Unlike articles that require scrolling through pages of advertisements before getting to the three easy steps to completing a home improvement project, the three-step WC-240 process— the statutory process to offer a claimant a light-duty job—will be explained. We will then discuss the impact of attempting (or not attempting) the job, an outline of the hearing regarding a claimant’s refusal to perform the light-duty job, and the benefits of using the light-duty job process.
The Three-Step Guide
Georgia statutes and Board Rules require the following three steps to be taken to offer a claimant a light-duty job. See O.C.G.A. 34-9-240; Board Rule 240.
First, the claimant must be examined by the authorized treating physician (“ATP”) within 60 days of the date that the claimant is scheduled to return to the light-duty job.
Second, after the ATP examination, a correspondence must be sent to the ATP that contains the following information—and this same correspondence must be simultaneously sent to the claimant (and claimant’s attorney, if applicable):
- the correspondence must request approval of a light duty job, which must include an explanation of the essential job duties, including:
- the hours to be worked, rate of pay, and a description of the essential tasks to be performed.
To satisfy this second step, we recommend sending a questionnaire to the ATP asking (a) the date the ATP last examined the claimant, and (b) whether the claimant can perform the job as described in a detailed paragraph (include the physical requirements of the job, such as any reaching, squatting, lifting, bending, etc.), with a line for the ATP to sign and date.
Third, after the ATP approves of the light-duty job, you must send the claimant (and claimant’s attorney) a correspondence offering the light-duty job: the offer must give at least 10 days advance notice before the claimant is scheduled to return to the light-duty job, and the claimant’s start-date must be within 60 days of the claimant last being examined by the ATP. The correspondence sent to the claimant and claimant’s attorney must include the following information:
- a statement that refusal to attempt to perform the job may result in suspension of weekly income benefits;
- an explanation of the essential job duties to be performed, including the hours to be worked, the rate of payment, and a description of the essential tasks to be performed;
- an attachment showing the ATP, who has examined the claimant within 60 days of the light-duty job beginning, approved the essential job duties; and
- the location of the job with the date and time that the employee is to report to work.
When satisfying this third step of sending the job offer to the claimant and claimant’s counsel, we recommend sending (a) a letter that outlines all enclosures and the date, time, and place for the light-duty job; (b) a completed WC-240a, which similarly outlines the hours to be worked; rate of pay; supervisor; and date, time, and place of the job; (c) a copy of the ATP’s approval of the light-duty job; and (d) a copy of the office notes from the claimant’s visit to the ATP that occurred within 60 days of the light-duty job beginning.
Attempting the Job: The Statutory Time Limits
Now that the light-duty job has been properly offered, the claimant must return to the light-duty job at the set time and place for at least the statutory minimum amount of time—if not, the employer is entitled to unilaterally suspend the claimant’s benefits. As to the statutory minimum amount of time, per O.C.G.A. § 34-9-240, the claimant is required to attempt the job for at least eight cumulative hours or one scheduled workday, whichever is greater. If the claimant attempts the job for less than 8 hours cumulative or one scheduled workday (whichever is greater), a WC-2 may be filed to unilaterally suspend the claimant’s benefits immediately; this WC-2 must have WC-240 attached that also encloses the authorized treating physician’s release and the notice provided to the claimant (i.e. the WC-240 package that was sent to claimant and claimant’s counsel per step three above). Unfortunately, we note that if the claimant performs the job for less than the statutory minimum amount of time, the claimant will almost certainly return to the light-duty job and “attempt” the job for at least 8 hours or one scheduled workday, which will require benefits to be reinstated and a hearing request (described below) to be filed to suspend the claimant’s benefits.
There is also a statutory maximum amount of time: if the claimant performs the job for more than 15 working days, then stops attempting the job, benefits may similarly be suspended by similarly filing the WC-2 that attaches the WC-240 package. We note that the claimant must actually work for 15 days. By way of example, 15 days passing since the claimant began work is not effective: the claimant must have actually performed job duties for 15 days to have the benefits suspended—i.e. show up to work for 15 days, not just 15 days passing while the claimant only works 10 of the 15 days that passed.
In many cases the final outcome of the job offer is that the claimant stops working somewhere between the statutory minimum and maximum amount of time. If that occurs, the claimant’s benefits must be reinstated, and a hearing request must be filed to suspend the claimant’s benefits.
The Hearing Request: Practice Advice to Make Light-Duty Job Effective for Leverage If the result is the common outcome that the claimant attempts the job for somewhere between the statutory minimum and maximum days, TTD benefits must be reinstated and a hearing request must be filed to suspend the claimant’s income benefits—and, if the hearing request is filed within 60 days of the ATP examination, an interlocutory motion may also be filed that seeks to suspend the claimant’s income benefits pending the hearing. See Board Rule 240(e) (regarding the interlocutory motion).
At the hearing, the employer is required to prove that the light-duty job is (1) suitable and (2) available.
The first element—suitability—requires the employer to show that the claimant refused employment suitable to his or her capacity. Thus, the employee must be capable of performing the work within his physical limitations and restrictions. Accordingly, of course the ATP’s approval of the job will need to be tendered into evidence. However, the claimant will almost certainly testify that the light-duty job increased the claimant’s pain, or that the light-duty job required physical activities beyond those represented in the WC-240 job offer. Thus, it is of the utmost importance to be sure that an employee witness, preferably the same employee who approved the job, can credibly testify that the light-duty job was as described in the light-duty job offer and the claimant was not required to exceed restrictions. The employee who approved of the job, who is hopefully the same employee, will testify to both the physical requirements (or lack thereof) and the claimant’s performance of the job. Organization and communication are key during the claimant’s return to work to be sure that the claimant’s return to work complies with the WC-240 job offer.
As to the second element—availability—the employee who approved of the job, or someone similar, must testify that the suitable light-duty job remains available to satisfy this element. In light of the simplicity of this element, the Judge’s decision ordinarily hinges on whether the light-duty job was suitable to the claimant’s physical restrictions.
If the Judge finds the job was suitable and available, the claimant also has the option of pursuing an exception: arguing that the refusal of the light-duty job was “justified.” An employee is justified in refusing work that aggravates his injury, or work that requires relocation, or work that he lacks the skills to perform. However, the claimant is not justified in refusing work due to personal choices unrelated to work, such as the desire to work a particular shift or work only union work. Whether the claimant is “justified” in refusing the job is also primarily up to the Judge’s discretion.
Strategy and Options Following Light-Duty Job
In sum, the WC-240 can be used in a variety of situations, particularly to leverage an accepted claim. When discussing the WC-240 process, the client is often already in a difficult position: the claim has been accepted and work restrictions are in place. The question may come to mind on whether this will be a claim that will still be active years down the road—“the old dog” where it seems only a lucky bit of expensive surveillance will close the claim. At this uncertain state between knowing whether the claim will be around for years versus pushing for a change in condition for the better, the employer is often left with limited options: (1) seeking a change in condition for the better following independent medical evaluation(s) or surveillance, (2) waiting to see if the authorized treating physician will eventually release the claimant to full-duty, or (3) determining whether a light-duty job is available.
The first option—seeking a change in condition for the better following independent medical evaluations or surveillance—is expensive, and is recommended only after the claimant stops performing the light-duty job (if one is available). The light-duty job is ordinarily a better option, because starting with independent medical evaluations can be a roll of the dice, especially if the claim has not yet been in litigation, and medical history is an unknown. As a result, there is not much evidence to point to the IME doctor to a pre-injury baseline from pre-existing conditions. Moreover, the IME can be a roll of the dice because while there may be red flags in the claim file, the primary information is from the authorized treating physician, whose work restrictions are likely based in large part on the claimant’s subjective complaints and objective imaging. Consequently, there is no indication that the claimant’s symptoms may be lingering, and the IME can arguably be a shot in the dark. Similarly, while surveillance can provide evidence that substantially sways in favor of closing the claim, surveillance is very expensive and similarly may be a shot in the dark.
However, it is recommended, prior to setting an IME or conducting surveillance to work to identify a suitable light-duty job, as the light-duty job allows the insured witnesses to lay eyes on the claimant to assess the veracity of the claimant’s complaints. Further, depending on the job, the light-duty job may indicate that the claimant is attempting to drag out benefits and exaggerating symptoms, in addition to giving arguments to suspend the claimant’s income benefit. Finally, from a strategic standpoint, the light-duty job refusal begins to lay the groundwork for the Judge to see the claim from the employer’s side of the story—questioning the claimant’s willingness to return to work, while the employer remains willing to offer suitable work.
By: Robert Wright