Generally, the issuance of a Notice of Ability to Return to Work (PA Form LIBC-757) is a prerequisite to obtaining a modification or suspension of a claimant’s benefits in the context of Claim, Modification, and/or Suspension Petitions. Section 306(b)(3) of the Pennsylvania Workers’ Compensation Act requires that an employer issue a Notice of Ability to Return to Work in a prompt fashion upon receipt of any medical evidence that a claimant is able to return to work in any capacity. Specifically, Section 306(b)(3) states:

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

(i) The nature of the employee’s physical condition or change of condition.

(ii) That the employee has an obligation to look for available employment.

(iii) That proof of available employment opportunities may jeopardize the employee’s right to receipt of ongoing benefits.

(iv) That the employee has the right to consult with an attorney in order to obtain evidence to challenge the insurer’s contentions.

In School District of Philadelphia v. WCAB (Hilton), the Supreme Court of Pennsylvania upheld that there is no duty to provide a Notice of Ability to Return to Work to a claimant in the circumstance where an offer of alternative employment is made by the employer to the claimant prior to the claimant having filed any Claim Petition seeking workers’ compensation benefits.

By way of background, the claimant in the Hilton case stopped working based upon the alleged work environment at her assigned work site. The employer filed a Notice of Denial relative to the alleged work incident. Thereafter, the employer offered the claimant work at a different work site, thus removing the claimant from her previous work site, which was alleged to be the cause of her alleged work injuries. The claimant failed to report to work at the new work site. The claimant subsequently filed a Claim Petition seeking workers’ compensation benefits.

At the WCJ level, the claimant was awarded indemnity benefits related to her work incident; however, the award of indemnity benefits was suspended as of the date the job at the alternate work site was made available to the claimant. The suspension of the claimant’s indemnity benefits without there having been any Notice of Ability to Return to Work issued was appealed. This issue was addressed by the Workers’ Compensation Appeal Board, followed by the Commonwealth Court before coming before the Supreme Court for decision. As noted previously, the Supreme Court upheld the validity of the suspension of the claimant’s indemnity benefits without the issuance of any Notice of Ability to Return to Work based upon the fact that the offer of alternate employment was made to the claimant before the claimant filed the Claim Petition to pursue workers’ compensation benefits.

What It Means to You

In a scenario where a legitimate offer of alternate employment is made to a claimant prior to the institution of litigation to establish the compensability of a workers’ compensation claim, the lack of the issuance of a Notice of Ability to Return to Work will not preclude an employer from obtaining relief in the form of a suspension or modification of benefits where the WCJ determines compensability, but finds claimant to be capable of performing the offered alternate employment.