Georgia Court of Appeals Decision on “Diligent Job Search” Strengthens Maloney Defense for Employers and Insurers

dil·i·gent [dil-i-juhnt]  adjective
1.  constant in effort to accomplish something; attentive and persistent in doing anything:  a diligent student.
2. done or pursued with persevering attention; painstaking:  a diligent search of the files.

The Georgia Court of Appeals has recently reaffirmed the Maloney v. Gordon Farms decision from 1995, which requires a “diligent, but unsuccessful effort to secure suitable employment after termination,” for workers with work restrictions, who are terminated for reasons unrelated to their compensable injuries, to demonstrate a change in condition to become entitled to Temporary Total Disability (TTD) benefits under workers’ compensation.

Specifically, in Brown Mechanical Contractors, Inc. et al. v. Maughon the Court of Appeals maintained that the burden of proof is on the claimant to show a diligent, but unsuccessful job search.  In the Maughon decision, the claimant was laid off while he had medical restrictions from a compensable and work-related injury, but was laid off for reasons unrelated to the injury or the work restrictions.  To meet his Maloney burden, he showed that he searched for 110 jobs over a period of 144 days.  The Administrative Law Judge at the State Board granted the claimant TTD benefits, but the Appellate Division thoroughly investigated the claimant’s job search.  The Appellate Division ultimately concluded that there was no evidence of “follow-up with 22 potential employers” with gaps including “periods of time lasting 27 and 18 consecutive days” during which no job search was performed at all.  Furthermore, the claimant had searched for heavy physical labor jobs, even though his experience was primarily in managerial/sales.

The Court of Appeals found that the type of job search performed by the Claimant seemed to be one designed to “avoid being hired in order to bolster his claim for indemnity benefits.”  While the Superior Court reversed the Board’s Appellate Division, the Georgia Court of Appeals reversed the Superior Court, effectively affirming the Appellate Division’s decision, which found that the claimant’s evidence was not sufficient to prove he had performed a “diligent” job search for suitable work.  As a result, he was not entitled to a “change in condition” that would grant him payment of TTD benefits after his layoff.

The Appellate Division at the State Board has clearly demonstrated that careful examination of the claimant’s job search is required to ascertain whether the search complies with the true meaning of the word “diligent”.   Therefore, the Court of Appeals decision now permits an analysis of diligence to include a complete review of the evidence, along with inferences to be drawn based upon the facts of the case.  As a result, claimant’s will no longer be able to rely on superficial, so-called “job searches” to become entitled to TTD benefits under Maloney, which is a excellent news for Employers and Insurers.