Notice of Ability to Return to Work is Required . . . Or Perhaps Not

We have been following the case of School District of Philadelphia v. Workers’ Compensation Appeal Board (Hilton) through the Commonwealth Court of Pennsylvania decision, and into the Supreme Court of PA. As you might recall, this case deals with whether a Notice of Ability to Return to Work must be issued in the context of a Claim Petition. Pennsylvania’s Supreme Court has now issued a decision in this matter, clarifying the status.

For background, to recap things, this case featured a teacher who injured her vocal cord and aggravated her preexisting lupus (remember that an aggravation of a preexisting injury is a “new injury” under PA workers’ comp, and is completely compensable). After the injury, but before she filed a Claim Petition, a job was offered in a class/school where she would not be exposed to the same stress level (which had led to her injuries). She did not go back to work, and a few months later filed a Claim Petition. A Notice of Ability to Return to Work was never issued.

After hearing the evidence, the Workers’ Compensation Judge (WCJ) granted the Claim Petition, but suspended benefits as of the date the new job was offered. 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. Commonwealth Court of Pennsylvania then reversed the WCAB, and said the WCJ was correct in suspending the benefits.

In the decision by the Supreme Court of Pennsylvania, the conclusion of the Commonwealth Court of PA was affirmed. First, the Court observed that the Notice of Ability to Return to Work is only required after an injured worker has established a right to receive workers’ compensation benefits. The Court “declined to adopt” a prior decision by the Commonwealth Court of Pennsylvania, holding that the Notice of Ability to Return to Work is required if the job is offered during the litigation of a Claim Petition. Thus, the Supreme Court of PA found that whether the job is offered before or after the Claim Petition is filed is irrelevant. In either situation, the job offer would predate the actual entitlement to benefits. The context for which the Notice of Ability to Return to Work was created, according to the Court, was that of a suspension status, once the injured worker is actually receiving workers’ comp benefits.

Secondly, the injured worker had argued that there was no medical approval for the new job offer, so a suspension based on that job offer could not stand. This, too, was dismissed by the Court. As noted in the decision of the Commonwealth Court, the WCJ found both the injured worker, and her doctor, credible. The doctor conceded that the injured worker could go back to a job at a less stressful school. In her testimony, the injured worker admitted the job being offered was, in fact, at a less stressful school. The Supreme Court concluded, “Thus, while establishing entitlement to benefits for the period between March 3, 2009 and September 30, 2009, Claimant’s own testimony and that of her medical expert demonstrated that the loss of earnings resulting from Claimant’s work injury ceased as of date the position became available at the Jay Cooke School.” The injured worker simply failed to prove that her work-related disability continued beyond that date.

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