THE CLAIMANT HAS A LIGHT DUTY WORK RELEASE . . . NOW WHAT?
By: Ann McElroy
One of the main purposes of the workers’ compensation system is to return an employee who is injured on the job to suitable employment, whether that be at a full duty or light duty capacity. While obtaining a full duty, unrestricted work release is the ideal goal, it is important to understand the value and benefits of a light duty work release. Obtaining one can be instrumental in lowering the overall exposure employers and/or insurers face in a compensable claim, and this can be done in several ways.
First and foremost, there needs to be open communication with the employee’s authorized medical provider(s). All too often, medical records and work status notes will mention “no light duty work is available.” This is frequently based on nothing more than the employee’s mere assertion. If the physician believes there is no light duty work available with the employer, whether true or not, the physician may simply conclude the claimant is “unable to work.” So, communication with the medical provider(s) should include informing the physician whether light duty positions are available. Yet, even if the employer does not have any available positions, there needs to be a request for the physician to give an accurate opinion on whether the employee is capable of work in some capacity and to specify what light duty restrictions are appropriate.
Even if the employer cannot accommodate light duty restrictions assigned by the authorized physician(s), the employer is not foreclosed from offering the employee a suitable position. There are many companies that assist with providing suitable positions with local non-profit organizations. Therefore, even if the employer does not have a suitable position readily available “in house,” perhaps one may be identified at such a non-profit organization. If so, this can result in returning an employee to work, rather than continuing to stay at home while receiving income benefits. Studies show that the longer an injured employee stays out of work, the more likely he is to never return to the workforce.
If the employer does have suitable light duty work available, there are a few considerations to be made. If the employee has not already been receiving workers’ compensation wage benefits, and the physician has released the employee to work with restrictions within the employee’s regular job, the employee can be notified of this and asked to return to work. It is always important to document your file regarding such communication. Even if the employee’s regular job is not within the physician’s restrictions, if the employer has light duty work within the light duty restrictions available and the employee has not begun receiving wage benefits, the employer can identify the light duty job, inform the employee of the job duties and request the employee return to work at a specific date and time. It also is important to document the job and accommodate the work restrictions, hours, rate of pay and employee’s acceptance/rejection of the job. No specific documents or forms must be utilized when the employee is not already receiving wage benefits. Please note you should always have the employee be the one to say they are unable to perform the job rather than have a supervisor send the employee home.
There are different requirements for using a light duty work release to return an employee to work if the employee is currently receiving workers’ compensation wage benefits. These requirements and rules are noted in O.C.G.A. § 34-9-240 and Board Rule 240. In this circumstance, the restrictions should be used to identify a suitable light duty job to offer the employee. The job description and requirements should be sent to the employee’s authorized provider for approval. Approval must be executed within the last 60 days of examination by the authorized physician. While not a requirement, a WC-240a Job Analysis is a State Board form frequently used to detail the proffered job for the physician’s review and approval. Otherwise, a description of the job’s physical requirements must be prepared, and the more detailed this is, the better. Whichever job description is sent to the physician, a copy must also be sent to the employee and his attorney the same day it is submitted for the doctor’s approval.
Once the physician confirms approval, a WC-240 Notice to Employee of Offer of Suitable Employment should be prepared by the employer/insurer. The WC-240 details information about the position, such as the return to work (report) date, schedule, rate of pay and location. Coordinating with the employer is essential to make plans for when the employee should arrive and “check in” with a supervisor to review requirements for attempting the light duty job. Once the WC-240 is completed, a copy must be sent to the employee and his attorney if represented, to formally offer the light duty job. A copy of the job description approved by the physician must also be attached and must give the employee at least 10 days’ notice before the return to work date. If the employee does not attempt the light duty job at the designated time, or he does not work for a requisite amount of time, the employer/insurer may suspend his income benefits. At the very least, going through this detailed WC-240 process should provide some measure of leverage to move the claim forward and possibly towards settlement.
An often-underutilized use of a light duty release is filing a WC-104 Notice to Employee of Medical Release to Return to Work With Restrictions or Limitations. This form can be filed even if a light duty job is not available with the employer. Once the authorized treating physician (ATP) issues a light duty release, a WC-104 should be filed with the State Board, along with a copy of the supporting light duty release no later than 60 days after the light duty release is issued. When filing the WC-104 and accompanying work note, a copy must be sent to the employee and his counsel if represented.
A WC-104 allows the employer to lessen potential future wage benefit exposure of a compensable claim. Under Board Rule 104, this will allow an employer “to unilaterally convert the employee’s income benefits from temporary total disability income benefits to temporary partial disability income benefits under O.C.G.A. § 34-9-104(a)(2).” In short, once a WC-104 is filed, this will start a countdown to potentially reducing income benefits. If the employee does not return to work but remains on light duty restrictions for 52 consecutive, or 78 aggregate weeks, his temporary total disability (TTD) benefits may be unilaterally reduced to temporary partial disability (TPD) benefits. Because of the lower statutory maximum rate for weekly TPD benefits compared to the maximum weekly TTD rate, a WC-104 conversion often results in a lower weekly indemnity rate. Another benefit of a WC-104 conversion is reducing the potential amount of weekly income benefits from 400 to 350 weeks.
Consequently, even if a suitable light duty job cannot be offered to the employee, obtaining a light duty release from the ATP provides significant benefits to the employer/insurer. There are many statutes and Board Rules which mandate technical requirements for properly utilizing a light duty release. Remember, staying in touch with the ATP and being aware as soon as a light duty release is provided, can help manage your compensable claim and work to reduce exposure.
Attorney Contact Info
Ann McElroy
ann.mcelroy@swiftcurrie.com
404.888.6212