By: Emily Anderson, Esq.
The WC-240 process is an important tool for insurers and employers to reduce claim costs. It can help bring employees back to work, provides an opportunity to suspend benefits, and is a useful tactic to position a claim for settlement. We have a podcast on our website which reviews the steps to take to ensure a successful WC-240. The podcast can be found here. If you do not have the time to listen to the twenty minute podcast, we have listed eight things to keep in mind if you attempt to return a claimant back to work per the 240 process.
1. In order to use the 240 process the claim must be compensable, and the claimant must be receiving TTD benefits.
It may be tempting to use this process on a controverted claim, to reduce potential exposure. However, this process can only be used when the claimant is receiving benefits.
2. You only have 60 days from the date of the claimant’s last appointment with the authorized treating physician to complete the 240 process.
This timing is important because it is not 60 days from when you get the record, but 60 days from the actual appointment. Additionally, the authorized treating physician needs to actually examine the claimant. The authorized treating physician cannot just complete a questionnaire, and the examination cannot be done by the nurse practitioner or a specialist. The authorized treating physician needs to examine the claimant, release him or her to light duty, and the return to work must be initiated within 60 days of this release. Otherwise, the entire process will be invalidated.
3. Once the authorized treating physician has issued a valid release, the employer needs to find a job within the restrictions given.
Finding an appropriate job can be the most important aspect of the WC-240 process, and also the most difficult. The job needs to be within the restrictions given, but should also be a position that helps the employer and allows the claimant to provide value. Having the claimant just sitting at a desk all day with nothing to do may not help the employer, and increases the likelihood that the claimant will stop working after the statutorily required time period. If the claimant feels valued, he or she will be more likely to give an honest effort.
4. Once a job is found, have the employer sign a WC-240a confirming that the job is available and send it to the authorized treating physician for approval.
While a WC-240a is not required, the form helps streamline the process. Regardless of whether or not this WC-240a is used, the most important thing to remember when having a doctor review the job description is that the form needs to be sent to the authorized treating physician, the claimant and the claimant’s attorney at the same time. If it is not sent simultaneously to all three parties, then the entire 240 process can be invalidated.
5. Once the doctor confirms the claimant can perform the job, then the defense attorney, employer and adjuster need to work together to create a streamlined return to work.
The claimant needs ten-business days’ notice before the date she is required to return to work. This means the actual notice needs to be in her hands before that time period. Therefore, we recommend allowing two weeks before the return to work date to ensure the claimant has sufficient time to receive the notice.
6. Once the details have been finalized, complete the WC-240 with all of the necessary information.
The WC-240 needs to have a start time, list to whom the claimant will report, where he will report, what he will be doing, and the rate of pay. The form also needs a contact number in case the claimant has any questions. The employer needs to ensure whoever is listed as the contact number will be available and knows what is going on. The WC-240 must be sent to both the claimant and the claimant’s attorney.
7. When the claimant returns to work make sure everything is set up to make an easy transition.
The employer should make sure the claimant’s supervisor is aware of what is going on, and be certain to actually have the job ready for the claimant. Also, the employer should inform the claimant that he is responsible for staying within his restrictions just as much as the supervisor. If someone asks the claimant to help lift a box, and that is outside the claimant’s restrictions, the claimant needs to know he is required to refuse. Otherwise, the claimant may argue that he was pressured into going outside his restrictions.
8. File the WC-2.
The WC-2 must be filed with both the WC-240 and the WC-240a (or approved job description) attached. The WC-2 will show that either the claimant came in and performed the job or the light duty job was unjustifiably refused. Either way, benefits can be immediately discontinued.
The claimant must work a full 8 hours or a full shift, whichever is greater. If she fails to do this, then the employer/insurer do not need to recommence benefits as the claimant did not make a valid effort. However, if the claimant does return to work for a full 8 hours or one full shift, but then is unable to work for 15 days, then the employer/insurer needs to recommence benefits immediately and file a second WC-2 documenting the recommencement of benefits. If the employer/insurer do not recommence benefits, then they lose the right to argue that the claimant was offered suitable employment.