HBS Attorneys Notch Win for Employer/Insurers in the Supreme Court of Georgia

By: James G. Smith, Esq.

In a decision handed down this week, the Supreme Court of Georgia issued a notable “win” for Employer/Insurers in a case that has made its way through the courts over the past several years (Ocmulgee EMC et. al. v. McDuffie). Specifically, the Court found that an employer need not show the availability of suitable employment to justify the suspension of benefits after already establishing that the Claimant’s work-related aggravation of a pre-existing condition has ceased to be the cause of the Claimant’s disability. It is also with pride that we note that attorneys Fred Hubbs and David Dix, both partners in our Atlanta office, represented the Employer/Insurer in this case.

As for the facts of the case, the Claimant was hired by the Employer in 2007. He subsequently injured his right knee in 2009 and it was accepted as compensable. However, he had previously sustained a right knee injury in 2002 which led to the assignment of permanent sedentary work restrictions. The Claimant withheld this information from the Employer when applying for his job in 2007 and did not inform the Employer that his permanent restrictions would have precluded him from performing the essential tasks of his job. The Employer learned of this omission and the Claimant’s prior knee injury in 2010.

After undergoing a surgery in 2011 related to the 2009 injury (which was paid for by the Employer), the Claimant was paid TTD benefits until it was determined by two physicians that he had returned to his pre injury baseline. The Employer then suspended benefits based on a change in condition for the better. The Claimant requested a reinstatement of benefits, but it was denied by the ALJ. The Appellate Division and the Superior Court affirmed.

The Court of Appeals affirmed the finding that the Claimant experienced a physical change for the better. However, the Court of Appeals agreed with the Claimant’s argument that the Employer/Insurer was required to show that suitable employment was available before benefits could be suspended. No findings were made in this regard by the lower level courts. The Court of Appeals noted, “[t]he key determination is whether there was suitable work available and offered to [the Claimant] to diminish or terminate the loss in income. If suitable work was not available, then [the Employer] was required to continue paying indemnity benefits to [the Claimant].” Accordingly, the case was remanded to the full Board with instructions for the ALJ to make further findings of fact in accordance with this opinion (i.e., Board should have considered and made appropriate factual findings with regard to issue of whether suitable work was available).

The Supreme Court of Georgia granted certiorari on the issue noted above, and ultimately found that once it is demonstrated that an aggravation of a pre-existing condition is no longer the cause of the Claimant’s disability, “no further fact finding is needed, so the Court of Appeals erred in remanding this case for the ALJ to determine if EMC demonstrated suitable employment for McDuffie.”

HBS publications are intended to inform clients and other interested parties about legal matters of current interest and is not intended as legal advice.