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Use of Notice of Ability to Return to Work Clarified

 

On May 26, 2015 the Pennsylvania Supreme Court affirmed the decision of the Commonwealth Court in School District of Philadelphia v WCAB (Hilton). In that case, Claimant was offered alternative work but a Notice of Ability to Return to Work was never sent.  The court held that because the job offer was made before there was any liability established on the workers’ compensation claim (A Notice of Denial had been issued), there was no requirement to issue a Notice of Ability to Return to Work.  This document is only necessary once the employer’s liability has been established, either by way of a document accepting the claim or by way of a judge’s decision.  In so holding, the court considered a prior Commonwealth Court decision in Hoover v. Workers’ Comp. Appeal Bd. (Harris Masonry, Inc.), 783 A.2d 886 (Pa. Cmwlth. 2001).  In Hoover the court struck down a job that had been made available during the pendency of litigation because a Notice of Ability to Return to Work had not been issued.  In the Hilton case the court stated that “we decline to adopt the Hoover court’s application of Section 306(b)(3) where the employer has not accepted liability for the claim and the claimant has not proven his entitlement to benefits.”  In other words, until liability is firmly established, the employer is not required to issue the Notice of Ability prior to making a job offer.

 

This case is very significant in those situations where an alternative duty position is made available to a claimant but before the injury is actually accepted.  There is no longer an immediate defect in the job offer process.​​

 

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