Risner v. Bulk Equipment Manufacturing, Inc.

Smith, Judge. In this workers’ compensation case, the State Board awarded the employee recommencement of benefits following his termination for cause, but the superior court reversed the award on the grounds that the employee failed to establish any loss of earning power attributable to a work-related injury. We granted the employee’s application for discretionary appeal to determine whether the superior court applied the proper legal standard in doing so. Because the superior court based its conclusion solely upon the employee’s termination for cause and not upon any failure by him to show that he was unable to find suitable employment due to his injury, we reverse. Eddie Risner sustained a compensable back injury on May 30, 1995, while working for Bulk Equipment Manufacturing, Inc. Bulk Equipment accepted the claim and paid income and medical benefits until Risner returned to work in a light duty janitorial position in December 1995. On December 18, 1995, Risner complained about his back hurting and went home early that day. He returned to work two days later and was terminated then because he failed an employer-required drug test. Risner subsequently filed this claim for recommencement of income benefits based upon a change in condition. The ALJ found that the evidence clearly demonstrated that Ris-ner continued to suffer physical limitations attributable to the back injury and that he had made a diligent but unsuccessful job search since January 12, 1996. Nevertheless, the ALJ denied the claim on the ground that Risner had lost his job for cause and therefore had not shown a diminution in earning power due to his injury. The Appellate Division reversed the ALJ and awarded benefits, holding that an employee who is terminated for cause can still prove a change in condition and entitlement to benefits by showing that as a result of his continuing disability he has been unable to obtain other suitable employment. See Maloney v. Gordon County Farms, 265 Ga. 825 (462 SE2d 606) (1995); Harrell v. City of Albany Police Dept., 219 Ga. App. 810 (466 SE2d 682) (1996). The superior court, however, reversed the Appellate Division [530] and adopted instead the award of the ALJ. In doing so, the superior court held that the evidence did not support the Appellate Division’s conclusion that Risner had proven a loss of earning power attributable to his injury. The superior court further held: “The claimant has not shown by a preponderance of the evidence that his inability to secure suitable employment has been as a result of his work-relatéd injury. In fact, the claimant had suitable light-duty employment with the employer, but was discharged for failing the drug test.” The superior court’s conclusion that Risner failed to establish a loss of earning power appears to have been based solely upon Ris-ner’s termination for cause. However, termination for cause alone does not disqualify an employee for recommencement of income benefits based on a change in condition. Even when an employee is discharged for cause, compensation may be allowed provided the employee meets his burden under Maloney of showing an inability to obtain other suitable employment due to the residual limitations caused by his injury. See Waffle House v. Padgett, 225 Ga. App. 144 (483 SE2d 131) (1997); Diamond Rug & Carpet Mills v. Moses, 221 Ga. App. 807, 808 (472 SE2d 565) (1996). That is, following termination for cause, an employee may prove a loss of earning power by showing the inability to obtain other suitable employment because of a continuing disability attributable to a work-related injury. Ga. Power Co. v. Brown, 169 Ga. App. 45, 49 (311 SE2d 236) (1983). In this case, there was some evidence of record to support the Appellate Division’s determination that Risner satisfied his burden of proof under Maloney, and the superior court therefore erred in reversing the award and denying Risner’s claim. Judgment reversed. McMurray, P. J., concurs. Beasley, J., concurs specially.