I. Introduction
One
of the intended goals of the Georgia Workers' Compensation Act
is to return injured
employees to gainful employment. To further this goal, O.C.G.A. §34-9-240 and
Board Rule 240 allow an Employer and Insurer to compel
a claimant to work rather than permit long term disability
when the claimant has been released to light duty. When properly
implemented, the "240" procedure allows the employer
to unilaterally suspend income benefits upon the employee's
return to work or refusal to accept a properly offered
suitable job. Because of the unusual permission to suspend
benefits unilaterally, without intervention from the State
Board, the Rule and Statute are construed strictly and
require complete adherence or the suspension will not be valid.
Benefits also therefore must be recommenced if the employee
discontinues the job for any reason before 15 days, at
which time benefits can be suspended again, but only with
permission of the Judge or other lawful basis.
Along
with the WC-240 Form, there is a WC-240A "Job
Analysis" Form. The WC-240A form is not required,
but is useful to identify the job duties and physical requirements.
The WC-240A form benefits both the employer/insurer and
the employee because it provides a more complete and accurate
description of the expected job. Employees benefit because
they will know what to expect and be better able to hold
the employer to providing that same job. Employers benefit
because the employee will be less able to justify refusal
to work a job which has been credibly reviewed.
II.
240 Checklist
Foremost, the employee must be released
to light duty work. While not specifically required, it
is recommended that the Employer/Insurer complete and properly
serve a WC-104 to document this work release (within 60
days of the physician's release). Also, there must be a light
duty job available which is suitable to the employee. Proof
of the availability of work is provided by the executed
WC-240. Proof that the job is suitable for the claimant's restrictions
is provided by a WC-240A which is signed by the authorized treating
physician.
The employer and insurer or their counsel
should confirm that the following requirements are adhered
to exactly, as counsel for the employee will be examining the
documents for any shortcomings:
- WC-240 form completed including
description of job, duties, hours, pay.
- WC-240 must have attached to
it a WC-240A or other description
of the job; with written approval by the ATP.
- WC-240A/Job
description "should" be submitted
to the authorized treating physician simultaneously
with submission to employee and employee's counsel. The
language in the Rule is that this "should" be done
but in context and application, it is more mandatory than
the language suggests.
- WC-240 form with attached WC-240A/Job
description must
be submitted to employee and counsel for employee.
- 10
day notice of the required WC-240 return
to work must be provided.
- Job description must have approval
by ATP within
60 days of an exam.
If the employee refuses to report
to a properly offered job,
benefits may be unilaterally suspended as of the date of the unjustified
refusal. To properly suspend benefits, the employer must:
- File WC-2 with the
Board to suspend benefits; and
-
File WC-240 with
all attachments (job approval) with Board together
with WC-2.
If the employee
attempts the job but does not complete the 15 day grace
period, income benefits must be immediately recommenced. Otherwise,
the Employer/Insurer is automatically deemed to have waived
its defense to continued income benefits based on the job
being suitable, which is a major consequence. It is recommended
that the employer then resubmit the employee to the authorized treating
physician to be sure there is no change in physical findings, and if
not, make a continued offer of employment. The employer will likely fare
better when they next request a hearing based on an unjustified refusal
to accept suitable work or for a change in condition for the
better.
If the employee does not complete the 15 day grace period
but the reason is unrelated to the work injury (some personal reason)
than the aggressive position is that benefits do not need to
be recommenced because the basis for the claimant being no longer employed
is not related to the suitability of or availability of light duty
work. But the specific
facts will be important to determine whether the Employer/Insurer
is acting appropriately and in good faith and as such it
is recommended that any such decision be based on consultation with
defense counsel.
If benefits must be recommenced because the
employee did not complete their 15 day grace period, the employer
is entitled to seek suspension of benefits pending a hearing by filing
a motion simultaneously with the request for hearing or during
the pendency of the hearing. Evidence
should be presented to show suitable employment was offered,
continuing, and with the job description, and the employee must have
been examined within 60 days of the motion and released to the
job. If the employee's
benefits are suspended unilaterally, the employee may seek
an order reinstating benefits pending the hearing. The employee
needs to file a motion requesting
this order simultaneously with filing the request for hearing
or pending the hearing, and must include an affidavit with
employee's contentions, and current medical records. If the
employee works the offered job but is earning a reduced wage from
their AWW, a WC-2 should be filed reflecting suspension and commencement
of the appropriate TPD.
III. Conclusion
The "240" compulsory
return to work procedure in Georgia allows Employers to remove
claimant's from long term total disability status and return
them to gainful employment, or else permits suspension of
disability income benefits if work is refused without
justification. The rule and statute are full of minefields
and requires careful compliance to allow proper sustainable suspension
of benefits. When
properly implemented, the Act's goal of returning injured employees to
suitable work is furthered and Employer's and Insurers have
a useful tool to minimize exposure to what might otherwise
become long term disability claims.
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