Waffle House, Inc. v. Padgett , 225 Ga. App. 144 ( 1997 )

483 S.E.2d 131 (1997) 225 Ga. App. 144

WAFFLE HOUSE, INC.
v.
PADGETT.

No. A96A2453.

Court of Appeals of Georgia.

February 21, 1997. Reconsideration Denied March 5, 1997. Certiorari Granted June 11, 1997.

Goldner, Sommers, Scrudder & Bass, Alfred A. Quillian, Jr., Tiffany T. Norman, Atlanta, for appellant.

Perkins & Perkins, Clifford C. Perkins, Jr., Carrollton, for appellee.

SMITH, Judge.

We granted the employer's application for discretionary appeal in this workers' compensation case to address the issue of whether a claimant who is terminated from employment while receiving temporary partial disability payments must show a diligent, unsuccessful search for other employment in order to claim total disability. We hold that such a claimant must show all the elements of a change in condition claim outlined in Maloney v. Gordon County Farms, 265 Ga. 825, 828, 462 S.E.2d 606 (1995), including a diligent search for work.

Scarlett O'Hara Padgett suffered a work-related injury in February 1993. She received temporary total disability payments until she returned to light-duty work in November 1993. She was terminated in September 1994 but continued to draw temporary partial disability. Thereafter, Padgett filed a claim seeking temporary total disability benefits, alleging a change in condition for the worse due to her inability to find other employment. She did not and does not contend that her disability is physical in nature.

In his findings of fact and conclusions of law, the administrative law judge (ALJ) found that Padgett was terminated as a result of her disability and that this fact in itself authorized the award of total disability benefits without consideration of whether she had conducted a diligent search for employment. The ALJ, however, made the additional finding of fact that Padgett "did not meet her burden of proving an inability to find employment as a result of her injury." The appellate division accepted the award of the ALJ. The employer appealed to the superior court, which affirmed the decision on a different basis. The superior court held that Padgett was required as a matter of law to show a diligent search for work, but it also concluded that she had made that showing. Because the superior court was not authorized to reach this conclusion, we reverse.

"In order to receive workers' compensation benefits based on a change in condition, a claimant must establish by a pre-ponderance of the evidence that he or she suffered a loss of earning power as a result of a compensable work-related injury; continues to suffer physical limitations attributable to that injury; and has made a diligent, but unsuccessful effort to secure suitable employment following termination. Once evidence is offered in support of the foregoing, the board may in its discretion draw reasonable inferences from that evidence that despite the claimant's good faith efforts, his or her inability to obtain suitable employment was proximately caused by the continuing disability." Maloney, supra, 265 Ga. at 828, 462 S.E.2d 606.

The superior court correctly held that the cause of Padgett's termination is not dispositive of her claim of change in condition. In reviewing a claim of economic rather than physical change in condition, the finder of fact must consider whether the claim is supported by a diligent effort to find other work. "[T]he focus here is the question of a compensable disability after the termination of subsequent employment which inhibits other work. The ALJ specifically found that [Padgett] did not attempt to get other employment." Gilbert/Robinson, Inc. v. Meyers, 214 Ga.App. 510, 512, 448 S.E.2d 246 (1994).

Padgett's contention that she need not show a diligent search for work, based on Richardson v. Dennis, Corry, etc., 216 Ga. App. 476, 477, 454 S.E.2d 643 (1995), is without merit. In that case, it was undisputed that Richardson suffered from a total disability due to his injury and was unable to work at all. While acknowledging that a totally disabled worker who is physically unable to perform any work need not "engage in a purposeless demonstration," this Court clearly distinguished Richardson's situation from that of "employees who were partially disabled, but were physically able to work." Id. at 477, 454 S.E.2d 643. In this case, it is undisputed, and the ALJ found, that Padgett had been released to light-duty work, was working prior to her termination, and was able to work. Padgett's claim was based not on total physical disability but on her alleged inability to find other employment; she therefore must satisfy the requirements of Maloney, including a diligent search for other employment.

The superior court erred, however, in contravening the findings of the ALJ and the appellate division that Padgett failed to conduct a diligent job search. "When reviewing the decisions of the Board and ALJ, the superior court sits as an appellate body and is bound by the any evidence standard of review. It may not set aside an award merely because it disagrees with the conclusions of the Board and may not substitute its judgment as to weight and credibility of the witnesses. The Board is the sole judge of the evidence, of the credibility of the witnesses, and as to what evidence it will credit as the basis for an award." (Citations and punctuation omitted.) L.C.P. Chemicals v. Strickland, 221 Ga.App. 742, 743, 472 S.E.2d 471 (1996) (superior court could not contravene ALJ's finding that claimant failed to conduct a diligent search for work). While the superior court rejected the opinion testimony of a job specialist as improperly based on hearsay,^[1] other evidence supported the ALJ's finding under the applicable standard of review. Testimony was given that Padgett did not contact certain employers she claimed to have contacted, that she submitted altered employment applications to the court, and that Padgett told a prospective employer that "she had a case against Waffle House and she wanted to prove that she was unable to find a job." When supported by any evidence, the findings of the State Board of Workers' Compensation are conclusive and binding. South Ga. Timber Co. v. Petty, 218 Ga.App. 497, 498, 462 S.E.2d 176 (1995). The ALJ and the appellate division found that Padgett failed to conduct a diligent search for other employment, and neither the superior court nor this Court is authorized to reverse this finding.

Despite the existence of a temporary partial disability at the time of her termination, Padgett was required to show all the elements of an economic change in condition claim as outlined in Maloney, including a diligent, unsuccessful search for work. In light of the Board's finding that she did not meet her burden of proof as to this issue, we must conclude that Padgett failed to meet the Maloney test and that the trial court therefore erred in awarding total disability benefits.

Judgment reversed.

ANDREWS, C.J., and POPE, P.J., concur.

NOTES

[1] We question whether the testimony of this witness, who qualified as an expert, was in fact inadmissible. Orkin Exterminating Co. v. McIntosh, 215 Ga.App. 587, 592-593(4), 452 S.E.2d 159 (1994). Compare McEver v. Worrell Enterprises, 223 Ga.App. 627, 629-631(2), 478 S.E.2d 445 (1996) (expert's testimony as to motives and state of mind of employers inadmissible as based entirely on hearsay). But it is not necessary to reach that issue.