We’ve heard concerns from a number of workers who are receiving worker’s compensation benefits about what happens now that they are on worker’s comp and what they should look out for. Here are some of the questions we’ve heard and that we’d like to answer.
Can I be fired once I am on workman’s compensation?
The answer to that is yes, but you probably will not be fired if the employer has a good HR manager.
Georgia is one of these right to work states. This is one of those laws where they name it one thing and it sounds good to people so they vote for it, but it doesn’t really do what the name implies. This law really should have been called a right to fire law.
In other words, people who live in right to work states can be fired for any reason that does not violate federal law. For example, racial discrimination violates federal law, so you can’t be fired for racial reasons; y0ou can’t be discriminated against racially. But in right to work states, an employer can fire you for any reason that does not violate federal law.
The reason you will probably will not be fired by the employer if they have a good HR manager is because the employer wants to be able to offer you work, so that the worker’s comp adjuster can cut off your income benefits or your temp total benefits.
What if I can’t go back to my regular job?
If you cannot go back to your regular job, the employer has a choice. Either they can keep paying you income benefits or, if you’re totally out of work, it’s known as temporary total disability benefits, or they can offer you light duty work. If they’re paying you the same thing they were paying you before, then they can cut off your benefits by offering you light duty work and making you come in to do the light duty job.
What is light duty work? Can I do it while I’m still collecting workman’s compensation benefits?
Yes. Light duty work is work that it lighter than your regular job. For example, if the doctor gives you lifting restrictions, the employer may try to find work within your restrictions for you to do. The employer can offer you this light duty work.
This is true even if there’s really no light duty work within your company. For example, a mason worker lays bricks for a living. There’s no real light duty job that the employer really has that they would actually hire someone to do. Sometimes, the adjusters talk the employers into finding or making up a light duty job for the employee to do so they can cut off the benefits. In this case, with a mason worker, they might actually tell the worker sit down there and count bags of cement, even though they would never hire anybody to actually do this.
The process works like this. The adjuster would send a form 240A, that’s a worker’s comp form with a light duty job description, to the doctor and asks the treating doctor to sign off on that job description. Then the adjuster would file a form, which is called WC240, and they would attach that job description that the doctor signed off on, which is the 240A. Then on that form 240, the employer then gives the employee 10 days notice that they have to report to work in order to attempt that light duty job.
Now, there are rules that correspond to these forms. Rule 240 says that if a worker attempts the proffered light duty job for less than 8 cumulative work hours, or 1 scheduled work day, whichever is greater, or refuses to attempt that job, then the employer insurer can suspend the benefits of the worker effective the date of the unjustified refusal to work.
That’s how that proceeds. But then, just to let you know, there’s also this other shifting of the burden that can go on in these light duty job offers. Should the employee accept the employment offered by the employer insurer and attempt the job more than 8 hours or 1 scheduled work day, but fails to continue working at least 15 working days, then the employer insurer has to immediately reinstate the income benefits that they’ve cut off. That’s very important because if they don’t reinstate the benefits, they lose the only defense that they have, which is suitability of employment.
So, if I don’t attempt light duty work, I’m in trouble, but if I do it too long I can also be in trouble?
That’s right. There are specific time periods that are built into the code and into the rules. If an injured worker does not know what these time periods are, it is a trap that the adjuster is just waiting to set for the employee.
The trap can work on both ends. Let’s say that the worker doesn’t even attempt the job because he knows it’s a fake job to begin with or that the job’s too heavy for him to do. But if the worker doesn’t know that he has to attempt it, they’ll unilaterally cut off his benefits without a hearing.
On the other hand, if the worker says “I really like working and I want to do my best for this employer. I want to try to get in there and work this light duty job as long as I can.” Let’s say the employee in his own mind knows that this is probably going to be too hard for him, but he works 16 days instead of 15.
On that 16th day he said “you know, I gave it my best shot. My back is just killing me. I can’t hardly feel my legs because they’re so numb from the pressure that this putting on it. I’m going to have to come back out of work.”
In that event, you know what the employer is going to do? They’re going to say “Well fine. You can request a hearing.” Four months later, we’re not going to restart your benefits because you’ve now worked 16 days. Four months later, you might get to a hearing and then another 2 months after that you might get a decision.
The employee who was just trying to do the right thing now the burden shifts over to him to prove that he couldn’t do that light duty job. It’s just a trap waiting to happen if you don’t know worker’s comp law.
You don’t have to do this alone; get help today!
If you’re in the metro Atlanta and if you need help, please don’t hesitate. Those timelines can be tricky, and you crucially need detailed information to be able to make wise decisions. If you’re in the Metro Atlanta area and you need help, make sure you call the Hendon law firm for a consultation at 770-284-3737.
Disclaimer: information purposes only. Zack is an attorney with over 30 years experience, and provides this information to help you, but this cannot be seen as legal advice. For legal advice, you need to have a consultation with an attorney in your area. If you’re in the metro Atlanta area, please give the Hendon Law Firm a call.