this first stage of review, we must exercise jurisdiction. See Atlanta Family Restaurants v. Perry, 209 Ga.App. 581, 582, 434 S.E.2d 140 (1993) (Beasley, P.J., concurring specially).
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