Kasabian McDuffie v. Ocmulgee Emc , 347 Ga. App. 207 ( 2018 )

WHOLE COURT
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August 23, 2018
In the Court of Appeals of Georgia
A16A0092. MCDUFFIE v. OCMULGEE EMC et al.
MILLER, Presiding Judge.
In McDuffie v. Ocmulgee EMC, 338 Ga. App. 200 (789 SE2d 415) (2016), this
Court (1) affirmed the Administrative Law Judge’s finding that Ocmulgee EMC
(“EMC”) met its burden of demonstrating that Kasabian McDuffie had returned to his
pre-2009-injury condition when EMC suspended McDuffie’s indemnity benefits; but
(2) remanded this case for factual findings regarding whether EMC had shown that
suitable work was available to McDuffie before terminating his benefits. Id. at 202-
204 (1), (3).
In Ocmulgee EMC v. McDuffie, 302 Ga. 640 (806 SE2d 546) (2017), the
Supreme Court of Georgia reversed this Court’s decision, in part, determining that
EMC was not required to show the availability of suitable employment and that no
further factual findings were necessary in this regard. Id. at 643-645 (2). Thus, the
Supreme Court affirmed in full the decision of the Appellate Division of the State
Board of Workers’ Compensation. Accordingly, we vacate Division 3 of our prior
decision, and the judgment of the Supreme Court is adopted and made the judgment
of this Court for Division 3.
Judgment affirmed. Dillard, C.J., Ellington, P.J., McMillian, Mercier, Reese,
Brown, JJ., concur. McFadden, P.J., dissents. Gobeil, J. recused.
2
A16A0092. MCDUFFIE v. OCMULGEE EMC et al.
MCFADDEN, Presiding Judge, dissenting.
The parties filed cross-petitions for certiorari. As the majority explains, our
Supreme Court granted Ocmulgee EMC’s petition and reversed in part.
McDuffie’s petition asked that my dissent be adopted. Our Supreme Court
denied his petition and expressly declined to address the conclusion from which I
dissented: “We did not grant McDuffie’s certoriari petition seeking review of that
fact-specific conclusion.” Ocmulgee EMC v. McDuffie, __ Ga. __, __ (2) (__ SE2d
__) (Case No. S17G0038, decided Oct. 16, 2017).
In light of this very particular set of circumstances, I respectfully adhere to my
dissent.