Gordon County Farm v. Maloney

Pope, Chief Judge,

dissenting.

Although I agree that the claimant’s testimony that the assistant manager of Burger King told her she could not be hired because she was “on Workmen’s Comp.” was inadmissible hearsay, I do not agree that this inadmissible hearsay was the only evidence offered by the claimant to show her injury was the proximate cause of her inability to find employment. The claimant testified that Burger King offered her a job as biscuit maker but then withdrew the offer when she told *256its representative (the assistant manager who called with the offer) about her physical limitations. While the claimant’s testimony regarding the assistant manager’s statement of why she withdrew the offer is inadmissible hearsay, the fact and timing of the offer and its subsequent withdrawal (i.e., the assistant manager called with the offer, the claimant informed the assistant manager of her physical limitations, and the assistant manager then withdrew the offer) is not.

The majority contends that even this testimony regarding the fact of the offer is hearsay. However, the fact that someone said or did something is not hearsay simply because some conversation was involved; testimony regarding the statement of an out-of-court declar-ant is hearsay only to the extent it is used to prove the truth of the substance of the statement. See Fugitt v. State, 256 Ga. 292 (1c) (348 SE2d 451) (1986); Miness v. Miness, 254 Ga. 658 (1) (333 SE2d 574) (1985). “Hearsay evidence is that which does not derive its value solely from the credit of the witness but rests mainly on the veracity and competency of other persons.” OCGA § 24-3-1. The value of the claimant’s testimony regarding the occurrence of the offer and withdrawal, unlike that of her testimony about the manager’s reasons for the withdrawal, depends on her own credibility rather than that of the absent manager. Accordingly, it is not hearsay and is admissible.

The claimant’s evidence of the timing of the withdrawal of the offer is more than the claimant was able to present in Aden’s Minit Market v. Landon, 202 Ga. App. 219, 220 (413 SE2d 738) (1991), and is sufficient to support the inference that the claimant’s inability to find employment is proximately caused by her injury in this case. Indeed, it is difficult to imagine a scenario in which circumstantial evidence of a causal relationship would be stronger. Thus, if we hold that the circumstances of the offer and its withdrawal cannot be considered because they occurred in the context of a conversation, we are effectively saying that causation can be proved only by direct evidence from a potential employer — which is, of course, highly unlikely.

Normally we affirm the Board’s award if there is any evidence to support it. See Chevrolet &c., GMC v. Millar, 182 Ga. App. 889 (2) (357 SE2d 598) (1987); OCGA § 34-9-105 (c). In this case, however, the ALJ’s award (which was adopted by the Board) makes it clear that his conclusion that plaintiff met her burden of showing proximate cause hinged on the inadmissible hearsay testimony. When the ALJ’s award contains a significant misstatement of fact, we have held that the case should be remanded back to the Board for further consideration “even if otherwise supported by evidence where it is possible that a proper understanding of the evidence might have caused the finder of fact to reach a different conclusion.” (Citations and punctuation omitted; emphasis supplied.) Fidelity &c. Ins. Co. v. *257CIGNA/Pacific &c. Ins. Co., 180 Ga. App. 159, 162 (2) (348 SE2d 702) (1986); see also Dept. of Pub. Safety v. Boatright, 188 Ga. App. 612 (2) (373 SE2d 770) (1988). The reason for remand in such cases is that the award should be based on proper evidence, meaning evidence which is both accurate and admissible. This situation, in which the record shows that inadmissible hearsay evidence influenced the ALJ’s finding that the claimant met her burden of proof, is analogous to situations involving misstatements of fact by the ALJ. It is therefore my opinion that we should reverse with direction that the case be remanded for the Board to determine whether the claimant showed her inability to find employment was proximately caused by her injury even if the inadmissible hearsay is not considered. See Brown v. Ga. Power Co., 181 Ga. App. 500 (2) (352 SE2d 818) (1987).

I am authorized to state that Presiding Judge McMurray joins in this dissent.