Notice of Ability to RTW Not Necessary Where Claimant Has Knowledge

The Pennsylvania Workers’ Compensation Act, in Section 306(b)(3), requires that an insurance carrier provide notice (in the form of a “Notice of Ability to Return to Work”) to an injured worker when the carrier receives information that the injured worker is able to work in any capacity. This notice is generally a threshold requirement before the carrier can move to modify or suspend workers’ compensation benefits based on a job offer or a Labor Market Survey.

Therefore, if a Notice of Ability to Return to Work is not issued, typically, the carrier cannot prevail on a Petition to Modify or Suspend workers’ comp benefits. There are exceptions to this rule, including a situation where an injured worker has already returned to gainful employment. Recently, the Commonwealth Court of Pennsylvania dealt with another situation where the injured worker did not receive the Notice of Ability to Return to Work before a job offer was made.

In Smith v. Workers’ Compensation Appeal Board (Caring Companions, Inc.), the injured worker’s attorney received a medical report releasing the injured worker to light duty work. Since there was currently litigation (Claim Petition) pending, the attorney then properly sent a copy of this report to the workers’ comp insurance carrier. A job offer letter was sent to the injured worker after the receipt of this report, but a Notice of Ability to Return to Work was not issued.

The Workers’ Compensation Judge (WCJ) granted the Claim Petition, but then modified the workers’ comp benefits based on the job offer. This was affirmed by the Workers’ Compensation Appeal Board (WCAB).

Upon further appeal, the Commonwealth Court of Pennsylvania affirmed, disagreeing with the argument of the injured worker. The Court found that the failure to issue the Notice of Ability to Return to Work in this case was insignificant, because the information that was (as a result) not disclosed had come from the injured worker herself (albeit through her attorney). It would seem this was a reasonable decision by the Court, as it would to be a silly result for the Court to punish the insurance carrier for failing to tell the injured worker something that she certainly already knew.

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