May 6, 2008

When to Issue
a Notice of Ability
to Return to Work

The Commonwealth Court has recently clarified several issues regarding the Notice of Ability to Return to Work, LIBC-757. In the case of Melmark Home v. WCAB (Rosenberg), No. 899 C.D. 2007, filed April 2, 2008, the Commonwealth Court dealt with the question of whether the Workers’ Compensation Judge (WCJ) and Board erred in concluding that an Employer was required by the Workers’ Compensation Act to issue a Notice of Ability to Return to Work form within 30 days of receiving medical evidence that the Claimant was capable of performing some work. In this case, the WCJ decided that notice must be given by the Insurer/Employer within 30 days of receipt of medical evidence that the Claimant was able to return to some type of employment. The Commonwealth Court rejected this interpretation, focusing instead on the purpose of providing the Notice of Ability to Return to Work, which is to make a Claimant aware of medical information regarding their physical capacity to work and the possible impact on their receipt of benefits.

Section 306 (b)(3) of the Workers’ Compensation Act, 77 P.S. §§ 1-1041.4, 2501-2626, provides:

If the insurer receives medical evidence that the claimant is able to return to work in any capacity, then the insurer must provide prompt written notice, on a form prescribed by the department, to the claimant, which states all of the following:

1. The nature of the employee’s physical condition or change of condition.
2. That the employee has an obligation to look for available employment.
3. That proof of available employment opportunities may jeopardize the employe’s right to receive ongoing benefits.
4. That the employee has the right to consult with an attorney in order to obtain evidence to challenge the insurer’s contentions.

The Court noted that a Claimant must have notice that their benefits could be affected before the Employer attempts to modify benefits either by the offer of a specific modified position or the performance of a Labor Market Survey. Thus, the Employer must give notice to the Claimant within a reasonable time before the Employer acts upon the information that the Claimant is able to return to some type of employment. The Court cautions that this requires an examination of the facts and timeline in each case to determine if a Claimant has been prejudiced by the timing of the issuance of the Notice of Ability to Return to Work.

Practical Tips

It is in the Employers’ best interest to move quickly to send out a Notice of Ability to Return to Work. Allow at least one to two weeks to elapse between the Notice of Ability to Return to Work being sent to the Claimant and job efforts being undertaken.

The focus of the Commonwealth Court’s concern involved situations where a pre-injury Employer sends a Notice of Ability to Return to Work along with a job offer letter requesting that the Claimant return to work within a few days. This scenario was found to be unacceptable by the Court, and therefore Employers are cautioned that the Notice of Ability to Return to Work with the accompanying medical documentation should be sent to the Claimant before a job offer or a Labor Market Survey is performed. The Court wants to ensure that the Claimant has enough time to understand the significance of the Notice of Ability to Return to Work and the possible impact on their receipt of workers’ compensation benefits. As a practical matter, once a medical report is received releasing the Claimant to return to some type of employment, it is in the Employers’ best interest to move quickly to send out a Notice of Ability to Return to Work. The caution for Employers now is to allow at least one to two weeks to elapse between the Notice of Ability to Return to Work being sent to the Claimant and job efforts being undertaken either in the form of a specific job offer or Labor Market Survey.

• Send Notice of Ability as soon as medical information regarding ability to work is received whether from a panel physician, treating physician, or an IME doctor.
• Consider sending Notice certified and regular mail or with Claimant’s indemnity check since proof of receipt may be an issue in a litigated case.
• Wait a “reasonable” time period before job offer or completion of Labor Market Survey.

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