June 19, 2019

Be on Your Best Behavior if Your Attempt to Return to Work with a Light or Full Duty Release

return to work under WC-240An area of concern for many workers’ compensation claimants has to do with returning to work under a fully or light duty release.  I always remind my clients about the importance of having a WC-240 form in hand before attempting to return to work.  The WC-240 is an official State Board form completed by the authorized treating physician that sets out specifically the restrictions that must be accommodated by  your employer when you try to return to work.

If you return to work without a WC-240 and cannot perform the job tasks, your employer is not obligated to restart your TTD benefits.  If you try to return to work at a job within the WC-240 restrictions and cannot perform that job your TTD benefits will resume automatically (although the employer can later challenge you on the medical issue).

I recently ran across an interesting twist on this return to work issue.  The case arose in Arkansas which apparently has similar rules to Georgia about return to work issues.  In the Tyson Poultry vs. Francisco Narvaiz case, Mr. Narvaiz injured his left shoulder and was out on TTD.  His condition improved and he was released to light duty work.  While working light duty he got into a verbal altercation with his supervisor and called her a vulgar name that I will not repeat, and Tyson Poultry fired him but refused to reinstate his TTD.  Tyson argued that Narvaiz’ termination was equivalent to a refusal to work and thus should relieve them of their obligation to pay TTD benefits.

The Arkansas workers compensation commission (equivalent to Georgia’s State Board) ruled in favor of Narvaiz, reasoning that the termination was Tyson’s decision and not a voluntary refusal by the employee.  The Arkansas appeals court reversed and ruled in favor of Tyson, but the Arkansas Supreme Court reversed and found in favor of Narvaiz and accepting the reasoning of the commission.

While I think that the Georgia State Board would rule in a similar fashion, I do think it is wise for an employee who is returned to work with a WC-240 to light or full duty make every effort to avoid situations where he might be fired for misconduct.  I can easily see a scenario where the employer would argue that the employee intentionally acted rude in order to get fired – in such a situation the State Board might very well find that intentional actions by an employee to get terminated from a WC-240 described job is equivalent to refusing to perform that job.

I therefore counsel my clients to be on their best behavior when attempting to return to work and avoid responding to sarcastic comments from supervisors.

 

Revealing the “Return to Work Trap” in Georgia Workers’ Compensation Law

What is the biggest trap that you can face in your Georgia workers’ compensation case?  Without question, issues relating to your return to work after being injured must be handled very carefully.

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.