The Act 57 Amendments to the Pennsylvania Workers' Compensation Act in 1996 included a new remedy, whereby an employer could establish a post-injury earning capacity of an injured employee, via Vocational Expert evidence of a Labor Market Survey and an Earning Power Assessment.
This new remedy supplements the existing Employer Suspension/Modification remedy based upon an actual job offer to the injured worker.
This Earning Power Assessment remedy was intended as an improvement of the "job-placement-job-offer" type of evidence produced in accord with the PA Supreme Court decision at Kachinski v. WCAB (Vepco Construction Co.) 532 A.2d 374. (Pa. 1987). The Kachinski decision resulted in hundreds of decisions analyzing the details of job offers and employee responses for "good faith" and "bad faith" presentations.
The Earning Power Assessment standard did not include the requirement that a job opportunity was "offered" to employee, rather the standard was that a job must be "open and available to the employee.
[NOTE: the PA Supreme Court decision at Phoenixville Hospital v. WCAB (Shoap) 81 A.3d 830 (Pa. 2013) made a substantial revision of this standard. This decision held an employee must receive notice of the job opportunities which form the basis for the earning power assessment and have a reasonable opportunity to apply! Otherwise that proffered job is not "available", so as to modify benefits]
A pre-condition of the Earning Power Assessment remedy was the requirement that "prompt written notice" is provided to the employee, that he/she was able to return to work in any capacity. Section 306(b)(3) of the amended statute stated:
" 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 the following:
(i) the nature of the employee's physical condition or change of condition.
(ii) that the employee has an obligation to look for available employment.
(iii) that proof of available employment opportunities may jeopardize the employee's right to receipt of ongoing benefits.
(iv) that the employee has the right to consult with an attorney in order to obtain evidence to challenge the insurer's contentions."
Section 306(b)(3), 77 P.S. 512(3).
The form prescribed by the Department is the LIBC-757, Notice of Ability to Return to Work. (NARTW).
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When must the Employer/Insurer issue this LIBC form to the Employee?
Under what circumstances?
School District of Philadelphia v WCAB (Hilton), No. 34 EAP 2014, a decision of the Supreme Court of Pennsylvania authored by Justice Baer on May 26, 2015 addressed several scenarios where this LIBC form is required and resolved the dispute as to when this form is NOT required.
Factual and Procedural Background
Employee was a school teacher at Pastorius Elementary from November 2008 to March 2009. These 2nd graders engaged in "significant misbehavior, including using profanity and engaging in physical violence". Employee suffered dizziness, tension headaches, heart palpitations and nausea.
Her PCP (Dr. Wilfreta Baugh) informed Employer that employee would not be returning to work due to the overly stressful environment. A few weeks later, Employer medical examiner (Dr. James Lamprakos) concluded she would return to work. Employee returned for just 4 days.
Importantly, the Employer issued a Notice of Workers' Compensation Denial, LIBC-496 form on May 29, 2009.
In June 2009 Employer assigned Employee to teach in the fall semester at a different school, Jaye Cooke School. Employee toured the school and found it to be the opposite of Pastorius, it was very quiet and instructors were able to teach effectively.
At the time of this job offer, Employee had not filed a claim petition.
Employee did not return to work at Jaye Cooke in September 2009.
October 2009, Employee filed a Claim Petition, alleging a disability stress related work injury.
Claim Petition Litigation
Employee testified she was 70 years old. She recounted her stress-related conditions. She acknowledged the Employer assigned her to Jay Cooke in June 2009 and her observations of that quiet school environment. She believed she could not return to work as she continued to seek medical care.
Employee medical witness testified the stressful work environment exacerbated Employee's pre-existing medical conditions. However she testified Employee was capable of teaching in a less stressful environment.
Employer medical witness testified Employee was able to work, without restriction. He did not related her symptom to the work environment.
WCJ Decision
WCJ found Employee suffered a work-related injury in March 2009, in the nature of exacerbated lupus and a vocal cord injury. This injury totally disabled her from working in the stressful assignment.
However, Employee medical evidence did not establish a general disability from all teaching.
WCJ credited Employee's own testimony that the Jaye Cooke School position was made available to her and she found this to be a quiet school with excellent teaching.
On this basis, her benefits were suspended as of September 2009 !
WCAB affirmed the award BUT reversed as to Suspension of Benefits.
Suspension was reversed as Employer did not provide Employee with a NARTW form.
The Appeal Board believed the employer's obligation to issue a NARTW form was mandatory.
Commonwealth Court affirmed award BUT reinstated WCJ Suspension of benefits.
Court held NARTW form was not required. Employee medical evidence only established disability until September 30, 2009. As the Jaye Cooke job remained available, that fact supported a suspension of benefits.
Pennsylvania Supreme Court Decision
The Supreme Court agreed with Commonwealth Court.
Under these circumstances - where the Claimant was not receiving work comp benefits, the Employer was not required to issue the NARTW form.
Employer's offer of alternative employment was made before the injured employee filed a claim petition thus, at the time of the job offer, she had not proven any entitlement to workers' compensation benefits. Accordingly, Employer had no duty to provide the NARTW form pursuant to Section 306(b)(3).
Reasoning:
The plain language of Section 306(b)(3) reflects the focus is upon the Employer receipt of medical evidence of a change in the nature of Employee's physical condition and the Employer's duty to apprise Employee of that evidence.
This language supports the determination that Section 306(b)(3) presumes that:
- the work-related injury has caused a disability,
- the employee is receiving ongoing benefits for that compensable injury,
- the employer seeks to use medical evidence to reduce benefits payable.
The legislative history of Section 306(b)(3) reflects the LIBC notice form was intended in the context of the employer's attempt to suspend (or modify) benefits payable after a compensable injury, it was not meant to impose a requirement upon employers, in all circumstances where alternative employment is offered.
This fact distinguishes this case from situations cited by Employee which suggest the LIBC notice is required in a "Claim Setting" ie, during litigation of the initial claim petition.
The Supreme Court reviewed the Hoover and Allegis Group cases cited by Employee for the obligation to issue the NARTW form during claim petition litigation.
In Allegis Group that employer issued a Notice of Temporary Compensation Payable NTCP for an alleged work injury. The Employer made a job offer before the NTCP was revoked.This fact distinguishes this case from the present matter. Allegis Group was precluded from prevailing in a suspension petition based upon that job offer, as the NARTW notice was required.
In Hoover that employer denied liability for the alleged work injury. A light duty position was offered during the litigation of a claim petition, but before an adjudication of liability. The Commonwealth Court denied modification of benefits as employer did not issue the NARTW form.
The Supreme Court did not distinguish the Hoover decision, rather the Court declined to adopt the Hoover's court application of Section 306(b)(3), where the employer has not accepted liability for a claim and employee has not yet proven his/her entitlement to work comp benefits. (slip opinion p 21).
PRACTICE POINTERS:
1. The NARTW form is required where liability for a work injury is admitted via Compensation Agreement or adjudicated by decision.
This includes the temporary acceptance of liability via a Notice of Temporary Compensation Payable LIBC-501.
2. The NATRW form is not required during Claim Petition litigation (this is a new twist).
3. The NARTW form should be issued when each medical report is received, which reflects a change in the physical restrictions or capabilities of the injured worker.
4. At least one decision states that subsequent NARTW forms are not required when there are slight modifications of the workers restrictions. Ashman v. WCAB (Help Mates Inc.) 989 A.2d 57 (Pa. Cmwlth. 2010).
5. My recommendation is to issue a NARTW form when there is a change:
(a) in the classification of work release (sedentary, light, medium, heavy)
(b) in a specific activity which is directly relevant to the job offer.
