Martines v. Worley & Sons Constr.

We granted the claimant’s application for discretionary appeal in this workers’ compensation case to consider the scope of a “justified” refusal to accept a “suitable job” within the meaning of OCGA § 34-9-240. We conclude that an injured worker’s refusal to accept a suitable job based on a legal inability to perform the job resulting from the worker’s voluntary conduct, rather than a lack of skill or physical capacity, is not justified as a matter of law. We therefore affirm the judgment of the superior court. The facts of this case are not in dispute. While working for Worley & Sons Construction, Merced Martines suffered a work-related injury to his left foot. After medical treatment, he was released by his physician to return to work with restrictions. His employer offered him a position as a delivery truck driver, a job falling within the restrictions set by his physician. He agreed to accept the job, but when he reported to work he was asked to show his employer a driver’s license and documentation that he was in the country legally before he could drive a company truck. At that time, he revealed that he could not produce a Georgia driver’s license and could not obtain one because, as all parties concede, he entered this country illegally.

No evidence was presented that he is unable to drive for any physical or health-related reason or that he does not possess the ability to operate the vehicle. In fact, although he testified at the hearing that he did not know how to drive “very well,” he acknowledged that he drove in Mexico and also was confronted with his earlier deposition testimony that he knew how to drive and would drive if he could obtain a license. Martines left his employer’s office and did not return to work; he contends that his condition worsened after he left work that day so as to render his disability total. His physician saw him two days later and certified him unable to return to work for three weeks.1 From this report, the ALJ determined that Martines “did not undergo a physical change for the better as of September 23, 2003.” The ALJ also found that the job offered to Martines was not suitable because he does not possess the driver’s license required for the job. The Appellate Division of the State Board of Workers’ Compensation affirmed the judgment of the ALJ.