• A Successful 240 - Ensuring a Valid Offer of Suitable Light-Duty Work and an Unjustified Refusal
  • January 16, 2015 | Author: Sherrill N. Britt
  • Law Firm: Drew Eckl & Farnham, LLP - Atlanta Office
  • You know the scenario. The Employer is certain that the injured worker is milking his disability status and is capable to return to work. Co-workers report seeing the alleged injured worker out and about in town engaging in activities (partying, hunting, fishing, exercising, riding horses) that are inconsistent with the agonizing complaints of pain limitations the claimant is giving the authorized treating physician. Despite the evidence of the injured worker’s active lifestyle, the authorized treating physician still has the claimant under restrictions. This is about the time that the adjuster and the employer put their heads together to come up with a light-duty job within the scope of the doctor’s restrictions. A series of emails and phone calls go back and forth preparing the job description to send to the authorized treating physician. Fingers are crossed that the job will be approved and either the claimant will return to work, and benefits can be suspended, or the claimant will refuse to attempt the job, and benefits can be suspended. Although there are plenty of situations when an employer wants the injured employee to return to work, and the injured employee is eager to return to the job, these scenarios often do not end up in litigation. Thus, most of the topics in this article are unnecessary in those ideal return-to-work situations.

    In many of the cases, returning a claimant to work while on restrictions occurs way before the claim is sent to the defense attorney due to pending litigation. On the other hand, many claimants have their attorneys on speed dial, and these attorneys are waiting for one simple misstep to attack the return to work. In fact, at the 2014 educational conference hosted by the State Board in Atlanta, the technicalities of O.C.G.A. § 34-9-240 and Board Rule 240 were discussed and claimants’ attorneys were listening and taking notes. To ensure all of the hard work that goes in to a successful filing of WC-240 and getting the claimant back to work, this article discusses the rules and some of the technicalities that claimants’ attorneys will likely use to attack an employer/insurer’s claim of an unjustified refusal of suitable light-duty work.

    Under O.C.G.A. § 34-9-240(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 PPD benefits) at any time during the continuance of such refusal unless in the opinion of the board, such refusal is justified. If the injured employee attempts the job for eight hours or one scheduled work day, 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 employer has the burden to prove that the injured worker is not entitled to continuing benefits. O.C.G.A. § 34-9-240(b)(1). On the other hand, if the employee attempts the proffered job for less than eight hours or one scheduled work-day, whichever is greater, or refuses to attempt the proffered job, then the employer may unilaterally suspend benefits upon filing the appropriate form with the board with supporting documentation of the release 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 employee has the burden to prove continuing entitlement to benefits. O.C.G.A. § 34-9-240(b)(2).

    So the whole process sounds pretty simple, right? All the employer/insurer must do is draft a job description, get the authorized treating physician’s approval, and offer the job to the claimant. Right? If the injured worker fails to return to work to try the job or works for less than eight hours or one scheduled work day, the employer/insurer can simply file the WC-2 and suspend benefits. Not so fast! Board Rule 240 further establishes the technicalities that claimants’ attorneys are just hoping the employer/insurer are neglecting to follow to argue an invalid and improper suspension of indemnity benefits.

    The first priority is obtaining a copy of the claimant’s restrictions, and drafting a job description that falls within the scope of the restrictions given by the authorized treating physician. Once the job description is drafted, the employer/insurer must have the job approved by the claimant’s authorized treating physician. Although it sounds simple, in many cases, determining the authorized treating physician can take some work in complex claims when a series of referrals have transpired during the injured worker’s medical treatment. Additionally, if the claimant has more than one authorized treating physician due to different injuries, the job description must be approved by each authorized treating physician who still has the claimant under restrictions for the on-the-job injury. Once the employer/insurer determine the authorized treating physician(s), the employer/insurer must determine if the authorized treating physician has examined the injured worker within the 60 days. Board Rule 240(b)(1). If it has been more than 60 days since the claimant has been examined by the authorized treating physician, the employer/insurer should schedule an appointment for the employee and send a copy of the proposed light-duty job description to the authorized treating physician for approval. If the job description is in the form of a questionnaire, remember to include a signature and date line to be completed by the authorized treating physician so that there will be no question that the job description was in fact approved by the authorized treating physician.

    In addition to sending the proposed job-description to the authorized treating physician, the employer/insurer must also provide a copy of any job description/analysis to the claimant and the claimant’s attorney, at the time of submission to the authorized treating physician. Board Rule 240(b)(1). According to this rule, sending an “aha” letter to the claimant’s attorney along with the completed WC-240 attaching the approved job description is not complying with the rule and could be grounds for a judge to find that a suitable light-duty job was not properly offered to the claimant. During the recent educational conference in Atlanta, this particular rule was discussed at length with defense attorneys sharing stories of challenges to a benefit suspension on the grounds this technicality. Claimants’ attorneys who were not aware of this loophole have been so enlightened and will be waiting to challenge a TTD suspension or proffered light-duty job. Although there is the concern that the claimant’s attorneys will try to “poison the well” by contacting the authorized treating physician to convey sob stories of the claimant’s pain and the employer/insurer’s lack of concern, the fact remains that the rule requires the employer/insurer to send the claimant and his attorney a copy of the proposed job at the same time the job is sent to the authorized treating physician.

    Once the light-duty job is approved by the authorized treating physician, a valid offer of light-duty work is not complete. The employer/insurer must complete a WC-240 that includes the following: 1) 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; 2) the written approval of the authorized treating physician of the essential job duties to be performed; and 3) the location of the job, with the date and time the employee is to report to work. Board Rule 240(b)(3). The completed WC-240 along with the approved job description must be mailed to the claimant and his attorney at least ten days before the claimant is required to return to work. Board Rule 240(b)(1).

    Assuming all of the formalities discussed above were followed, a successful offer of suitable light-duty work and unjustified refusal argument require additional work for the employer to properly document the return-to-work in case the issue ends of in front of a judge. All too often, a claimant tells a judge that despite the approved job description, the employer made the claimant perform a series of tasks that exceeded both the written job description and the claimant’s restrictions. To avoid this scenario altogether or to be in a position to refute a claimant’s testimony during the hearing, an employer can take a few extra precautions. Before a claimant ever returns to work, the employer should identify the person(s) responsible for supervising the claimant during the light-duty return to work, who can be different from the claimant’s normal supervisor. The supervising employee should not only be provided a copy of the approved job description, but also, the supervisor should be instructed to keep detailed notes of the return to work that may be critical if the claimant makes an allegation that he or she was asked to perform work outside of his or her restrictions. The ideal supervisory notes should include the different tasks the claimant was actually asked to perform, identify any employees working closely with the claimant during this time period who may later be witnesses at a hearing, observations of a claimant’s physical abilities (i.e. squatting down and bending over during frequent smoke breaks when the claimant alleges a debilitating lumbar injury), and specific details if the claimant does not report to work or leaves early. Again, while this documentation may seem like a waste of time for an employer, this information could be essential as this issue may be litigated months after the attempted return to work when memories have faded.

    Remember, claimants’ attorneys are keenly aware of these required procedures and will jump at the opportunity to argue an invalid offer of suitable light-duty work. A successful offer of light-duty work requires following the rules established in O.C.G.A. § 34-9-240 and Board Rule 240. Simply, there is no reason to go through all of the work to draft the job description and obtain the authorized treating physician’s approval to lose in the end by not following the black-letter of the law and the rules.