One of the greatest pitfalls in mitigating indemnity exposure occurs where the employer fails to make a legally sufficient job offer that will hold up in litigation. In the most common real world scenario, an injured worker will call or report back to the employer with restrictions imposed by the emergency room or panel provider. If the employer can accommodate the restrictions, then the employer communicates job availability verbally to the employee. In the best case scenario, the injured worker will perform within his restrictions, make a full recovery and ultimately transition back to the pre-injury position in a timely fashion.

Unfortunately, not all injured workers cooperate or communicate with the employer. Moreover, workers' compensation litigation is nothing like the real world. In order to preserve one of the most common and effective affirmative defenses, job availability, there are a number of prerequisites imposed on an employer by the Pennsylvania Workers' Compensation Act. This article will out-line how to make a legally sufficient job offer that will hold up during litigation.

Failure to issue a Notice of Ability to Return to Work (LIBC-757) is by far the most fatal mistake that will undermine any attempt to modify or suspend wage loss benefits on the basis of a specific job offer. In the context of litigation, a verbal job offer during a face to face meeting or via telephone will not be sufficient to prove job availability. In the context of workers' compensation litigation a job offer must be in writing and must be sent after or contemporaneous with the Notice of Ability to Return to Work.

Section 306(b)(3) provides that if the insurer receives medical evidence that the employee is able to return to work in any capacity, then the insurer must provide prompt written notice, on a form prescribed by the Department, when states all of the following: the nature of the employee's physical condition or change of condition; that the employee has an obligation to look for available employment; that proof of available employment opportunities may jeopardize the employee's right to receipt of ongoing benefits; and, that the employee has the right to consult with an attorney in order to obtain evidence to challenge the insurer's contentions. The form prescribed by the Department is the Notice of Ability to Return to Work (LIBC-757).

The issuance of the Notice of Ability to Return to Work is a mandatory prerequisite to obtain modification or suspension of benefits whether in the context of an original claim petition or in a petition filed after the claim has been accepted. The notice must be received by the claimant before the job offer expires in order to be effective. The only exception where the notice is not legally required is when modification is based on expert vocational testimony and surveillance showing imputed earnings rather than a change in medical condition.

As a general practice tip, if the employer receives a medical release and has work available to accommodate the restrictions, then the employer should issue the Notice of Ability to Return to Work attached to the formal written job offer letter. Alas, in litigation even the job offer letter must contain certain elements in order to meet the employer's burden of proof on job availability.

In order to be legally sufficient, a job offer letter must contain the following elements: the category of work for which the claimant has received medical clearance for example, sedentary duty, seated work only, no overhead lifting, etc.; the job title and a brief description of the proposed job; the available hours and rate of pay and a firm date, time and location where claimant will be expected to return to work. These elements are mostly self-explanatory. The job title and description can be "limited to a general job classification along with a basic description to give the claimant something to go on." (Four-way Construction Company v. WCAB (Snyder), 536 A.2d 873 (Pa. Cmwlth. 1988)).

The job offer should be sent via regular and certified mail. The following is a sample of a legally sufficient job offer letter:Dear Claimant:

We are pleased to learn that you have been released to return to work by Dr. X. Dr. X has indicated that you are able to return to work in a light duty capacity with no lifting over 20 pounds. As such, we are hereby offering you the position of ____________.

The duties of the position are:(briefly describe job tasks)

This position conforms to the restrictions imposed by Dr. X. Please report to human resources on __/__/____ at 8 a.m.

This position is available ___ hours per week at the rate of $___ per hour.

Enclosed herein is a copy of Dr. X's medical release and accompanying Notice of Ability to Return to Work. We look forward to your return to work. 

Sincerely,

If the employer is fortunate enough to have suitable work to accommodate the restrictions of an injured worker, that is very powerful evidence to mitigate exposure for wage loss benefits. Hopefully, the claimant will respond favorably to the job offer and litigation can be avoided entirely. All too often, however, the claimant does not want to return to work and instead files a claim petition. So long as the employer followed the above requirements, the affirmative defense of job availability remains viable in litigation.