Worker's Prospects of Returning to Work

While the prospect of returning an injured employee to work is somewhat frightening and very often perilous, it may also present the employer with a golden opportunity to gain control over its workers’ compensation claims. If handled correctly, it can, and most often does, lead to less expensive claims and an improved reputation at the State Board of Worker’s Compensation.

A return to work in this context assumes that the employee had a valid injury which was accepted as compensable and that he/she has been released to perform less than full duty unrestricted work. It is also important to note that a return to normal duty or a release without restrictions. If the employee has been released to normal duty, the employer is under no obligation whatsoever to return that employee to work or to continue paying benefits.

If, however, your injured employee has restrictions, it is unquestionably to your advantage to offer a return to suitable work. In the context of the Worker’s Compensation system, suitable work is that work which is suitable to the physical restrictions given to the employee by the authorized treating physician. The Georgia Supreme Court made clear in City of Adel v. Wise, 261 Ga. 53, 401 S.E.2d 522 (1991), that the only relevant inquiry in this context is whether the job duties are suitable to the employees restricted capacity. It matters not, whether the employee does not like the employment or whether the job offered provides an opportunity for advancement. The only question is whether the employee is physically capable of performing that job. Reasonableness is important, however, in that the State Board will not likely require the employee to work at job over 200 miles from the employees home.


The strategy which the employer must use in offering or forcing a return to work must necessarily depend on the date of the employee’s accident. Prior to July 1, 1994, the employer was required to offer a job to the employee and, if the employee unreasonably refused, to request permission from the Board to suspend. THE EMPLOYER WAS NOT PERMITTED TO UNILATERALLY SUSPEND THE EMPLOYEES BENEFITS FOR PRE 7/1/94 CASES UNLESS THE EMPLOYEE ACTUALLY RETURNED TO WORK. Changes in the act, which became effective on July 1, 1994, do allow a unilateral suspension but place additional responsibilities on the employer.

　

PRE-7/1/92 INJURIES

For these claims, the employer has been and always will be at a distinct disadvantage. The injured employee has an unlimited number of weeks he/she can receive worker’s compensation benefits. Those benefits could only be suspended if the employee actually returned to work for the same or another employer or if the employee was released to return to work at normal duty by the authorized treating physician. If the employee did return to work, the focus then shifted to whether the employee was earning less than the pre-injury wage. If so, temporary partial disability (TPD) benefits (2/3 of the difference up to a maximum of $150.00) were then owed. The employee is only eligible for TPD for 350 weeks from the date of the injury.

Without the authorization for unilateral suspension of benefits, it is easy to see how this employee could simply sit back and collect benefits indefinitely. In order to prevent this, or stop it once it has occurred, the employer must be willing to offer this employee a job and force the employee back to work under penalty of suspension of his benefits.  If the employer will not tender such an offer, then the choices are to continue paying income benefits to the employee or to engage the services of a rehabilitation supplier to assist the individual in finding a job. Rehabilitation services can be expensive and do not always net the desired result. The end result is still somewhat controlled by the employee who can, through subtle means, frustrate job search efforts.

　

CLAIMS OCCURRING BETWEEN

7/1/92 AND 7/1/94

The Worker’s Compensation act was amended, effective 7/1/92 changing the substantive rights and procedures for suspension of income benefits for employees with continuing restrictions. This applies only in non-catastrophic cases. Again, THERE WAS NO UNILATERAL SUSPENSION OF BENEFITS ALLOWED UNTIL THE EMPLOYEE ACTUALLY RETURNED TO WORK. The State Board has issued a form, FORM 104, which is to be used when the employee was given light duty restrictions. (This form is still applicable under the present act but its utility is limited given other substantive changes effective 7/1/94). When the authorized treating physician gives the employee limited duty restrictions (in other words no longer completely disabled) the employer/insurer is obligated to complete Board Form 104 and to send a copy of the completed form to the employee notifying him/her of the restrictions. This form needs to be provided to the employee within 60 days of the date of the doctor’s release.

If the employee was properly notified of the release, then the clock starts to tick on the employees entitlement to continued total disability. While the employee has light duty restrictions, he/she is entitled to receive only 52 consecutive weeks of T.D. and 78 weeks total. If the doctor excuses the employee from work at any time during that period, the time starts over. If the employee reaches 52 weeks and has not returned to work then the employer is authorized to unilaterally convert these benefits to temporary partial disability. For these purposes, the average weekly wage should be deemed to be $0.00. The employee would most often be entitled to the maximum T.D. rating. If the T.D. was less than the maximum T.D. rating, you should continue the same amount but classify it differently as T.D. by filing a W.C.-2. This will allow you to suspend T.D. at 350 weeks after the date of the injury if the employee has still not returned to work.

For those cases occurring before 7/1/94, a motion may be filed with the State Board requesting a suspension of benefits for the employees unreasonable refusal to return to employment which has been deemed suitable by the authorized treating physician. The employer must in this case give written job description to the doctor who reviews and hopefully approves it. If approved, the job offer is given in writing to the employee. If the employee refuses to return to that job, the employer then 1) requests an evidentiary hearing to determine if the employees benefits should be suspended and 2) files a motion for an interlocutory order requesting a suspension of benefits pending the hearing. Attached to that motion must be the employer’s affidavit that the job description is accurate and that it continues to be available to the employee. Also, attached must be the job description signed and approved by the doctor. THE JOB DESCRIPTION MUST BE TENDERED WITHIN 60 DAYS OF THE DOCTOR ASSIGNING THE RESTRICTIONS BASED ON AN ACTUAL OFFICE VISIT. The employee then has the opportunity to object to the motion within 15 days. Thereafter, the Board will issue its order which must be followed pending the hearing.

　

POST 7/1/94 INJURIES

Effective 7/1/94, O.C.G.A. §34-9-240 was amended to allow for the unilateral suspension of benefits if an employee does not return to suitable approved employment. The job must be tendered to the employee on Board form 240 which advises of the job duties and the date on which the employee is expected to return. If the employee refuses to attempt the job, the employer should then file a copy of that form along with a WC2 suspending the TTD benefits. Under this procedure, there is no obligation to commence TPD benefits to the employee. After this suspension, the Employee had the burden of showing the refusal was justified.

Board Rule 240 also indicates that you "should" copy the Claimant or his/her attorney with a request to approve a job. Is the word "should" permissive, or is it mandatory like "shall"? I recommend copying Claimant’s attorney with these requests, but I think this rule exceeds the Board’s rule-making authority. It is especially irritating that Claimant’s attorney’s are not required to copy us with their letters.

Board Rule 240 requires that a WC-240 be sent to the Claimant’s attorney and Claimant (even if represented). This form must have the approval of the job description attached and contain the job description. The other information is things like when and where to report, pay rate, and so forth.

This form must be received 10 days before the job starts per Board Rule 240. I also think the hard and fast 10 day notice exceeds the Board’s authority. The board should require reasonable notice which is 7-10 days. Board Rules, however, cannot be substantive and change the outcome of a case. Under the statute, a Claimant who receives 9 days notice must report to work. Under the rule, that Claimant does not have to report and the Employer/Insurer cannot suspend benefits. To be safe, though, give 10 days notice.

If the employee returns to the proffered job, then the benefits should be automatically suspended with the filing of a WC-2 indicating an actual return to work. If the employee cannot perform the job for more than 15 days, then he/she shall be placed badk on benefits. The burden of proof in this instance is on the employer to show that the claimant was indeed capable of performing the job.

Where the Claimant works less than 15 days, Board Rule 240 also holds now that the Employer/Insurer cannot have a hearing until TTD is commenced. This rule is consistent with the law.

**************STRATEGY***************

If the employee returns to work but indicated that he/she cannot do the job, then immediately arrange for the authorized physician to see the employee for a follow-up visit. The appoinment should be made for the same day if possible so that the doctor can get a timely evaluation done and advise as to whether the employee should, or should not, be doing the job. A fovorable opinion from the physician should be sufficient to carry your burden of proof. Your supervisors should be made aware of the situation so that they can keep their eyes and ears open. It would be a good idea for the supervisor to keep records of any conversation, especially during this 15 day period, should the need for testimony arise. 
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