Supreme Court holds: employer not obligated to issue Notice of Ability to Return to Work before offering alternative employment when injured employee has not yet filed claim petition and not yet proven entitlement to benefits.

A Workers’ Compensation Judge granted the claimant’s claim petition and awarded benefits; but, benefits were limited to a closed period. Te Judge suspended her benefits, finding there was work available she was capable of performing. The Appeal Board reversed, in part; affirming the Judge’s award of benefits but reversing the suspension on the grounds that the employer never provided the claimant with a Notice of Ability to Return to Work before making another position available to her. The Commonwealth Court reversed, holding the employer had no duty to issue a Notice of Ability to Return to Work because a § 306 (b)(3) notice is part of the earning power assessment process required when an employer seeks to modify or suspend benefits on the basis of medical evidence. According to the court, the purpose of the notice provision is to require employers to share new medical information about a claimant’s physical ability to work and its possible impact on existing benefits.

The Pennsylvania Supreme Court affirmed the Commonwealth Court, holding that § 306 (b)(3) notice is required when the employer is seeking to modify existing workers’ compensation benefits based on medical evidence establishing that the injured employee is able to return to work in some capacity. Because the injured employee in this case had not yet received workers’ compensation benefits when the offer of alternative employment was tendered, the employer had no duty to provide a § 306 (b)(3) notice.

_{Case Law Alerts, 4^th Quarter, October 2015}

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