Subject to the weekly maximum, if you are receiving Temporary Total Disability (TTD) or Temporary Partial Disability (TPD) benefits you will continue to receive the benefits until the treating physician gives you a full duty release without work restrictions, or you return to work making at least the average weekly wage you were making before your work accident. The return to work can be with your employer or a different employer.
If you are receiving total disability benefits because you are under restrictions from your physician and not working, your employer has the right to offer you work they contend is within your restrictions and you have the obligation to attempt the job. The employer must first submit a written job description to the physician, including the physical requirements of the job and the physician must then approve the job. For the approval to be valid, the physician must have examined you within the past 60 days. The employer must then make a formal written offer of employment on a form required by the State Board of Workers' Compensation. You will have ten days to report for work.
Assuming the employer takes the necessary steps and offers you the job, you must attempt the job or your benefits will be suspended until you make the attempt. If you make the attempt, but need to stop within the first 15 work days, your employer/insurer is required to immediately restart your weekly benefits. If they contend you are capable of the job and have chosen not to work, they must request a hearing before an administrative law judge to seek a suspension of your benefits.
Questions
Q1. My doctor released me to regular duty without restriction, but I am still in severe pain and not able to work. What can I do?
If you are released to full duty without restrictions by the primary workers' comp physician the insurer can suspend your weekly benefits with ten days' written notice. Ultimately, if you disagree with your physician and feel you cannot work, you must prove to the State Board of Workers' Compensation that you cannot do your regular job and obtain a reinstatement of your benefits.
Talk with your physician to make sure he or she understands the physical requirements of your job and to determine whether the doctor believes you are capable of performing these requirements. You may consider using your right to an independent medical evaluation with a different physician for another opinion concerning your work abilities. It is important to consult with a qualified attorney because the independent medical exam should be part of an overall strategy.
Q2. My physician said I am totally disabled and I am receiving total disability benefits. Now, the physician says I can return to work on restriction. Will my disability benefits be suspended?
No. As long as you remain on restriction your benefits will continue. The employer does have the right to make an offer of suitable employment to you as stated above. Until this happens, however, you will continue to receive your benefits.
Q3. What if the physician puts me on restriction, but my employer does not offer me work? Am I allowed to try and find work with other employers?
Yes. There is nothing wrong with looking for work you believe you can perform. However, if you accept a job from a different employer, you need to let your present employer or their workers' comp insurer know.
If you earn with your new employer as much as you earned before your accident, your disability benefits will be suspended. If you earn less than the amount you earned before your accident, you will receive temporary partial disability benefits.
You should be aware that accepting employment elsewhere may affect your employment status with your original employer.
Q4. If I am able to find new employment and my condition worsens with the new employer to the point I need additional medical care or disability benefits, which employer is responsible?
If you suffer a work injury and thereafter go to work for a new employer, the cause of your renewed request for medical care or disability benefits determines whether your original employer or new employer is responsible. If you suffer an accident with the new employer which aggravates the pre-existing injury, your new employer will be responsible for needed medical care or disability benefits.
If your new employment is more physically demanding than your original employment which leads to a gradual worsening of your condition without a new accident, your new employer will most likely be responsible for your injury.
If instead, the new job is no more difficult or physically demanding than your original job and your condition gradually worsens without a new accident, the original employer will most likely be responsible for your new request for benefits.
Q5. If I am on restriction, but remain out of work because my employer does not have any work for me within my restrictions, will the amount of my weekly disability check ever change?
Possibly. First, assuming your total disability benefit is calculated correctly, it will never increase as long as you remain disabled from the injury, even if the cap on weekly benefits increases.
Second, if your physician releases you to limited duty, but your employer does not have work for you, your employer or their insurer has the right to send you a written notice that in one year your benefit will be lowered from your total disability rate to the temporary partial disability rate cap in effect on your accident date. Your benefit amount will decrease even though you are not working.
An important exception is if you become totally disabled again. If you receive notice that your benefits are to be lowered, you should immediately contact a qualified attorney to determine your options and whether the employer/insurer properly followed the rules.
Q6. I am on restriction from my physician and receive total disability benefits. My employer says they have work for me and I should immediately report to work. Do I have to report to work?
If your employer offers you a job while you are receiving disability benefits, the law requires the employer to follow the procedure noted in the beginning of this section. You are not required to report to work unless the employer sends you a written job description approved by your treating physician with “Form 240, Notice to Employee of Offer of Suitable Employment”. Otherwise, the insurer cannot suspend your benefits. However, there are no Georgia laws which protect you from your employer firing you because of your refusal to report to work. A federal law, the Americans with Disabilities Act (ADA), may protect you if you have a serious disability. Contact the U.S. Equal Employment Opportunity Commission (EEOC) for more information about your rights under the ADA.
Q7. Will I receive advance notice that my benefits are going to be suspended?
Yes. If your benefits are going to be suspended, the insurer is required to send you a “Form WC-2, Notice of Payment or Suspension of Benefits” at least ten days before the date of suspension. An exception to this rule is if you actually return to work following a full duty or limited duty release from the physician. In that case, your benefits will be suspended as of the day you start work, whether or not the WC-2 was sent ten days earlier.
Q8. Will a release to full duty by my treating physician affect my right to continued medical care?
No. Your entitlement to disability benefits is separate and apart from your entitlement to continued medical care. If you are released to full duty, or if your weekly benefits are suspended for some other reason, you are still entitled to continued medical care for your injury.
