McEver v. Worrell Enterprises

Beasley, Chief Judge,

dissenting.

This case, which is now on its third level of appeal, must be reversed. On the first level of appeal, to the Appellate Division of the Board of Workers’ Compensation, the board was required to consider the case in accordance with OCGA § 34-9-103, as amended effective July 1, 1994. Subsection (a) provides in part: “The findings of fact made by the administrative law judge in the trial division shall be accepted by the appellate division where such findings are supported by a preponderance of the competent and credible evidence contained within the records.” See Clinical Arts v. Smith, 218 Ga. App. 681, 682 (462 SE2d 757) (1995).1 There are two issues here: burden of proof and competent evidence.

This is an economic change in condition case under OCGA § 34-9-104, involving an alleged change in the claimant’s wage-earning capacity after a non-work-related termination. Consequently, “claimant must establish by a preponderance of the evidence that . . . 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.” Maloney v. Gordon County Farms, 265 Ga. 825, 828 (462 SE2d 606) (1995), reiterating the holding in Hartford Accident &c. Co. v. Bristol, 242 Ga. 287 (248 SE2d 661) (1978). The claimant has the burden of establishing these facts because “the dispositive issue [is] whether an employee sustained a loss of earning capacity as a result of a compensable work-related injury,” i.e., proximate cause. Maloney, supra at 827.

To meet this burden, the claimant need not show the reasons prospective employers did not hire her. As the Supreme Court recognized, that is often an impossible burden requiring evidence of *632motive and state of mind of the employer. Id. at 828. Instead, the ALJ could draw reasonable inferences, from what the claimant was required to prove and all the attendant circumstances, that the claimant was not hired because of the continuing disability. Thus the element of proximate cause can be proved inferentially, and the claimant’s burden is satisfied by showing the facts from which that inference can reasonably be drawn.

The vocational rehabilitation specialist, who assisted claimant in trying to obtain a job, gave his “expert opinion” that the reason the job search was not fruitful was the claimant’s injured hand. He was accepted by the ALJ as “an expert in rehabilitation counseling.” He contacted six employers he believed had jobs suitable to the claimant’s condition and skills.

The ALJ depended on this opinion in finding proximate cause. But that opinion was not needed; even if such a specialist is qualified as an expert, he is no better equipped to discern what prospective employers’ motives and states of mind are than is the factfinder who can draw reasonable inferences from the evidence of repeated turn-downs by employers who are made aware of the disabilities.

This is even clearer in the circumstances of this case, where the specialist’s opinion was based not on visits with employers but on mere telephone conversations with two of them, and claimant never even made application to either one. This basis was nothing more than extrapolated hearsay and was not within the rule of OCGA § 24-9-67. The ALJ recognized this and did not consider it. Whether or not such evidence is admissible hearsay is irrelevant, as it was offered to directly prove a fact which Maloney confirms is not required in order for the claimant to meet her burden.

The ALJ based his finding of proximate cause in part on the specialist’s opinion as to why the job search failed, acknowledging that the opinion was based “in part” on hearsay. The other “part” was the specialist’s testimony that rehabilitation suppliers such as he routinely rely on such input from employers. The board concluded that the opinion was based entirely on hearsay so that the opinion was inadmissible altogether. An expert’s opinion based on information derived from private conversations with third parties is inadmissible. Moore v. State, 221 Ga. 636, 643 (5) (146 SE2d 895) (1966).

Whether wholly or partly founded on hearsay, the opinion is inadmissible because it usurps the province of the factfinder; the Supreme Court concluded in Maloney that the factfinder could draw the reasons for the turndowns from the details of the search for employment itself together with the fact that it was unsuccessful. Maloney, supra at 828. Although expert opinion is admissible under OCGA § 24-9-67, it is to be received only where helpful or necessary. Jones v. State, 232 Ga. 762, 764 (2) (208 SE2d 850) (1974). Although *633it might be argued that the specialist’s opinion could be helpful to the factfinder in this case, it certainly was not necessary because the Supreme Court has ruled that the fact is discernible by inferences drawn by the factfinder. But the specialist’s opinion is inadmissible for the reason that, as stated in Jones, supra, “[a]s a general rule the witness is not allowed to express on the stand an opinion of ultimate fact or the very fact to be decided by the [factfinder] because to do so would invade the province of the jury.” The ALJ, not the expert, was to decide whether the injury was the proximate cause of claimant’s inability to find suitable employment. See, e.g., Orkin Exterminating Co. v. McIntosh, 215 Ga. App. 587, 592 (4) (452 SE2d 159) (1994).

The factfinder did not have the benefit of Maloney in his analysis of the evidence and the fashioning of an award. Neither did the appellate division, as its decision was April 28, 1995, and Maloney was decided on October 16, 1995. Likewise, the superior court’s judgment of October 10 was reached before Maloney.

The material misconception of the law which affected every level of consideration of this case requires that it be reversed and returned to the ALJ for application of the correct legal principles as to evidence and burden of proof.

The majority opinion’s reference to inference drawing by the appellate division of the board is misleading, as the appellate division is not a factfinder in a de novo sense.