Claimant was a 2nd grade teacher with a seriously unruly and violent class.  After a particularly bad incident on March 3, 2009, Claimant told her regular doctor she was dizzy, nauseous, etc.  Her doctor called Employer and pulled Claimant out of work.  After seeing a panel doctor, Claimant was returned to work, but lasted only four days.  On May 29, 2009, Employer issued an NCD.  Then, in June 2009, Employer offered her a job at another, less stressful school to begin in September with the school year.  This offer of alternative employment was made before she filed a claim petition and before any medical experts could be deposed.  The second school was better, but Claimant could not work when school year began in September, stating she was still under treatment and unable to resume teaching.


In October 2009, she filed a claim petition, which Employer denied.  Depositions were taken of Claimant;  her regular doctor who had pulled her out of work, who testified that the stress had caused mental and physical conditions and aggravated preexisting physical conditions (lupus, fibromyalgia), but that Claimant could probably teach again in a better environment; and Employer’s expert, who would return Claimant to her original job w/o restrictions.


WCJ awarded TTD as of March 3, 2009 (the worst incident), but also opined that Claimant was not disabled from working at all as a teacher, just in a stressful setting.  Because the second school was a viable alternative offered as of September 30, 2009, WCJ suspended as of that date.  WCAB affirmed benefits ongoing since Employer did not provide notice of ability to return to work pursuant to Section 306(b)(3), so modification/suspension inappropriate.  Cmwlth Ct reinstated WCJ determination in a published opinion.


SCOPA: Affirm CC.  Section 306(b)(3) presumes that compensable injury or disability has occurred, that claimant is currently receiving benefits, and that employer seeks to use newly acquired medical evidence to reduce/decrease existing liability, as in Allegis Group (CC 2005).  It would be illogical to require employer to issue notice before employer has even conceded compensability or claimant has shown entitlement to benefits.  Notice requirement is triggered by entitlement to receive benefits/already receiving benefits, not necessarily whether claim petition has yet been filed.  Also, because Claimant’s doctor conceded she could teach in a less stressful environment (and Claimant agreed the second school was better), Claimant did not establish duration of disability beyond offer to work in a less stressful school as of September 2009.

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