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WAFFLE HOUSE v. PADGETT2/21/1997
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 total 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 preponderance 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.
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. " 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 &c;, 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 pu
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