OCMULGEE EMC et al.
granted the petition for certiorari filed by Ocmulgee
in this workers' compensation case to answer this
Must an employer show the availability of suitable employment
to justify suspension of workers' compensation benefits
after already establishing that an employee's
work-related aggravation to a preexisting condition has
ceased to be the cause of the employee's disability?
The Court of Appeals held that the answer is yes. See
McDuffie v. Ocmulgee EMC, 338 Ga.App. 200,
203 (789 S.E.2d 415) (2016). Because the answer is no, we
reverse that part of the Court of Appeals' opinion.
Court of Appeals recited the relevant facts, as viewed in the
light most favorable to the decision of the Administrative
Law Judge ("ALJ") from the State Board of
Workers' Compensation ("Board"):
[Kasabian] McDuffie suffered an injury to his right knee in
2002 ("2002 injury") when he was employed by
Eastman Youth Detention Center ("EYDC"). McDuffie
settled his claim for workers' compensation benefits with
EYDC, and by July 2003, he had undergone three knee
surgeries. McDuffie admitted in his settlement agreement that
he was partially disabled, his condition would not improve,
and there was no possibility of his being able to perform the
same type of gainful employment on a regular basis in the
future. McDuffie's doctor gave him a 20 percent permanent
impairment rating for his right knee and placed him on
permanent sedentary work restrictions. As a result, McDuffie
was out of work from 2002 until 2006.
In March 2007, McDuffie applied for a job at EMC and he was
hired to work as a meter reader/right-of-way laborer. When he
filled out his EMC job application, McDuffie omitted relevant
information that would have shown that he was physically
unable to do the job for which he was applying. Specifically,
McDuffie failed to disclose his 2002 injury, his employment
with EYDC, or his permanent sedentary work restrictions.
Moreover, McDuffie indicated on his application that he was
physically able to perform the job functions of a meter
reader/right-of-way laborer, which required him to stand,
walk, and carry parts, and required him to have the ability
to get an injured person off a pole within a short period of
In September 2009, while working on the job for EMC, McDuffie
stepped in a hole and re-injured his right knee (the
"2009 injury"). McDuffie's indemnity benefits
commenced shortly after his injury. In March 2010, EMC
discovered that McDuffie had provided false information on
his job application when he stated that he was physically
able to do the job and failed to disclose his prior injury or
sedentary work restrictions. After learning this, EMC fired
McDuffie and suspended his indemnity benefits. It is
undisputed that, in February 2011, EMC reinstated
McDuffie's indemnity benefits once McDuffie's doctor,
Dr. Pope, recommended an additional surgery. That surgery was
performed in March 2011, and after that surgery, Dr. Pope
released McDuffie to return to work with sedentary
In July 2011, Dr. Pope opined that McDuffie had returned to
his pre-injury baseline, i.e., his pre-2009 sedentary work
restrictions, and EMC again suspended McDuffie's
indemnity benefits. Another physician, Dr. Gupta, who also
examined McDuffie, similarly opined that McDuffie's knee
had been restored to its pre-2009 injury status.
McDuffie, 338 Ga.App. at 200-201.
who heard McDuffie's request to reinstate his benefits
specifically found the opinions of Dr. Pope and Dr. Gupta to
be credible and held that EMC "has shown and proven the
employee's restrictions are the same as prior to the 2009
injury" and that McDuffie "has no restrictions
other than those he already was under at the time he was
hired by [EMC]." Accordingly, the ALJ denied
McDuffie's request for reinstatement of benefits.
McDuffie appealed that decision to the Board's Appellate
Division, which accepted the ALJ's findings as supported
by the evidence and further explained:
Generally, if an employer/insurer can show by a preponderance
of the competent and credible evidence that an employee no
longer suffers any disability due to his work-related injury,
then the employer/insurer need not show the specific
availability of suitable employment to justify suspending
temporary total disability benefits for change of condition.
Pierce v. AAA Cabinet Co., 173 Ga.App. 463');">173 Ga.App. 463 [(326
S.E.2d 575)] (1985). Even where an employee has neither
actually returned to work nor become capable of returning to
work, an employer/insurer may satisfy their burden, if the
employer/insurer can demonstrate that the employee's
current disability is not casually connected with his
employment. See Southwire Co. v. Molden, 223 Ga.App.
389 [(477 S.E.2d 646)] (1996); Raley v. Lanco Paint &
Drywall, 190 Ga.App. 462');">190 Ga.App. 462 [(379 S.E.2d 196)] (1989). . .
Once the administrative law judge established by a
preponderance of the competent and credible evidence that
[McDuffie] had been restored to his pre-injury baseline
condition, so that he no longer suffered any work-related
disability, no further findings in this regard were required
in order for the administrative law judge to conclude that
[EMC] had carried [its] burden of proof to justify suspending
[McDuffie]'s income benefits.
McDuffie then appealed to the superior court, which summarily
affirmed the Appellate Division's ...