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What constitutes “prompt written notice” as it pertains to the mailing of a notice of ability to return to work form by an employer became a pressing issue upon the passage of Act 57 of 1996, and has been vigorously debated ever since. Essentially, the question in Home v. W.C.A.B. (Rosenberg), decided on April 2, is whether an employer is required by the Workers’ Compensation Act to issue a notice of ability to return to work form within 30 days of receiving medical evidence that the claimant is capable of performing some work. The dispute stems from Section 306(b)(3) of the act, which provides: “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 of the following: (i) The nature of the employe’s physical condition or change of condition. (ii) That the employe has an obligation to look for available employment. (iii) That proof of available employment opportunities may jeopardize the employe’s right to receipt of ongoing benefits. (iv) That the employe has the right to consult with an attorney in order to obtain evidence to challenge the insurer’s contentions.” The operative phrase of this section is “prompt written notice” which was never defined by the Legislature. Rosenberg definitively settles the issue as to what “prompt” actually means. The facts of the Rosenberg case are quite routine, highlighting the case’s importance. On Nov. 13, 2004, the claimant, Joan Rosenberg, sustained an injury in the course of her employment as a registered nurse during an encounter with a combative resident. The employer issued a notice of compensation payable defining the injury as a “low back strain.” Compensation benefits became payable in the amount of $690 per week. On April 3, 2006, the employer filed a petition seeking to modify Rosenberg’s benefits based on a labor market survey, alleging that work within the claimant’s restrictions was generally available to her as of July 15, 2005. The claimant filed an answer that denied the allegations and, more importantly for the instant analysis, asserted that the employer did not “promptly” send her a notice of ability to return to work. At the first hearing before a WCJ, the claimant’s counsel moved to dismiss the employer’s petition due to its alleged failure to issue its notice of ability to return to work in a “prompt manner.” The WCJ granted Claimant’s motion, finding that the employer did not meet its threshold burden for pursuing a modification of benefits by giving the claimant “prompt notice” of its medical evidence upon which the petition was based. The notice of ability to return to work was issued on Nov. 29, 2005, based on a medical report dated June 16, 2005. Specifically, the WCJ found that the employer had not provided a notice to the claimant within 30 days of receiving the doctor’s report. While the WCJ conceded that “prompt written notice” is not defined in the act, the WCJ nevertheless defined “prompt notice” to be 30 days from the receipt of the medical evidence. The employer appealed to the Workers’ Compensation Appeal Board, which affirmed the WCJ’s decision, noting that under the act, claimants are routinely required to complete various forms within 30 days. The board cited the LIBC forms, which employers can send to claimants every six months to help identify receipt of wages or changes in physical condition. The board found it reasonable that if claimants are given 30 days under the act to respond, an employer should also get a 30-day period to provide a claimant with notice of its receipt of medical evidence tending to show that the claimant is capable of working. On appeal to the Commonwealth Court, the employer took issue with the WCJ and the board’s seemingly arbitrary definition of “prompt written notice” to mean notice given no later than 30 days after the receipt of medical evidence. The employer suggested that the Legislature could have expressly allocated a specific number of days with which to provide notice, as it had with the LIBC forms and in other places, if that were its intent. The claimant disagreed, further noting that her situation was particularly egregious, as the notice in her case was not provided until over four months after the employer’s receipt of medical evidence. The Rosenberg court affirmed the principle that a notice of ability to return to work must be “prompt” in order for an employer to pursue a modification or suspension of a claimant’s benefits based on earning power. However, the court found no basis for the WCJ or the board to declare that any notice given more than 30 days after the employer receives the relevant medical evidence violates Section 306(b)(3) of the act. Given that Section 306(b)(3) of the act fails to provide a strict time limit, and instead uses the word “prompt,” the court turned to Section 1903(a) of the Statutory Construction Act of 1972 to support the notion that a word must be construed according to its “common and approved usage,” which the court noted, does not involve a specific number of days. The court further noted that courts in general have no power to insert words into statutory provisions, as the WCJ and the board had done, where the Legislature has failed to supply them. Therefore, the court turned to the purpose of the notice of ability to return to work to determine whether the notice is “prompt.” The case upon which the Rosenberg court relies is Secco Inc. v. Workers’ Compensation Appeal Board. In Secco, the Commonwealth Court explained that the purpose of Section 306(b)(3) is to share new medical information about a claimant’s physical capacity to work and the possible impact on existing benefits so a claimant will be “put on notice that there was a physical change in his condition which obligated claimant to look for available work.” In Secco, a notice of ability to return to work, which was mailed after a job offer letter was sent and one day before the deadline for the claimant to accept the position was “not prompt.” The principle articulated was that a claimant must have notice that her benefits could be affected before the employer attempts to modify benefits. Otherwise, a modification petition would be a claimant’s first notice that a doctor has found the claimant capable of working. Rosenberg ultimately holds that “prompt written notice” requires an employer to give a claimant notice of the medical evidence it has received 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. Of course, in coming to this conclusion, the Rosenberg court set up a case-by-case standard for examination of the facts and timeline to determine whether a claimant has been prejudiced by the timing of the notice. It is important to note that the court found the facts in Secco actually demonstrative of the need for such a standard. There, the employer sent the notice of ability to return to work 12 days after the date of the medical report, which is almost as quick as can be expected in practice. Under a strict 30-day interpretation of the act, the 12-day notice in Secco would be satisfactory. However, since the notice in Secco prejudiced the claimant, the Commonwealth Court found it to be “not prompt.” Practitioners on both sides of the aisle should consider that a notice of ability to return to work issued more than 30 days after the employer’s receipt of medical evidence might be prompt, whereas a notice of ability to return to work issued sooner than 30 days might not be prompt. Therefore, an analysis as to the sufficiency of each notice and any perceived prejudice to the claimant is warranted on every file. Whether or not the issuance of the notice is prompt depends not on a specific number of days but upon its impact upon the claimant. The Rosenberg court found that on the facts of its case, the notice of ability to return to work issued on Nov. 29, 2005, was untimely because it was not issued until many months after the date on which the employer claims that Rosenberg was able to work. However, the matter was remanded to the WCJ for further proceedings as to the timing of an earlier notice.

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