Commonwealth Court Holds That Employers Must Provide a Notice of Ability to Return to Work Form To Obtain Modification of Benefits
The Pennsylvania Commonwealth Court recently handed down a decision in Struthers Wells v. WCAB (Skinnner), 990 A.2d 176 (Pa. Commw. March 12, 2010) which makes clear that employers are required to provide injured workers with a Notice of Ability to Return Work as a prerequisite to obtaining a modification or suspension of benefits.
In the Skinner case, the claimant injured his low back in 1989 and also had developed a number of serious non-work related medical conditions, including diabetic neuropathy, atrial fibrillation, COPD, coronary artery disease and congestive heart failure. In 2004, the employer filed a Modification/Suspension Petition alleging that the claimant was capable of sedentary work due to his work-related back injury but was totally disabled as a result of the non-work related medical conditions. The Workers' Compensation Judge ("WCJ") granted the employer's petition finding that claimant failed to follow through on a job referral in good faith considering only his work-related back injury and that claimant was totally disabled due to non-work related medical conditions.
On appeal, claimant argued that employer's petition should have been denied because it failed to issue a Notice of Ability to Return to Work. Section 306(b)(3) of the Pennsylvania Workers' Compensation Act requires employers to provide the injured worker with a Notice of Ability to Return to Work form as prerequisite to obtaining a modification or suspension of benefits. The Notice of Ability to Return to Work provides the injured worker with notice stating: (1) the nature of his physical condition or change of condition; (2) that he has an obligation to look for available employment; (3) that proof of available employment opportunities may jeopardize his right to receipt of ongoing benefits; and (4) that he has the right to consult with an attorney in order to obtain evidence to challenge the employer's position.
Reversing the WCJ, the Commonwealth Court agreed with claimant and held that the employer was not entitled to a modification of benefits because it failed to provide the Notice of Ability to Return to Work. In reaching its decision, the Court acknowledged the severity of the claimant's non-work related conditions but held that the employer was still required to provide the claimant with a Notice of Ability to Return to Work form because claimant may have been able to perform some level of work in the future.
The Skinner case demonstrates that in most cases employers must meet their threshold burden of proving that they provided the injured worker with a Notice of Ability to Return to Work form before they can be granted a modification or suspension of benefits.
