MCDUFFIE v. OCMULGEE EMC et al.

Miller, Presiding Judge.

In McDuffie v. Ocmulgee EMC , 338 Ga.App. 200, 789 S.E.2d 415 (2016), this Court (1) affirmed the Administrative Law Judges finding that Ocmulgee EMC (EMC) met its burden of demonstrating that Kasabian McDuffie had returned to his pre-2009-injury condition when EMC suspended McDuffies indemnity benefits; but (2) remanded this case for factual findings regarding whether EMC had shown that suitable work was available to McDuffie before terminating his benefits. Id. at 202-204 (1), (3), 789 S.E.2d 415.

In Ocmulgee EMC v. McDuffie , 302 Ga. 640, 806 S.E.2d 546 (2017), the Supreme Court of Georgia reversed this Courts decision, in part, determining that EMC was not required to show the availability of suitable employment and that no further factual findings were necessary in this regard. Id. at 643-645 (2), 806 S.E.2d 546. Thus, the Supreme Court affirmed in full the decision of the Appellate Division of the State Board of Workers Compensation. Accordingly, we vacate Division 3 of our prior decision, and the judgment of the Supreme Court is adopted and made the judgment of this Court for Division 3.

Judgment affirmed.

Dillard, C.J., Ellington, P.J., McMillian, Mercier, Reese, Brown, JJ., concur. McFadden, P.J., dissents. Gobeil, J. recused.

McFadden, Presiding Judge, dissenting.

The parties filed cross-petitions for certiorari. As the majority explains, our Supreme Court granted Ocmulgee EMCs petition and reversed in part.

McDuffies petition asked that my dissent be adopted. Our Supreme Court denied his petition and expressly declined to address the conclusion from which I dissented: We did not grant McDuffies certoriari petition seeking review of that fact-specific conclusion. Ocmulgee EMC v. McDuffie , 302 Ga. 640, 806 S.E.2d 546, (2017). In light of this very particular set of circumstances, I respectfully adhere to my dissent.