The opinion of the court was delivered by: Judge Friedman
Submitted: October 17, 2008
BEFORE: HONORABLE DAN PELLEGRINI, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Judge, HONORABLE JOHNNY J. BUTLER, Judge.
Judith Miegoc (Claimant) petitions for review of the April 29, 2008, order of the Workers' Compensation Appeal Board (WCAB), which affirmed the order of a workers' compensation judge (WCJ) granting the suspension petition filed by Throop Fashions/Leslie Fay (Employer). We reverse.
The relevant facts are briefly summarized as follows. Claimant suffered a work injury on December 28, 1992, and Employer accepted liability for the injury by way of a notice of compensation payable. In May of 2000, Employer filed a petition seeking a suspension of benefits on the grounds that Claimant had refused available work that was within her medical restrictions. Claimant sought dismissal of the suspension petition based on Employer's failure to provide her with a Notice of Ability to Return to Work, as required by section 306(b)(3) of the Workers' Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §512(3). Subsection 3 was added to section 306(b) of the Act subsequent to the date of Claimant's work injury by section 4 of the Act of June 24, 1996, P.L. 350, effective in 60 days, and provides as follows:
(3) 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 of the following:
(i) The nature of the employe's physical condition or change of condition.
(ii) That the employe has an obligation to look for available employment.
(iii) That proof of available employment opportunities may jeopardize the employe's right to receipt of ongoing benefits.
(iv) That the employe has the right to consult with an attorney in order to obtain evidence to challenge the insurer's contentions.
Relying on Summit Trailer Sales v. Workers' Compensation Appeal Board (Weikel), 795 A.2d 1082 (Pa. Cmwlth.), appeal denied, 569 Pa. 727, 806 A.2d 865 (2002),*fn1 and Hoover v. Workers' Compensation Appeal Board (Harris Masonry, Inc.), 783 A.2d 886 (Pa. Cmwlth. 2001), appeal denied, 569 Pa. 725, 806 A.2d 864 (2002), the WCJ concluded that an employer must provide a claimant the notice required by section 306(b)(3) of the Act in order for evidence to be considered in support of a suspension petition. Accordingly, by order dated March 27, 2003, the WCJ denied Employer's suspension petition.
On appeal, the WCAB reversed. The WCAB reasoned that the notice requirement of section 306(b)(3) imposes a new legal burden on employers, in that the absence of the notice directly affects an employer's entitlement to a suspension. Thus, the WCAB concluded that section 306(b)(3) is a substantive provision that may not be applied retroactively. By order dated January 31, 2005, the WCAB vacated the WCJ's decision and remanded the matter for an adjudication on the merits. Thereafter, the WCJ granted the suspension petition, and, in the course of further proceedings, the WCAB twice reaffirmed its conclusion that the notice requirement of section 306(b)(3) is a substantive provision that may not be applied retroactively.
On appeal to this court,*fn2 Claimant argues that the WCAB erred in concluding that section 306(b)(3) of the Act is a substantive provision; Claimant maintains that section 306(b)(3) is procedural, is applicable to this matter and precludes a suspension of benefits in this case due ...