J & M Transp. Co. v. Crowe

• Decision Date: 20 November 1984
• Docket Number: No. 68480,68480
• Citation: 325 S.E.2d 412,173 Ga.App. 13
• Court: Georgia Court of Appeals
• Parties: J & M TRANSPORTATION COMPANY et al. v. CROWE.

Page 412

325 S.E.2d 412

173 Ga.App. 13

J & M TRANSPORTATION COMPANY et al. v. CROWE.

No. 68480.

Court of Appeals of Georgia.

Nov. 20, 1984.

Rehearing Denied Dec. 10, 1984.

Michael K. Jablonski, Richard G. Farnsworth, Atlanta, for appellants.

Clarence R. Horne, Jr., Conyers, Richard C. Kissiah, Atlanta, for appellee.

POPE, Judge.

While engaged in his employment with appellant-employer, on June 4, 1981 appellee-claimant fell thirteen feet from a ladder injuring his lower back and left leg ¹ requiring treatment by Dr. Lehman, a specialist in orthopedic medicine. Appellee received workers' compensation benefits until such were terminated upon his return to work on July 27, 1981. Appellee's return to work slip signed by Dr. Lehman stated that appellee could return to perform his normal duties. However, by deposition Dr. Lehman testified that as a matter of general policy upon a claimant's request, he specified "normal duties" instead of limited duties because of the claimant's insistence or fear that the more appropriate return to limited or restricted duty might cause the termination of his employment. Further, the doctor testified that he believed that appellee's return-to-work slip was one of those instances. Appellee testified that the duties he actually performed upon his July 27, 1981 return were essentially restricted to those not involving stooping or lifting. On July 31, 1981 due to personnel lay-offs caused by appellant's economic conditions, appellee was terminated from his employment.

On October 2, 1981 appellee instituted proceedings to resume his workers' compensation benefits. The administrative law judge (ALJ) found that on July 31, 1981 appellee, "when terminated in a general work force reduction, underwent a change in economic condition for the worse." The ALJ supported this finding with, inter alia, specific evidence of appellee's ongoing medical problems related to the June 4, 1981 injury and the statement that "subsequent to claimant's return to work and termination, employer made no offer of suitable employment." The ALJ awarded compensation to appellee and further ordered that a 15% penalty be added to the accrued benefits. The full board, one member dissenting, adopted the ALJ's award with the following exception. Based on Dr. Lehman's testimony, the board found that appellee's work status as of July 31, 1981, the date of termination, was restricted to light duty. The board concluded that such restriction, "followed by job termination resulting in a[n] economic loss which is injury-related, absent a showing by the employer/insurer of any other suitable work available for the claimant's impaired condition, requires reinstatement of benefits under [OCGA] § 34-9-261 from the date of termination. Since the employer/insurer have not done so within the required time, a violation of [OCGA] § 34-9-221(e) has occurred, and the imposition of a 15% increase is in order for all income benefits not paid within 14 days after becoming due without an award." (Emphasis supplied.) The superior court affirmed the full board's award.

1. Appellant contends that the superior court erred in affirming the award of the full board because the ALJ as well as the board applied an incorrect theory of law in granting compensation. We agree.

The correct standard has recently been reiterated in Gilmer v. Atlanta Housing Auth., 170 Ga.App. 326, 327, 316 S.E.2d 535 (1984): "It is well settled that where an employee returns to work following a disabling injury and is then discharged for a cause unrelated to the injury, he is entitled to receive benefits for loss of earning capacity if he is unable to find other employment because of his disability." (Emphasis supplied.) The claimant has the burden of proof "to show that his inability to secure suitable employment elsewhere was proximately caused by his previous accidental injury." Hartford Accident, etc., Co. v. Bristol, 242 Ga. 287, 288, 248 S.E.2d 661 (1978). "Change of condition" issues arise often in two distinct contexts: one in which the claimant is injured, receives compensation, returns to work and subsequently makes a claim for resumption of compensation benefits; the other in which the claimant is paid compensation benefits and the employer seeks to terminate those payments based upon the employer's assertion that the claimant is no longer disabled. Hiers and Potter, as quoted in Cornell-Young, etc. v. Minter, 168 Ga.App. 325, 328, 309 S.E.2d 159 (1983), explained the burden of proof relative to each situation: " 'If an employee has actually returned to work after having received compensation, and then alleges a further inability to work, then the burden of proof is upon that employee to show that he has undergone a change in condition. If, however, the employer and insurance carrier unilaterally suspend benefits based upon their allegation that the employee has the ability to return to work, then the burden of proof is upon the employer and insurance carrier to justify their suspension of benefits.' Ga. Workers' Compensation [--Law and Practice] § 23-6, p. 226." To justify termination of benefits in the second situation, the employer has the burden of proof to show: (1) a physical change for the better in the claimant; (2) the ability to return to work as a result of the physical change; and (3) that suitable work is available. See Sadie G. Mays Mem. Nursing Home v. Freeman, 163 Ga.App. 557(3), 295 S.E.2d 340 (1982); Peterson/Puritan, v. Day, 157 Ga.App. 827, 278 S.E.2d 674 (...