In the case of the School District of Philadelphia v. WCAB (Hilton), 117 A.3d 232 (2015), the Pennsylvania Supreme Court looked at the defendant’s obligation to provide the claimant with a Notice of Ability to Return to Work, LIBC-757, prior to a job offer. This case concerned a teacher who worked at Pastorius Elementary School in a classroom with children with substantial behavior problems. There was a particularly violent incident on March 3, 2009, wherein the children vandalized the classroom by knocking over desks and chairs, tearing down educational charts, etc. The claimant saw her family doctor that day as a result of the incident and advised that the anxiety from her employment was more than she could bear. Her family doctor, Dr. Baugh, called the employer and advised that the claimant would not be returning to work due to the school’s overly-stressful environment. Shortly thereafter, the claimant was treated by the employer’s physician, Dr. Burke, who concluded that the claimant could return to work at her usual job. She returned to her position at Pastorius Elementary for four days, but was unable to continue her work due to stress. On May 29, 2009, the employer issued a Notice of Compensation Denial, denying that the claimant sustained a work injury in the form of job-related stress. In June 2009, the employer assigned the claimant to return in the fall to a different school, the Jay Cooke School. The claimant toured that facility and found it to be quiet and peaceful. However, the claimant did not return in September 2009 to the Jay Cooke School, as she maintained that she was unable to return since she remained under treatment for job-related stress as a result of her position at Pastorius Elementary. The claimant then filed a Claim Petition. The WCJ granted the claimant’s Claim Petition, but then suspended the claimant’s benefits as of September 30, 2009, based on the Jay Cooke School job offer made to her by the employer. The claimant appealed based on the fact that she was not provided a NARTW, LIBC-757, prior to the job offer and, as a result, “did not meet the threshold burden required to modify benefits” pursuant to Section 306(b)(3). The matter was appealed all the way up to the Pennsylvania Supreme Court. The court researched the legislative history of Section 306(b)(3) and found that it was intended to impact the employer’s burden in a suspension proceeding, after a compensable injury has been established. It was not meant to impose a requirement on employers in all circumstances where alternative employment is offered. In essence, the court found that the LIBC-757 may not be required in the setting of a Claim Petition or prior to filing a Claim Petition because compensability has not yet been established to trigger the notice requirement.

What It Means to You

While it is always advisable to send the LIBC-757 and written job offer when possible, claimants can be held accountable for job offers made without either when the employer has not yet been found to be responsible for a work injury. This represents a growing trend by the courts to lean toward a practical, common sense approach when applying the Act. In the past, where we may have hesitated to defend using a job offer that was made without first sending the LIBC-757, this case is strong support for the proposition of successfully using this defense. This case will be particularly helpful in settings where there are work releases and informal job offers or return to work requests made by employers prior to the involvement of an adjuster or attorney on a claim that has not yet been proven or accepted as compensable.