Injured workers in Pennsylvania are often sent a Notice of Ability to Return to Work in a workers’ compensation case. What does this mean? Is it a job offer? Do you have to return to work immediately if you have received a Notice of Ability to Return to Work? We have covered all that and more in today’s article.
What is Notice of Ability To Return To Work?
Pennsylvania Work Comp Notice of Ability to Return to Work is sent whenever a doctor, whether yours, or an Independent Medical Doctor, claims you have some ability to work, whether full duty or with restrictions. They are required to send out this notice promptly to the injured worker, according to the PA Workers’ Compensation Law.
Is Notice of Ability To Return To Work A Job Offer?
Image Source: PA Department of Labor & Industry
Many injured workers believe that this Notice of Ability To Return to Work is a job offer- it is not! It’s just what it says- a Notice stating that some doctor opines that you can work- in some capacity.
A lot of injured workers also worry that the Notice of Ability To Return To Work means you have to get back to work in a PA work comp case even if your own physician tells you otherwise. We have answered that question in detail in another post here: Do I Have To Return To Work If I Get A Notice Of Ability To Return To Work In A Pennsylvania Work Comp Case?
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However, it is often the beginning of litigation where an insurer/employer is challenging your benefits. So, if you receive a Notice of Ability to Return to Work, you should call a Certified Pennsylvania Work Comp Lawyer right away, to get your case strategy set. Work Comp for injured workers is all we do.
Contact Cardamone!
For more info about a Notice of Ability to Return to Work, or Pennsylvania Work Comp Law in general, call Cardamone Law, the leading workers’ compensation firm in PA, 7 days a week at 215-206-9068 or email Michael@Cardamonelaw.com
I discussed what Notice of Ability To Return To Work means in a PA Work Comp case 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.
The Notice of Ability To Return To Work According To Pennsylvania Workers’ Compensation Act
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.
Image Source: Pexels/Andrea Piacquadio
The Contents of Notice of Ability To Return To Work
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 employee’s physical condition or change of condition.
2) That the employee has an obligation to look for available employment.
3) That proof of available employment opportunities may jeopardize the employee’s right to receipt of ongoing benefits.
4) That the employee 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 in a PA work comp case is simply what is says- it’s a notice. Be careful to make sure a job offer isn’t enclosed with the Notice.
The Purpose of the Notice
What is the purpose of the Notice sent to injured worker? 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.
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What if there is a conflict between IME Doctor and Treating Physician?
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 call an experienced Pennsylvania Work Injury Lawyer to discuss this situation. The next move taken by the injured worker can make or break a case.
What If The Insurer Fails To Send The Notice Of Ability To Return To Work In A Work Comp Case?
The failure of an insurer to send the Pennsylvania Work Comp 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.
What To Do If You Receive A Notice Of Ability To Return To Work?
If you get a Notice of Ability To Return To Work, call Pennsylvania Workers’ Compensation Certified Attorney and we will discuss with you how it affects your case. Our lawyers are available 7 days a week at 215-206-9068 (direct dial) or via email at Michael@CardamoneLaw.com
At least once a week, I get a call from a client asking me what this document means. The document I am referring to is called “Notice of Ability To Return To Work “ in a workers compensation case. This is a form sent to an injured worker in Pennsylvania, required by Section 306(b) (3) of the PA Work Comp Act, informing an injured worker that the insurer has received medical evidence that the employee is able to return to work in some capacity. Whether it’s an insurance company doctor or a treating doctor, the insurer is almost always required to send this notice out if the physician deems the worker to be capable of work, with or without restrictions. (it is not required in some limited circumstances such as when a petition to modify is based on surveillance evidence showing an imputed earning power vs a change in medical condition).
Many injured workers receive this notice and interpret it to mean that they are being asked to return to work. This is not the case. Standing alone, the Notice of Ability To Return To Work is simply what it says- a notice. If the Employer contends that it has work available within the physician’s restrictions, then it will usually send an official job offer letter, or at a minimum, make a call.
Notice of Ability To Return To Work and Medical Record
The Notice of Ability To Return To Work will state not only what work the physician deems appropriate, but also some other boilerplate language such as reminding the worker than she has an obligation to look for available employment, that proof of available employment may jeopardize the employee’s rights to the receipt of ongoing benefits, etc.
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The insurers, upon receiving medical records indicating that the worker can work in some capacity, even with many limitations, must send this Notice, if it wishes to file a petition seeking to modify or suspend an employee’s benefits based on the doctor’s opinions. And, it must be sent promptly. What determines if the notice is sent promptly is determined on a case by case basis. If the insurer fails to send this document, the injured worker will be able to argue that any pending petition (i.e., a Petition to Modify or Suspend benefits) based upon the change in physician condition (i.e., the opinion by a doctor that she can now do certain kinds of work) should be dismissed.
How To Respond To PA Work Comp Notice of Ability To Return To Work?
What should an injured worker in Pennsylvania do when she receives a Notice of Ability To Return To Work? The best answer is speaking to an experienced Pennsylvania Work Comp Attorney as soon as possible to discuss the potential PA work comp settlement in the light of notice. This Notice usually means a Petition to reduce benefits is coming down the pike. You will need to speak to a work comp lawyer to analyze your case and to gather any evidence which may conflict with the allegations and opinions in the Notice of Ability To Return To Work.
For more information about Pennsylvania Work Comp Law, call or email Michael Cardamone at 215-206-9068 or Michael@Cardamonelaw.com
