One of the intended goals of the Georgia Workers’ Compensation Act is to return injured employees to gainful employment. The “240 procedure,” based on O.C.G.A. §34-9-240 and Board Rule 240, is Georgia’s vehicle to return partially disabled workers to an approved and suitable job. This procedure, when properly implemented, allows the employer to unilaterally suspend income benefits upon the employee’s return to work or refusal to accept a properly offered suitable job. Benefits must be recommenced if the employee discontinues the job for any reason before 15 days.
The 2002 Board Rule 240 adds a new “Job Analysis” Board Form to the mix, aptly named a WC-240A. The form is not required, but is useful to identify the job duties and physical requirements. While not required, the WC-240A form benefits both the employer/insurer and the employee because it provides a more complete and accurate description of the expected job. This will benefit employees because they will know what to expect and be better able to hold the employer to providing that same job. Employers will benefit because the employee will be less able to justify refusal to work a job which has been credibly reviewed, as the new form requires.
II. 240 Checklist
There are several requirements which must be followed or the employer will not be permitted to unilaterally suspend benefits. Foremost, the employee must be released to light duty work. While not specifically required, it is recommended that a WC-104 be completed to document this work release and mailed to the employee within 60 days of the physician’s release. Also, there must be a light duty job available which is suitable to the employee.
Counsel for the employer and insurer should confirm that the following requirements are adhered to exactly, and counsel for the employee should check whether there are any shortcomings.
- WC-240 form completed including description of job, duties, hours, pay.
- WC-240 must have attached to it a description of the job; written approval by the ATP; and location, date and time of job. The job description requirement will be satisfied if the new WC-240A is attached.
- WC-240 form submitted to employee and counsel for employee.
- 10 day notice of the required WC-240 return to work.
- Job description “should” be submitted to physician simultaneously with submission to employee and employee’s counsel. The language in the Rule is that this “should” be done but in context and application, it is more mandatory than the language suggests.
- Job description must have approval by ATP within 60 days.
If the employee refuses to report to a properly offered job, benefits may be unilaterally suspended as of the date of the unjustified refusal. To properly suspend benefits, the employer must:
- File WC-2 with the Board to suspend benefits; and
- File WC-240 with all attachments (job approval) with Board together with WC-2.
If the employee attempts the job but does not complete the 15 day grace period, income benefits must be immediately recommenced. It is recommended that the employer then resubmit the employee to the authorized treating physician to be sure there is no change in physical findings, and if not, make a continued offer of employment. The employer will likely fare better when they next request a hearing based on an unjustified refusal to accept suitable work or for a change in condition for the better.The employer is entitled to seek suspension of benefits pending a hearing by filing a motion simultaneously with the request for hearing or during the pendency of the hearing. An affidavit is required to show suitable employment was offered, continuing, and with the job description, and the employee must have been examined within 60 days of the motion.
If the employee’s benefits are suspended unilaterally, the employee may seek an order reinstating benefits pending the hearing. The employee needs to file a motion requesting this order simultaneously with filing the request for hearing or pending the hearing, and must include an affidavit with employee’s contentions, and current medical records.
If the employee works the offered job but is earning a reduced wage from their AWW, a WC-2 should be filed reflecting suspension and commencement of the appropriate TPD.
III. New Board Form WC-200A
The new WC-240A form may be used, but it is not, at this time, required to be used for a 240 return to work offer. Though optional, the WC-240A is useful. Vague job descriptions may not adequately describe the “light duty” job, such that sometimes employees could be returned to a different job from the one the treating physician believes he or she approved. This benefits no one as the procedure will be likely ineffective and there will be no stride toward returning the injured employee to suitable gainful employment. The new WC-240A “Job Analysis” form, when utilized, will effectively solve the problem of vague job descriptions. The form includes information similar to a summary of an FCE report, such as lifting, bending, and other requirements of the proposed job.
The WC-240A form is beneficial to both employers and employees. Employees will understand what the physical requirements are for the offered job, and because employers will be less able to “change” the job the employee believes he or she is being returned to. Employers who use the form will benefit from added credibility for the job, as the Board will be assured that the light duty position was sufficiently described in detail to the doctor. The WC-240A job approval will presumably be credited at any hearing as sufficiently detailed such that the physician’s approval was “informed.”
The WC-240A does not specifically state that it must be submitted to the employee or counsel. However, Rule 240 recommends that the job description be sent to the employee and his counsel at the same time that it is provided to the doctor for approval, and the approved job analysis must be attached to the WC-240.
The “240 procedure” is Georgia’s provision for returning injured employees to suitable work and accomplishing a major aim of the Act. However, the rule and statute are full of minefields and requires careful compliance to allow suspension of benefits. The new “Job Analysis” Board Form, or WC-240A, is not required, but is useful and may benefit the employer and employee. When properly implemented, the employer and employee benefit, and the Act’s goal of returning injured employees to suitable work is furthered.
Eric S. Proser is an associate with Hamilton, Westby, Antonowich & Anderson, LLC. He received his B.A. from the University at Albany, State University of New York, where he graduated from the honors program cum laude in 1994. He earned his Juris Doctor from the Emory University School of Law in 1997, where he served as an Articles Editor for the Bankruptcy Developments Journal. He was admitted to both the State Bars of Georgia and New Jersey in 1997. Mr. Proser is a lecturer at seminars and symposiums, and is a member of the American Bar Association, State Bar of Georgia, and the Atlanta Bar Association. His practice areas include workers’ compensation, insurance defense, and civil litigation. He may be reached at firstname.lastname@example.org or (404) 872-3500.