Notice of Ability to Return to Work Required to Suspend or Modify Workers’ Comp Benefits in PA

There is a process in PA when a workers’ comp insurance carrier wants to modify or suspend the workers’ compensation benefits of an injured worker. First, there must be evidence of a change in condition. Then, the insurance carrier must serve a form called Notice of Ability to Return to Work on the injured worker (with documentation regarding what type of employment the injured worker can do). Only then can the workers’ comp insurance carrier file a Petition to Modify or Suspend benefits and go before a Workers’ Compensation Judge (WCJ).

But, what if the injured worker is not capable of working at all, due to something other than the work injury? The Supreme Court of Pennsylvania faced this issue in 2000, in Schneider, Inc. v. Workers’ Compensation Appeal Board (Bey). In that case, the worker suffered an injury to his head and neck. While he was receiving workers’ comp benefits, he was stabbed in the head in a bar fight and was rendered paraplegic and brain damaged. The Court held that the workers’ comp insurance carrier did not have to show any job availability, because it would be “fruitless.” In that situation, the injured worker was completely and permanently disabled by the non-work-related injury.

More recently, the Commonwealth Court of Pennsylvania was invited to expand this theory in Wells v. Workers Compensation Appeal Board (Skinner); thankfully, the Court declined. Mr. Skinner injured his back at work, and began to receive PA workers’ compensation benefits. Since Mr. Skinner also suffered with diabetes, cardiac problems and other related health issues, the workers’ comp insurance carrier filed a Petition to Suspend benefits, under the theory of Schneider.

The workers’ comp insurance carrier presented medical evidence that, from the standpoint of his back injury, Mr. Skinner was capable of modified duty work. However, the insurance carrier’s medical expert testified that the non-work-related conditions rendered Mr. Skinner totally disabled. The insurance company also had a vocational witness testify that two modified duty jobs were offered to Mr. Skinner, but he neglected to apply for either. No Notice of Ability to Return to Work was issued.

Convinced that the Notice of Ability to Return to Work was not necessary, since Mr. Skinner was totally disabled by non-work-related causes, the WCJ granted the Petition for Suspension, in accordance with Schneider.

This decision was reversed, however, by the Workers’ Compensation Appeal Board (WCAB). The WCAB concluded that issuing a Notice of Ability to Return to Work is a prerequisite to modifying or suspending benefits. Since that was not done, the Petition must fail.

On appeal to the Commonwealth Court of Pennsylvania, the workers’ comp insurance carrier argued that the Notice of Ability to Return to Work was not required, under Schneider, given Mr. Skinner’s disability. The Court rejected this argument and affirmed the WCAB. The Court said Schneider is to be limited to the facts in that case, and read strictly. The condition of Mr. Skinner was not as clearly permanently and totally disabling as that in Schneider. As such, the general rule applies and the failure to issue the Notice of Ability to Return to Work was fatal to the Petition to Suspend.

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