by Michael E. Memberg, Esq.

When a claimant has been terminated for reasons unrelated to his employment, the claimant can still prove entitlement to benefits if he can show he cannot find work because of his work injury. The Georgia Supreme Court addressed the issue of how the claimant can meet this burden of proof in Maloney v. Gordon County Farms, 265 Ga. 825, 462 S.E.2d 606 (1995). Under Maloney, an administrative law judge is allowed to draw an inference from a diligent but unsuccessful job search that the claimant is unable to find work because of his injury. The reasoning behind Maloney is that because a claimant is not likely to have tangible proof that he was not hired due to a prior work injury, the judges should be allowed to infer that someone who diligently looked for work would be able to get hired but for his injury.

With the current down economy, claimants are contending with the fact that there are far fewer jobs available. Despite the presumption offered by Maloney, the fact is that many job seekers simply are not being hired because employers have a vast pool of prospective applicants and therefore can match the best possible candidate to their hiring needs. Whereas in the past they may not have been as selective, employers can now afford to choose from among many qualified applicants. Therefore, a person with a work-related injury may not be hired, but s/he is competing for the same job as many others who are out of work. Even if the claimant has been placed on work restrictions, often the hiring employer may not even be aware of the injury because the applicant pool is so strong that the claimant does not progress far enough into the interview process.

Attorneys and Administrative Law Judges are now dealing with the question of how to apply Maloney in today’s economy. Specifically, should claimants still be entitled to the same presumption when it is no longer as clear that they were not hired because of their injuries? Employers and insurers argue that the claimants are unable to find work because of the economy, and not because of their work injuries. On the other hand, claimants argue that they are still entitled to the same inference as intended in Maloney. At the recent St. Simons seminar, the claimants’ bar argued that claimants are being required to prove they are not being hired because of their injuries and not because of a lack of work, as opposed to the judges merely inferring that a diligent job search was unsuccessful because of the injury.

Based on recently published Appellate Division awards and commentary from Appellate Division members at the October seminar, there is some sense that the Appellate Division is focused on how Maloney applies in this economy. For example, a July 14, 2011 Award from the Appellate Division denied benefits even though a claimant alleged he contacted over 100 potential employers. The Appellate Division found that of the approximately 100 potential employers listed by the claimant on a job search form, the claimant had only made notes on contacting about 20 of them. Further, he only called the potential employers once, rather than completing applications online or inquiring in person, and never followed up even when specifically told a job could become available soon. An Appellate Division judge spoke at the seminar, and explained his reasoning that if a worker truly was being diligent, he or she would make the effort to follow up when told a job opportunity would be available in the near future.

Other decisions have confirmed that benefits are due because of a valid Maloney search. At this point, the Appellate Division seems to be focused on how diligent a job search was actually made, but still applying the general provisions of Maloney once the search is deemed diligent. There is no hard and fast rule on what constitutes a diligent job search, but the judges seem to be looking more closely at the specifics of the job search before applying the presumption.

Until the economy starts to pick back up, we expect we will continue to see litigation over the Maloney burden, and it is possible the Court of Appeals or even the Supreme Court will weigh in on the issue. Until then, Maloney remains the law.