I discussed this hot topic in a previous post in January 2013. I re-post it below as I am getting more and more questions from clients and prospective clients about a Notice of Ability To Return To Work.
I get many phone calls from clients and prospective clients about the peculiar document, called a Notice of Ability To Return To Work. This is a form, LIBC 757, sent to an injured worker pursuant to Section 306(b) (3) of the Pennsylvania Workers’ Compensation Act. That provision states, “If the insurer receives medical evidence that the claimant is able to return to work in any capacity, then the insurer must provide prompt written notice, on a form prescribed by the department, to the claimant, which states all of the following:
1) The nature of the employe’s physical condition or change of condition.
2) That the employe has an obligation to look for available employment.
3) That proof of available employment opportunities may jeopardize the employe’s right to receipt of ongoing benefits.
4) That the employe has the right to consult with an attorney in order to obtain evidence to challenge the insurer’s contentions. (emphasis added)
The Notice of Ability To Return To Work Form is often misinterpreted as an actual offer by the time of injury Employer for the Claimant to return to work. This is not true- unless the form is actually accompanied by a job offer letter. The Notice of Ability To Return To Work is simply what is says- it’s a notice. Be careful to make sure a job offer isn’t enclosed with the Notice.
What is the purpose of the Notice? The Commonwealth Court of Pennsylvania, in Burrell v. Workers’ Compensation Appeal Board (Philadelphia Gas Works), 849 A.2d 1282, held that “the purpose of the notice requirement is to require the employer to share new medical information about a claimant’s physical capacity to work and its possible impact on existing benefits”. The Court in Burrell also noted that formal notice is not required where a claimant is actually performing the work.
Another source of confusion regarding the Notice of Ability To Return To Work is that the Notice often comes on the heels of an independent medical exam- that is, an exam by a doctor which the work comp insurer chooses. The IME doctors frequently claim that an injured worker is either fully recovered from her work injuries or that the injured worker has the ability to work within certain restrictions. This opinion often conflicts with the injured worker’s own doctor. The treating physician may believe the injured worker cannot work at all, or that she needs more restrictions than the IME doctor imposed.
Therefore, the injured employee may be confused about what restrictions the Employer will utilize is making a possible job offer- the IME doctor’s restrictions or her own doctor’s restrictions. It is strongly recommended that the injured workers calls an experienced Pennsylvania Work Injury Lawyer to discuss this situation. The next move taken by the injured worker can make or break a case.
The failure of an insurer to send the Notice of Ability To Return To Work will sometimes, by itself, defeat an attempt by the employer/insurer to reduce benefits. For an employer to successfully reduce benefits, it must send out this Notice promptly. There are some exceptions, however. For example, in Smith v. Worker’s Compensation Appeal Board (Caring Companions, Inc.), No. 417 C.D. 2012, the Commonwealth Court found that the Notice of Ability To Return To Work was not required because Claimant herself had provided her employer with a copy of her doctor’s restrictions. The purpose of Section 306 (b)(3) had already been achieved.
If you get a Notice of Ability To Return To Work, call me and I will discuss with you how it affects your case. I am available 7 days a week at 215-206-9068 (direct dial) or via email at Michael@CardamoneLaw.com