Accommodating an injured employee who has been released to return to work with restrictions from the authorized treating physician has been the source of many pitfalls for employers. Some employers have given “light duty” employees full immunity from following the standard company policies enforced against other employees for fear of violating the law. While the goal is to offer and provide suitable employment to the injured worker, the process for employers is filled with legal technicalities. This article is designed to give employers a guideline for dealing with light duty employees.
I. Offering Light Duty Work
Generally, the term “light duty” refers to the employee’s physical capabilities to perform some type of work as described by the authorized treating physician. When an employee is receiving full income benefits and has been released to light duty work status, the employer should attempt to place the employee back to work within the given medical restrictions. To do this, the employer must evaluate the workplace for potential jobs within the employee’s medical limitations. If there is no work available within the medical restrictions, then the employee is not required to return to work and is entitled to full income benefits. O.C.G.A. 34-9-261; Poulnot v. Dundee Mills Corp., 173 Ga. App. 799 (1985). However, if a modified job exists, the employer should draft an official job description detailing the physical demands of the light duty job. This description should be presented to the authorized treating physician for his approval. Additionally, the law also requires that the proposed job description be forwarded to the employee and her lawyer at the same time the employer requests medical approval. Board Rule 240 (b)(1).
If the physician certifies that the employee is capable of performing the proposed job duties, the employer should officially offer the job under O.C.G.A. §34-9-240. Under this code section, the employee has the duty of attempting the proposed job duties as described. Upon the employee’s return to work, the employer/insurer has the right to suspend the employee’s income benefits. If the employee unjustifiably refuses to attempt the medically approved job, the employer/insurer may have the right to suspend income benefits. Before executing a suspension for the employee’s refusal of suitable employment, the employer/insurer must have adhered to the technical rules regarding the filing of the WC-240 board form.
The law requires that a proper WC-240 filing must: (i) be filed at least ten (10) days before the date on which the employee is to return to work; (ii) have been mailed to the employee and his attorney; (iii) have the approved proposed job description within 60 days by the authorized treating physician attached; and (iv) contain the expected work hours, pay rate, work location, and time for the employee to report to work. See, Board Rule 240.
If the employee unjustifiably refuses to attempt the suitable work, then the employer/insurer may suspend income benefits by filing a WC-2, attaching the supporting WC-240. However, employers/insurers must keep in mind that they are required to recommence weekly income benefits immediately if the employee attempts the job, but is “unable to perform the job for more than 15 working days.” O.C.G.A. 34-9-240(b)(1). If this occurs, the employer/insurer should determine exactly which part of the job the employee is “unable to perform” and make reasonable accommodations, if possible. Should the employee remain on light duty work status and out of work, the employer/insurer should consider filing a WC-104 to limit the number of weeks the employee may receive income benefits.
II. Recommencing Benefits After Termination
Suppose the employee to returns to work; however, she deviates from company policy or performs unacceptable work. What are the consequences under the workers’ compensation law for rightly terminating the employee for a reason unrelated to the work injury? The short and ugly answer is the potential recommencement of income benefits. However, the burden will be on the employee to prove entitlement.
Absent the medical and physical accommodations, light duty employees should be held to the same company policies as any other employee. They should be expected to report on time, follow company protocol, and comply with the appropriate direction from the supervisors. Being on light duty restrictions does not afford the employee special immunity from the normal administrative standards. Similar to any other employee, the returning light duty employee may be terminated for a cause unrelated to the work injury. See, Maloney v. Gordon County Farms, 265 Ga. 825 (1995). Should the light duty employee request a recommencement of benefits after his termination, he bears the burden of demonstrating that he experienced a loss of earning power as a result of the compensable work injury, also known as a change in condition.
Under the Maloney standard, the employee must first demonstrate that he continues to suffer from the effects of the work injury. Second, he is required to prove that he has made a diligent but unsuccessful effort to find suitable employment. Third, he must show that the reason for his unsuccessful search for suitable employment was his work injury. If the light duty employee can meet this criteria, he may be entitled to additional income benefits. Padget v. Waffle House, 269 Ga. 105 (1998). Alternatively, if the employee was terminated because of, or is totally disabled by, the work injury, the employee is not required to conduct a search for suitable employment. Id. As a result, the employer/insurer will be required to recommence indemnity benefits.
Recently, the Georgia Court of Appeals revisited this issue of recommencement in the case of Hulett v. Cracker Barrel Old Country Store, Inc., A01A1792 (December 3, 2001). In this case, the employee suffered a compensable accident and was released to light duty work status. With the exception of climbing ladders, she was able to work 80 to 104 hours a week during the holiday season. Cracker Barrel had an official policy requiring all employees to personally “call in” every day on all unscheduled absences. Almost a year after the accident, she was involved in an unrelated accident on April 21, 1999. While she was not scheduled to work on April 22 and 23, she also did not work on April 24-28. From April 29 through May 8, she was scheduled to go on vacation. When the employee returned from her vacation, she was informed that she had been terminated.
The entire case turned on the employer’s reason for terminating the employee. Despite the employee’s testimony to the opposite, Cracker Barrel contended that the employee was terminated because she did not follow the company call-in policy. In contrast, the employee asserted that she was terminated because of her work injury. As a result, she was not able to obtain suitable employment.
In its decision, the Court noted that the employee’s own testimony verified that she was terminated because Cracker Barrel believed that she had quit because they had not heard from her. As this corresponded with the employer’s testimony, the Court concluded that the employee’s assertion that she was terminated because of her work injury was “supported only by speculation and coincidence, not by evidence.” Therefore, the Court found that the employee was not entitled to additional workers’ compensation benefits as she did not meet her Maloney burden.
A certified light duty release serves as powerful motivation for employers/insurers and their employees. While the goal is to facilitate the employee’s return to the workforce, the technical requirements sometimes present more roadblocks than freeways to productivity. However, this should not inhibit employers from offering light duty work to capable employees recovering from a work injury. By accommodating an employee’s medical condition, the employer sends a positive message to the other employees that the company is flexible and encourages productivity.
Originally published in Drew, Eckl & Farnham Journal: Volume 14, No. 80 March 2002