One of the most effective ways to control a claim and lower potential exposure is to offer the claimant suitable light-duty employment with the employer or a third-party, return-to-work vendor. Doing so allows the employer to keep track of the claimant’s activities and provides leverage for resolving claims. Below are strategies for employers to follow to save costs and unnecessary litigation.
Pre-Claim Strategies
Returning an injured employee to work starts before the accident has even occurred. Ideally, employers should have a valid panel of physicians posted in several locations on their premises and a defined chain of notification when accidents are reported to supervisors. When an employee reports an accident, the supervisor should immediately notify management so it can be recorded, and the injured employee can be offered treatment.
The employer should also identify potential job duties that could be performed under work restrictions, i.e., mostly sedentary, or minimal lifting. This way, employers can be prepared with job offers when the injured employee has attended his initial medical evaluation.
Employers should also prepare a form letter to make written offers as soon as they know of a claim. The letter must be updated based on the injured employee's particular work restrictions, but employers can save time by not having to create a new letter for each claim.
Light-Duty Employment Within the Seven-Day Waiting Period
Usually, after the initial medical treatment, the authorized treating physician (ATP) will assign the injured employee work restrictions. If these work restrictions cannot be accommodated within a reasonable time of the treatment, i.e., one week or less, then income benefits must be commenced to avoid potential penalties.
After obtaining the light-duty work release from the ATP, the employer must identify suitable work duties within the injured employee’s restrictions. To avoid confusion, it is always best to make any job offers in writing and require a signature from the injured employee. If the job offer is refused, then the employer should note the date and time the offer was refused.
Returning to Work Through the WC-240 Process
After income benefits begin, the employer can seek the injured employee's return via the WC-240 process. In this situation, the employer/insurer must obtain a light-duty work release from the ATP and then prepare a WC-240A job description by identifying the physical demands of the light-duty job. After the WC-240A is prepared, the employer/insurer will send it to the ATP, the injured employee and their attorney as required by Board Rule 240.
Employers should remember that the position offered to the injured employee does not have to match their pre-accident position. Further, even if the employer cannot offer full-time work, providing limited hours can still be helpful as it forces the claimant to come in every day.
Board Rule 240 also requires the ATP to approve the WC-240A within 60 days of the claimant’s last examination. Therefore, follow-up with the physician’s office may be necessary to ensure the job is approved within the deadline.
After the WC-240A job description is approved by the ATP, the employer/insurer must prepare a WC-240. Board Rule 240 requires that the injured employee be given notice at least ten days before their scheduled return date. The WC-240 must be sent to the injured employee and their attorney, along with the WC-240A signed by the ATP.
Unjustified Refusal
If the injured employee does not return to work on the scheduled date of return or fails to work more than eight cumulative hours or the equivalent of one scheduled workday, whichever is greater, O.C.G.A. § 34-9-240 and Board Rule 240 permit the employer/insurer to suspend benefits unilaterally by filing a WC-2 along with the WC-240A, the WC-240 and supporting medical documentation from the ATP showing the release to return to work with restrictions.
Under O.C.G.A. § 34-9-240, the injured employee will not be entitled to income benefits if they refuse to return to work. This means the employer's WC-240 position must remain open to the injured employee, even if they initially refuse. If the position is no longer available, the employer/insurer will likely be required to start income benefits.
If the injured employee returns to work for eight cumulative hours or the equivalent of one scheduled workday, whichever is greater, but less than 15 working days, the employer/insurer must immediately reinstate weekly benefits under O.C.G.A. § 240(b)(2). Failure to reinstate benefits will result in waiving the employer/insurer's defense of the suitability of employment when weekly income benefits were owed.
Typically, injured employees returning to work via a WC-240 will not work more than 15 working days, with some working the bare minimum before stopping work. When this occurs, the employer/insurer may seek the suspension of benefits by filing a hearing request to address the suitability of the offered employment and asking for a credit against any wage benefits paid during a period they contend the employee failed to work the suitable light-duty offered.
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Board Rule 240(e) also provides that the employer/insurer may file a motion requesting suspension of benefits simultaneously or at any time while the hearing and award are pending. If an employer/insurer is filing a motion, however, the employee must have been examined by the ATP(s) within 60 days before this request for suspension of income benefits. The motion must be accompanied by an affidavit from the employer stating that suitable employment has been offered to the employee, the offer is continuing and an analysis of the job is attached.
Employers should anticipate injured employees stopping the job before 15 working days and take precautionary measures to obtain evidence countering the injured employee’s narrative of a good-faith attempt at the light-duty position. This evidence will most likely be in the form of other employee witnesses. Injured employees may report the light-duty position aggravated their work injury. Therefore, employers should consider having another employee monitor the injured employee to ensure they are not performing any activities outside the job description or their work restrictions. Employers can also switch the injured employee to different duties if they report an aggravation. If the employer has surveillance on their premises, they should consider placing the injured employee in an area where their work activities can be monitored to ensure their safety and reduce the chance of worsening their injury.