Notice of Ability to Return to Work Not Necessary in All Situations

We have dealt before with the Notice of Ability to Return to Work, and when such a document needs to be issued. The general rule is that the document must be issued by the PA workers’ compensation insurance carrier before the benefits can be modified or suspended. As with any rule, there are exceptions, such as when the injured worker already has knowledge of the work capabilities.

Recently, in School District of Philadelphia v. Workers’ Compensation Appeal Board (Hilton), the Commonwealth Court of Pennsylvania addressed whether a Notice of Ability to Return to Work is necessary during the litigation of a Claim Petition.

This case concerned a teacher whose stressful environment caused injury to her vocal cord, and also aggravated her pre-existing lupus (remember that stress can lead to a work injury, without proving “abnormal working conditions,” when the stress results in a physical manifestation). A Notice of Denial (NCD) was issued by the workers’ comp insurance carrier. A few months later, the injured worker was offered a job at a less stressful school, but she declined. Shortly after that, the injured worker filed a Claim Petition. A Notice of Ability to Return to Work was never issued.

After litigating the case before a Workers’ Compensation Judge (WCJ), the Claim Petition was granted. However, the WCJ suspended benefits the date the new job was offered (since there was no medical evidence that the injured worker was not capable of performing the job at the new, less stress, school). The Workers’ Compensation Appeal Board (WCAB) affirmed the granting of the Claim Petition, but reversed the WCJ, finding that benefits should not have been suspended.

Upon further appeal, the Commonwealth Court of Pennsylvania affirmed the granting of the Claim Petition, but reversed the decision of the WCAB, agreeing with the WCJ that benefits should be suspended based on the offer of the less stressful job. The burden to prove that the loss of earnings is related to the work injury remains with the injured worker throughout a Claim Petition. The evidence did not show that the injured worker was not capable of performing this new job. Since the injured worker was not yet entitled to benefits, the Court felt that a Notice of Ability to Return to Work was not necessary. Specifically, the Court noted, “the main reason for issuance of a Notice of Ability to Return to Work, the need to protect a claimant from a haphazard suspension of
benefits without proper notice, was not present.” As such, the workers’ comp insurance carrier had no duty to issue a Notice of Ability to Return to Work.