City of Adel v. Wise , 261 Ga. 53 ( 1991 )

Fletcher, Justice.

Appellee Wise was employed as a fire captain for appellant, the City of Adel. Wise sustained an on-the-job injury for which he was treated and placed on light-duty work. When Wise declared his inability to perform the light-duty work, the city offered him a job as a dispatcher for the city’s police department, with the promise that as soon as Wise was physically able, he would be returned to his job with the fire department at no loss of pay or seniority. It is undisputed that Wise is physically capable of performing the proffered job. However, Wise declined this position solely because the hours conflicted with another part-time job he has held for seven years.

When Wise refused to report to the police department for work, the city suspended all benefits. Wise then instituted this action seeking to reinstate workers’ compensation disability income. 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.)

The administrative law judge found that the dispatcher job was suitable to Wise’s capacity and denied his request for disability benefits. On de novo hearing, the State Board of Workers’ Compensation reversed. The board found that if Wise accepted the dispatcher’s job, he would be required to give up the part-time job he had held for seven years. Even with the partial disability benefits Wise would receive, he would suffer a net loss in wages. The board concluded that “in light of these factors” the city did not offer Wise “suitable employment” within the meaning of OCGA § 34-9-240.

On appeal, the Superior Court of Cook County reversed the board, finding as a matter of law that the proffered employment was “suitable to the capacity” of Wise. The Court of Appeals reversed the superior court. Wise v. City of Adel, 195 Ga. App. 559 (394 SE2d 540) (1990). The Court of Appeals did not address the issue of whether the employment was suitable to Wise’s capacity; rather, it determined that the board did not abuse its discretion in finding that Wise was justified in refusing the proffered employment.

This court granted certiorari to determine whether the potential loss of a part-time job may be considered as a factor in determining whether a job offered by an employer is “suitable to the capacity” of an employee within the meaning of OCGA § 34-9-240. We conclude that it may not, and reverse.

The test of OCGA § 34-9-240 is two-pronged. The board must first determine whether the employment offered by the employer and refused by the employee is “suitable to [the] capacity” of the employee. If the board finds that the proffered employment is suitable within the meaning of the statute, the employee is not entitled to compensation during the continuance of his refusal to work “unless in the opinion of the board such refusal was justified.”

The cases make it clear that the phrase “suitable to his capacity” refers to the employee’s capacity or ability to perform the work within his physical limitations or restrictions. Howard v. Scott Housing, 180 Ga. App. 690 (350 SE2d 27) (1986); Universal Ceramics v. Watson, 177 Ga. App. 345 (339 SE2d 304) (1985); Poulnot v. Dundee Mills Corp., 173 Ga. App. 799 (328 SE2d 228) (1985); Cameron v. American Can Co., 120 Ga. App. 236 (170 SE2d 267) (1969).¹ Thus, once the board determines that the proffered employment is suitable to the employee’s physical abilities to perform it, the employee’s refusal to accept the employment will terminate compensation “unless in the opinion of the board such refusal was justified.” OCGA § 34-9-240.

As pointed out by the Court of Appeals in this case, the board has a wide discretion to determine whether the employee’s refusal was justified. Wise, supra at 560. However, to say that this discretion is without limits would render meaningless the first prong of the statute. The board would have the power to find under any circumstance that the employee was justified in refusing to accept work which he was physically capable of performing. Such an interpretation would not carry out the intent of the legislature.

Rather, we conclude that the employee’s refusal to accept employment must relate, in some manner, to his physical capacity or his ability to perform the job in order for his refusal to be justified within the meaning of OCGA § 34-9-240. For example, in McDaniel v. Roper Corp., 149 Ga. App. 864 (256 SE2d 146) (1979), the board correctly concluded that the employee’s refusal to accept the proffered employment because she did not want to work on the second shift was not related to her physical ability to perform the job and, therefore, was not justified within the meaning of OCGA § 34-9-240.

The result reached in Clark v. Ga. Kraft Co., 178 Ga. App. 884 (345 SE2d 61) (1986), was correct as the board could have found that the employee was justified in refusing employment which required him to spend time in parts of the plant which were not air-conditioned, a situation which adversely affected his prosthetic arm and his ability to work. Also, an employee who has been charged with a crime and incarcerated pending adjudication of guilt would be justified in refusing proffered employment because his incarceration deprives him of the capacity to perform the work proffered. See Howard v. Scott Housing, supra.

Other jurisdictions appear to follow this rule, and have held that an employee’s refusal to accept employment which is non-union is unrelated to the employee’s capacity to perform, and therefore the refusal is not justified. Hamlin v. Michigan Seat Co., 314 NW2d 804 (Mich. App. 1981). Further, it is not unreasonable for a nurse to refuse a typing job which she is physically capable of performing, but lacks the skills to perform. Shogren v. Bethesda Lutheran Med. Cntr., 359 NW2d 595 (Minn. 1984). Nor is a refusal to accept work which requires relocation from one’s home, and is therefore life-disrupting, unreasonable. Acco-Babcock, Inc. v. Counts, #87A-JL-1 (Superior Court of Delaware 1988).

We hold that the discretion afforded the board under OCGA § 34-9-240 to determine that an employee’s refusal of proffered work is justified must relate to the physical capacity of the employee to perform the job; the employee’s ability or skill to perform the job; or factors such as geographic relocation or travel conditions which would disrupt the employee’s life.

It is not disputed that the employment offered in this case was suitable to Wise’s physical ability to perform. The trial court correctly held that under OCGA § 34-9-240 the employment was suitable to Wise’s capacity as a matter of law and that it was error for the board to consider the potential loss of a part-time job in determining whether the employment was suitable. Therefore, the Court of Appeals erred in reversing this decision.

Judgment reversed.

Clarke, C. J., Bell, Fletcher, JJ., and Judge Faye S. Martin, concur; Hunt, J., concurs in the judgment only; Smith, P. J., and Benham, J., dissent; Weltner, J., not participating.

1 This is the rule in foreign jurisdictions with statutes virtually identical to OCGA § 34-9-240. See, e.g., Ark. Stat. Ann. § 81-1313 (h); Grigg v. Tyson Foods, Inc., Arkansas Court of Appeals # 85-83 (1985) (unpublished); 19 Del. C. § 2353 (c); Moore v. Perdue, # 90-09-001 (Superior Court of Delaware 1991) (unpublished); Retreat Rest Home v. Porter, 554 S2d 1198 (Fla. App. 1989); Hamlin v. Michigan Seat Co., 314 NW2d 804 (Mich. App. 1981).