I Received a Notice of Ability to Return to Work in Pennsylvania

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.

What does it mean when you receive this notice? 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?

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.

The Contents of Notice of Ability to Return to Work

As stated above, this notice is sent to the injured worker under 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 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)

Is Notice of Ability To Return To Work A Job Offer?

Many injured workers believe that this Notice of Ability To Return to Work is a job offer – it is not. It is 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.

The only time this notice can be considered a job offer is when the form is accompanied by a job offer letter. In every other case, the Notice of Ability To Return To Work in a PA work comp case is simply just a notice. Be careful to make sure a job offer isn’t enclosed with the Notice.

An important thing to note here is that in most cases when this notice is sent, 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 Philadelphia Workman’s Comp Lawyer right away, to get your case strategy set. Failure to do so can adversely affect your benefits and your employer may become successful in compelling you to come to work.

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.

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 in 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.

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.

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 Workman’s 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.

What to Do if You Receive a Notice of Ability to Return to Work

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.