Let me give you an example.  Earlier this month, I received a call from a potential client.  This young man – I'll call him "Tom" – had been working with earth moving equipment for a large construction company that was building a dam on a river in north Georgia.  Tom and a co-worker were working late – all of the supervisors and most of the co-workers were gone.  The co-worker pushed a large boulder towards Tom and when Tom tried to control the boulder, it rolled onto his hand, crushing a finger and badly injuring his hand.

Tom's co-workers took him to the emergency room at a local hospital where his condition was stabalized and a hand surgeon was brought in.  Tom underwent surgery that very night to repair his hand.  Tom was released to go home late that night with a prescription for strong pain medicine and instructions not to use his hand until further notice.

The next morning, a supervisor from Tom's employer called.   Although the accident had literally happened the night before, the supervisor began pressuring Tom to return to work.  During that first day after the accident, various supervisors from the employer called and emailed Tom repeatedly to demand that he return to work.

Within a few days, Tom received a letter from the employer's workers' compensation insurer stating that his claim would be accepted and that his TTD (temporary total disability benefits) would be forthcoming.   At the same time, during this first week, Tom continued to receive calls from his employer requesting that he report back to work.

Tom does not know much about workers' compensation law, but he sensed that the employer's actions were not in his best interest.   He found Ginsberg Law Offices on the Internet and he called our office.  When I first spoke with Tom, he advised me that his employer had never posted a panel of physicians, they had not offered him a prescription drug card, nor had anyone from the employer ever explained to him anything at all about how to file a workers' compensation claim or about any of his rights thereunder.

Where is the "return to work trap?"

The trap arises when an employee returns to work.  Under the Georgia workers'  compensation law, if an injured worker who is receiving his weekly TTD benefits returns to work without a form WC-240, and he cannot perform the assigned job, the TTD benefits stop.  If the employer does not volutarily restart them the employee will have to request a hearing (and wait the two to three months for a hearing date) to try and get them restarted.

However, if that same employee returns to work with a WC-240, and cannot perform the assigned job, his TTD benefits will start again immediately.

What is this special form, the WC-240?

A WC-240 is a State Board from that sets out a specific light duty job description.  The WC-240 includes the start date for the light duty return to work, specific activity limitations as described by an authorized treating physician, the name and contact information for a supervisor and the light duty rate of pay.

If you return to work with a WC-240 and cannot perform the job duties, you notify the contact supervisor, then you return home knowing that your TTD benefits will start again automatically.

In Tom's case, had he returned to the dam building site without a WC-240 and been unable to resume work in his heavy construction job, there is a good chance that the employer would have cut him off.   At that point, Tom would have no job, no income and no workers' compensation benefits. 

As you can imagine, Tom's settlement leverage would be very minimal.

I think it is fairly obvious that Tom's employer has taken an aggressive, "in-your-face" approach to Tom's case.  Even the insurance company adjustor confided to me that the employer was not acting properly in what amounts to harassment of Tom.

Sometimes employers understand Georgia law fully and they use this "return to work trap" to squeeze injured employees.  They know that an injured employee who has no money will be more likely to settle for a miminal lump sum out of desparation.

Other employers are not based in Georgia and they don't know anything about a WC-240, but will take adavantage of the leverage associated with an undocumented return to work.

I think that Tim's case also illustrates why an injured employee needs legal representation. 

Finally, you should be aware that the WC-240 was appropriate in this case because Tom had already been receiving TTD benefits.  If your employer has controverted the claim and no TTD benefits have commenced, a different strategy might be necessary.

Many of the calls I get from injured workers are triggered by questions about returning to work.  If your doctor has suggested that you are ready to return to work – full duty or light duty, or if your employer is pressuring you to return to work, please do not make any decisions without talking to me or to competent legal counsel.

Have you received a light duty return to work?   What happens if you try to work but the light duty job is too difficult?  What does "light duty" mean anyway?  Will your temporary total disability benefits be restarted?   Returning to work under a light duty release can be very tricky and you can jeopardize your benefits if you do not handle this process correctly.  In this video, I explain how a light duty release is supposed to work and why a WC-240 form is so important.

The first WC Dr. I went to told me I had a pulled muscle and sent me back to work Full duty. I had an MRI, which clearly showed the damage, but this Dr. chose to withold the results from me and off I went to work!   Knowing I could not perform my job, but under the threat of termination, I did as instructed. I could not stay the day and left, got another WC Dr. and when he saw the MRI, he told me about the damage.

I eventually had surgery on my lower back which has not helped very much and another MRI revealed that the disc is still slightly bulging hence the pain I feel daily. The "well known" surgeon, has chosen to release me to work on light duty and has changed his mind about my neck. Apparently he has decided that it is due to "age" (I am 45). He refuses to treat my neck and has become defensive and evasive in my dealings with him. It is like all of a sudden he is done with my treatment even though I am only half way treated. I am in constant pain and cannot do anything!

By the way, my job was loading 8,000 pounds of freight a day, and this Dr. says it suddenly has nothing to do with 20 years of that! How can a Dr. turn on his patient like this? WC has been as unhelpful as they can be. I know the Dr. has been told by WC to end his treatment and get rid of me. What is my recourse? I am young, have a young family and can't go on in this pain and do not feel that I deserve this lack of medical care.

–Darryl

Jodi Ginsberg responds:  Darryl, thanks for your question.  In many cases if you are terminated while involved in a workers comp case, the termination can actually help your case. If you are terminated for no justifiable reason (typical reasons we often see include "disobedience," "company policy violation," etc..) and you are on light duty or no work status then your case is actually enhanced because the insurance company no longer has the leverage of finding a light duty job for, after which they could cut off your temporary total disability benefits.

We sometimes see a situation where our client is on a light duty job that was created at the request of the insurance company, but the employer does not like the idea of having a non-productive employee hanging around and the employer ends up firing the injured worker.  In such a case the insurance company then has to start paying temporary total disability benefits again because the claimant is no longer working.

Where you potentially face a problem with your case is when you are returned to full duty work.  If you have been released to full duty and are subsequently fired, then you will most likely have to go to court (the State Board of Workers Compensation) to get your benefits started. 

As you can see, your work status (full duty vs. light duty vs. no duty) is very important as is the timing of any termination.

At this point, it appears that you have been released to full duty, therefore you are exposed. There are several options here, including negotiating an agreement with the insurance company to refer you to a new treating physician, or filing for a Hearing to Change the Authorized Treating Physician, using your "claimant's independent medical exam."

Unfortunately you have discovered the truly unpleasant side of Georgia workers compensation.

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Jodi Ginsberg responds:   No, you should not return to work right away. You should wait until you receive a form in the mail called the WC-240 form.  The WC-240 form is completed by the insurance company and describes specifically a light duty job, the date and time that this light duty job will be available.