In Georgia, once a claim for workers' compensation disability benefits has been accepted, or an all issues determination of compensability and disability has been made, much of the subsequent litigation may involve attempts by the employer/insurer to establish a change in condition for the better, so as to decrease or suspend in their entirety the disability benefits owed.  This is most difficult in those cases where the claimant is given continuing work restrictions related to the job injury, and the employer cannot offer light duty work.  It is the intent to this article to discuss a way in which employers, insurers and servicing agents can lawfully seek a termination of disability benefits in these costly cases.

Generally, the case law in Georgia states the employer can establish a change in condition for the better, where evidence shows: (1) the employee has undergone a physical change for the better; (2) as a result of the improvement, the employee is capable of working; and (3) work is available to decrease or terminate the loss of income caused by the job injury. See ABB Risk Management Service v. Lord, 254 Ga. App. 88, 561 S.E.2d 225(2002). However, the cases primarily emphasize the third requirement - that evidence show the availability of suitable work - and in at least one case, the Court of Appeals did not mention a requirement for the employer to prove a physical change for the better, but instead merely stated “the employer must show that the employee is able to return to work and that suitable work is available.” Freeman v. Continental Baking Company, 212 Ga. App. 855, 443 S.E.2d 520 (1994).

One of the more frequent, frustrating and expensive workers’ compensation fact situations — encountered virtually everyday in the handling of compensable, disabling injuries — is that situation in which a claimant can work, with restrictions, but the employer cannot provide light duty employment, for any one of a variety of reasons. However, in many of these cases there are jobs available in the local economic community, particularly in urban areas, which the claimant could perform within restrictions and - where the claimant refuses to avail himself/herself of relevant employment opportunities within the community - there is a process by which an employer can effect a change in condition for the better, on the basis that the proximate cause of the claimant’s unemployment is the claimant’s unwillingness to work, rather than the unavailability of suitable employment. Under a specific line of case decisions, the employer can establish a change in condition by proving that available, suitable employment exists in the general, local economy; the proof can be offered through the testimony of a vocational expert, usually a qualified rehabilitation supplier.

In Mountainside Medical v. Tanner, 225 Ga. App. 722, 484 S.E.2d 706 (1997), the claimant Tanner had qualified for temporary total disability benefits. The claimant made no actual or attempted return to work. Nonetheless, the Court of Appeals allowed the employer to utilize O.C.G.A. § 34—9—104 and 34-9-262 to decrease benefits to temporary partial levels by “theorizing” as to the amounts Tanner could earn if he did take advantage of available, suitable work. Significantly, the Court of Appeals reversed the State Board’s decision preserving TTD benefits, while announcing that “the legislature did not intend claimants to not work and thereby avoid a reduced benefit.” As the Court of Appeals stated: “according to the statutory scheme, the ability to earn — not the propensity to earn — controls the issue ...”

The implications of this distinction have been highlighted and further defined in subsequent decisions. Most significantly, in Jones County Board of Education v. Patterson, 255 Ga. App. 166, 564 S.E.2d 777 (2002), the Court specifically allowed expert evidence that a claimant qualified for suitable jobs currently available in the local economy to justify a finding of change in condition for the better. Also see ABB Risk Management Services v. Lord, 254 Ga. App. 88, 561 S.E.2d 225 (2002) and Shaw Industries, Inc. v. Shaw, 262 Ga. App. 586, 586 S.E.2d 80 (2003).

These cases show that, even where the employer can offer no light duty work and the claimant is drawing disability benefits while given valid work restrictions - but the claimant refuses to return to suitable work available in the local economy - the employer can prove a change in condition for the better, by establishing the existence of available, suitable work through the testimony of a vocational expert. Indeed, if suitable work is available within the local economy, the proximate cause of the claimants’ unemployment is the claimant’s unwillingness to work, not the job injury-related restrictions. Aggressive litigation of such change in condition defenses can cut the costs of these cases.