Fried, Kane, Walters, Zuschlag and Grochmal 625 Stanwix Street, Suite 1404
Pittsburgh, PA 15222
Phone 412-261-4774
Fax 412-261-1225


See: Bentley v. WCAB (Pittsburgh Board of Education)_____ A.2d _____ (Pa. Cmwlth. 2009).

The WCJ in Bentley granted Petition for Modification based on earning power assessment. Indeed, the trend we are seeing is that more and more of these petitions are being granted.

In Bentley, Claimant had sustained a work injury to his left shoulder on November 20, 2001. Based on a January 22, 2003 IME, Claimant was released to full time light duty work. The IME physician had referred Claimant to an FCE and relied upon the same. Thereafter, Claimant met with a vocational expert and earning power assessment/labor market survey was conducted locating ten light duty jobs within twenty-five miles of Claimant’s home. The counselor testified that the jobs were found available to Claimant on the basis of his age, education, physical limitations and residual productive skill. The jobs provided reduced wage so that Claimant would be entitled to a modified benefit. Claimant contested the petition disputing that the employer had no work itself for the Claimant. Employer provided testimony of two representatives confirming that they had no work for the Claimant within his restrictions. The employer also presented testimony of Dr. Kann and the vocational counselor. While Claimant presented testimony of a vocational witness disputing that jobs were available, such testimony was rejected by the Judge.

On appeal, Claimant argued that the employer failed to prove that it provided him with a Notice of Ability to Return to Work in a timely manner. The Court noted this issue was not raised in Claimant’s Answer. The Board initially remanded to the WCJ to make findings regarding this issue. On remand, the WCJ noted that the employer’s notice did not state when it was mailed (the old version of the bureau form failed to include a date line) but the WCJ found it was mailed between the FCE on January 22, 2003 and Claimant’s vocational interview on March 14, 2003. Accordingly, the WCJ again granted modification concluding the employer provided Claimant with notice in a timely manner.

Claimant again appealed, raising multiple issues. The Board did amend the Judge’s Decision where benefits had initially been modified as of January 22, 2003 the date of functional testing. The Board amended the Judge’s determination to conclude that benefits should be modified beginning on May 5, 2003, the date the jobs in the labor market survey were available. The Board affirmed the WCJ’s Decision in all other respects.

Claimant’s next appeal raised three issues. Regarding the issue that the Notice was not sent “promptly” the court rejected Claimant’s argument. The Court agreed that the requirement to file Notice in a “prompt” manner is a threshold burden pursuant to §306(b)(3) of the Act. Employer evidence established that the form was filed “shortly after January 22, 2003”. Moreover, the vocational counselor noted she had received the file between March 3, and March 14, 2003 and it included the form LIBC 757. Thus, the Court held that the credited testimony of employer representative and vocational counselor supports the Claimant’s finding that the employer sent the notice to the Claimant shortly after January 22, 2003 and no later than March 14, 2003. It was highlighted that Claimant did not assert that he never received the notice but merely argues it was not provided in a prompt manner. The Court explained that they had previously determined what constitutes “prompt” written notice under §306(b)(3) “necessarily requires an examination of the facts and timeline in each case to determine if the Claimant has been prejudiced by the timing of the notice.” The Court also explained that Claimant must be given the notice “before the employer attempts to modify benefits”. (Emphasis in original).

Accordingly, given the timeline in the instant case, it was deemed that Claimant could not show prejudice.

Claimant had also argued that the counselor did not establish that jobs were identified in Claimant’s geographic area. However, where all the jobs located were either in or around the City of Pittsburgh where Claimant had worked for the employer, the Court rejected such argument. The jobs were fairly close to Claimant’s residence and well within a twenty-five mile radius. The Claimant had previously worked in schools throughout the Pittsburgh area and had knowledge of this geographic area. The Court highlighted that a twenty-five mile radius is industry standard. The Court did not require “magic words” to meet employer’s burden.

The third issue raised addressed Claimant’s litigation costs where the modification date had been changed. The Board and Court initially declined to award any costs but Application for Reconsideration was subsequently granted so that a new Opinion will be filed. The Application was granted by way of Court Order dated October 7, 2009.

Practice Pointer: File form LIBC 757, Notice of Ability to Return to Work, as soon as practical after your receipt of IME or other evidence of work release. This is a threshold requirement to establishing earning power and an employer will be precluded from proving earning power or modification/suspension based on job offer if the form has not been filed. Thus, the form should be filed before an employer job offer and before a vocational counselor meets with the Claimant.