Wise v. City of Adel
394 S.E.2d 540
Ga. Ct. App.
1990
Check Treatment

WISE v. CITY OF ADEL et al.

A90A0671

Court of Appeals of Georgia

April 19, 1990

Rehearing denied May 9, 1990.

194 Ga. App. 559 | 394 SE2d 540

Deen, Presiding Judge.

Judgment affirmed. Pope and Beasley, JJ., concur. Hatcher, Stubbs, Land, Hollis & Rothschild, Jerry A. Buchanan, for appellant. Harry Dicus, Samuel W. Oates, Jr., for appellee.

OPINION

DEEN, Presiding Judge.

The appellant, William Wise, injured his left elbow during his employment as a captain of the appellee’s fire department, and received workers’ compensation benefits. Eventually, he returned to work, but he continued to experience pain and stiffness in the injured elbow; his treating physician recommended a change to light work, and the appellee consequently offered to employ Wise as a radio dispatcher for the appellee’s police department. This shift would have involved a salary reduction, but the appellee also indicated that it would pay Wise temporary partial disability benefits and transfer him back to the fire department when he was physically able to return to normal duty. Wise refused this offer of light duty, because it would have required giving up a part-time job at a bank that he had been able to maintain with the work schedule of the fire department (on 24 hours, off 48 hours). Even including receipt of temporary partial disability benefits, the proposed job transfer to the police department would have resulted in an income reduction of $163 per week.

When Wise refused the police department dispatcher job, the appellee suspended all benefits, and the administrative law judge denied Wise’s claim for recommencement of disability income benefits. The full board, however, reversed, after finding that the police dispatcher job was not suitable employment and that Wise had been justified in refusing it. The superior court in turn found as a matter of law that the light duty job offered to Wise was suitable employment, and reversed the full board. We granted this discretionary appeal, and reverse the superior court.

OCGA § 34-9-240 provides that “[i]f an injured employee refuses employment procured for him and suitable to his capacity, he shall not be entitled to any compensation at any time during the continuance of such refusal unless in the opinion of the board such refusal was justified.” In

, this court emphasized that “the board is vested with a broad discretion in determining whether proffered employment is refused justifiably.” In
, this court found no abuse of discretion in the board’s determination that the employee justifiably refused proffered employment that presented no challenge or opportunity for advancement. Similarly, we find no abuse of discretion in the board’s determination of that issue in the instant case. Cf.
.

Judgment reversed. Pope, J., concurs. Beasley, J., concurs specially.

BEASLEY, Judge, concurring specially.

It should be noted that what we are holding is that the justification for the employee’s refusal need not be a lack of physical capacity for the job in its circumstances. In

, the refusal was based on mental capacity; the employee was physically capable for the job, but his mental capacity exceeded its demands and career potential, so the board could find it not “suitable to his capacity.”

In

, on the other hand, the refusal was not related to capacity at all; the employee was physically capable, and the refusal related not to mental incapacity or over-capacity, but to the employee’s mere desire not to work the time offered. Such a refusal would have to be regarded as unjustified under the law.
, cited by appellee, involves physical incapacity, but its holding does not mean that the statute contemplates physical capacity exclusively. There is a correlation in the statute between the job’s being suitable to the employee’s capacity and the reason for the employee’s refusal of employment. If the reason is related to the employee’s “capacity” in the broad sense of the word, then the board has discretion to use its judgment to decide whether the reason is “justified.” If the reason is not related to such capacity, and the board finds the job in its circumstances to be suitable to that employee, it would be compelled to reject the refusal as unjustified.

In the instant case, the job offered was physically suitable for the employee, but his capacity for additional gainful employment which conflicted with the job offered authorized the board to find that the job was not suitable “to his capacity.” That being the case, it had discretion to accept the refusal as justified.

In re BOOKER (two cases).

A90A0329, A90A0712

Court of Appeals of Georgia

April 19, 1990

194 Ga. App. 561 | 394 SE2d 791

Sognier, Judge.

Morris & Webster, Craig A. Webster, for appellant. Young, Young & Clyatt, Robert M. Clyatt, for appellees.

OPINION

SOGNIER, Judge.

James Booker, an attorney licensed to practice in this State, appeals from an order of the Superior Court of Clayton County finding him in contempt of Court. It appearing that case nos. A90A0329 and A90A0712, filed and docketed separately because of an error of the trial court clerk, present the same matters for review, the two appeals are consolidated in this opinion. We now affirm.

The record reveals that on Monday, May 8, 1989, appellant appeared before Judge William H. Ison at a calendar call in Clayton County Superior Court as attorney for a criminal defendant. Appellant announced ready for trial, but informed the court that if his case was not reached on that day he would be ready for trial again on Wednesday, May 10, 1989, asking to be excused on Tuesday, May 9, 1989, because of his tentatively scheduled meeting that day in Milledgeville with several out of state prosecutors in regard to a federal matter. Judge Ison instructed appellant to remain in the courtroom and check back with him at the conclusion of the calendar call, when the court would have a better idea of which cases would actually be tried and where appellant’s case would fall on the calendar. Judge Ison then proceeded with the calendar call, and at its conclusion inquired as to the whereabouts of appellant, but appellant had left and could not be located.

It is uncontroverted that appellant left Judge Ison’s courtroom on Monday, May 8, 1989, and made preparations to go to Milledgeville. Appellant actually departed Atlanta late Monday night or early Tuesday morning, driving a Rolls Royce automobile he had recently purchased. The meeting in Milledgeville was concluded at about 3:00 p.m. on Tuesday. However, having noticed a problem with the brakes, appellant decided to drive the Rolls Royce to a dealer in Hilton Head, South Carolina for repair, although he had purchased the car from an Atlanta dealer. Appellant drove to Hilton Head from Milledgeville without informing his office. Upon his arrival that evening he was informed that the dealership could make no repairs until the next day.

Appellant’s client’s case was not reached on Monday, May 8th, or Tuesday, May 9th, but Tuesday afternoon Judge Ison’s secretary called appellant’s office and notified appellant’s secretary that appellant’s client’s case would be reached at 9:00 a.m. Wednesday. Appellant’s secretary, still thinking appellant was in Milledgeville, said she