This is an excerpt from one of the recent episodes of 'Do I Need a Lawyer?' hosted by: Gary Martin Hays.
Now let's go to the next question from one of our viewers.
Gary - I seriously hurt my back on the job about a year ago. When the physical therapy and epidurals did not relieve the pain, I chose to have surgery. They did a lumbar fusion and it has certainly helped, though I still have pain and limited movement. I am still going three times a week for physical therapy.
Here is my concern / question: The employer called me and wants me to return to work next week. I have been returned to light duty as the doctor says I can only lift 10 pounds and I shouldn't bend or twist. I'm afraid what my employer considers as "light duty" is not what the doctor feels is light duty. Should I return to work? If I do, what protections do I have? Do I need a lawyer?
-Demetrius in Villa Rica
Demetrius: thanks for the question. I'm sorry to hear about your accident and I hope and pray you continue to improve.
Let me tell you what the law requires of employers and insurance companies when the doctor returns you - or any other injured work - to light duty after you have been totally disabled and receiving workers' compensation checks:
The law that applies to these return to work situations is O.C.G.A. Section 34-9-240, and it is also explained further in Board Rule 240.
If the authorized treating physician releases a worker to light duty after they have been totally disabled and receiving workers' compensation checks, the employee is not required to go back to work and try the light duty job unless and until the employer and insurer do 3 things:
(1) The employer/insurer has to send to the authorized treating physician a description of the light duty job to be performed - including the hours to be worked, the rate of payment, and a description of the tasks to be performed.
Whenever the employer/insurer sends this light duty job to the doctor, they also have to send a copy of it to the employee and the employee's attorney at the same time!
This is very important.
If we receive a light duty job description, we immediately call our client to see if this is an accurate description of the job.
If we do not agree with the description of the light duty job, or if we have reservations about our client being able to do the job because of their injuries or medications, this gives us a chance to speak with the doctor and voice our objections.
Also, the Board Rule requires that the injured worker have been seen by the authorized doctor within the last 60 days for the doctor to have an informed opinion about the employee's work abilities.
(2) The authorized doctor has to approve the light duty job for the injured worker.
If the doctor doesn't approve it, then the worker does not have to return to the light duty job.
(3) If the doctor approves the light duty job, then the employer/insurer have to send the injured worker and their attorney a WC-240 Form
This is a notice to the employee that the light duty job is being made available to them, the doctor has approved it, and this is the date, time and place they are to report to work.
This notice has to be sent with 10 days advance notice to the worker and the worker's attorney.
We want to know that the doctor thinks the employee can attempt the job without risks.
So if a client of mine is released to return to light duty work, I tell them DO NOT GO BACK to work unless and until the employer/insurer comply and complete the WC 240 Form and send it to me.
Now here's another question:
What happens if I try this light duty job but I just can't do it. What happens?
Great question:
Essentially, the employee must try the light duty job in good faith. The worker has to try the job for at least 8 cumulative hours or one scheduled workday.
For example, if the worker goes back and leaves after 4 hours because they can't do the job, the employer/insurer do not have to immediately start paying the worker their workers' compensation wage checks.
More than likely, the injured worker may have to ask for a hearing to get it started.
Here's another example:
The worker goes back and works for 16 days and then decides they can't do the job. Since the worker worked more than 15 working days, the burden shifts to the employee to prove they can't do the job and the employer/insurer do not have to immediately start paying the worker their workers' compensation wage checks.
And here is a final example:
Assume on day 3 the employee just can't physically do the light duty job any more. Since it is more than 1 work day and less than 15 working days, the employer/insurer have to start paying the worker their compensation wage checks immediately.
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