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.
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.