by Kenneth A. David, Esq.

There are fewer jobs now than 3 years ago, but there are likely even fewer jobs for injured workers. Recent reports have pointed out something that we all knew – if you are injured, your chances of finding work are diminished, even more so in a down economy. In the workers’ comp context in Georgia, one way this comes into play is when an injured worker is laid for economic reasons (no more work available). If the lay off is because there is no more light duty work available then the employee is automatically entitled to payment of income benefits. However, if the employee is laid off due to a general layoff impacting many employees, including those who are not injured, the employee has what we call the Maloney burden, a legal requirement to go out and look for work. If the employee cannot find employment, he/she can argue that the unemployed status is due to the injury. The former employer can argue otherwise, pointing to alternative reasons why the employee is not employed. Interestingly, one argument for an employer might be that many former employees who were never injured cannot find work and therefore the unemployed status is not due to the work injury. This makes good sense.

However, as a practical matter, what we are finding is that injured workers may not be “punished” a second time by having their benefits denied so a judge might award income benefits in this economy where that same worker might not have gotten benefits a few years ago in a more robust economy. Ironically, with a better economy the employee’s argument would be that if everyone else is getting employed and I am not, then I must be unemployed due to my injury. What can you do to defend a claim for benefits after a layoff? First, show that the lay off impacted many people at the company, not just injured workers. Second, show that there are other factors that may be preventing the employee from being employed besides the injury, such as lack of experience or spotty work history, lack of education, not applying for jobs within his/her skill level, and a lack of effort in looking for jobs.