State News : Pennsylvania

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By Kevin L. Connors, Esquire



“Just because I don’t care, doesn’t mean I don’t understand”, brilliantly drooled by Homer Simpson.


In the School District of Philadelphia v. the WCAB, in a Decision issued by the Pennsylvania Supreme Court on May 26, 2015, authored by Justice Baer, the Supreme Court was asked to decide whether Section 306(b)(3) of the Pennsylvania Workers’ Compensation Act requires an Employer to provide an injured Employee with a written “Notice of Ability to Return to Work”, utilizing the State Form, identified as LIBC-757, before offering alternative employment where the injured Employee has yet to file a Claim Petition, and, therefore, has never formally proven entitlement to workers’ compensation.


Collectively holding our compensable breaths, the Supreme Court has unanimously held that the Notice provisions of Section 306(b)(3) requiring an Employer seeking to modify the workers’ compensation benefits of a Claimant based on medical evidence establishing that the injured Employee is able to return to work in some capacity, does not require the Employer to provide an injured Employee with Notice of their ability to work when offering alternative employment, when the compensability of the claim has not been established, either through acceptance of the claim, or through the Claimant filing a Claim Petition in the course of seeking workers’ compensation benefits.


This issue arose when the Claimant, Shirley Hilton, employed by the School District of Philadelphia, working as a second grade Teacher, in a School where the Claimant was routinely exposed to misbehavior, which included profanity and physical violence, forcing the Claimant to attempt to teach effectively by speaking louder than the classroom noise that she was attempting to talk over.


Completing an assignment on March 3, 2009, the children in the Claimant’s classroom became unruly, vandalized the room by knocking over desks and chairs, tore down educational charts, and ripped down a window shade.


These events were disturbing to the Claimant, who felt dizzy, could not eat, developed tension headaches, heart palpitations, and nausea.


Concluding school that day, the Claimant then went to a regularly-scheduled appointment with her primary care physician, Dr. Baugh, with the Claimant telling Dr. Baugh of the symptoms she experienced at School that day, also indicating that the anxiety that she was experiencing when working was more than she could bear (no relation to Justice Baer).


Dr. Baugh’s office then called the School District and advised that the Claimant would not be returning to work, due to her overly stressful environment.


Shortly thereafter, the Claimant was evaluated by the Employer’s work physician, Dr. Burke, who concluded that the Claimant could return to work at a regular job, at the School where she was working.  The Claimant did attempt to return to work, but only lasted four days, claiming that she could not continue to work under the stress that she experienced.


A Notice of Compensation Denial was then issued by the School District, denying the Claimant’s injury as being work-related, with the denial issued on May 29, 2009.


In June of 2009, the Claimant was then assigned to teach at a different School in the next Fall Semester.  The Claimant met with the Principal of that School, toured the facility, and found that the new School would be much less stressful, as the Students were quieter, and the Teachers were apparently able to teach the children effectively.


When the job was offered to the Claimant for the Fall Semester of 2009, the Claimant had not filed a Claim Petition, challenging the claim denial by the School District.


When School was ready to begin in September of 2009, the Claimant indicated that she could not begin employment at the new School, as she maintained that she was unable to return to teaching, because she was still under treatment for the symptoms that had arisen while she was working at the more-stressful School in March of 2009.


One month later, the Claimant filed her Claim Petition, alleging that she had developed stress from an abnormal working condition, and that she had sustained work-related injuries on March 3, 2009, to include a vocal cord injury, as well as aggravation of pre-existing lupus, and a heart murmur.  She claimed that her injuries rendered her totally disabled.


In response to the Claim Petition, the School District filed a timely Answer, denying all of the allegations in her Petition.


During the course of hearings before the Workers’ Compensation Judge, the Claimant testified to the events that caused her anxiety and stress, and she presented the testimony of her treating physician, Dr. Baugh.  The Employer presented the testimony of a medical Expert, Dr. Lamprakos.


Considering the evidence presented in support of and in opposition to the Claimant’s Claim Petition, the Workers’ Compensation Judge accepted the Claimant’s testimony regarding the conditions of her work environment at her old School, with there being no evidence presented to contradict the Claimant’s testimony regarding the behavioral problems of the Second Graders at that School. 


The WCJ also credited the Claimant’s testimony that the stressful work environment caused her physical symptoms, to include the heart palpitations, headaches, dizziness, and nausea, as well as reducing her voice to a whisper.


The WCJ also accepted the testimony of her treating physician, Dr. Baugh, that the Claimant was exposed to a stressful work environment, and that she had developed an exacerbation of her pre-existing lupus, as well as developing oral ulcers, nasal ulcers, and increased hyperpigmentation of her face.


However, the Workers’ Compensation Judge accepted the Employer’s Expert’s testimony that the Claimant’s stressful work conditions did not cause an exacerbation of her fibromyalgia.


In reliance upon the testimony of Dr. Baugh, the Claimant’s treating primary care physician, the WCJ concluded that the stress that the Claimant had been exposed to when teaching the misbehaving Second Graders resulted in the Claimant sustaining physical injuries, to include the exacerbated lupus, the vocal cord injury, and that those injuries rendered the Claimant totally disabled as of March 3, 2009.


So concluding, the Workers’ Compensation Judge awarded her benefits, although the WCJ found that Dr. Baugh’s testimony did not establish that the Claimant was generally disabled from working as a Teacher, but only that she was disabled from working in a classroom with children with significant behavioral problems, like those in the class that she had been teaching on March 3, 2009.


The WCJ then accepted the testimony of the Claimant, that she had been offered a position at a less-stressful School, suspending the Claimant’s compensation benefits as of when the Claimant could have begun working there under the School District’s job offer.


The Claimant then appealed the WCJ’s Decision to the Appeal Board, which affirmed in part, and reversed in part.  The Appeal Board reversed that portion of the WCJ’s Decision, which suspended the Claimant’s compensation benefits as of September 30, 2009, the date on which the Employer had provided the Claimant with a Notice of Ability to Return to Work, LIBC-757, pursuant to Section 306(b)(3) of the Act.


Section 306(b)(3) sets forth:


If the 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 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 employment.

(iii)             That proof of available employment 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.


In reliance upon Section 306(b)(3) of the Act, the Appeal Board held that the Employer’s obligation to issue the Notice of Ability to Return to Work Form was mandatory, and that the School District’s failure to comply with the Notice provisions of Section 306(b)(3) during the pendency of the litigation of the Claimant’s Claim Petition precluded the WCJ from suspending the Claimant’s compensation benefits.


In essence, the Appeal Board concluded that there was insufficient evidence to establish that the Employer had provided the Claimant with the requisite Notice to meet the Employer’s threshold burden to modify the Claimant’s compensation benefits, in the form of suspending her benefits based upon available alternative work.


No surprise, the School District appealed the Appeal Board’s Decision to the Commonwealth Court, which, like the Appeal Board, affirmed in part, and reversed in part.


The Commonwealth Court affirmed the Appeal Board’s affirmation of the Claimant being awarded workers’ compensation benefits, although the Commonwealth Court held that the WCJ had properly suspended the Claimant’s compensation benefits because:  (1) Claimant established disability only until September 30, 2009, when the job at the new School was made available to her; and (2) The School District had no duty to issue a Section 306(b)(3) Notice to the Claimant under the facts presented.


Examining Section 306(b)(3) of the Pennsylvania Workers’ Compensation Act, to determine whether an Employer is required to provide a Claimant with a Notice of Ability to Return to Work prior to offering alternative work, when the Claimant was not receiving workers’ compensation benefits at the time that the job was offered, the Supreme Court held that the plain language of Section 306(b)(3) reveals that the focus of the provision is upon the Employer’s receipt of medical evidence of a change in the nature of the Claimant’s physical condition and the Employer’s duty to apprise the Claimant of such evidence, but that this Notice prerequisite presumes that the work-related injury has caused a disability, and that the Claimant is receiving ongoing benefits for that compensable injury, in the course of which the Employer seeks to utilize medical evidence that it has obtained of a change in the Claimant’s physical condition enabling the Claimant to work in an order to reduce its existing liability by decreasing the amount of benefits that it might have to pay, absent work being available.


Concluding that it would be illogical to require an Employer to issue a Section 306(b)(3) Notice before an Employer has conceded the occurrence of a compensable injury, or a Claimant has proven his/her entitlement to workers’ compensation benefits, the Supreme Court held that “we agree with Employer that it does not have an obligation to disclose evidence of a change in Claimant’s physical condition at a time when her physical condition had yet to be determined.”


Moreover, the Court held that “to require Section 306(b)(3) Notice of the facts presented would place an unreasonable burden on Employers in cases where disability is contested and a Claimant has not yet established his/her entitlement to benefits.”


Characterizing its analysis of the legislative history behind Section 306(b)(3) as having been intended to speak to an Employer’s burden in a suspension proceeding, where the Employer seeks to suspend a Claimant’s compensation benefits based upon the Claimant having the ability to return to work, at work within the Claimant’s physical capabilities being available, the Supreme Court held that the Section 306(b)(3) Notice provision is not meant to impose a requirement upon Employers in all circumstances where alternative employment is being offered to an injured Employee. 


Distinguishing the Commonwealth Court’s Decision in Hoover v. WCAB, 783 A.2d 886 (Pa. Cmwlth. 2001), the Supreme Court held that theHoover Decision was not relevant to the issues before the Court, asHoover involved the Employer denying liability for the alleged work-related injury, but then offering the Claimant a light-duty position after the Claimant filed a Claim Petition, but prior to the Claim Petition being adjudicated, with the Commonwealth Court in Hoover having found that the Employer had failed to satisfy the Notice requirements under Section 306(b)(3), as the Commonwealth Court held that a Notice of Ability to Return to Work was required to have been issued prior to a suspension of compensation benefits, although the Hoover Court provided no analysis as to why it drew that conclusion, with the Supreme Court declining to adopt theHoover Court’s application of Section 306(b)(3) where an Employer has not accepted liability for the claim, and the Claimant has yet to prove entitlement to benefits.


Is this a distinction with a difference?


Absolutely yes!


It is relevant because the Supreme Court has now held in School District of Philadelphia v. WCAB that the Notice requirements of Section 306(b)(3), requiring an Employer to notify an injured Employee that their physical condition will allow them to return to work in some capacity, only comes into play when there has been a determination that the Claimant’s alleged disability is, in fact, work-related, which would require either an acceptance of the claim by the Employer, and/or an adjudication of the claim by a WCJ, establishing compensability of injury, and related disability.


Since neither had been established in the factual record presented to the Supreme Court inSchool District of Philadelphia v. WCAB, the Supreme Court held that the School District had no responsibility to issue the Section 306(b)(3) Notice of Ability to Return to Work, and that the evidence before the WCJ supported a suspension of the Claimant’s workers’ compensation benefits as of the date that the Claimant had been offered alternative work by the School District, being September 30, 2009.


ConnorsO’Dell LLP

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We defend Employers, Self-Insureds, Insurance Carriers, and Third Party Administrators in Workers’ Compensation matters throughout  Pennsylvania.  We have over 100 years of cumulative experience defending our clients against compensation-related liabilities, with no attorney in our firm having less than ten (10) years of specialized experience, empowering our Workers’ Compensation practice group attorneys to be more than mere claim denials, enabling us to create the factual and legal leverage to expeditiously resolve claims, in the course of limiting/reducing/extinguishing our clients’ liabilities under the Pennsylvania Workers’ Compensation Act.


Every member of our Workers’ Compensation practice group is AV rated.  Our partnership with the NWCDN magnifies the lens for which our professional expertise imperiously demands that we always be dynamic and exacting advocates for our clients, navigating the frustrating and form-intensive minefield pervasive throughout Pennsylvania Workers’ Compensation practice and procedure.