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:

  1. WC-240 form completed including description of job, duties,  hours,   pay.
  2. WC-240 must have attached to it a WC-240A or other description of the job; with written approval by the  ATP.
  3. 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.
  4. WC-240 form with attached WC-240A/Job description must be submitted to  employee and counsel for  employee.
  5. 10 day notice of the  required WC-240  return to work  must be provided.
  6. 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:

  1. File WC-2 with the Board to suspend benefits; and
  2. 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  Employers and Insurers have a useful tool to minimize exposure to what  might otherwise become long term disability claims.

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