A Notice of Ability to Return to Work LIBC-757 must be issued when the Employer/Insurer receives medical evidence that Employee is able to return to work in any capacity. The Employer/Insurer must provide prompt written notice on a form prescribed by the Bureau.
[ See: 306(b)(3)].
The case law regarding "exceptions" to this rule continues to develop.
If the Modification/Suspension is based upon surveillance evidence (not medical evidence) or if the employee is found to be working, a notice form may not be required.
Burrell v. WCAB (Phila. Gas Works)(Pa. Cmwlth. 2004).
Slight modifications to an employee's work restrictions may not require a new form, where the employee is working. Ashman v. WCAB (Help Mates Inc.) (Pa. Cmwlth. 2010).
Zyskowski v. WCAB (Allied Services) No. 1665 C.D. 2012, an unreported panel decision of the Pennsylvania Commonwealth Court, authored by Judge Simpson on February 26, 2013,
addressed this issue.
Factual & Procedural History
A part-time certified nursing assistant injured her low back on October 6, 2009.
On the same day she was examined by a panel physician and released to return to modified work duties. Employee returned to perform a monitor position, an assignment where she would observe TV monitors at the nursing station. This position could be performed while sitting or standing.
Employee alleged difficulty with back pain from prolonged sitting.
Panel MD 1 released her to regular duty on November 13, 2009
Panel MD 2 released her to modified duty, 10lbs lifting on November 24, 2009.
Employee did not return to work after November 24, 2009.
She wrote to Employer she was exercising her right to seek her other medical care.
Employee testified she called off work with no MD excuse on the 14th, 15th, 17th, 21st and 22nd.
She stated she was "no call, no show" on the 27th, 30th and December 1st.
Employer witness stated the Disciplinary Policy was that two (2) consecutive "no calls, no shows" was grounds for termination.
Employee was terminated for violation of this policy.
In Claim petition litigation the WCJ found a work injury occurred, but employee was not entitled to indemnity wage loss benefits as she was provided work within her capabilities and she voluntarily quit, resulting in her termination.
[ as an aside, employee medical witness did not state she was totally disabled or unable to perform the monitor position]
Commonwealth Court reasoning
Employee argued that Employer is required to issue a Notice of Ability to Return to Work on November 24, 2009, failing to do so, she did not have a "good faith" duty to return to work after that date. She is entitled to total disability benefits.
This argument was rejected.
"The clear purpose of Section 306(b)(3) 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".
slip opinion page 10, citing Burrell.
"...formal notice is not required where a claimant is actually performing work".
slip opinion page 11 citing Ashman.
Here, as in Ashman, this employee returned to work without receipt of any notice form.
She worked until she decided to not continue.
She was aware of her medical restrictions.
She was familiar with the monitor work duties.
She was not receiving benefits, so this was not a situation where there was an attempt to "change" her "existing" benefits based upon new medical information.
1. In what seems to have become a secondary issue, the employer was successful in avoiding ongoing
disability benefits by (a) proving suitable work availability and (b) proving termination for cause.
2. IMO is is a good practice to always issue an LIBC 757 Notice when a medical report is
received which addresses the employee's work capabilities.
I like to have "one rule" to simplify these procedures and eliminate the necessity to evaluate the
need to issue/not issue a form in each case.