By: LeRyan Lambert, Associate, Atlanta

One of the most common and confusing procedures that Georgia employers and insurers face is forcing a claimant to return to work in order to suspend indemnity benefits. Simple procedural errors can cost weeks of additional indemnity exposure along with costly litigation expenses and fees. This statutory obstacle course in Georgia is, therefore, one of the most exploited procedures by claimants’ attorneys to extend indemnity exposure. This can be avoided though, and the daunting requirements of O.C.G.A. §34-9-240 and Board Rule 240 can be manageable with a little work.

First and foremost, employers/insurers should always remember that the WC-240 process is only a mechanism to suspend indemnity benefits when a claimant is released to light duty work. If the claimant is returned to full duty, the employer/insurer only needs to submit a WC-2 with the full duty release to suspend benefits. If the claimant is released to light duty work restrictions and indemnity benefits are not already being paid, the employer/insurer simply needs to instruct the claimant to report to modified duty. Nothing needs to be filed nor does the authorized treating physician (“ATP”) need to approve of this position prior to assignment. When in doubt about whether to initiate the WC-240 process, employers/insurers should always ask two questions: (1) do I need to suspend indemnity benefits; and (2) has the claimant been released to light duty work? If the answer is no to either of these, the WC-240 process is not required.

If the answer is yes to either question, the WC-240 procedure must be followed. The first step involves identifying an appropriate modified position and presenting that job description to the ATP for approval. The employer/insurer should submit either a completed WC-240a form (preferred) or detailed job description to the ATP for approval. This approval must be signed and dated by the ATP. This seems simple, but failure to obey detailed requirements is often costly. First, any request to the ATP for a light duty job approval must be simultaneously served in the same manner upon the claimant and his or her attorney. Second, the request for light duty approval should be sent to the claimant’s actual ATP and not a referral physician when the referral physician has controlled most of the claimant’s care without formally becoming the ATP. Third, the employer/insurer must assure that the claimant has been evaluated by the ATP within the 60 days before approval of the light duty job. If not, it is wise to return the claimant to his or her ATP with the request. Failure to abide by any one of these requirements will invalidate and substantially delay attempts to return the claimant to work and suspend benefits.

Once the employer/insurer secures approval of its light duty assignment, it should complete the WC-240 form (differing from the WC-240a form) which includes the ATP’s executed approval and instructions regarding the claimant’s modified assignment including date, time, and location. Once complete, the WC-240 form should immediately be delivered with attachments to both the claimant and his or her attorney. It should then also be filed as an attachment to a WC-2 suspending benefits effective on the day the claimant is expected to return to work. This return to work and suspension date shall be no sooner than 10 days after the claimant and his or her counsel is served with the WC-240 form with attachments.

After the light duty assignment has been approved by the ATP and delivered to the claimant, the claimant is expected to report to work. For years, claimants’ attorneys would coach claimants to simply show up, make minimal performance efforts, and leave after complaining that he or she could not perform the job. They would then demand reinstatement of indemnity benefits. To address this issue, the State Board amended its WC-240 requirements regarding claimants’ efforts to return to approved light duty assignments. Under the new rules, if a claimant either fails to report to work on the assignment date or fails to work at least eight cumulative hours or one scheduled work day (whichever is greater), the employer/insurer can continue with its suspension of benefits. However, if a claimant reports to work and works at least 8 cumulative hours or one scheduled work day (whichever is greater) but stops working within 15 scheduled work days, the employer/insurer is required to immediately reinstate indemnity benefits. The employer/insurer can still file for a hearing to prove the work was suitable and demand reimbursement for any indemnity benefits paid after reinstatement. However, failure to immediately reinstate benefits under these circumstances will waive the employer/insurer’s defense that the claimant unjustifiably refused to perform suitable work. Finally, if the claimant works at least 15 scheduled work days and thereafter claims an inability to perform the modified assignment, the employer/insurer is not required to reinstate benefits without a board order.

Occasionally, there are strategical reasons to deviate from these general requirements; however, outside those unique circumstances, these guidelines should always be followed to avoid unnecessary delays, costs or defense waivers.