Anthony Bentley v. WCAB (Pittsburgh Board of Education); 1560 C.D. 2008; filed November 18, 2009; by Judge Leavitt

An employer is not required to prove that a notice of ability to return to work is sent on a specific date in order to establish that the notice was promptly provided as required by §306 (b) (3) of the Act.

This is a case that was reconsidered by the Commonwealth Court after the court granted a Petition for Reconsideration of a July 29, 2000, opinion. In this case, following the claimant's work injury, a Functional Capacity Evaluation ("FCE") was performed. The results of the FCE showed that the claimant was capable of light-duty work on a full-time basis. Approximately two months after the FCE, a vocational expert met with the claimant, and a Labor Market Survey (LMS) was performed. The employer then filed a petition to modify the claimant's benefits as of January 22, 2003, the date of the FCE. During litigation of the modification petition, the employer presented testimony from a witness who said that after receiving a physician's report in late January, signing off on the FCE, he sent the claimant a Notice of Ability to Return to Work. The workers' compensation judge granted the modification petition. On appeal, the claimant argued that the employer failed to provide a Notice of Ability to Return to Work in a timely manner. The employer argued the evidence demonstrated that the notice was sent to the claimant no later than March 14, 2003, when the vocational interview was conducted and that the claimant was in no way prejudiced by the time of the notice. The Commonwealth Court agreed with the employer and held that the law did not require the employer to prove that it sent the claimant a Notice of Ability to Return to Work on a specific day. According to the court, the only requirement is that the notice be sent before the employer modifies benefits. The court further noted that the claimant failed to acknowledge that the critical issue was whether the claimant was prejudiced by the timing of the notice and that the claimant did not assert he was prejudiced in any way. The court also held that the claimant was not entitled to the reimbursement of litigation costs on a technical correction made by the WCAB as to the date of the claimant's modification.

Case Law Alert, 2nd Qtr 2010