by Zach Kunz
Atlanta, GA – Anyone who has handled workers’ compensation claims in Georgia knows that the WC-240 process is cumbersome, time consuming, and often ultimately ineffective at returning an injured employee to work. We have all seen the system manipulated firsthand. Though, the Georgia Worker’s Compensation Act demands strict compliance from the employer/insurer with arduous procedural hurdles established by O.C.G.A. 34-9-240 and Board Rule 240 (see below), the injured employee is only required to briefly attempt the light duty job (whether in good-faith or not). It is incredibly important to understand the proper procedures, but the reality is that most of the injured workers that are forced to return to work will quit after working the bare minimum (eight cumulative hours or one scheduled workday, whichever is greater). This refusal of what we believe is likely suitable employment results in litigation and increased legal spend, where the employer/insurer still must carry the burden of proof that the refusal of light duty was unjustified. All the while the employee continues to receive a weekly Temporary Total Disability (TTD) check over the next six to nine months before the actual hearing, which then will take another one to three months for the ALJ to render a decision that then can be appealed to the Appellate Division. Ideally, the injured worker does not attempt the job at all and the employer/insurer will be able to unilaterally suspend benefits.
Unfortunately, the law isn’t going to change on this issue anytime soon, so we must make sure we understand the WC-240 process, how to effectively utilize it, and when/how it can be avoided completely. The first part of this three-part series (epic trilogy) will outline the proper procedures that must be followed when the WC-240 process is unfortunately necessary and how to effectively use it. The second chapter will outline when the WC-240 process is required and when it is not. The third and final part will outline different strategies that we recommend employers and claims handlers should implement in the workplace to avoid the WC-240 process to begin with.
Part I: The WC-240 Process
The Workers’ Compensation Act under “The Suitable Employment Statute” states: “if an injured employee refuses employment procured for him or her and suitable to his or her capacity, such employee shall not be entitled to any compensation . . . at any time during the continuance of such refusal unless in the opinion of the board such refusal was justified.” O.C.G.A. §34-9-240. The employer/insurer can simply request a hearing asserting a change of condition for the better under O.C.G.A. §34-9-104. However, simply requesting a hearing does not allow the employer/insurer to unilaterally suspend the employee’s TTD benefits based on an employee’s refusal of suitable light duty work. O.C.G.A. §34-9-240 and Board Rule 240 outline the strict procedures that must be followed to unilaterally suspend the claimant’s TTD benefits for unjustifiably refusing suitable employment without an evidentiary hearing.
Properly Completing the WC-240 Process:
The Board requires strict compliance with the WC-240 process to unilaterally suspend TTD for the unjustified refusal of light duty. The process can be broken down into seven “easy steps” that make up the WC-240 process:
- Identify a light duty job: The employer/insurer must identify how to accommodate the claimant’s light duty restrictions.
- Prepare the job description for approval: The employer must prepare a written correspondence to the authorized treating physician, which provides a description of the job duties, hours, rate of pay, and/or physical requirements of the job. This can be done by completing a WC-240a form; however, we recommend providing a job description with questionnaire for the doctor to approve.
- Send the job description to the ATP for approval and the claimant/attorney: The employer/insurer is required to send the job description at the same time and in the same manner (email, fax, etc.) to the claimant AND the attorney.
- Obtain approval from the ATP within 60-days of last examination: The ATP should provide the date of the last examination on the questionnaire response/approval.
- Complete the WC-240 form and attach the doctor’s written approval of the job description: Once approved, the employer must complete the job offer on a WC-240 form, which includes:
- Job Title and job description/essential duties, rate of pay, location of job, hours/days to be worked;
- The start date and time to report (Must provide 10-days notice); and
- Attach the approved WC-240a or approved job description from the ATP.
- Provide 10-Days’ Notice of the job offer: The employer/insurer must send the completed WC-240 and WC-240a or approved job description to the employee and their attorney at least 10-days before the start date.
- File a WC-2 with both the WC-240 and WC-240a: on the actual start date of the job offer you will file a WC-2 suspending the claimant’s TTD benefits with both the WC-240 and WC-240a attached. Depending on whether the claimant attempted the job or not, will determine what box you check on the WC-2.
- If the claimant returned to work, you will check box 2) or 3) in section “C” depending on whether the claimant returned to work at their pre-injury rate of pay or higher, and attach the WC-240 and WC-240a.
- If the claimant does not attempt the job at all you will check box 6) in section “C” and attach the WC-240 and WC-240a.
When completing the written job offer (WC-240 form), we recommend creating a full job offer package with a letter clearly explaining the job that is being offered and outlining all the information from the WC-240 (job title, essential duties, rate of pay, start date/time/place, etc). The letter should also inform the claimant that refusing to attempt the job will result in the suspension of his weekly income benefits. The package should include the WC-240 and the WC-240a. The letter will undermine any potential argument from a pro-se or formerly unrepresented claimant that they did not understand or overlooked the WC-240 form.
Automatically Recommencing TTD Benefits:
If the above steps are followed correctly, the claimant is statutorily required to attempt the job for at least eight cumulative hours or a full workday, whichever is greater. If the claimant does not attempt the job for the requisite time period, then the employer can file a WC-2 to suspend based on the unjustified refusal of light duty work (Section C, Box 6). If the claimant attempts the job for the requisite minimum period but less than 15 working days before stopping, the employer/insurer must immediately recommence the claimant’s TTD benefits. Failure to immediately reinstate benefits in this scenario acts as a waiver of our defense regarding the suitability of employment.
If the claimant attempted the light duty job for 15 days prior to claiming he can no longer perform the job, we are not required to reinstate his TTD benefits as the burden of proof will be on the claimant to prove a change of condition for the worse at a hearing. It is important to note that the 15 days must be actual working days not just 15 days since the employee returned to work.
Strategies to Improve the Suitable Employment Defense:
Most claimants (especially those that are represented) will work the minimum statutory period and then claim that they cannot continue, thus forcing us to recommence TTD benefits and request a hearing. Even the claimants that initially fail to work the minimum timeframe, will likely request to return to the job and then quit after reaching the minimum so that we still have to recommence benefits. Once this happens, your attorney will request a hearing to suspend the claimant’s income benefits and must prove that the light duty job was 1) suitable and 2) available. Board Rule 240(c) also states that we are entitled to seek reimbursement of such benefits at the hearing.
The claimant will likely claim that the job offered was outside their physical restrictions or increased their pain levels, or they are in too much pain to work at all. The employer/insurer will need an employer witness to testify that the job duties the claimant performed were within the approved description and that the job is still available. There are some simple steps/strategies that employers can use to set up your attorney and witness for success, while the claimant is still attempting the light duty job:
- Provide a job that is well within the ATPs restrictions.
- Choose an employee that you believe can testify effectively in court act as the claimant’s supervisor and monitor every task that the employee performs to ensure that they are not performing work outside the job description and ATP’s restrictions.
- If possible, setup the claimant’s workstation/job duties in clear view of a surveillance camera and archive the footage.
Surveillance of a claimant attempting their light duty job can easily be used to contradict testimony and prove that the claimant did not perform any job duties outside his restrictions. Ideally, your attorney will depose the claimant prior to turning over this footage during discovery. Often the presence of this footage alone will create leverage to settle the claim.
Once benefits are reinstated, your attorney can also file a Motion seeking an Interlocutory Suspension of Benefits pending the hearing. See Board Rule 240(e). ALJs will often deny the motion and defer the decision to an evidentiary hearing, an effective motion can be successful with an affidavit from the employer witness setting forth that suitable employment has been offered, the offer is continuing, and with the job description attached. At a minimum, filing the motion allows the employer/insurer to outline our defenses for the Judge prior to the evidentiary hearing. This can be helpful because generally the Judges do not have much information about the claim prior to the hearing besides what little they can glean from the filed Board forms. Your attorney has the opportunity to outline the history of the claimant’s injury/accident, which can potentially sway the judge’s opinion of the claimant prior to the hearing even when/if the motion is denied.
Final Takeaways and Suggestions:
Though the WC-240 process is frustrating and egregiously manipulated, going through the process allows your attorney to move the claim into litigation and use the job offer in settlement negotiations. Once in litigation, your attorney can investigate the claimant’s medical history, work status, or anything else that could lead to admissible evidence. Often discovery will produce evidence we can leverage to push for settlement, additional defenses, or that we can provide to the doctor to push for a full duty release.
We understand that it is not always feasible for an employer to provide light duty work and certainly not for an extended period. However, we also know the system is heavily manipulated. Therefore, we should take advantage of that. To do this, the employer must be willing to commit to offer a light duty job continuously, but the reality is that the claimant is likely going to try the job then quit, so the employer will only provide light duty for a few days. If the claimant actually returns to work for an extended period of time (effectively calling the employer’s bluff) then we end the light duty job assignment and recommence TTD benefits.
Even if the employer is only offering limited hours of light duty, forcing the claimant to go to work every day for a few hours can be effective in pushing a claim to settle. It is also more difficult for a claimant to argue that their refusal is justified if they are only required to work limited hours per day. There would still be exposure for TPD benefits due to the reduced hours, but this is outweighed by the leverage created.
If you cannot create a position and a claimant is receiving TTD benefits, our TTD exposure will extend for as long as the claimant has restrictions. Simply threatening to return the claimant to light duty can reduce the claimant’s attorney’s settlement range. Even prior to mediation, creating a light duty job (WC-240a) and obtaining approval from the doctor can be an effective tool to push the claim to settle as an effective mediator will explain the process and everything that we will do during the discovery process to force them to return to work.
Despite the frustration, the WC-240 process is still a critical tool in a limited arsenal to reduce exposure in compensable claims. We highly recommend employers make every effort to create a return-to-work program even in a limited capacity, so that you can use the WC-240 process to move the claim toward a reasonable resolution.