Notice of Ability to RTW Not Necessary in PA if Injured Worker Already Working

Under the Pennsylvania Workers’ Compensation Act, an insurance carrier cannot just stop, or even change, payments of workers’ comp benefits. Any change made by the workers’ compensation insurance carrier in PA, without permission of the injured worker, or a Workers’ Compensation Judge (WCJ), may be met with an assessment of penalties. This leads us into an examination of how an insurance carrier can try to reduce such benefits.

When a workers’ comp insurance carrier receives evidence that the medical condition of an injured worker has changed, the carrier must file a Notice of Ability to Return to Work. The law tells us that this document must be filed before the workers’ compensation carrier can file a Petition to Modify or Suspend (workers’ comp benefits), based on some wage-earning capacity.

In the case of an injured worker actually going back to work, the insurance carrier has a period of time to file a Notification of Modification or Suspension. This document sets forth the allegations regarding the wages now being earned by the injured worker. If this document is not challenged in court by the injured worker, the effect is the same as if the injured worker agreed to the terms recited within the document (as if the injured worker had agreed to those terms in a “Supplemental Agreement.”). If the workers’ compensation insurance carrier does not file the Notification of Modification or Suspension in a timely fashion, then the insurance carrier must file a Modification, or Suspension, Petition and litigate the matter before a WCJ.

A question which was unclear was whether a Notice of Ability to Return to Work had to be filed in the case when the injured worker actually does go back to work. Recently, the Commonwealth Court of Pennsylvania decided this issue in Carolyn Ashman v. Workers’ Compensation Appeal Board (Help Mates, Inc.).

The Court held, simply, that the Notice of Ability to Return to Work is not necessary if the injured worker has actually gone back to work. The Court reasoned that the purpose of this Notice is to make sure the injured worker is aware he or she has been released to some type of work; if that person has actually gone back to work, obviously the person was aware of such release. The Court also added that no new Notice is required every time changes are made to the injured worker’s capabilities.

So, for now, it appears the issuance of a Notice of Ability to Return to Work must be issued in any case where the injured worker has not actually returned to employment. If no Notice was issued, then a subsequent Petition to Modify or Suspend (based on assumed earnings) should fail.