By:

 

Zachary Kunz, Associate, Atlanta

Georgia, unlike many other states, has a statutory procedure that must be strictly adhered to in order to return a claimant to work. It is one of the more frustrating issues in Georgia.  In other states, you can simply send a letter to the claimant asking him to return to work so that benefits can be suspended. This cannot be farther from the procedure in Georgia. 

The procedure used to suspend benefits a claimant’s benefits is described in O.C.G.A. § 34-9-240 and Board Rule 240. The first step is to identify a suitable light duty position within the claimant’s restrictions.  Next, one must create a WC-240(a) Job Analysis or a light duty job description for the proposed position. The WC-240(a) Job Analysis or the light duty job description must then be sent to the Authorized Treating Physician (ATP) for approval and it must also be sent to the claimant and his attorney at the same time and in the same manner (email, fax, etc.).   In order for the ATP’s approval of the job description to be valid, the claimant must have been examined within the last 60 days. 

Once the approved job description or WC-240(a) is approved by the ATP, it should be attached to the completed WC-240.  The WC-240 should contain the claimant’s proposed hours, rate of pay, job location, and start date.  The WC-240 job offer and approved job description must then be sent to the claimant and his attorney to inform them that there is a suitable job available.  Finally, you must provide the claimant with at least ten days notice before their return to work date.

If the claimant refuses to return to work pursuant to the WC-240 process, you can suspend the claimant’s income benefits.  To properly suspend benefits, you must file a WC-2 with the Board, pursuant to Board Rule 240(b)(3).  The WC-240 notice, light duty job description and/or WC-240(a), and the approval from the authorized treating physician should be attached to the WC-2 Notice of Suspension of Benefits.

Sometimes a question arises as to whether the claimant has unjustifiably refused suitable employment when the claimant returns to work but is “unable” to perform the approved light duty job.   This seems illogical, but if the claimant attempts the job for at least one day or an eight hour shift (whichever is greater), but subsequently is unable to perform the job for more than fifteen scheduled work days, benefits must be immediately reinstated.   However, the employer/insurer should file for a hearing requesting the Judge suspend the claimant’s benefits.  Also, anytime prior to the hearing a motion can be filed seeking an interlocutory order to suspend the claimant’s weekly benefits pending the hearing. 

Although the WC-240 process demands a great deal from the employer/insurer, and is at times frustrating, when properly implemented the process can be used effectively to unilaterally suspend the claimant’s benefits.  It effectively guarantees that the claimant must attempt the light duty job.  Further, if the claimant asserts that he is “unable” to perform the job the employer/insurer has the opportunity to request a hearing and challenge this assertion.  Regardless, this process usually moves the case toward closure.  

Zachary Kunz | Attorney