Navigating a workers’ compensation claim is difficult enough during normal times. This already trying process has been made even more confusing, frustrating and scary during the current pandemic.
One of the biggest dilemmas currently facing injured workers’ is what to do if their employer (or their employer’s workers’ compensation insurance carrier) is trying to compel them to return to their job through the utilization of the WC-240 process.
Under Georgia law (O. C. G. A § 34-9-240), an employer/insurer may compel an injured worker who is under light duty work restrictions from the authorized treating physician to present for work if certain prerequisites are met. This is a formal process and all steps must be met.
It’s important to note that just because a doctor has changed your status from “no work” to “light duty work” doesn’t mean that you have to go back to work. If you have an attorney, it’s extremely important to contact them immediately upon this change in status. You are also under no obligation to notify your employer with this new information. If your employer reaches out to you, make sure you contact your attorney immediately.
The first step in the WC-240 process is that the employer must submit a formal document to the doctor listing the specific job that is being offered. They also must present to the doctor all of the physical activities that will need to be performed in order to perform the specific job. The doctor must review the description and sign off on it no more than 60 days after they have last seen you.
After the doctor signs off on the job, the employer/insurance company must give the injured worker 10 days’ notice that the job will begin. This notice must be given via mail, and the description of the job has to be sent to the worker as well.
Once again, this is a very important point in your case and affects many rights. It’s therefore critical to contact your attorney once you receive this document. Failure to attempt this job can result in the suspension of your weekly income benefits.
Typically, the decision whether to accept the job offered is a relatively easy one.
If the injured worker attempts the job for the statutorily mandated period of time and is unable to continue to perform the job, they are authorized to cease working and their benefits will recommence, as long as this occurs during the first 15 days after the job begins.
Georgia statute is very clear about the mandatory amount of time the injured worker must attempt the job. It states that the injured worker must attempt the job offered for 8 cumulative hours, or 1 scheduled workday.
If the 2 requirements are met and the injured worker doesn’t work for more than 15 days after the job begins, indemnity benefits must be immediately restarted.
This is the normal process.
However, what we are experiencing right now is far from normal, and the decision whether to accept a light duty job offer may have a long-term impact on the injured workers’ health that goes well beyond their claim. The risk of becoming infected with the COVID-19 virus was never contemplated by the Georgia legislature when they were first writing the state’s workers’ compensation laws.
Many states, including Georgia, have been put under mandatory shelter-in-place orders, which are meant to aid with social distancing and prevent the spread of the virus.
The question then becomes:
Do I have to present for a WC-240 job offer during the middle of the pandemic?
The answer to this question boils down to whether the refusal to accept the light duty job would be considered reasonable given the current climate.
Ultimately, this would be a factual determination that would be made by an Administrative Law Judge.
To further complicate matters, the State Board of Workers’ Compensation has postponed all hearings for the time being and has not yet determined if they will offer either telephonic or video conference hearings. Therefore, if you don’t comply with the 240 job offer, your benefits may be suspended.
IT IS IMPERATIVE TO CONTACT AN ATTORNEY AT THIS POINT SO THEY CAN TRY AND GET A CONFERENCE CALL WITH A JUDGE TO MAKE A RULING PRIOR TO ANY SUSPENSION TAKING PLACE.
There are options to try and combat a WC-240 job offer if you feel that returning to work would be unsafe for your health. Therefore, it’s imperative that you speak with an attorney if you have been asked to return to work via a WC-240 job offer to discuss your options.
Because of the limited time to comply with the statute, it’s essential that you reach out to an attorney as soon as you receive notice of the job offer to avoid the potential ramifications of the failure to comply.
Due to the highly contagious nature of coronavirus, most Americans are taking steps to help prevent the spread of this potentially deadly virus, which include social distancing. One of the biggest dilemmas for injured workers’ during this pandemic is what to do if their employer (or a workers’ compensation insurance carrier) is trying to compel them to return to work.
This blog has been republished with permission from Benjamin Y. Gerber. You can find the original blog post here.