A Notice of Ability to Return to Work is not required before an employer can offer work to an injured employee in a claim petition to establish an earning capacity. The Section 306(b)(3) Notice of Ability is required only where an employer is seeking to modify existing disability benefits by proof of an earning power. That unanimous ruling was handed down by the Pennsylvania Supreme Court May 26 in The School District of Philadelphia vs. W.C.A.B. (Hilton) No. 598 CD 2013.
In claim petition litigation, the Workers’ Compensation Judge (WCJ) found that a stressful work environment (teaching an unruly class of second graders) caused physical injury (aggravation of a preexisting lupus condition), which disabled the employee from teaching in that particular stressful environment. However, the WCJ suspended disability benefits and limited the claim based upon the employer’s offer of an alternative position in a less stressful classroom setting. The Workers’ Compensation Appeal Board (WCAB) reversed the Suspension Order on the grounds that a Notice of Ability to Return to Work under Section 306(b)(3) had not been provided to the injured employee before the offer of alternative work. The Commonwealth Court reinstated the suspension, holding that it was proper because the employee did not establish an ongoing disability from all work and the employer had no duty to issue a Notice of Ability before an entitlement to benefits had been established.
The Pennsylvania Supreme Court, as a matter of statutory interpretation, held that Section 306(b)(3) requires the employer to issue a Notice of Ability only when a compensable injury has already been established and the employer is seeking to modify existing benefits. The Notice of Ability requirement does not arise until the employee has become entitled to benefits and does not apply in claim litigation before compensability is established.
Comment: For employers, the Hilton decision eliminates a troublesome technical defense to the proof of earning power in a claim petition setting. As a practical matter, there is no downside to the issuance of a Notice of Ability to Return to Work. However, the failure to do so in a claim petition setting will not prevent the employer from managing exposure through the use of a job offer or vocational placement.
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