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Maloney Job Searches Revisited: Applying “Any Evidence” Standard of Review, Court of Appeals Provides More Details On What Constitutes A Diligent Job Search

The Court of Appeals has raised the bar for Maloney job searches with its decision in Brown Mechanical Contractors v. Maughon, A12A0782, May 12, 2012. The ALJ accepted Maughon’s job search, which included 110 searches over 144 work days as well as evidence that three offers were rescinded when the prospective employers learned of Maughon’s injury and limitations. The Board reversed, finding no support in the record for reasonable inferences to be drawn that Maughon’s inability to find work was due to the work injury. “Engaging in a job search, on average, less than one time per day is not a diligent job search,” the Board concluded, also citing a number of other failures, including Maughon’s failure to search for periods of time lasting 27 and 18 consecutive days, his focus on jobs involving physical labor although he had managerial/sales experience, and a lack of follow-up with potential employers.

The Superior Court reversed the Board, finding that the Board had established “a heightened burden of proof not required by Maloney.” On appeal, the employer argued that the Superior Court had erroneously applied a de novo standard of review. The Court of Appeals agreed, citing its dicta clarifying the standard of review in Master Craft Flooring v. Dunham, 308 Ga. App. 430, 434 (2011): “Neither the superior court nor this Court has any authority to substitute itself as a fact-finding body in lieu of the Board…our role is not to return to the findings of the ALJ…but…to review the Board’s award for the sole purpose of determining whether its findings are supported by any record evidence.”

The Court of Appeals concluded that evidence in the record supported the Board’s inferences and factual findings that Maughon failed to conduct a diligent job search. Noting that the Superior Court is “not authorized to draw inferences different than those drawn by the ALJ/Board regarding claimant’s diligence in job search,” the Court distinguished its decision in R.R. Donnelley v. Ogletree, 312 Ga. App. 475 (2011) because factors considered in determining the diligence of the job search in that case, such as whether the claimant had any interviews, were not within the control of the claimant.

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