So the doctor has said that the employee can come back to work but that he needs some accommodation since he's not yet over the injury (still has restrictions) so what do you do? You can always offer a job to your employee whether you follow the statutory process or not but as with most things, if you want the protection of the law, you need to follow the rules. So, before we get into the rules, let's decide, WHERE ARE WE? You need to know first, is the employee on income benefits. Georgia, as a return to work state, starts with the status quo and puts the burden of proof on the party wishing to change the subject. If the claimant is not on benefits, the burden is on that employee to show an entitlement to disability. If the claimant is receiving TTD, then the burden is on the employer to show that there is suitable work available, approved by the treating physician which has been approved by the authorized treating physician. That short explanation is loaded with implication so we'll break it down in this post.
In the instance where the employee is not currently receiving income benefits, then the procedures set forth in the Official Code of Georgia Annotated (hereinafter OCGA) Section 34-9-240 will not apply. In other words, the employee has been injured but has not be taken completely out of work and the employer can simply tell that employee, "come on back to work, we'll take care of you. If you want to get paid, you'll need to work for it like the rest of your co-workers." This does NOT mean the employer can abuse the employee (jerk him around in the common parlance) and expect that it can avoid liability for income benefits if they force the employee to work beyond his capacity. On the contrary, the employer should take pains to make sure that the employee does nothing beyond the restrictions identified by the authorized treating physician. The employer should make sure that no one on its staff either request or require the injured worker to work beyond what the treating physician has said that he can do.
If, on the other hand the employee is receiving income benefits, then the employer needs to follow the procedures found in OCGA Section 34-9-240 and Board Rule 240. The code section reads:
(a) 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, except benefits pursuant to Code Section 34-9-263, at any time during the continuance of such refusal unless in the opinion of the board such refusal was justified.
(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 the employee within those restrictions, then:
(1) If the employee attempts the proffered job and 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 the employee is not entitled to continuing benefits; or
(2) If the employee 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 the employee did not attempt the proffered job. Under those circumstances, the burden shall shift to the employee to prove continuing entitlement to benefits.
For its part, Board Rule 240 spells out HOW the process is to be accomplished. It provides:
a) For suspension and reinstatement of income benefits by interlocutory order generally, see Board Rule 102D.
(b) When an employee unjustifiably refuses to accept employment which has been approved by the authorized treating physician(s) suitable to his/her impaired condition and offered to the employee in writing, the employer/insurer may suspend payment of income benefits to that employee without an order of the Board in the following manner:
(1) File with the Board a Form WC-2 and Form WC-240 certifying that at least ten days before the employee was required to report for work he/she was notified on the completed Form WC-240 mailed to the employee and his/her attorney that there was a suitable job available, that it was approved by his/her authorized treating physician(s) after an examination within the last 60 days, and refusal to attempt to perform the job would result in the suspension of payment of weekly income benefits to the employee. The employer/insurer shall provide to the employee and legal counsel a copy of any job description/analysis in reference to subparagraph (2)(i), (ii) and (iii) at the time of submission to the authorized treating physician(s).
(2) If filing via EDI, section (b)(1) shall be followed and the employer/insurer shall simultaneously mail to, or electronically file with, the Board the filed Subsequent Report of Injury (SROI) or Form WC-2 and a copy of the served Form WC-240 and supporting medical report from employee's authorized treating physician. Pursuant to Board Rule 60(c), all documents filed with the Board shall contain the employee’s name, date of injury, and Board claim number. Any document that does not contain this information shall be rejected by the Board. Copies of all filings shall be served on the employee and the employee’s attorney, if represented.
(i) A description 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;
(ii) The written approval of the authorized treating physician(s) of the essential job duties to be performed;
Attaching a properly completed Form WC-240A will satisfy the requirements for making a proper offer of employment as set forth herein.
(4) If the employee refuses to attempt to perform the proffered job after receiving the above notification, the employer/insurer shall be authorized to suspend payment of income benefits to the employee effective the date that they unjustifiably refused to report to work.
(c) Should the employee accept the employment offered by the employer/insurer but fail to continue working for more than the prescribed fifteen (15) scheduled work days, the employer/insurer, whether or not they have sent a WC-240, shall immediately reinstate payment of income benefits and shall file with the Board and serve upon the employee the appropriate Form WC-2 reflecting the reinstatement of income benefits.
(i) Failure to immediately reinstate benefits pursuant to Board Rule 240 (c), shall result in the waiver of the employer/insurer's defense of the suitability of employment for the period of time the employer/insurer did not pay the employee's weekly income benefits when due.
(ii) When the employer/insurer immediately reinstates benefits pursuant to Board Rule 240 (c), the employer/insurer are entitled to seek reimbursement of such benefits at a hearing addressing the suitability of the proffered employment
(d) When calculating the fifteen (15) scheduled work days provided by statute, the employer/insurer shall include as a work day each day or part thereof during which the employee is scheduled to perform his/her job duties.
(e) The employer/insurer shall also be entitled to suspend payment of weekly benefits to the employee pending a hearing by an order of the Board finding an unjustifiable refusal of the employee to accept employment procured for him/her suitable to his/her capacity. A motion requesting this order may be made simultaneously with the filing of a request for hearing or at any time during the pendency of the hearing and award and shall be filed on Form WC-102D, and must be accompanied by an affidavit from the employer setting forth that suitable employment has been offered to the employee as set forth in (b) above, the offer is continuing, and analysis of the job is attached. The employer/insurer shall have the employee examined by the authorized treating physician(s) within 60 days prior to this request for suspension of income benefits. No request for suspension of income benefits for failure to accept suitable employment shall be granted unless the authorized treating physician(s) approve(s) the job offered by the employer/insurer. A party who objects to this motion shall file their response on Form WC-102D with the Board within 15 days of the date of the certificate of service on the request, and shall serve a copy on all counsel and unrepresented parties.
(f) The Board may also issue an interlocutory order reinstating weekly income benefits pending a hearing. A party making this motion shall file Form WC-102D, and shall serve a copy, along with a copy of supporting documents, on all counsel and unrepresented parties. A motion requesting this order may be made simultaneously with the filing of a request for hearing based on a change in condition or at any time during the pendency of the hearing and award and must be accompanied by an affidavit of the employee setting forth his contentions, along with current medical records when applicable. A party who objects to this motion shall file Form WC-102D with the Board within 15 days of the date of the Certificate of Service on Form WC-102D and shall serve a copy on all counsel and unrepresented parties.
(g) In the event the employee's weekly benefits are suspended pursuant to O.C.G.A. § 34-9-240(b)(2), the employer/insurer shall comply with O.C.G.A. § 34-9-263 and Board Rule 263.
The code section establishes that if the employer has work that it wants to offer to the employee to perform, that the employer needs to get the AUTHORIZED treating physician (in other words an IME opinion doesn't count) to approve the job and then to offer the job to the employee with 10 days notice on form WC240. Georgia Board Forms are easily accessible on the State Board’s website at http://sbwc.georgia.gov/board-forms. At this point we should make a distinction between form WC240 and WC240a. The WC240a is the JOB DESCRIPTION FORM whereas the WC240 is the JOB OFFER form. The basic idea behind the WC240 process is that the employee can be forced to return to work lest his benefits be suspended for failure to cooperate and perform the suitable position.
To understand the WC240 process, a bit of history is in order. Prior to 7/1/94, employees were reluctant to return to work as a return to work meant an immediate suspension of income benefits. If the employee tried the job and decided, even legitimately that he could no longer perform the position, the employee had to ask the employer (who could easily refuse) to recommence benefits. If the Employer refused then the employee had to request a hearing and over the next 6 months till an award was issued, the employee watched his leverage, livelihood and his finances evaporate. The practical result is that many employees refused to return to work necessitating litigation. The WC240 process was instituted to avoid the litigation and to provide the employer with a method for forcing the employee back to work and for the employee to try the job and make sure that the position is in fact suitable.
The Employer’s leverage is the ability to unilaterally suspend when the employee returns to work or when he fails to return to work. The employee’s leverage is in the 15 grace period during which time if the employee stops working the employer must recommence payment of income benefits. A close comparison between the statute OCGA 34-9-240 and Board Rule 240 would show that the statute speaks to an INABILITY to perform the job as the basis for recommencement, whereas Board Rule 240 speaks simply to a FAILURE to continue working. While the State Board might have exceeded its rule making authority in making that distinction, the next section of the rule, subsection i makes plain that “ Failure to immediately reinstate benefits benefits pursuant to Board Rule 240 (c), shall result in the waiver of the employer/insurer's defense of the suitability of employment”. In short, the Board wants to keep the parties on their best behavior by ensuring that the Employee is not disadvantaged by returning to work. The Employer who fails in the obligation will not be heard to later complain that the job was suitable and that the employee was unreasonable in failing to do the job. For his part, the employee who fails to try the job will not be later heard to complain that if he had, the job would not have proved suitable. In short, the employee has to TRY the job and if he cannot do it, the employer has to recommence and if he feels that the effort to do the job was insincere then the employer can request a hearing and convince the judge of that insincerity on the part of the injured worker.
The State Board of Workers’ Compensation has published a model RTW program at http://sbwc.georgia.gov/sites/sbwc.georgia.gov/files/imported/SBWC/Files/erwm.pdf. An astute observer will notice that the model program does not require the use of the WC240a (JOB DESCRIPTION FORM) and that it does require use of the WC240 job offer form. The WC240a job description form was designed to express in ergonomic terms the physical requirements of the job. Using that form helps the treating physician to understand what is being asked of the injured worker so that the physician can make an educated judgment as to whether the employee can do the job. In that respect the form would help not only the treating physician but also the Administrative Law Judge to understand what the employee was asked to do so as to make a better judgment about whether the employee is legitimately unable to do the job or whether he’s just sandbagging. What the State Board will not countenance is the Employer starving out the Employee while the litigation ensues.
Please see our upcoming post for Creativity and Flexibility in Return to work efforts in an upcoming post on 8/13/2012 as well as our previous post on 8/6/12 for Return to Work, Issues and Strategies.
"Skedsvold & White
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