McEver v. Worrell Enterprises

McMURRAY, Presiding Judge,

dissenting.

I respectfully dissent from the judgment affirming the denial of Michele McEver’s claim for renewed disability income benefits, as my review of the record reveals ample competent evidence to support the award for a change in economic condition as made by the administrative law judge. A claimant may satisfy the implicit proximate cause element of present-day OCGA § 34-9-104 (a) “by showing that she labored under a continuing disability and that she made a diligent but unsuccessful search for subsequent suitable employment.” Maloney v. Gordon County Farms, 265 Ga. 825, 827 (462 SE2d 606). This showing does not require expert testimony. The salient evidence here is undisputed: prospective employers were informed of claimant’s diminished abilities owing to a compensable event and she was never extended an offer of employment. “The proffered evidence and reasonable inferences drawn therefrom [would] support [an award for change of condition].” Maloney v. Gordon County Farms, 265 Ga. 825, 829, supra. In my view, the appellate division and the superior court erred in ignoring claimant’s own testimony that she diligently but unsuccessfully sought suitable employment, after termination for cause unrelated to her previous compensable injury. The appellate division and the superior court erroneously analyzed this claim as if the testimony of Clem Boatright, a vocation rehabilitation expert, was the only competent evidence to establish a change of condition. That is an erroneous theory of law which requires reversal. In my *634view, the judgment of the superior court should be reversed and the case remanded to the appellate division for further proceedings which expressly incorporate the proper evidentiary test for a compensable change in condition as recently enunciated by the Supreme Court of Georgia. See, e.g., Sadeghi v. Suad, Inc., 219 Ga. App. 92, 93 (464 SE2d 234). As my colleagues in the majority would nevertheless affirm, despite the application of an erroneous legal theory by the appellate division and the superior court, I respectfully dissent.

I am authorized to state that Presiding Judge Pope and Judge Blackburn join in this dissent.