2021 Georgia Code
Title 34 - Labor and Industrial Relations
Chapter 9 - Workers' Compensation
Article 6 - Payment of Compensation
Part 3 - Limitations on Payment
§ 34-9-240. Effect of Refusal of Suitable Employment by Injured Employee; Attempting or Refusing to Attempt Work With Restrictions

1. If an injured employee refuses employment procured for him or her and suitable to his or her capacity, such employee shall not be entitled to any compensation, except benefits pursuant to Code Section 34-9-263, at any time during the continuance of such refusal unless in the opinion of the board such refusal was justified.
2. Notwithstanding the provisions of subsection (a) of this Code section, if the authorized treating physician releases an employee to return to work with restrictions and the employer tenders a suitable job to such employee within those restrictions, then:
   1. If such employee attempts the proffered job for eight cumulative hours or one scheduled workday, whichever is greater, but is unable to perform the job for more than 15 working days, then weekly benefits shall be immediately reinstated, and the burden shall be upon the employer to prove that such employee is not entitled to continuing benefits; or
   2. If such employee attempts the proffered job for less than eight cumulative hours or one scheduled workday, whichever is greater, or refuses to attempt the proffered job, then the employer may unilaterally suspend benefits upon filing with the board the appropriate form with supporting documentation of the release to return to work with restrictions by the authorized treating physician, the tender of a suitable job within those restrictions, and a statement that such employee did not attempt the proffered job. Under those circumstances, the burden shall shift to the employee to prove continuing entitlement to benefits.

(Ga. L. 1920, p. 167, § 33; Code 1933, § 114-407; Ga. L. 1994, p. 887, § 13; Ga. L. 2003, p. 364, § 5; Ga. L. 2013, p. 651, § 4/HB 154.)

- For article surveying Georgia cases in the area of workers' compensation from June 1979 through May 1980, see 32 Mercer L. Rev. 261 (1980). For annual survey of workers' compensation, see 38 Mercer L. Rev. 431 (1986). For annual survey of law of workers' compensation, see 56 Mercer L. Rev. 479 (2004). For annual survey of workers' compensation law, see 57 Mercer L. Rev. 419 (2005). For annual survey of workers' compensation law, see 58 Mercer L. Rev. 453 (2006). For article on the 2013 amendment of this Code section, see 30 Ga. St. U.L. Rev. 185 (2013). For note on the 1994 amendment of this Code section, see 11 Ga. St. U.L. Rev. 204 (1994).

JUDICIAL DECISIONS

Section meaningless if termination of compensation based on ex post facto statements.

- O.C.G.A. § 34-9-240, requiring proof that the claimant was unjustified in refusing work offered by the employer before compensation can be terminated, is meaningless if, ex post facto, the employer can terminate compensation by merely stating that suitable work was available or is now available; in every such case, the employer could terminate compensation merely on news that the claimant's condition had improved. Peterson/Puritan, Inc. v. Day, 157 Ga. App. 827, 278 S.E.2d 674 (1981).

Refusal does not forever ban receipt of future compensation should the availability of suitable light work cease. Liberty Mut. Ins. Co. v. Neal, 140 Ga. App. 585, 231 S.E.2d 574 (1976); Argonaut Ins. Co. v. Marshall, 144 Ga. App. 217, 240 S.E.2d 767 (1977); Universal Ceramics, Inc. v. Watson, 177 Ga. App. 345, 339 S.E.2d 304 (1985).

- If an employee should refuse employment procured for the employee suitable to the employee's capacity, the employer's liability for the payment of compensation is suspended during the continuance of the refusal and none accrues. Complete Auto Transit, Inc. v. Davis, 106 Ga. App. 369, 126 S.E.2d 909 (1962).

- When an employer procured a light job which an injured employee can perform and the employee refused the job, this section required that compensation be suspended only "during the continuance of such refusal." Argonaut Ins. Co. v. Marshall, 144 Ga. App. 217, 240 S.E.2d 767 (1977).

- It must appear that the injured employee has refused employment procured for the employee suitable to the employee's then existing capacity, before an employer can claim a reduction of compensation under the provisions of this section. Lumbermens Mut. Cas. Co. v. Cook, 69 Ga. App. 131, 25 S.E.2d 67 (1943).

- When an employee is injured while at work, is released by a doctor to do light work, is offered light work but refuses to do it and is fired, but the work offered later becomes unavailable, compensation should be paid as of that time, since the reason for the employer's refusal to pay benefits no longer exists. Coats & Clark, Inc. v. Thompson, 166 Ga. App. 669, 305 S.E.2d 415 (1983).

- This section was not applicable when, after the injury, an employee is ordered by the employee's physician to change to lighter work, and the employee finds such work suitable to the employee's impaired capacity before the employer offers suitable work. St. Paul Fire & Marine Ins. Co. v. White, 103 Ga. App. 607, 120 S.E.2d 144 (1961).

- Testimony of claimant may establish that claimant was incapable of performing light-duty job. Young v. Columbus Consol. Gov't, 263 Ga. 172, 430 S.E.2d 7 (1993).

- When there was absolutely no evidence that the employment offered to the defendant was suitable to the defendant's injured capacity, the mere refusal of an employee to continue in the employment of the employer after having received an injury does not bar the defendant from compensation. DeKalb County Merit Sys. v. Johnson, 151 Ga. App. 405, 260 S.E.2d 506 (1979).

Generalized statements by counsel do not suffice to carry burden placed on employer/insurer to show availability of work and, indeed, generalized statements by the employer itself do not carry that burden. Peterson/Puritan, Inc. v. Day, 157 Ga. App. 827, 278 S.E.2d 674 (1981).

- Refusal of a "light work" job by an employee receiving workers' compensation benefits because the employee did not want to work on the second shift is not justified refusal. McDaniel v. Roper Corp., 149 Ga. App. 864, 256 S.E.2d 146 (1979).

Injured worker's refusal to accept a suitable job based on a legal inability to perform the job resulting from the worker's voluntary conduct, rather than a lack of skill or physical capacity, was not justified as a matter of law under O.C.G.A. § 34-9-240, and the worker was not entitled to workers' compensation benefits. Martines v. Worley & Sons Constr., 278 Ga. App. 26, 628 S.E.2d 113 (2006).

Incarceration pending adjudication of claimant's guilt justifies a claimant's refusal of suitable employment which is offered to claimant while incarcerated but before claimant is adjudicated guilty, since the claimant's refusal of suitable employment is justified as a matter of law. Howard v. Scott Hous. Sys., 180 Ga. App. 690, 350 S.E.2d 27 (1986), aff'd, 256 Ga. 675, 353 S.E.2d 2 (1987).

- Claimant was not entitled to partial disability benefits when the claimant refused the employer's offer of full-time suitable work at the claimant's pre-injury wage and, instead, accepted part-time work from another employer. Wal-Mart Stores, Inc. v. Harris, 234 Ga. App. 401, 506 S.E.2d 908 (1998).

- There was ample record evidence to show the suitability of the job offered to claimant by the employer. Howard v. Scott Hous. Sys., 180 Ga. App. 690, 350 S.E.2d 27 (1986), aff'd, 256 Ga. 675, 353 S.E.2d 2 (1987).

Discretion afforded the board under O.C.G.A. § 34-9-240 to determine that an employee's refusal of proffered work is justified must relate to the physical capacity of the employee to perform the job, the employee's ability or skill to perform the job, or factors such as geographic relocation or travel conditions which would disrupt the employee's life. City of Adel v. Wise, 261 Ga. 53, 401 S.E.2d 522 (1991).

District court properly concluded that the court lacked subject matter jurisdiction to order an employer and workers' compensation insurer to pay workers' compensation benefits because the State Board of Workers' Compensation had exclusive jurisdiction over such claims and the workers' compensation scheme provided the employee a remedy under O.C.G.A. §§ 34-9-221 and34-9-240. Prine v. Chailland, Inc., F.3d (11th Cir. Nov. 9, 2010)(Unpublished).

Potential loss of a part-time job may not be considered as a factor in determining whether a job offered by an employer is "suitable to the capacity" of an employee. City of Adel v. Wise, 261 Ga. 53, 401 S.E.2d 522 (1991).

Cited in Keel v. American Employers' Ins. Co., 44 Ga. App. 773, 162 S.E. 847 (1932); Armour & Co. v. Price, 73 Ga. App. 676, 37 S.E.2d 634 (1946); American Mut. Liab. Ins. Co. v. Gunter, 74 Ga. App. 534, 40 S.E.2d 394 (1946); Rutland v. Vaughn, 96 Ga. App. 499, 100 S.E.2d 609 (1957); Owensby v. Riegel Textile Corp., 104 Ga. App. 800, 123 S.E.2d 147 (1961); Davis v. Fireman's Fund Ins. Co., 106 Ga. App. 519, 127 S.E.2d 481 (1962); Collins v. Kiker, 106 Ga. App. 513, 127 S.E.2d 489 (1962); Turner v. American Mut. Liab. Ins. Co., 111 Ga. App. 565, 142 S.E.2d 329 (1965); Cameron v. American Can Co., 120 Ga. App. 236, 170 S.E.2d 267 (1969); Employers Fire Ins. Co. v. Walraven, 130 Ga. App. 41, 202 S.E.2d 461 (1973); Poulnot v. Dundee Mills Corp., 173 Ga. App. 799, 328 S.E.2d 228 (1985); Clark v. Georgia Kraft Co., 178 Ga. App. 884, 345 S.E.2d 61 (1986); Carod Bldg. Servs. v. Williams, 182 Ga. App. 340, 355 S.E.2d 723 (1987); Goswick v. Murray County Bd. of Educ., 281 Ga. App. 442, 636 S.E.2d 133 (2006).

RESEARCH REFERENCES

ALR.

- Workmen's compensation: duty of injured employee to submit to operation or to take other measures to restore earning capacity, 6 A.L.R. 1260; 18 A.L.R. 431; 73 A.L.R. 1303; 105 A.L.R. 1470.

Workmen's compensation: statutory phrase "incapacity for work" or the like, as including inability to obtain work following an injury, 33 A.L.R. 115.

Workmen's compensation: right to compensation as affected by refusal to accept, or failure to seek, other employment, or by entering into business for oneself after injury, 63 A.L.R. 1241.

Specific grounds for commutation of payments under Workmen's Compensation Acts, 69 A.L.R. 547.

Necessity and sufficiency of showing that "substantial and gainful activity" is available to disability claimant under federal Social Security Act, 22 A.L.R.3d 440.