Gordon County Farm v. Maloney

Beasley, Presiding Judge,

dissenting.

The judgment should be affirmed under the rule that if there is any evidence to support the agency’s decision, it shall be affirmed. OCGA § 50-13-19 (h) (5); Atlanta Gas Light Co. v. Ga. Pub. Svc. Comm., 212 Ga. App. 575 (1) (442 SE2d 860) (1994). The superior court, sitting in its appellate capacity, would have had to honor that rule had it reviewed the case, and so must we. Ga. Power Co. v. Ga. Pub. Svc. Comm., 196 Ga. App. 572, 579-581 (5) (396 SE2d 562) (1990).

Even if the prospective employer’s statement is not admissible under OCGA § 24-3-2 to explain the reason for its action, a ruling I am not prepared to agree with,1 there is other evidence supporting the claim. The claimant testified that the restaurant (Burger King) offered her a job as biscuit maker but withdrew the offer when she told its representative (the assistant manager who called with the offer) about her physical limitations. She even had experience in restaurant work. Claimant also went through the Department of Labor in Rome and made application to other prospective employers, namely retailers Lowe’s, Po’ Folks, Wal-Mart, and K-Mart. On each application she had to state that she was receiving workers’ compensation benefits and had job limitations due to injury. Not one called her back. She testified that her physical limitations prevented regular duty employment, and her medical evidence showed her restrictions.

Thus there is evidence, including reasonable inferences, to carry *258the claimant’s burden to prove by a preponderance that her inability to find employment was proximately caused by her disability. Hartford Accident &c, Co. v. Bristol, 242 Ga. 287 (248 SE2d 661) (1978); Aden’s Minit Market v. Landon, 202 Ga. App. 219, 220 (413 SE2d 738) (1991). The ALJ found, which finding the appellate division of the board adopted, that Burger King’s decision not to hire claimant “was based on the fact that she had physical restrictions resulting from the compensable injury as well as the fact that she had brought a workers’ compensation claim.” Excluding the prospective employer’s statement, claimant still showed by all her evidence that the injury caused an economic change in condition. That is what she must do, to prevail. Ga. Power Co. v. Brown, 169 Ga. App. 45, 49 (2) (311 SE2d 236) (1983). The law, and in particular Aden’s Minit Market, supra, does not require her to obtain the testimony of the employers who rejected her application, to the effect that the reason was her injury-caused limitations. To impose such would introduce an extremely difficult, if not impossible, requirement and could subject the employer to sanction under the Americans with Disabilities Act of 1990. 42 USC § 12101 et seq.

Decided June 21, 1994 Reconsideration denied July 29, 1994 Baker, Russell & Pacious, Edwin G. Russell, Jr., for appellants. Mundy & Gammage, E. Lamar Gammage, Jr., for appellee. Kissiah & Associates, Richard C. Kissiah, Melinda K. Wells, Da*259vidson & Strain, John M. Strain, amici curiae.

*258It is unnecessary to remand the case to the superior court to remand to the board to reconsider based on all the evidence except the prospective employer’s statement. There was other evidence, including the claimant’s testimony concerning what transpired with respect to that Burger King application, permitting the inference that the reason for withdrawal of the offer was her physical limitations. Thus the manager’s statement was not of such significance that the factfinder must begin anew. See Chevrolet &c., GMC v. Millar, 182 Ga. App. 889 (1) (357 SE2d 598) (1987).

This differs from the situation in Brown v. Ga. Power Co., 181 Ga. App. 500 (352 SE2d 818) (1987), where the case was remanded because the board failed to apply the proper test with respect to determining causal connection. The board’s function was performed with the wrong measuring stick. Here the board merely took into account evidence which, although the majority deems it inadmissible, was evidence of a fact otherwise proved.

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

See White v. East Lake Land Co., 96 Ga. 415, 420 (4) (1895); Atlanta Gas Light Co. v. Slaton, 117 Ga. App. 317, 319 (2) (160 SE2d 414) (1968); Edgeworth v. Edgeworth, 239 Ga. 811, 812 (239 SE2d 16) (1977); Stinespring v. Fields, 139 Ga. App. 715, 719 (3) (229 SE2d 495) (1976).