As many defense attorneys, claims adjusters, and employers can attest, the current law governing the return to work process when an employee is released to light duty is onerous and subject to manipulation by the employee and his attorney.
I. The Unfortunate Reality of the Current WC-240 Process
As many defense attorneys, claims adjusters, and employers can attest, the current law governing the return to work process when an employee is released to light duty is onerous and subject to manipulation by the employee and his attorney. O.C.G.A. § 34-9-240 governs the process by which an employer offers suitable light duty employment to an injured worker when he or she is released to light duty work by the authorized treating physician (ATP). While the employee always has the option to voluntarily return to light duty work, if available, this is seldom the case in litigated claims.
If the employee does not voluntarily return to light duty work offered by the employer, then he continues receiving temporary total disability (TTD) benefits without prejudice. Unlike other jurisdictions, Georgia does not allow for a unilateral suspension of TTD benefits upon a showing by the employer that light duty work within the employee’s restrictions is available. For an employer to make an offer of suitable employment that will allow the suspension of TTD benefits under the Georgia Workers’ Compensation Act, it must follow a set of procedural hurdles imposed by O.C.G.A § 34-9-240(b) and Board Rule 240. The pertinent portion of the statute reads:
(b) Notwithstanding the provisions of subsection (a) of this Code section, if the authorized treating physician releases an employee to return to work with restrictions and the employer tenders a suitable job to such employee within those restrictions, then:
(1) If such employee attempts the proffered job for eight cumulative hours or one scheduled workday, whichever is greater, but is unable to perform the job for more than 15 working days, then weekly benefits shall be immediately reinstated, and the burden shall be upon the employer to prove that such employee is not entitled to continuing benefits; or
(2) If such employee attempts the proffered job for less than eight cumulative hours or one scheduled workday, whichever is greater, or refuses to attempt the proffered job, then the employer may unilaterally suspend benefits upon filing with the board the appropriate form with supporting documentation of the release to return to work with restrictions by the authorized treating physician, the tender of a suitable job within those restrictions, and a statement that such employee did not attempt the proffered job. Under those circumstances, the burden shall shift to the employee to prove continuing entitlement to benefits. O.C.G.A. §34-9-240(b).
Board Rule 240 imposes a set of procedural steps governing how a suitable light duty job is tendered to the employee so that his refusal to attempt the job would result in the suspension of TTD benefits. The steps can best summarize in the following four points:
- A light duty job description within the employee’s work restrictions must be developed by the employer and submitted to the authorized treating physician;
- The employee and his counsel must be copied on the job description at the time of submission to the authorized treating physician;
- The job description must be approved by the authorized treating physician within 60 days of an examination by the physician;
- Once the approved job description is obtained, a form WC-240 should be prepared attaching the approved job description and providing the employee with at least 10 days’ notice of the date and time that he must report to work in addition to the contact information for the employer and the rate of pay/schedule.
An employer/insurer can only unilaterally suspend TTD benefits upon an employee’s refusal to attempt a light duty job by properly utilizing the Form WC-240. While an approved job description can be obtained, and a job offered without using the form, the employer/insurer will be unable to unilaterally suspend benefits if the employee refuses to attempt the job. Instead, a hearing would need to be requested based on the employee’s unjustified refusal of light duty work. Accordingly, the only way to mandate that the employee attempt the light duty job or risk an immediate unilateral suspension of his TTD benefits is following the procedural hurdles to obtain an approved job description from the ATP and using Form WC-240.
The process as outlined in the statute and fleshed out by the Board Rules provides an abundance of safeguards for the injured worker that correspond to significant and burdensome hurdles for the employer/insurer. The employer first must formulate a job description within the employee’s work restrictions as outlined by the ATP. Then, the job description must be submitted for approval (copying the employee and his attorney)—usually contemporaneously with a scheduled office visit to ensure that the job is approved within 60 days of an examination, as is specified by Board Rule 240. When the job is approved, the employer/insurer must then prepare the Form WC-240 with the details of the job and approved job description giving the employee at least 10 days’ notice of the time and place at which he must be present to attempt the job.
By mandating that that the employee and his counsel be copied on the submission of the job description to the ATP, the Board Rules allow the employee or his attorney to contact the physician and request that the he reject the job as unsuitable or otherwise request that the physician make further modifications to job description. A similar rationale underpins the portion of Board Rule 240 requiring the approval of the light duty job within 60 days of an examination. The State Board is protecting the employee by ensuring that the ATP has actually conducted an examination that is concurrent with the approval of the proffered job description and that the physician’s approval is based on the employee’s current capabilities.
Only once the approved job description has been received and Form WC-240 has been completed and served on the employee and his counsel with proper notice can the employer/insurer either suspend the employee’s TTD benefits upon his actual return to work on the date specified on the Form WC-240. Or, if the employee refuses to attempt the properly tendered light duty job, the employer/insurer can file a WC-2, attaching the WC-240, and suspend TTD benefits based on the employee’s unjustified refusal to attempt the approved light duty job.
After the employer/insurer fulfill their statutory obligations to offer the light duty job, which the employee either must attempt or be faced with a unilateral suspension of TTD benefits, the employee has only one obligation; to attempt the light duty job for eight cumulative hours or one scheduled work day, whichever is greater. If the employee attempts the job for at least eight cumulative hours, he can go back out of work for any reason at all—usually citing a flare-up in pain resulting in the inability to perform the job. When the employee refuses to continue to work the approved light duty job after having attempted it for eight hours, the statute mandates that TTD benefits must automatically be reinstated.
The statute places the burden on the employer/insurer to demonstrate that the employee is not entitled to continuing TTD benefits. O.C.G.A. § 34-9-240(b)(1). The only mechanism to satisfy this burden is for the employer/insurer to request a hearing on the basis that the employee is unjustified in his refusal to continue working the approved light duty job and seek to suspend TTD benefits retroactive to the date of the refusal. The hearing request will allow the employer/insurer to depose the employee, gather evidence, interview witnesses at the jobsite, and then prepare a case for presentation before the Administrative Law Judge (ALJ). This process takes several months, often six to nine, before the case will be heard. Even if the ALJ agrees that the employee’s refusal is unjustified and orders the suspension of his TTD benefits, the employee has the right to appeal the ruling to the State Board’s Appellate Division while the employer/insurer continues to pay benefits during the pendency of the appeal. Should the ultimate decision from the State Board be that the employee’s TTD benefits are suspended retroactive to the date of the unjustified refusal of the light duty job, there is little chance for the employer/insurer to recoup the overpayment of TTD from the employee absent taking credit for the same against a future permanent partial disability (PPD) rating or the eventual settlement of the claim.
This all too often abuse of the system distorts the return to work process into an instrument of pecuniary gain for the employee, as it does not require a good faith effort to perform the approved light duty job; only a perfunctory eight hours of attendance.
II. Revising the Statute to Shift the Burden to the Employee
In 2013, the Georgia General Assembly passed a bill, which was signed by the governor, amending the wording of O.C.G.A. § 34-9-240 to provide that the employee must attempt the approved light duty job for at least eight cumulative hours in order to shift the burden back to the employer/insurer to show that the proffered job is suitable, and the employee’s refusal is unjustified. Prior to 2013, the employee only needed to show up to attempt the job for a minute or two before stating that he could not perform the work and return home to await the resumption of his TTD checks. Now, at least he must work the light duty job for eight hours before his benefits will be recommenced. Unfortunately, the 2013 statutory amendments did not go far enough in ensuring that the employee demonstrates a good faith effort in attempting the light duty job.
At the juncture in most workers’ compensation claims when the WC-240 comes into play, the claim is likely in its final stages and approaching the time for both parties to consider settlement. The employee usually has been totally disabled from work for a period of time—often following a surgery or other medical procedure. Following a phase of recovery from the procedure, the employee is released to return to light duty work. The employer/insurer may decide to make light duty available to him and formulate a job description for submission to the ATP. The employee and his counsel are all too aware that a successful return to light duty work for 15 or more scheduled work days will mean a significant decrease in the indemnity value of the claim. Consequently, the savvy employee’s counsel will instruct the employee to look out for his own economic interests and to attempt the WC-240 offered job for at least eight hours but less than 15 scheduled work days so that TTD benefits will automatically be recommenced upon going out of work. In most cases, we see the employee attempt the job for two or three shifts, totaling 10-24 cumulative working hours, before he claims that he is unable to perform the job secondary to pain, which necessitates the recommencement of TTD.
This process plays out in claim after claim with astonishing regularity. The main driver behind the process is money. Claims will be worth much less money if the employee continues to work or if benefits are not automatically recommenced per the statute following the employee’s attempt of the job for eight cumulative hours.
The assignment of the burden to the employer to show that the employee’s refusal of the light duty job is unjustified presents a nearly insurmountable obstacle in many claims and is out of tune with the goals of the Act as whole; one of which is to “restore the employee to suitable employment”; not to ensure the employee maximum settlement value. O.C.G.A. § 34-9-200.
If the employer/insurer must follow the procedural process as outlined in O.C.G.A. § 34-9-240 and Board Rule 240 to the letter by copying the employee and his counsel on the job description when submitting it to the ATP, obtaining approval within 60 days of an examination, and properly completing Form WC-240 with 10 days’ notice of the return to work date in order to avail themselves to the possibility of a unilateral suspension of TTD benefits, then the burden should be on the employee to show why his refusal of the light duty job is justified. When the employee refuses to continue working the light duty job approved by his ATP, his TTD should not be reinstated pending a hearing on the merits of his argument that his refusal of the light duty job is justified. During the pendency of that hearing request, his TTD benefits would remain suspended until a determination by the ALJ. Given the employee would be left without income during the discovery process, provisions should be made for an expedited hearing on the issues. Nonetheless, the burden should lie with the employee to prevent the posturing and gamesmanship for financial gain that normally accompany the WC-240 process.
Therefore O.C.G.A. § 34-9-240(b)(1) (revisions underlined) should be revised and read as follows:
(b)Notwithstanding the provisions of subsection (a) of this Code section, if the authorized treating physician releases an employee to return to work with restrictions and the employer tenders a suitable job to such employee within those restrictions, then:
(1) Such employee shall attempt the proffered job and continue working such job until it is no longer available or such employee undergoes a change in condition for which the job is no longer suitable per the opinion of his authorized treating physician. If the employee refuses to attempt and continue working the light duty job approved by his authorized treating physician, he shall have the burden of showing that his refusal of the job is justified and that he is entitled to continuing benefits.
This simple revision of O.C.G.A. § 34-9-240(b)(1) will put the statute more in line with the intent of the Act and current realties of the workers’ compensation process. If an employee cannot perform the job as approved his ATP, then he can ask the ATP for additional restrictions or to be restricted from all work. The revision will insure that a refusal of a light duty job proffered through the WC-240 process is indeed justified and not a mere front for increasing the settlement value of a claim. Moreover, it will likely cut several months from the span of the average lost time claim and ensure that employees have more ownership in the return to work process.