Tuesday, March 4, 2014

When is a NARTW required by the Employer?

*NARTW = Notice of Ability to Return To Work, LIBC-757.

The 1996 amendments to the Pennsylvania Workers' Compensation Act included the introduction of a "new" remedy for Modification of total disability wage loss benefits, based upon Vocational Expert Opinion Evidence of the post-injury earning capacity of the injured worker. This remedy supplemented the remedy of Modification via "proof of a job offer" ala "Kachinski".

[Kachinski is the name of the Pennsylvania Supreme Court decision which espoused a 4-part standard for the Employer burden of proof in a modification/suspension based upon evidence of a job offer. See: Kachinski v. WCAB (Vepco Construction Co.) 532 A.2d 374 (Pa. 1987).].

Section 306 was amended to require the Employer provide Employee prompt written notice, when medical evidence is received of Employee's ability to return to work in any capacity.
306(b) (3), 77 P.S. 512(3).

The LIBC-757, Notice of Ability to Return to Work, was created to fulfill this notice requirement.

Is a NARTW form required in every instance of Employer job offer to Employee?

School District of Philadelphia v. WCAB (Hilton), No. 598 C.D. 2013, a published decision of a panel of the Commonwealth Court authored by Judge Leadbetter on January 7, 2014, addressed this issue.

Factual and Procedural Background
Employee was a 2nd grade teacher at Pastorius Elementary School from November 2008 to March 2009.
On March 3 she suffered heart palpitations, headaches, dizziness and nausea, alleged as a result of a "particularly difficult day with her challenging classroom". [ 2nd graders, 8-9 years old?].

After her regularly scheduled Physician appointment, the Employer was notified by the physician office, Employee would not be returning to work, due to the school's overly stressful environment.

Employer panel physician examined and released Employee to return-to-work at her regular job at Pastorius. Employee worked 4 days in May, 2009.
Employer issued a Notice of Workers' compensation Denial LIBC-496 on May 29, 2009.

June 2009, Employer re-assigned Employee to teach at Jay Cooke Elementary School.
Employee met with the principal, toured the school. She later testified Cooke was the opposite of Pastorius, it was quiet, with "excellent teaching going on".

September 2009, Employee did not return-to-work at Cooke, as she was still undergoing treatment for her work-related stress.

October 2009 Claim Petition was filed, averring stress from abnormal working conditions.
[compare to the PA State Trooper in Payes for a gut-check on "abnormal"!].
She alleged a vocal cord injury and an aggravation of her pre-existing conditions, lupus and a heart murmur.

WCJ Claim Petition Decision 
... it's Pennsylvania ... so she received an award of benefits ... but the WCJ limited wage loss benefit to a period ending September 30, 2009 when the Cooke job was available.

The WCJ found credible the Employee medical expert testimony that Employee was not able to teach at Pastorius, however, she could return-to-work as a teacher, but not in that environment.

Both Employee and Employer appealed!

WCAB Decision
Affirmed grant Claim Petition.
Reversed on limitation of Award.

Commonwealth Court Appeal of Employer
Employer argued:
1. Employee medical expert was not legally competent to testify;
2. Employee only established disability through the date the Cooke position was available;
3. Employer was not required to provide Employee with a NARTW form.

Commonwealth Court Decision
1. Employee Medical Expert was legally competent to testify regarding causation.
2. Employee did meet her burden to establish a disabling injury.
3. Employer was not required to provide Employee with a NARTW form.

1. Competency of Medical Witness to testify
Employee has the burden of proof to establish all of the necessary elements for an award, including a casual relationship between work and the alleged disability, including the extent and duration of disability.

Employer argued Employee medical expert Dr. Baugh was not legally competent to testify (i)  regarding an exacerbation of lupus and (ii) regarding a causal relationship between psychological stressors and the alleged exacerbation.

Dr. Baugh was no longer board-certified in internal medicine.
She was not an expert in psychology, rheumatology, cardiology or otolaryngology.
However, in general, a physician is competent to testify as to specialized areas of medicine, even though he or she is not a specialist or board-certified in that area.

Objections and challenges of the Medical Expert, go to the weight or credibility of the testimony.
The WCJ is free to accept opinion testimony. Great credence may be given to a treating physician, as compared to an examining physician. citing: D.P. "Herk" Zimmerman Jr. Inc. v WCAB (Himes) 519 A.2d 1077 (Pa. Cmwlth. 1987).

Here the WCJ did not err. Dr. Baugh was a long standing treating physician. She was familiar with Employee's baseline lupus condition. Her opinion that Employee had an aggravation from work-related stress [and the corresponding finding of fact] was based upon substantial evidence. slip opinion page 6.

2. Employee met her burden of proof to establish a work injury.
Just as the medical opinions of Dr. Baugh were legally competent, these opinions also provide substantial credible evidence in support of the claim petition. Employee has the burden of proof of each element of the claim. Dr. Baugh provided evidence of the "aggravation" and she provided  evidence of the causal relationship to the work environment.

3. Employer was not required to provide a NARTW.
The Commonwealth Court reversed the decision of the WCAB .
The Appeal Board denied a suspension to the Employer, on the basis that Employee must receive a NARTW form, from the Employer, before any job offer.

The Court reasoned that:
1. Employee Medical Expert evidence (found credible by the WCJ) did not disable Employee from returning to any work as a teacher ... she was disabled from returning to position like Pasotrious.
2. Employee testified Cooke was unlike Pastorious.
3. Employer established a position was available to Employee at Cooke on September 30, 2009.

4. A NARTW form is required when Employer attempts to change a workers benefit status on the basis of medical evidence. It is a part of the earning power assessment process.

 Section 306(b)(3) outlines the Employer's duty to provide employee a "notice" -

                    "(3) 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 the following..."

"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".
Struthers Wells citing: Burrell v. WCAB (Philadelphia Gas Works). (Pa. Cmwlth. 2004).

Section 306(B)(3) presumes:
 (i) that an injury has caused disability;
(ii) a claim has been acknowledged as compensable and
(iii) employer seeks to reduce its existing liability of benefits payable.

NONE of these prerequisites for issuance of a notice are present here!

In this case, Employer filed a Notice of Denial.
Employee had not filed a claim petition, at the point in time when she argues a notice was required.

We conclude Employer was not required to issue a NARTW to Employee, in the claim petition setting.
 slip opinion pages 9-10.

Practice Pointers:
1. This ruling make good sense as the "job offer" in a pre-litigation setting may arise from within the employers office, after receipt of updated information from their employee. The attorneys and insurer are often not involved at this stage. It is more likely an "employment matter".  

2. In the context of an existing workers compensation matter, a NARTW is typically required. 
Burrell is the exception, that is, where an employee is discovered to be already actually working!

3. At times, there may be some confusion as to "which" member of the team will be responsible to issue the NARTW form.

Often we suggest legal counsel prepare and serve this form upon claimant and claimant counsel. This contact may prompt a discussion regarding case resolution. 

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