PA Supreme Court to Address Requirement of Notice of Ability to Return to Work

Previously, we discussed the Commonwealth Court of Pennsylvania decision in School District of Philadelphia v. Workers’ Compensation Appeal Board (Hilton), wherein the Workers’ Compensation Judge (WCJ) granted a Claim Petition, but then suspended benefits due to a job offer, despite the absence of a Notice of Ability to Return to Work. The Workers’ Compensation Appeal Board (WCAB) affirmed the granting of the Claim Petition, but reversed the suspension, finding that there could not be a valid suspension without the issuance of a Notice of Ability to Return to Work. The Commonwealth Court affirmed the Claim Petition as well, but reversed the WCAB as to the suspension, finding the suspension was appropriate.

The Supreme Court of Pennsylvania has now accepted appeal (known as granting allocatur), to address, as the Court has stated:

“(1) Whether the Commonwealth Court erred as a matter of law in reversing the WCAB and reinstating the WCJ’s suspension of Petitioner’s disability benefits as of September 30, 2009, when the employer never issued a Notice of Ability to Return to Work?

(2) Whether the Commonwealth Court erred as a matter of law in reversing the WCAB and reinstating the WCJ’s suspension of Petitioner’s disability benefits as of September 30, 2009, when there is no competent medical evidence to establish an ability to return to work by that date?”

This decision will shed light on when a Notice of Ability to Return to Work is required, and/or what burden is required for a suspension in this context, and may be a meaningful decision to those in the PA workers’ comp community. As always, we will report back when Pennsylvania’s highest court renders its decision.