McEver v. Worrell Enterprises , 223 Ga. App. 627 ( 1996 )

Ruffin, Judge.

We granted Michele McEver’s application for discretionary appeal in this workers’ compensation case instituted by her for a recommencement of disability income benefits based on a change in condition. McEver appeals from the superior court order affirming the appellate division’s award, which reversed the award of temporary total disability benefits. The questions are whether the superior court erred as a matter of law in interpreting and applying the burden of proof and whether testimony of the vocational rehabilitation supplier was admissible to meet McEver’s burden of proof. For reasons which follow, we affirm.

The record shows that on June 9, 1993, McEver suffered a compensable injury to her left hand, right leg, back, and head during a work-related automobile wreck. On July 19, 1993, Dr. Vodas returned McEver to full-time work with restrictions. McEver was terminated on August 12, 1993 for reasons unrelated to her injury. On March 4, 1994, Dr. Vodas released McEver from his care with no permanent disability rating.

At her hearing before the Administrative Law Judge (“ALJ”), McEver testified that none of her prospective employers failed to hire her because of her alleged restrictions. Clem Boatright, a vocational rehabilitation supplier retained for the purpose of testifying at the hearing on behalf of McEver, stated that he believed two of the prospective employers he contacted did not hire McEver because of her limitations. His opinion was based strictly on his telephone conversations with prospective employers, and he testified repeatedly regarding what he was told by these prospective employers. Moreover, Boatright admitted that neither of these employers said that McEver’s injury would preclude her from being hired.

The ALJ found that McEver’s efforts to obtain suitable alternative employment were unsuccessful because of the ongoing effects of her compensable injuries. This finding was based solely on Boat-right’s expert testimony. The appellate division vacated the ALJ’s award, concluding the expert opinion testimony of Boatright was inadmissible because it was based solely on inadmissible hearsay. The appellate division noted that “Mr. Boatright based his opinion that appellant would not be hired by two prospective employers solely on what those two employers told him on the telephone in response to a phone inquiry.” On appeal, the superior court affirmed the award of the appellate division, holding that “[t]o allow expert opinion testimony under the circumstances found in this case would allow experts to opine as to why a person did not do something they were never asked to do or given the opportunity to do or not do.” We agree and affirm the superior court’s order.

1. In her first enumeration of error, McEver asserts the superior court erred as a matter of law in applying the burden of proof set forth in Aden’s Minit Market v. Landon, 202 Ga. App. 219 (413 SE2d 738) (1991), which was expressly overruled in Maloney v. Gordon County Farms, 265 Ga. 825 (462 SE2d 606) (1995). Although Maloney overruled Aden’s Minit Market to the extent that it imposed an additional burden on the employee to prove the reasons why she was not hired by a prospective employer, Maloney still noted that in order to receive workers’ compensation benefits based on a change in condition, “a claimant must establish by a preponderance of the evidence that he or she 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, but unsuccessful effort to secure suitable employment following termination.” Maloney, supra at 828. Maloney confirmed the rule in Hartford Accident &c. Co. v. Bristol, 242 Ga. 287 (248 SE2d 661) (1978), requiring the claimant to show that her inability to secure suitable employment elsewhere was proximately caused by her previous accidental injury. Harrell v. City of Albany Police Dept., 219 Ga. App. 810 (466 SE2d 682) (1996).

In the present case, the ALJ awarded McEver temporary total disability benefits, finding McEver met her burden of proof under Aden’s Minit Market, notwithstanding the fact that the ALJ specifically refused to consider as inadmissible hearsay McEver’s and Boat-right’s testimony regarding reasons cited by potential employers for refusing to hire her. The ALJ’s decision was based strictly on Boat-right’s expert testimony regarding why McEver’s efforts to return to work were unsuccessful. The appellate division vacated the ALJ’s award because this expert testimony was based solely on inadmissible hearsay and because Boatright’s testimony was the only evidence supporting the ALJ’s findings.

It is clear from the ALJ’s award, as well as the appellate division’s award and the superior court’s order, that the proper burden of proof was employed in this case, notwithstanding the ALJ’s reference to Aden’s Minit Market. Contrary to McEver’s contention, Maloney does not completely eliminate the proximate cause element from the claimant’s burden of proof. The claimant simply is no longer required to produce direct evidence of proximate cause. Once the claimant shows that she has made diligent but unsuccessful efforts to obtain suitable employment, the factfinder may, in its discretion, infer from the evidence that the claimant’s disability is the proximate cause of her unemployment. However, Maloney does not require the fact-finder to draw this inference, and it is not an abuse of discretion for it to make an alternative inference. That is, the factfinder could properly infer that the claimant’s continuing unemployment was due to a number of reasons other than her disability. Thus, it is not necessarily sufficient for the claimant simply to show that she has unsuccessfully sought employment.

In the present case, neither the ALJ nor the appellate division chose to infer from McEver’s own testimony that her disability proximately caused her inability to obtain employment. The ALJ did not draw this inference from McEver’s testimony, indicating that its finding regarding proximate cause was based solely upon the testimony of the expert witness. Similarly, in reversing the award of the ALJ, the appellate division implicitly rejected this inference, concluding that “the testimony of Mr. Boatwright is the only evidence in the record which supports the Findings of Fact of the administrative law judge. . . .” The superior court then affirmed the appellate division’s findings, concluding that McEver’s own testimony discounted the Maloney inference when she “admitted that none of these employers denied her employment because of her work related injury.” While there may be credible evidence within the record upon which the ALJ or the appellate division reasonably could have drawn this inference, we are unable to find error in their failure to do so. Thus, we cannot conclude that the superior court erred in affirming the award of the appellate division.

2. In her second enumeration of error, McEver contends the appellate division and superior court erred by finding that Boat-right’s expert testimony was based entirely on hearsay and was, therefore, inadmissible. We disagree.

A similar issue was recently addressed by this Court in Gordon County Farm v. Maloney, 214 Ga. App. 253 (447 SE2d 623) (1994), rev’d on other grounds, 265 Ga. 825 (462 SE2d 606) (1995). While the Supreme Court reversed that case based on the employee’s burden of proof as established by Aden’s Minit Market, the Court did not alter this court’s analysis of and ruling on the claimant’s inadmissible hearsay testimony. In Gordon County Farm, we held the claimant’s testimony that the manager of a restaurant where she applied for a job would not hire her because she was on workers’ compensation was admitted to prove the truth of the potential employer’s statements and was inadmissible hearsay. Id. at 255.

While an expert may partially base his opinions on hearsay, an expert opinion may not be based exclusively upon hearsay unless it falls within one of the recognized exceptions to the general rule. See Cincinnati Ins. Co. v. Reybitz, 205 Ga. App. 174, 180-181 (2) (421 SE2d 767) (1992); Haynes v. Huff, 165 Ga. App. 192, 193 (299 SE2d 902) (1983). Boatright’s testimony in the present case does not fall under any of these exceptions. During the hearing, Boatright testified that he based his opinion on “[t]he responses of these employers.” Moreover, Boatright admitted these two potential employers never actually refused to hire McEver. Thus, even if Boatright’s testimony was admissible, it would be insufficient to carry McEver’s burden of proof under Maloney.

The cases cited by the ALJ in support of his reliance on Boat-right’s expert opinion deal with instances where the expert’s opinion is based only in part on hearsay, is based on personal knowledge and observations, or is based on facts as proved by other witnesses. See King v. Browning, 246 Ga. 46 (1) (268 SE2d 653) (1980) (surveyor opinion based on facts as proved by other witnesses); Cheek v. Wainwright, 246 Ga. 171 (3) (269 SE2d 443) (1980) (surveyor opinion, citing above case); Wood v. Browning-Ferris Indus. of Ga., 206 Ga. App. 707 (2) (426 SE2d 186) (1992) (medical expert opinion based on X-rays taken by another under his supervision and personally observed by him); Doctors Hosp. of Augusta v. Bonner, 195 Ga. App. 152 (3) (392 SE2d 897) (1990) (physician opinion either not based on hearsay or only based in part on hearsay); Blackburn v. State, 180 Ga. App. 436 (3) (349 SE2d 286) (1986) (opinion based only in part on hearsay); Avant Trucking Co. v. Stallion, 159 Ga. App. 198 (1) (283 SE2d 7) (1981) (opinion testimony of police officer who testified as lay witness and based opinion on hearsay held inadmissible); Sunset Villa v. Mothner-Simowitz Ins. Agency, 142 Ga. App. 424 (236 SE2d 156) (1977) (insurance agents testified based on personal knowledge of insurance business and insurance carrier at issue).

In the present case, Boatright’s opinions were not based on personal knowledge or observations and were not based on facts as proved by other witnesses. Rather, his opinions were based solely on hearsay statements from his telephone conversations with prospective employers who did not testify at the hearing. Based on the facts in the record, we cannot conclude that the appellate division or the superior court erred in refusing to consider Boatright’s testimony regarding the causal connection between McEver’s inability to obtain suitable employment elsewhere and her previous accidental injury.

Judgment affirmed.

Birdsong, P. J, Andrews, Johnson and Smith, JJ, concur. Beasley, C. J., McMurray, P. J., Pope, P. J., and Blackburn, J., dissent.