Delay Required between Notice of Ability and the Employer’s Petition to Suspend
To bring a Pennsylvania workers’ compensation claimant back to work effectively, an employer must first procure an Independent Medical Exam report (or treating physician’s note) that releases the claimant to return to work. The employer then must deliver the Bureau form Notice of Ability to Return to Work (“NARTW”) to the claimant, and then the employer must send the claimant a job offer letter. The Pennsylvania Workers’ Compensation Act gives no guidance on the deadline for sending the NARTW, but the courts have held that a NARTW must be “prompt” or the employer will not be able to suspend a claimant’s wage benefits where the claimant fails to return to work.
So what counts as “prompt”? The Pennsylvania Commonwealth Court has issued an unreported decision (LePosa) that sheds some light on the timing issues relating to the delivery of the NARTW to a claimant.
The employer in LePosa drafted an NARTW, dated it August 31, and attached to it a copy of the Independent Medical Exam report that released the claimant to return to work. For whatever reason, the employer did not mail the NARTW to the claimant on August 31, but rather enclosed it in a job offer letter that was mailed to the claimant on September 29, for a job that was to start 3 days later, on October 2. The job offer had no expiration date.
The claimant did not return to work as requested. Accordingly, the employer filed a Petition to Suspend the claimant’s wage benefits over a month later, on November 12, based on claimant’s failure to return to available work. The judge granted that petition, suspending the claimant’s wage benefits, but the Workers’ Compensation Appeal Board (“WCAB”) reversed the decision on appeal. The WCAB held that the NARTW was not “prompt,” as required, since it was mailed to the claimant for the first time only 3 days prior to the job start date. The employer appealed the case further from the WCAB to the Pennsylvania Commonwealth Court.
In order to determine whether the NARTW was “prompt” enough for the employer to suspend the claimant’s benefits, the Commonwealth Court looked at the purpose of the requirement for prompt notice: to allow the claimant to take action in response to the return to work release before the employer takes action against the claimant’s interests. Accordingly, the court determined that the “prompt”ness (and therefore effectiveness) of a NARTW would depend on the period of delay between the delivery date of the NARTW to the claimant and the date when the employer then takes action against the claimant’s interests.
The court discussed two prior Commonwealth Court decisions on this issue, Secco (Secco, Inc. v. WCAB (Work), 886 A.2d 1160 (Pa. Cmwlth. 2005)), and Miller (Miller v. WCAB (Johnson Matthey Holdings, Inc.) (Pa. Cmwlth., No. 167 C.D. 2011, filed June 16, 2011), 2011 Pa. Commw,. Unpub. LEXIS 486).
In Secco, the court found that the NARTW was not “prompt” and therefore ineffective, because there was virtually no delay between the date of the NARTW delivery and the date of the employer action (expiration of job offer), as the claimant received the NARTW on the same day that the job offer expired.
In the Miller case, the court found the NARTW was “prompt” and therefore effective, since there was a 19-day period of delay between the date of the NARTW delivery and the date of the employer action (again, expiration of job offer). While the NARTW was received by the claimant in Miller on the same date as he received the job offer letter, that job offer did not expire for another 19 days.
Here, in LePosa the court found the NARTW was sufficiently “prompt” and legally effective because there was more than a month delay between the date of the NARTW delivery and the date of the employer’s action (filing of a petition). The job offer had no expiration date and the employer did not file the Petition to Suspend claimant’s wage benefits until over a month after delivery of the NARTW.
Delivery of the NARTW: Best practice would be to deliver the NARTW to the Pennsylvania workers’ compensation claimant as soon as the IME report (or treating physician’s release/note) is received, without delay. If the NARTW is mailed Certified Mail, Return Receipt Requested, with a copy of the medical report enclosed, then the employer’s workers’ compensation file should contain legally-sufficient evidence of delivery of an effective NARTW if / when the matter gets to court.
Delay Before Employer “Action”: Best practice would be to involve your defense counsel to address the issue of the required delay between the date of the delivery of the NARTW and the date of the employer action. Miller and the most recent LePosa case suggest that a delay of 19 days or more between the delivery of the NARTW and the employer’s action (either the expiration of the job offer, or the filing of a Petition to suspend the claimant’s wage benefits where the job offer has no expiration) might be sufficient. Your defense counsel can help you determine the most effective method and period of delay for each job offer you make.
 City of Bucks v. WCAB (LePosa) (Pa. Cmwlth., No. 238 C.D. 2018, filed Sept. 30, 2018) 2018 Pa. Commw. Unpub. LEXIS 515.