In the recent decision of the Supreme Court of Pennsylvania in the case of School District of Philadelphia v. WCAB (Hilton), No. 34 EAP 2014 (Pa. 2015), MM&D Partner and Worker’s Compensation attorney William E. Malone, Jr. successfully argued the issue of whether an Employer has a duty to issue a notice of ability to return to work under Section 306(b) of the Workers’ Compensation Act, where an injured employee had not yet received workers’ compensation benefits at the time alternative employment was offered to her.  The brief answer, explained below, is that an Employer is not required to issue a Notice of Ability to Return to Work to an employee when offering alternative employment before accepting an injury as compensable or the worker has proven an entitlement to benefits.

The injured worker left her job in May 2009 due to a stressful work environment.  Employer issued a notice, denying her claim for benefits, and offered Claimant alternative employment. Claimant did not report to work when school began in September 2009, claiming that she was still unable to return to teaching because of ongoing treatment for her stress-related maladies. In October 2009, Claimant filed a claim petition alleging total disability.

A unanimous Supreme Court looked at the language and legislative history of the Act, focusing on the portion that requires an employer to provide injured workers written notice of evidence of a change in their physical condition.  The Court agreed with Mr. Malone that it would be illogical to require an employer to issue such a notice before either it conceded the occurrence of a compensable injury or the worker otherwise proved an entitlement to benefits.  Moreover, an employer cannot disclose evidence of a change in a claimant’s physical condition before her physical condition is determined. Thus, the Court held that an employer’s obligation to provide a Section 306(b)(3) notice of ability to return to work does not arise until after a claimant has become entitled to benefits.