“Prompt” Notice Of Ability to Return to Work

Date: December 1, 2009

The Pennsylvania Workers’ Compensation Act requires that a Notice of Ability to Return to Work form must be issued to an injured worker (the “claimant”) in a “prompt” fashion in order for an employer to pursue a modification or suspension of the claimant’s wage loss benefits based on an earning power assessment. However, the Act does not define what constitutes “prompt” written notice. Pennsylvania courts have held that the purpose of this statutory requirement is to provide notice to an injured worker that (1) there is medical evidence that the claimant can perform some work, (2) that benefits could be affected, and (3) that the claimant has an obligation to look for work. A claimant must have notice that her benefits could be affected before the employer attempts to modify benefits by showing earning power which is typically done by expert vocational testimony showing open and available work that falls within the claimant’s work-related restrictions and is within the claimant’s geographical area. Otherwise, a modification petition would be a claimant’s first notice that a doctor has found the claimant capable of work. The appellate courts have thus determined that “prompt written notice” requires an employer to give a claimant notice of the medical evidence it has received within a reasonable time after its receipt lest the report itself becomes stale. It also requires an employer to give notice to the claimant a reasonable time before the employer acts upon the information. This necessarily requires an examination of the facts and timeline in each case to determine if the claimant has been prejudiced by the timing of the notice.

Tom Cummings
Thomas P. Cummings has been a Partner with Dougherty Leventhal & Price, LLP since 1996 and has been with the firm since 1991. He focuses his practice on workers’ compensation, Social Security Disability and personal injury cases.