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Several recent decisions have reminded employers that a notice of ability to return to work must be sent to a workers’ compensation claimant by the employer or insurer before asking an employee to return to work. Employers who fail to do so are not permitted to seek modification or suspension of benefits based upon an employee’s failure to respond in good faith to the job offer. In Secco Inc. v. Workers’ Compensation Appeal Board (Work), the Commonwealth Court reaffirmed that mandate and provided litigators with some guidance on the issue of how far in advance of the job offer the notice of ability to return to work must be mailed. The court held in Secco that an employer that mailed the notice to an employee four days after sending a job-offer letter mailed the notice too late, even though the notice was mailed one day before the date that the employee was being asked to report back to work. The employee in this case sustained an injury to his back Dec. 18, 2001, while working as an electrician for Secco. The workers’ compensation claim was not contested, and the employer issued a notice of compensation payable. Thereafter, the claimant’s benefits were suspended as of Nov. 6, 2002, pursuant to an agreement of the parties, which was approved by the workers’ compensation judge. The stipulation reserved the right for the claimant to seek reinstatement as of Nov. 9, 2002. On Dec. 12, 2002, employer filed a termination petition alleging that as of Nov. 20, 2002, claimant had fully recovered from the work-related injury, based upon an examination by the employer’s expert, Dr. DiBenedetto. On Feb. 19, 2003, the employer filed a second termination petition alternatively alleging full recovery as of Feb. 6, 2003, relying upon a second examination by the same expert. The claimant countered with a petition for reinstatement of benefits, claiming that although he did return to work Nov. 6, 2002, as he had earlier stipulated, he once again became disabled because of the original work injury just a few days after returning to work. The claimant’s allegation was supported by expert testimony from a treating physician, Dr. Oliveri, who opined that due to the work-related sprain and strain of the thoracic spine and a tear of the interspinous ligament, the claimant once again became disabled from work on Nov. 18, 2002. According to Oliveri, the claimant had not fully recovered from his injury and was restricted to light duty work. DiBenedetto testified on behalf of the employer. He stated that he examined the claimant on Aug. 13, 2002, and Feb. 6, 2003. At the time of the initial examination, DiBenedetto found the claimant to be fully recovered and recommended a graduated return to full duty work over a four-week period. The transition period was necessary to avoid a new injury. At the time of the Feb. 6, 2003 examination, DiBenedetto again concluded that the claimant had fully recovered from the work injury and determined that he could return to his pre-injury job as an electrician. The employer’s controller, Babette Freund, testified that she works with injured workers finding jobs within their restrictions. She testified that after receiving DiBenedetto’s report of his Feb. 6, 2003, examination of the claimant, she prepared a letter offering him a position as a journeyman electrician. The letter was mailed to the claimant Friday, Feb. 14, 2003, and informed the claimant that he had until Wed., Feb. 19, 2003, to accept the job offer. The certified letter was not received by the claimant until Feb. 19, 2003. On Feb. 18, 2003, the employer mailed the claimant a notice of ability to return to work. The notice included a copy of the Feb. 6, 2003, independent medical examination report prepared by DiBenedetto. The WCJ credited the testimony of Oliveri that the claimant was totally disabled as of Nov. 15, 2002, and unable to perform the duties associated with his position, and thus granted the reinstatement petition. However, the WCJ also found that, based on the testimony of DiBenedetto, the claimant was capable of returning to his pre-injury job as of Feb. 14, 2003. As such, the WCJ determined the claimant was entitled to a reinstatement of total disability benefits only for the period Nov. 15, 2002, through Feb. 13, 2003, with benefits being suspended as of Feb. 14, 2003, based upon the job offered by the employer. The claimant appealed to the board, arguing that the WCJ erred in denying reinstatement of benefits for the period beginning Feb. 15, 2003, and thereafter because the employer failed to issue a notice of ability to return to work prior to its job offer of Feb. 14, 2003. The board agreed that the employer failed to comply with the provisions of Section 306(b)(3) of the Workers’ Compensation Act, which sets forth requirements for a modification or suspension of benefits. The employer then appealed to the Commonwealth Court, arguing it had sufficiently complied with the statute. Citing its recent decision in Allegis Group v. WCAB (Henry), the court reiterated that compliance with the notice provisions of Section 306(b)(3) is “a threshold burden the employer must satisfy” to obtain a modification or suspension of a claimant’s benefits based upon a job offer. Section 306(b)(3) provides that if an employer or 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 employee’s physical condition or change of condition; (ii) that the employee has an obligation to look for available work; (iii) that proof of available work 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.” Here, there was no dispute that the employer did, in fact, send a notice of availability to return to work. The question for the court was the timeliness of the notice, and it decided that “under the circumstances in this case,” the notice was sent too late. The notice was not placed in the mail to claimant until Feb. 18, 2003, one day before the date on which claimant received a notice of his employer’s job offer, which expired on Feb. 19, 2003. The court reasoned that the purpose of �306(b)(3) is “to share new medical information about a claimant’s physical capacity to work and the possible impact on existing benefits.” Because the notice here was sent after the job offer, and presumably received no earlier than the date on which claimant was to return to work, the court held that the job offer was invalid. The claimant was not properly put on notice that there was a physical change in his condition that obligated him to look for available work. It is impossible to determine whether the claimant in this case would have responded any differently to the job offer, had he received the offer letter and notice of ability to return to work a few days earlier. It is reasonable to assume that the claimant knew that DiBenedetto had released him to return to full-duty work, at least after the first examination, as a termination petition was pending at the time the job offer was made. Moreover, the claimant’s attorney had a duty to advise him that he had an obligation to pursue available work and an employer might expect that a claimant’s counsel has so advised the claimant. But Secco makes is clear that such expectations, or even proof that a claimant actually knew he or she had been released to work and was obligated to pursue available work, are insufficient to meet an employer’s burden under �306(b)(3). Both the statute and the court’s interpretation of it appear to be overprotective of the employee. However, defense practitioners must advise their clients that they must provide the statutorily prescribed notice of ability to return to work promptly after every medical examination where a claimant is released to return to work. In addition, employers must allow sufficient time for the claimant to receive the notice before the job offer expires. It is recommended that the employer send a job-offer packet to the claimant that includes the job-offer letter, a detailed description of the job, a copy of the report of the physician who has offered the opinion that the claimant can perform such a job, and the notice of ability to return to work. The employee should be given at least three days from the date he or she is expected to receive the packet, before the job offer expires. It is also generally helpful to include a statement in the job-offer letter detailing that if the claimant does not believe that he or she is capable of performing this job, he or she should contact the employer to discuss the possibility of further modifications. If the claimant fails to respond to this letter, his or her lack of cooperation in the face of the employer’s willingness to discuss accommodations will provide solid evidence of the claimant’s bad faith. Matthew S. Wynn is a founding partner in Wynn McGarry, a litigation boutique located in King of Prussia, Pa., and head of the firm’s workers’ compensation practice group. He is the defense co-chairman of the workers’ compensation section of the Philadelphia Bar Association and has represented employers, insurers and third-party administrators in workers’ compensation litigation since 1991. He can be contacted via e-mail at [email protected].

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