Is the Maloney Burden Malarkey?

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By: Kenny Bishop, Associate, Atlanta

In the well known case, Maloney v. Gordon Farms, the Supreme Court established the burden of proof a claimant bears in order to claim entitlement to disability benefits after termination, which is commonly known as the Maloney Burden. In order to successfully prove this burden, the claimant must prove that he “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, yet unsuccessful effort to secure suitable employment following termination.” Id. Meaning, if the claimant is terminated for reasons unrelated to his at-work accident, he must show that he made a diligent, but unsuccessful effort to secure suitable employment to be entitled to indemnity benefits.

Therefore, the fact that the claimant was terminated for reasons unrelated to his on-the-job accident does not bar him from recovering workers’ compensation indemnity benefits from the date of termination going forward. The Georgia Courts have found that this includes terminations for misconduct, failed drug tests, and layoffs. It should be noted that all justified terminations should be well documented by the employer so that the claimant cannot claim his termination was related to the at-work accident or injury.

If the claimant cannot show that he has been totally disabled or that he was terminated by the employer as a consequence of his on-the-job injury, he must show that an unsuccessful, but diligent, search for suitable employment with other potential employers in order to carry his burden of proving an economic change for the worse in his condition. The question then arises to just how diligent a search for employment must be to satisfy this element of his burden. In the Maloney case, the claimant’s application for work was limited to six prospective employers to sufficiently satisfy the diligent search for suitable employment that entitled her to temporary total disability benefits from the date of termination. For many years, the Courts looked primarily, if not exclusively, at the number and timing of the job inquiries in order to determine a diligent job search. However, the Courts have recently expanded these requirements.

For example, in Brown Mechanical Contractors Inc. v. Maughon, the evidence showed that the claimant made 110 searches over 144 work days and there were three prospective employers who withdrew job offers after learning of the Claimant’s on-the-job injury. Nonetheless, the Court of Appeals found that the claimant had failed to make a sufficiently diligent search for suitable limited duty work. The Court noted that, “specifically, the record contains evidence showing that [the claimant] did not look for a job every business day, that he failed to follow up with 22 potential employers, that he failed to look for work for a period of 18 and 11 consecutive business days, and that his job search concentrated on jobs involving physical labor.” Additionally, it was noted that the dispositive issues as to whether the claimant is entitled to benefits is not whether he lost three particular job offers due to his work injury, but instead his inability to obtain suitable employment was proximately caused by the continuing disability.

The Courts stated a number of factors which may assist employers and insurers in defending Maloney claims. This list includes: (1) the number of job inquires made; (2) the timing and manner of the employee’s job inquires; (3) the physical demands of the jobs which the employee pursued; and (4) whether the employee applied for jobs which fit his qualifications and work restrictions. Remember, it is the claimant’s burden to prove the diligent, yet unsuccessful job search, so the employer and insurer should always look at the totality of the search to argue that the claimant has failed to carry this burden. To answer the question, Maloney is not malarkey.

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