Requirements of a Diligent Job Search in Workers’ Compensation Cases

That Dang Job Search!

Requirements of a Diligent Job Search in Workers’ Compensation Cases

Many of you and I have had a long conversation about the requirements of a diligent job search in workers’ compensation cases. Below are the two cases that the court of appeals has returned for the framework of adequate job searches.

In Maloney v. Gordon County Farms, 265 Ga. 825, 462 S.E.2d 606 (1995), the claimant in a change of condition case must prove that he “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;” that is what is commonly known as the Maloney Burden.

However, in Brown Mech. Contrs., Inc. v. Maughon, 728 S.E.2d 757 (2012), the court reached different conclusions regarding the claimant’s search for work, but both decisions provide further insight into evaluating whether the claimant will likely meet his Maloney Burden at a hearing.

The Court in Maughon concluded that a claimant who had contacted more than one hundred employers had not necessarily made a diligent search for work. In Maughon, the claimant sustained a compensable shoulder injury and continues working within restrictions as a track hoe operator until he was laid off for reasons unrelated to his disability. He then contacted an excess of one hundred potential employers over the six-month period leading up to his hearing date. Following the hearing, the ALJ found that the claimant conducted a diligent job search and awarded TTD benefits. However, the State Board vacated the Award and denied indemnity benefits on grounds that the claimant’s search was not diligent and thus he failed to meet his Maloney Burden.

The Board, in finding that the claimant’s job search was not diligent, relied upon factors including that 110 searches over 144 “work days” is not sufficient, that searching an average of less than once per day is not diligent, that the claimant failed to follow up with twenty-two employers, and that he went periods of twenty-seven and eighteen consecutive days without searching, that he lost two offered positions because of purported need for surgery which had not been scheduled, and that despite employment history in managerial/sales positions the claimant sought labor jobs and avoided retail jobs. The Court of Appeals framed the issue as one involving whether the Board’s findings of fact and conclusions were supported by any evidence in the record. The Court stated that there was evidence in the record to support the conclusion that the job search was not diligent, including the fact the claimant did not look for a job every business day, went periods of time without looking for work, did not follow up with almost two dozen employers, and concentrated his searches on jobs involving physical labor despite his employment background in other fields.

Notably, the claimant submitted evidence the three employers withdrew job offers after learning of the claimant’s injury. However, the Court was not persuaded by this evidence, and held that the Appellate Division was authorized to conclude that the claimant failed to conduct a diligent job search to obtain more suitable employment not involving physical labor.

Ultimately, Maughon is a more favorable decision for employers and insurers; and, it puts injured employees at a greater disadvantage. The language in the Board’s Award is often quite forceful, as when the Board states that “engaging in a ‘job search’, on average, less than one time per day is not a diligent job search.” Language such as this may be indicative of a shift in the Board’s attitude towards what constitutes a “diligent” job search and the burden that an injured employee must meet.