Howard v. Scott Housing Systems, Inc.

• Decision Date: 10 October 1986
• Docket Number: No. 72675,72675
• Citation: 350 S.E.2d 27,180 Ga.App. 690
• Parties: HOWARD v. SCOTT HOUSING SYSTEMS, INC.
• Court: Georgia Court of Appeals

Page 27

350 S.E.2d 27

180 Ga.App. 690

HOWARD v. SCOTT HOUSING SYSTEMS, INC.

No. 72675.

Court of Appeals of Georgia.

Oct. 10, 1986.

Rehearing Denied Oct. 29, 1986.

Willie Lee Howard, pro se.

Bruce M. Walker, Waycross, for appellee.

POPE, Judge.

On August 24, 1983 claimant-appellant Howard suffered an on-the-job injury while working for employer-appellee Scott Housing Systems, Inc. The accident was accepted as compensable and claimant began receiving workers' compensation benefits for temporary total disability. In July 1984, while still receiving these benefits, claimant was arrested and jailed on felony charges. On August 10, 1984 employer offered claimant a job which had been approved by claimant's physician as suitable employment for his impaired physical condition. Claimant did not accept the job or report for work because he was incarcerated pending trial.

A hearing was held on January 16, 1985 on employer's requested suspension of claimant's benefits due to his refusal to take the offered job. The record was left open for receipt of additional evidence. The Administrative Law Judge ("ALJ") issued an award on April 22, 1985 which stated in pertinent part: "On April 1, 1985, claimant pleaded guilty to an indictment charging him with murder and armed robbery. Claimant was sentenced to life imprisonment. Accordingly, claimant has unjustifiably refused to accept the tendered employment as his inability to accept was brought about by his own wilful misconduct. The employer/insurer are authorized to suspend payment of the income benefit for total disability effective from January 17, 1985." The ALJ's award was adopted by the Full Board. The superior court affirmed the award and claimant's application for discretionary appeal was granted by this Court.

1. Claimant challenges the sufficiency of the evidence, specifically that in support of the finding that the job offered him on August 10, 1984 was suitable to his physical capacity. It is axiomatic that a finding of fact by the full board, when supported by any evidence, is conclusive and binding upon the superior court and this court. Walton County v. Williams, 171 Ga.App. 779, 320 S.E.2d 846 (1984); Banks v. Royal Globe Ins. Co., 160 Ga.App. 18, 286 S.E.2d 309 (1981). We find ample record evidence to show the suitability of the job offered to claimant by employer.

2. Claimant enumerates as error that part of the award which orders the suspension of his workers' compensation benefits effective January 17, 1985. To the contrary, claimant argues that he is entitled to receive such benefits until the date of his adjudication of guilt, April 1, 1985. We agree and reverse.

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." On August 10, 1984 employer offered a suitable job to claimant who did not accept the position by reporting for work because he was incarcerated pending trial and final adjudication of guilt. The award of the ALJ, adopted by the board and affirmed by the superior court contains the following: "Claimant was sentenced to life imprisonment. Accordingly, claimant has unjustifiably refused to accept the tendered employment as his inability to accept was brought about by his own wilful misconduct." Benefits were then suspended effective from January 17, 1985, the date following the hearing.

The general problem created by the post-injury incarceration of the workers' compensation claimant has been dealt with in the reported cases of only a handful of states. See 1C Larson, Workman's Compensation Law, § 47.31(g). We have found no case law addressing the precise issue in this case, which is whether claimant's incarceration pending adjudication of his guilt justified his refusal of suitable employment within the meaning of OCGA § 34-9-240. ¹ However, among those cases falling into the broad category involving imprisoned claimants, it is clear that incarceration standing alone is not a valid ground for termination of workers' compensation disability benefits. See, e.g., Matter of Injury to Spera, 713 P.2d 1155(6) (Wyo.1986); DeMars v. Roadway Express, 99 Mich.App. 842, 298 N.W.2d 645 (1980); Sims v. R.D. Brooks, Inc., 389 Mich. 91, 204 N.W.2d 139 (1973). Arising from a similar situation, the opinion in Bilello v. A.J. Eckert Co., 43 A.D.2d 192, 350 N.Y.S.2d 815 (1974) provides persuasive reasoning. "A confinement which precludes participation in the labor market is not alone sufficient to deprive a former employee who has suffered a work-related disability of his right to benefits ... To deny a claimant benefits while he is incarcerated awaiting trial is an unfair situation. It favors a defendant who is capable of posting bail over one who is unable to do so. Any rule which has the effect of predicating the right to compensation benefits upon the ability to furnish bail presents a serious question of denial of equal protection of the laws under the Fourteenth Amendment." (Indention omitted.) Id at 194, 350 N.Y.S.2d at 817....