Gordon County Farm v. Maloney

Johnson, Judge.

Connie Maloney injured her left shoulder while working for Gordon County Farm and received workers’ compensation benefits. After missing more than a year of employment, Maloney returned to Gordon for light duty work. Gordon subsequently terminated Malo-ney’s employment for a cause unrelated to her injury when she left work early without permission. Asserting that she is unable to find other suitable employment due to her injury, Maloney filed a claim seeking recommencement of disability benefits based on a change in condition. The administrative law judge awarded disability benefits to Maloney and the State Board of Workers’ Compensation adopted the ALJ’s award. Gordon and its insurer, Travelers Insurance Company, appealed to the superior court. The court failed to enter a timely order, resulting in the board’s ruling being affirmed by operation of law. OCGA § 34-9-105 (b). We granted the application of Gordon and Travelers for discretionary review.

1. Gordon and Travelers assert that there is no evidence to support the award of the ALJ and the board. “The controlling principle in appeals such as this is that disabled employees are entitled to resumption of benefits, even if terminated from subsequent employment because of their own misconduct, if their disabilities prevent them from finding further employment. The burden is on the employees, however, to prove that their inability to find full-time employment was proximately caused by their disabilities.” (Citations and punctuation omitted.) Aden’s Minit Market v. Landon, 202 Ga. App. 219, 220 (413 SE2d 738) (1991). The only evidence offered by Malo-ney to prove that her inability to find employment is proximately caused by her shoulder injury is her own testimony that the manager of a Burger King restaurant where she applied for a job told her that the restaurant could not hire her because she is “on Workmen’s *254Comp.” The ALJ ruled that Maloney’s testimony is admissible both as original evidence to explain conduct and under the res gestae exception to the hearsay rule. The ALJ’s ruling, adopted by the board, is incorrect.

OCGA § 24-3-2 provides, “When, in a legal investigation, information, conversations, letters and replies, and similar evidence are facts to explain conduct and ascertain motives, they shall be admitted in evidence not as hearsay but as original evidence.” The rule “set forth in § 24-3-2 applies to communications whenever the fact that such communication was made, and not its truth or falsity, is the point in issue. [Cit.]” (Emphasis in original.) Ross v. State, 179 Ga. App. 283 (346 SE2d 87) (1986); see also OCGA § 24-3-1. Here, the ALJ allowed Maloney to testify about the restaurant manager’s statement not merely to prove that the statement was made, but to establish the truth of the statement; i.e., that the restaurant refused to hire Maloney because of her compensable shoulder injury. Because Malo-ney’s testimony was admitted to prove the truth of the manager’s statement, it is inadmissible hearsay that does not qualify as original evidence under OCGA § 24-3-2.

The restaurant manager’s statement also is not admissible as part of the res gestae. “Our Code includes a ‘res gestae’ exception to the hearsay rule. OCGA § 24-3-3. [The] McCormick [treatise on evidence] describes res gestae to include: (1) statements of present sense impressions; (2) excited utterances; (3) statements of present bodily condition; and (4) statements of present mental states and emotions.” (Citation omitted.) Brantley v. State, 262 Ga. 786, 790, n. 4 (427 SE2d 758) (1993); Fountain v. State, 136 Ga. App. 229, 230, n. 3 (220 SE2d 705) (1975). The manager’s purported refusal to hire Maloney because she is receiving workers’ compensation is not an excited utterance or a statement of sensory impression, bodily condition, mental state or emotion. The hearsay statement testified to by Maloney, unlike the above four categories, is not sufficiently reliable to fall under the res gestae exception. The ALJ erred in admitting Maloney’s unreliable hearsay testimony.

The dissenters argue that there is evidence in the record other than this improper hearsay testimony which supports the ALJ’s finding. They cite, as additional evidence, Maloney’s testimony that an assistant manager from Burger King called her on the telephone and offered her a job as biscuit maker, but then withdrew the offer when she revealed her physical limitations. Contrary to the claim of the dissents, this testimony is not competent evidence to support the ALJ’s finding, but is itself inadmissible hearsay. OCGA § 24-3-1. The dissents attempt to avoid the inadmissibility of this hearsay testimony by characterizing it as evidence of the timing of the job offer and its subsequent withdrawal. This characterization is incorrect. The only *255evidence of this alleged telephone call from the manager is Maloney’s own testimony. This testimony was plainly offered at the administrative hearing, and is in fact relied on by the dissents, not merely as evidence of the timing of the purported telephone call, but as evidence of the truth of the alleged statements made by the manager during that call; i.e., that the manager actually offered the job to Maloney and then withdrew the offer. Since Maloney testified to prove the substance of statements attributed to the manager, her testimony is inadmissible hearsay which cannot support the ALJ’s award. Compare Fletcher v. Ford, 189 Ga. App. 665, 667. (1) (377 SE2d 206) (1988).

As in Aden’s Minit Market, supra, “there is little question that [Maloney] remains disabled to some degree because of her prior com-pensable injury. Also, [Maloney’s] testimony established that she sought employment with several possible employers and was rejected. This proof, however, is not sufficient to meet her burden as the record is silent on the reasons why she was not hired by any of these other employers.” The mere fact that Maloney was not hired by these other employers, without more, does not establish proximate cause between her disability and her failure to be hired. There are many possible reasons why these other employers did not hire Maloney; for example, they may have thought she was not qualified, they may not have had any openings or they may have had more qualified applicants. It is impossible, based on the record before us, to determine why these employers did not hire Maloney. Because there is no evidence in the record, other than the improper hearsay testimony, supporting the finding of the ALJ and the board that Maloney met her burden of proving that she has been unable to find further employment because of her injury, the superior court’s affirmance of the award of benefits must be reversed. State v. Bardge, 211 Ga. App. 307, 309-310 (439 SE2d 1) (1993).

2. Based on our holding in Division 1, we need not address the appellants’ remaining arguments.

Judgment reversed.

Birdsong, P. J., Andrews, Blackburn, JJ., and Senior Appellate Judge Harold R. Banke concur. Pope, C. J., McMurray, P. J., Beasley, P. J., and Smith, J., dissent.