Notice This: The Commonwealth Court Relaxes the Requirements for the Notice of Ability to Return to Work Form (LIBC-757)

Pennsylvania -- Workers' Compensation

Key Points:

  • Notice of Ability to Return to Work form (LIBC-757) need not identify a specific date that the form was issued, as long as it was sent prior to the requested date of modification or suspension.
  • Notice of Ability to Return to Work form (LIBC-757) is not necessary when a claimant is actually working and her restrictions did not materially change.

 

In two recent cases, the Pennsylvania Commonwealth Court has reduced the burden on the employer/carrier with regard to the issuance of the Notice of Ability to Return to Work form (LIBC-757). In Bentley, the court held that the employer/carrier need not identify a specific date the form was issued as long as it was sent prior to the requested date of modification or suspension. In Ashman, the court held that the LIBC-757 is "superfluous" when a claimant is actually working and her restrictions have not materially change. While these holdings may sound like common sense, they represent at least a modest departure from the court's prior holdings.

Section 306(b)(3) of Act 57 requires the insurer, after receiving medical evidence that the claimant is able to return to work in any capacity, to provide prompt written notice which states: (i) the nature of the employee's physical condition or change of condition; (ii) that the employee has an obligation to look for available employment; (iii) that proof of available employment opportunities may jeopardize the employee's right to receipt of ongoing benefits; and (iv) that the employee has the right to consult with an attorney and to obtain evidence to challenge the employer's contentions.

The purpose of the notice requirement is to require the employer to share new medical information about the claimant's physical capacity to work and its possible impact on existing benefits. Burrell v. W.C.A.B. (Phila Gas Works), 849 A2d 1282 (Pa. Cmwlth. 2004).

In order to encourage compliance, the Bureau of Workers' Compensation created LIBC-757, the Notice of Ability to Return to Work form. The first LIBC-757 did not have a space for recording the date of the Notice. A later revision included a space for the date.

The notice requirement was found to be a threshold burden that an employer must meet in order to obtain a modification or suspension of benefits. Secco v. W.C.A.B. (Work), 886 A2d 1160 (Pa. Cmwlth. 2005).

While the notice requirement was created to assist an employee in making a knowing choice when released to return to work, it is now being used by employees as a legal defense to avoid a modification or suspension of benefits. In litigation employees argue that the LIBC-757 was issued late, not often enough or not at all. With these two new cases, we now have some additional guidance from the Commonwealth Court on those issues.

The case of Bentley v. W.C.A.B. (Pitts. Bd. of Education), 2009 Pa. Commw. LEXIS 1498 addressed when the LIBC-757 must be sent. The statute requires that notice must be "prompt," but it does not provide a specific deadline. Previously, the Commonwealth Court held that what constitutes "prompt" written notice requires an examination of the facts and timeline in each case to determine if the claimant has been prejudiced by the timing of the notice. Melmark Home v. W.C.A.B. (Rosenberg), 946 A.2d 159. In opting for a case-by-case basis for review, the Commonwealth Court rejected the employee's argument that notice must be sent within 30 days because it was not required by statute.

In the recent case of Bentley, the Commonwealth Court addressed whether the LIBC-757 was promptly sent to an employee. Claimant Bentley had an accepted work injury of November 20, 2001. On January 22, 2003, he underwent a Functional Capacity Evaluation ("FCE"), which indicated he was capable of light-duty work. On January 30, 2003, the treating doctor reviewed and approved the FCE. On March 14, 2003, the claimant met with a vocational counselor at which time she reviewed the LIBC-757 with him. The employer submitted into evidence an undated LIBC-757 with the testimony of the adjuster, who stated that she mailed it sometime after receiving the treating doctor's release from January 30, 2003. The vocational counselor testified that the LIBC-757 was in the file she reviewed with the claimant on March 14, 2003. The Workers' Compensation Judge accepted this testimony and concluded that the claimant received the LIBC-757 sometime between January 30, 2003, and the vocational appointment on March 14, 2003. The Workers' Compensation Judge then modified benefits, and the claimant appealed. The Appeal Board affirmed the modification, and the claimant appealed to the Commonwealth Court.

The Bentley Court reviewed the claimant's argument that the LIBC-757 was not promptly issued in the context of their prior decision in Melmark Home. The court first confirmed that neither the statute nor the holding in Melmark Home require a finding that the LIBC-757 was sent on a specific date. The court further found that the Workers' Compensation Judge reasonably concluded that the LIBC-757 had been received no later than the vocational appointment of March 14, 2003, which was prior to the date of the modification. The court also noted that the claimant failed to show prejudice, which is an added requirement. While still declining to provide a specific timeframe, the Commonwealth Court did not take issue with a six-week delay, as long as it is prior to the date of the modification with no prejudice to the claimant.

The second recent decision from the Commonwealth Court found that the LIBC-757 need not be issued when the claimant is actually performing a job and has subsequent modifications to her restrictions. The court held that requiring the employer to issue a Notice of Ability to Return to Work for minor changes in work restrictions would be superfluous under these circumstances. Ashman v. W.C.A.B. (Help Mates, Inc), 2010 Pa. Commw. LEXIS 11 (Pa. Cmwlth. 2010).

Claimant Ashman filed a Claim Petition, alleging that she injured her low back on June 21, 2006. She treated with the panel doctor and was released to return to work on a sedentary basis on July 5, 2006. The claimant returned to work in a modified position on July 6, 2006. The claimant increased her job duties to a light-duty level under the panel doctor's restrictions and continued working until August of 2006, when she was taken out of work by her treating doctor. In deciding the Claim Petition, the Workers' Compensation Judge granted the claim with a modification as of July 6, 2006. The claimant appealed to the Appeal Board, which affirmed the modification. On appeal to the Commonwealth Court, the claimant argued that the Workers' Compensation Judge erred by granting a modification when the employer failed to issue the LIBC-757 in each instance where her restrictions were modified.

The Ashman Court rejected these arguments, finding that it was unnecessary to issue the LIBC-757 each time there was a modification since the claimant actually returned to work and, therefore, the LIBC-757 would be superfluous. Once again though, the court distinguished this case from one where the claimant does not return to work. When a claimant does not return to work, it is still a requirement that the LIBC-757 be issued. This is problematic because it is unknown at the time of the release whether an employee will actually return to work or not. Therefore, the safest advice is to issue the document as soon as possible after the initial release and whenever significant changes are made thereafter.

* Shannon, an associate and member of the Workers' Compensation Department, works in our Harrisburg, Pennsylvania, office. She can be reached at (717) 651-3507 or spfellin@mdwcg.com.  

Defense Digest, Vol. 16, No. 2, June 2010