Aden's Minit Market v. Landon , 202 Ga. App. 219 ( 1991 )

Birdsong, Presiding Judge.

Aden’s Minit Market and Selective Insurance Company of the Southeast, the employer and insurer (collectively “Aden’s”), appeal from the superior court’s judgment affirming the State Board of Workers’ Compensation in favor of Irene K. Landon. The record shows Landon sustained a compensable injury while working for Aden’s in August 1988, and was paid temporary total disability benefits until March 1990, when those benefits were stopped and partial disability payments started because it was discovered that Landon had returned to full-time employment in January 1990. The record also shows that Landon’s physician did not clear her to return to work, and Landon did not give Aden’s notice of her return to work. Shortly thereafter, however, Landon’s new employer terminated her employment because it learned she was working for them full-time while at the same time receiving total temporary disability payments.

Landon then sought total disability payments, and an administrative law judge ordered those payments to be resumed notwithstanding a finding that the termination from Landon’s most recent employment was the result of her misconduct. Aden’s appealed this decision to the State Board of Workers’ Compensation and the superior court, and was unsuccessful as both of those authorities found that even though Landon was terminated for her own misconduct, she was thereafter unable to find suitable work because of her disability.

We granted Aden’s application for a discretionary appeal under OCGA § 5-6-35 (a) to consider whether the State Board and the superior court properly applied the controlling precedent. Held:

The controlling principle in appeals such as this is that disabled employees are entitled to resumption of benefits, even if terminated from subsequent employment because of their own misconduct, if their disabilities prevent them from finding further employment. Gilmer v. Atlanta Housing Auth., 170 Ga. App. 326 (316 SE2d 535); Georgia Power Co. v. Brown, 169 Ga. App. 45, 48 (311 SE2d 236). The burden is on the employees, however, to prove that their inability to find full-time employment was proximately caused by their disabilities. Brown v. Ga. Power Co., 181 Ga. App. 500 (352 SE2d 818).

In this appeal the record shows that Landon did not meet her burden. Although she is apparently capable of performing full-time work regardless of her physician’s determination that she is unable to work, there is little question that she remains disabled to some degree because of her prior compensable injury. Also, Landon’s testimony established that she sought employment with several possible employers and was rejected. This proof, however, is not sufficient to meet her burden as the record is silent on the reasons why she was not hired by any of these other employers. Then, the facts revealed in this record are different from those in Gilmer since Gilmer proved that his disability kept him from holding other jobs.

Additionally, this record shows that at least one of these potential employers, her most recent employer, refused to hire Landon, not because of her disability, but because she worked full-time while receiving total disability payments. We cannot presume that Landon was not hired because of her disability. Indeed, her former supervisor testified that he would hire her, but his supervisors would not permit it. An employee is not entitled to resumption of total disability payments merely because she was terminated from subsequent employment. Evco Plastics v. Burton, 200 Ga. App. 121 (407 SE2d 60) (1991). Georgia Power Co. v. Brown, supra.

Consequently, since there is no evidence in the record showing that Landon could not find other employment because of her disability, the superior court erred by affirming the State Board of Workers’ Compensation. Therefore, the judgment of the superior court is reversed with direction that the appeal be returned for determination of the appropriate award of partial disability benefits in accordance with this opinion.

Judgment reversed with direction.

Cooper, J., concurs. Pope, J., concurs specially.