Another Case Holds Notice Of Ability To Return To Work Is Mandatory

In Allegis Group (Onsite) and ITT Hartford v. WCAB (Henry) the Claimant was suspended by the Employer based on available light duty work. When the Claimant filed a claim petition seeking reinstatement, the WCJ agreed the Claimant was able to return to work as the Employer asserted.

The Board, however, reversed the WCJ's suspension. There was no Notice of Ability to Return to Work.

The Court affirmed the Board. Even though the Claimant filed a claim petition, the Employer had the controlling duty to file the Notice of Ability to Return to Work to be entitled to a suspension.

The Court distinguished Burrell v. Workers' Comp. Appeal Bd. (Phila. Gas Works & Compservices Inc.), 849 A.2d 1282 (Pa. Cmwlth. 2004). The Notice of Ability to Return to Work was not required in that case, but surveillance evidence showed the Claimant working elsewhere, and the Claimant's ability to do that work was substantiated by expert vocational evidence.

The Court stated when suspension or modification is based on new medical evidence, a Notice of Ability to Return to Work is required.