By Kevin L. Connors, Esquire
TABLE OF CONTENTS
- A Short History of Workers’ Compensation, or The End of the World As We Know It
- Claim Genesis
- David Letterman’s top Ten Comp Forms
- Without A Trace: Electronic Filing at the Bureau
- Jeopardy: “Medical Only” Claims
- The Biggest Losers: Pitfalls in Form Preparation
- Claim Transition: The Real World
- Extreme Makeover: IME vs. IRE
- Return to Work: Project Runaway
- Earning Power: The Office appears before Judge Judy
- Extreme Makeover: Litigation Edition
- Let’s Make a Deal: Who Wants to be A Millionaire; The Price is Right; Deal
or no Deal
XIII. Top Ten Reasons Why All of us Are Smarter than Claimant’s or their
I. A Short History of Workers’ Compensation, or The End of the World As We Know
From a Historical Perspective, in the beginning there was the Word, and the word was “I’ve been hurt at work and I need to report my claim”!
A few Significant Historical Dates, tied to nothing other than Workers’ Compensation:
1915: Workers’ Compensation Act Enacted.
Department of Labor and Industry Established.
Origin of Bureau of Workers’ Compensation.
1972: Evisceration of Requirement of Proving Accident for purposes of securing compensability of Workers’ Compensation claim.
Post-1972: Burden of Proof for compensability is limited to proving the occurrence of a work-related “injury,” Which can be as bizarre as “I have more claims than I can handle at any one time”, and, therefore, “I must have a compensable stress injury”.
1993: Act 44
Medical Costs Containment Provisions Enacted.
Panel Lists become the vogue.
Reforms primarily intended to limit expenses for medical treatment for Workers’ Compensation claims.
Concept of Temporary Compensation originates.
1996: Act 57
Indemnity Benefits Reformed.
Reforms expand temporary compensation.
Special Supersedeas (It is so special, it is never granted).
Modification Procedures for Earning Power and IREs.
Settlements allowed via Compromise and Release Agreements.
2007: Act 147
Trial Procedure Reform
Mediations made Mandatory
II. Claim Genesis: in the Beginning, there was the Report of Injury
A. Steps to follow in accepting/denying Workers’ Compensation claims:
- Be sure to skip work on date of claim assignment;
- Feign conflict, claim in-law or kissing cousin relationship with claimant;
- If pinned down on claim assignment, say a few prayers that it is a “medical only” and then establish and maintain contact with claimant, employer, and treating panel physicians;
- Establish and maintain the endless claim reports necessary to file with the Bureau;
- Review Report of Injury to determine if lost time claim;
- If lost time claim, initiate first contact with claimant to determine mechanics of “injury”, timing of reporting of injury to employer, referral information provided by employer for employee to seek panel provider treatment, maintain contact with employer to determine unique circumstances of reported claim, i.e. potential factors militating for denial of claim, versus lifetime claim acceptance, develop background profile on claimant, looking for prior claims, or potential suspicious background factors, age of injury, claimant pre-existing conditions, length of employment, potential length of projected disability, return to work with restrictions, witnessed versus unwitnessed injuries, violation of work orders, horseplay, personal animus, coming and going rule exceptions, and aggravations versus exacerbations.
- To form or not to form:
- If the claim involves lost time, a form must be filed, be it an NCP or a TNCP.
- Which form to utilize bears no similarity to the question posed by George Berkeley, an 18th Century British Empiricist Philosopher, best known for the proposition “seesse is percipi, to be is to be perceived, further posing the infamous question: “If a tree falls in the forest, and no one is there to hear it fall, does it make a sound”.
- We all know the answer.
- It later became a Super Bowl commercial.
- Choose your Bureau form carefully.
- If you have no defenses to compensability, accept and manage the claim with the issuance of an NCP, insuring an accurate description of the diagnosis of the injury, and its mechanics, i.e. “I fell over all the files on the floor while trying to hand my year-end report to my boss”.
- Practice Tip: Judges hate TNCPs and TNCPs almost always are challenged with Penalty Petitions, especially ones filed by the white-socked attorneys at Martin Banks.
- Caution Will Robinson: Use TNCP when “disability” is really under “investigation”.
- Next most important Bureau form, other than the NCD (Denial) is the Notice of Ability to Return to Work, with your carefully scouring every medical report crossing your desk for any possible reference to a totally disabled claimant being able to sort paperclips and return to work, immediately resulting in the issuance of the Notice of Ability.
- Once panel provider period of treatment is exhausted, consider IME, for purposes of establishing either full recovery or functional capacity to return to work in some level.
- If you have reached the suicide inciting point of a claimant receiving 104 weeks of temporary total disability benefits, request the IRE, even if considering not coordinating the IRE until post-IME.
- Never allow totally disabled claimant receiving 104 weeks of total disability benefits to exceed 112 weeks of total disability payments without requesting IRE, in reliance upon the inebriated brilliance of the Commonwealth Court in Diehl.
- Keep claimant away from counsel as long as possible.
- Once counsel is involved, consider referral to the best darn defense comp attorneys in Exton, ConnorsO’Dell LLC.
III. David Letterman’s Top Ten Comp Forms:
- (Letterman) makes too much money to ever worry about Workers’ Compensation.
- It has to be an NCD, as that automatically results in counsel interference, litigation initiating, and the filing of a claim petition, resulting in alternative referral to ConnorsO’Dell LLC.
- In no order of particular preference, a TNCP, as it can be pulled, stopped, or yanked, and is the only Bureau form that is susceptible to retraction.
- Notice of Ability, given its lyrical and satirical reference to a disabled claimant being able to become undisabled, and suggesting in Miranda-like prophetic fashion, that a disabled claimant has the absolute right to return to work, although that right is routinely avoided, ignored, forsaken, challenged, and blasphemed, for lack of a better word, to expose the mild degradation associated with the seeming abhorrence to accept responsibility for being gainfully employed.
- Verification of Employment, winning the award as the only Bureau form serving as a pre-curser to prosecutions for fraud for failure to report income and change in physical condition.
- Notification of Suspension/Modification, allowing for a unilateral self-help change in the claimants’ entitlement status to temporary total disability benefits, a form that eliminated the necessity of referring claims to counsel for Suspension Petitions, where claimants failed or refused to sign Supplemental Agreements, after returning to gainful work.
- Compromise and Release Agreements, filling in the 81 year void during which the Legislature and Bureau would not permit the formal settlement of Workers’ Compensation claims in contravention of civil settlement procedures, permitting no formal oversight of settlement agreements, absent the involvement of a minor.
- Third-Party Settlement Agreements, as one of only two Bureau forms that results in the employer/insurer/administrator recouping/recovering the unjust overpayment or prepayment of compensation.
- Application for Supersedeas Reimbursement, being the only other Bureau form allowing for the recoupment/recovery of the overpayment of Workers’ Compensation benefits.
- Physicians’ Affidavit of Recovery, being critical to the seeking of Special Supersedeas, a term of compensation practice and procedure that is anything but special, and that has only resulted in a few Special Supersedeas’ being granted in the twelve (12) years since the enactment of Act 57.
IV. Without A Trace: Electronic Filing at the Bureau:
Audience Participation Requires Venting!
V. Jeopardy: “Medical Only” Claims:
Pick a category!
The categories are:
- Waldameer Park
- If it surgical, it is likely not a “medical only”
- To form or not to form
VI. The Biggest Losers: Pitfalls in Form Preparation:
- Take your time.
- Be precise.
- Must have accurate wage information.
- Must prepare Statement of Wages, requiring repeated calls to employer to secure accurate wage information.
- NEVER enter a body part into the description of injury box on an NCP.
- NEVER enter a disc herniation as the description of injury on an NCP, as it is near impossible to determine that an injury resulted in a disc herniation, within the twenty-one (21) days permitted for issuance of a Bureau form following the initial reporting of a claim.
- Untimely filing.
- Incomplete filings.
- Any URO filing.
- Any form requiring a claimant’s signature.
- Any Bureau form requiring a claimant’s signature when the claimant is represented.
VII. Claim Transition: The Real World:
Steps to take to convert open claim into closed claim:
- Once the claim is accepted, the claimant is receiving temporary total disability benefits, and the medical bills are being paid in a timely matter based on the appropriate fee schedules, it is necessary that the claim be closely monitored for any change in the claimants’ status, meaning ability to return to work, and/or presumption of full recovery through IME.
- See attached materials.
CHANGE IN STATUS
Once a work-related injury is acknowledged, either via Notice of Compensation Payable or Agreement for Compensation, the status of the worker can be changed when the claimant returns to employment, a physician has found that the claimant has fully recovered or partially recovered or when an impairment rating evaluation has been completed.
A. Pitfalls To Avoid
1. Independent Medical Examination
a. May be completed every six months.
b. Make sure an appropriate physician is selected.
c. Make sure that the IME physician is apprised of the appropriate description of the accepted injury.
d. The IME physician should be supplied with a job analysis of claimant’s pre-injury position.
B. When the IME Provides a Full Recovery Opinion
1. Send a final receipt to the claimant along with a copy of the IME report requesting that they execute the Final Receipt. This would end liability for wage loss benefits but not necessarily for medical benefits.
2. If the Claimant is unwilling to sign a Final Receipt, the case should be referred for litigation on a Termination Petition.
C. When an IME does not provide a Full Recovery but does release the claimant to return to work with restrictions.
1. If the pre-injury employer can offer the claimant a modified duty job within the restrictions set forth by the IME physician, a description of the job duties should be forwarded to the IME physician for his review.
2. Pitfalls to Avoid
a. The modified duty job must be offered to the Claimant in an appropriate letter.
b. A prelude to offering the claimant a modified duty job is the forwarding to the claimant of a Notice of Ability to Return to Work along with the IME report. If claimant is represented then a copy of these documents should be forwarded to his attorney.
c. A letter offering the Claimant a modified duty job should be sent to Claimant with a copy to his attorney.
d. The job offer letter should contain the following:
- The title of the job.
- The specific job duties involved in performing the job with weights to be lifted, amount of time to be spent sitting, standing etc.
- The specific hours that the job involves as well as the specific pay.
- The letter should also indicate that the job falls within the restrictions set forth by the IME physician.
- The claimant should be instructed when to report and to whom.
3. If the claimant fails to return to the modified duty job offered, a verification should be completed by the employer noting that the claimant failed to return on the appropriate date.
VIII. Extreme Makeover: IME vs. IRE:
- If you think that an IME and an IRE are similar forms of medical evaluations, think again!
- The IME, while characterized as independent, is never considered as such by Workers’ Compensation Judges, and is routinely referred to by Claimants’ Counsel as being anything but independent.
- IMEs, are routinely plagued by claimant-raised credibility challenges, characterizing the examining doctors as “hired guns”, making millions performing evaluations for which they have incomplete medical records, limited claim background, no contact with the employer or defense counsel, and limited contact with the claims representative other than through the coordinating/scheduling contact, with the IME physicians having no real understanding of the job duties or physical demands performed by the claimant pre-injury.
- Additional challenges to the IME process become apparent with the general limitation that IMEs can only be performed once every six (6) months and that typically the IME coordination will only involve one medical specialty, even if a claimant is treating with several types of medical specialists, i.e., a claimant is evaluated by an orthopedic surgeon, a neurologist, and a physiatrist, all of whom might well render slightly varying diagnostic impressions, which impression may or may not become relevant in the context of seeking a medical opinion of full recovery as to all work injuries at issue.
- Notwithstanding the above, the IME is absolutely the single greatest tool available to employers/insurers/administrators seeking to determine a claimants’ current medical status, consider whether the claimant has fully recovered from the work injury, and, absent a full recovery, determine whether a claimant has achieved some level of ability to return to work, and, if so, to evaluate the specific restrictions that might be applicable in returning to work, relying upon or utilizing a Physical Capacities Checklist/Form.
- Although the IME is considered as a first step toward reversing the unrestricted payment of total disability benefits, it is a very skewed diagnostic snapshot of a claimant, and it may or may not carry weight within the context and scope of the Workers’ Compensation claim.
- Nevertheless, it is a tool that must be routinely used in the course of evaluating a Workers’ Compensation claim.
- IREs are categorically, procedurally, and diagnostically different from IMEs.
- An IRE is a medical evaluation of last resort.
- It is an evaluation that should only be considered after the claimant has undergone an IME, if not several IMEs.
- IREs do not evaluate disability, in any way, shape, or form.
- It is a medical evaluation predicated solely on the concept of “impairment”, which concept has to be medically evaluated in reliance upon the AMA’s Guides, and that better be the most recent edition, being the sixth (6th) edition.
- IMEs need not be performed by a Bureau-certified physician, although clearly most employers/insurers/administrators utilize Board-certified physicians, with more IMEs being performed by orthopedic surgeons, neurologists, and physiatrists, than any other medical specialty.
- IREs, in contrast to IMEs, must always be performed by a Bureau-certified physician, with the employer/insurer/administrator IRE request being blindly submitted to the Bureau, which then randomly assigns the request to one of the “certified” physicians on the Bureaus’ IRE list, with the employer/insurer/administrator having no control over the selection of the IRE physician, and there being very limited information that the employer/insurer/administrator, even through counsel, can provide to the IRE physician, in the context of the IRE being performed.
- Again, contrast the IME against the IRE, with the carrier having some control over the IME process, there being no carrier control over the IRE process, other than that carriers were successful in integrating IRE provisions into Act 57.
- Both IMEs and IREs have limited functionality within the compensation scheme, and both typically result in some form of post-examination litigation.
IX. Return to Work: Project Runaway:
Is there anything that can be said in terms of the complete impotence of the Act, and case law, in providing either a legal or procedural impetus to assist Claimants in voluntarily returning to work, forsaking the necessity of counsel, doctors, malingering, and being stricken with incurable compensationitis, a disease tied to the biweekly excitement of receiving their workers’ compensation checks?
X. Earning Power: The Office appears before Judge Judy:
- Anyone familiar with Judge Judy and her sarcastic demeanor to all parties would surely welcome her appointment as a Workers’ Compensation Judge, if only to challenge the level and weight of evidence presented by claimants seeking Workers’ Compensation benefits against the seemingly Ryan Howardish, Esquire “out of the ballpark” evidence, routinely presently by ConnorsO’Dell’s attorneys, on behalf of our “I’m tired of always paying benefits” clients.
- Appearing in her courtroom, it is with some measure of certainty that we would suggest that she would find that every claimant appearing before her would have earning power, and that claimants should have an absolute duty to look for work, on their own.
- For this reason, we would nominate her to be a manager judge for the entire Pennsylvania Workers’ Compensation system.
- By almost any measuring rod, the efficacy of the Bureau and its acting principals, to include the Judges, attorneys, parties, is a thought clearly on the Precipice of the abyss of reason, if not nausea.
- It is a dog chasing its own tail.
- Yes, there have been significant reforms, although it feels as though the system is in stasis, and is self-defeating in terms of its humanitarian goals.
- Without question, the biggest reform continues to be the utilization of panel providers, implementation of temporary compensation, and the ability to fully settle Workers’ Compensation claims.
- With every step forward, there are several steps backwards, as Compromise and Releases are now challenged by MSA’s, and what was once thought to be final, becomes yet another hurdle in securing closure and resolution.
XI. Extreme Makeover: Litigation Edition:
See attached handout.
PITFALLS TO AVOID IN LITIGATION
A. Claim/Reinstatement Petitions
1. Timely filing of Answer.
2. Litigation of Claim Petitions.
- IME as soon as possible; within forty-five (45) days of first hearing.
- Locate witnesses to incident; witnesses regarding the job as well as witnesses regarding notice.
B. Penalty Petitions
- Failing to Issue the Bureau Forms
- See Discussion Supra re NCD.
- No pre-certification is required for surgery. Just verify that open claim for the specified injury.
- Penalty for late payment; fix right away to avoid penalty.
- Failure to pay medicals; must have a reason for not paying.
C. Termination Petitions
- Make sure doctor adequately addresses all injuries.
- Determine whether prior litigation expanded description of injury.
- Determine whether prior termination petitions exist with claimant
relying on same doctor.
- Contact with HR regarding potential hobbies/activities of the claimant.
- Potential Surveillance
D. Modification/Suspension Petitions
- Make sure that it is a “real” job if employer makes job offer.
- Labor Market Surveys-Judges do not really like and are expensive.
- Most petitions utilized as leverage for resolution.
- Notice of Ability to Return to Work must be issued as soon as possible prior to issuing the job offer. Send to the claimant as well as carbon copy to opposing counsel.
E. Utilization Review Petition
XII. Let’s Make a Deal; Who Wants to be A Millionaire; The Price is Right; Deal or No Deal:
- Please release me!
- What is the true settlement value of a Workers’ Compensation claim?
- Is it, as every claimants’ counsel leaving you obnoxious and inordinately-lengthy voice-mails, simply a multiplier of either five (5) or seven (7), being in claim years, against a claimants’ yearly benefit rate, or is it a multiplier linked to the amount of time that it is reasonably believed that it would take to convert the claim from an open-ended benefit-spewing claim where life expectancy is forever, and the ability to cap exposure is nil.
- Into this abyss of reason falls the game showesque absurdity of settling Workers’ Compensation claims, under whatever insane pretext works on that day of the week, be it “Let’s Make a Deal”, “Who Wants to be A Millionaire”, “The Price is Right”, or “Deal or No Deal”.
- Every show has its place at this table!
- Under the “Price is Right”, the chance still exists that the claimant could leave the show empty-handed.
- Then again, they would be challenged to objectively value their claim, their values being objectively categorized based on age, injury, length of treatment, surgery versus non-surgical, residual productive skill, education, and behavioral motivation to return to work.
- As a contestant on “Who Wants to be A Millionaire”, claimants would actually be challenged to answer questions about their education, background, medical history, what they actually told their employer when reporting their alleged injury, what they told their treating physician when seeking treatment, what they told the independent medical examiner, when being evaluated every six months, what they told the surveillance investigator performing the pre-text investigation, what they told the IME transport driver enroute to the IME, as well as what they actually testified to under oath in Court, swearing and affirming.
- Of course, the value of the settlement would increase based on the accuracy of the answers given by the claimant, with few ever surviving to the final round.
- Since our current system is seemingly more attuned to “Let’s Make a Deal” than to any other TV Game-show pre-text, it is an experience that we suffer the slings and arrows of every day.
XIV. Top Ten Reasons why All of us Are Smarter than Claimant’s or their Counsel:
1. We know the importance of working.
2. We accept responsibility for our actions
3. We might not always like our job, or love our bosses, but we believe that showing up for work every day is the right thing to do.
4. If we want a free ride, we play Powerball.
5. We believe the compensation system was not intended to be defrauded daily.
6. We think Judges should judge.
7. We think Attorneys should law.
8. We think Claimants should claim to work.
9. We think Doctors should doctor.
10. We think that we should win our Decisions at least fifty (50%) percent of the time.
OVERVIEW OF PENNSYLVANIA WORKERS’
A. Claimant’s Duty To Report Injury
Employers are required to post the Bureau’s Form LIBC-500. This form states “Remember: it is important to tell your employer about your injury”. The form also provides the claimant with the name, address and telephone number of the insurance company or third-party administrator handling workers’ compensation claims for the employer.
1. In the event of a work-related injury, the claimant is required to report that injury to the employer within 21 days of its occurrence. If not the medical bills for the unreported period may not be allowed by the Judge if a claim petition is filed. Indemnity payments are not waived
2. If the injury is not reported to or witnessed by the employer within 120 days from either the date of injury or the date the claimant has knowledge of a work-related disease, compensation in either form, indemnity on medical, is prohibited under the Act.
3. Exceptions to the 120-day rule are allowed for progressive diseases.
B. Employer’s Duty To Report Injury
The Act requires that employer satisfy certain reporting requirements when work-related injuries are reported. Employers must prepare Form LIBC-344, an Employer’s Report of Occupational Injury or Disease (ROI).
The ROI must be filed with the insurance carrier or third-party administrator, if the employer is self-insured. The employer must also file the ROI with the Bureau.
1. The ROI must be filed with the Bureau within 48 hours for any injury resulting in death.
2. For all injuries, which result in “disability” lasting more than “a day, shift or turn of work”, the ROI must be filed by the employer with the Bureau within 15 days of the injury. (See also “Medical Only”)
C. Compensation Notices
1. Within 21 days of the report of injury, the employer, through its insurance carrier or third-party administrator, must do one of the following:
- Issue a Notice of Compensation Payable (NCP), accepting the claim and setting forth the description of injury and applicable compensation payable rates.
- Issue a Notice of Compensation Payable-Medical Only (same form) with checkmark indicating medical only claim.
c. Issue a Notice of Workers’ Compensation Denial (NCD), denying the claim and indicating the reason for denial.
d. The Bureau denial notice gives six reasons for denying a claim, including:
(i) That the claimant did not suffer a work-related injury;
(ii) That the injury did not occur within the course and scope of employment;
(iii) That the claimant was not employed by the defendant;
(iv) That an injury took place but that the claimant is not disabled by the injury under the Workers’ Compensation Act;
(v) That the claimant did not give timely notice of the injury to the employer within 120 days as required under Sections 311-313 of the Act; and
(vi) “Other good cause” which cannot, under the Bureau’s denial notice, be based on “failure to obtain medical confirmation of the injury”, unless the failure has not been caused by the “dilatory conduct of the insurance carrier or employer”.
2. The Act also allows the employer to file a Notice of Temporary Compensation Payable (NTCP).
a. An NTCP must be filed within the same 21-day period as an NCP or NCD.
b. The filing of an NTCP allows the employer to pay “temporary” compensation for 90 days.
c. The 90-day period for payment of “temporary” compensation begins on the “first day of disability”.
3. The Bureau’s NTCP form has a “NOTICE TO EMPLOYEE” declaration that states: “[t]his notice of temporary compensation payment is for a period of up to ninety-days and is not an admission by your employer that it is responsible for your injury”. Must decide within the 90 to accept or deny the claim.
-if accept issue NCP or let it commit
-if deny must file NSTC and NCD within days of last payment.
4. The NTCP also has a “NOTICE TO EMPLOYER” declaration, providing that the failure to file a Notice Stopping Temporary Compensation (NSTC) will mean that the employer has admitted liability and that the NTCP will convert to an NCP. The NTCP is otherwise similar to the NCP in that the injury is described and the applicable wage rates are set forth. The NTCP also specifically identifies the 90-day period for payment of temporary compensation. The employer must send a NSTC with an NCD within five days after the last payment of temporary compensation. Both the NSTC and NCD must be filed within the 90-days for temporary compensation.
5. Failure to file both an NSTC and NCD within the above requirements will result in the conversion of the NTCP to an NCP, meaning that liability for the injury and compensation will be deemed to be admitted.
6. The NSTC gives the employer two choices.
a. The employer can either accept responsibility for the claim and attach an NCP or Agreement for Compensation, or the employer can choose not to accept liability and attach an NCD. The NSTC also advises the claimant that he/she can file a Claim Petition with the Bureau. The NSTC further advises the claimant of the three-year statute of limitations for filing a Claim Petition.
D. If a Claim/Injury is Denied, Claim Petition May be filed
1. Following issuance of an NCD or even in the absence of an NCD, a claimant may file a Claim Petition within three years of the reported injury. The Claim Petition filed with the Bureau is assigned to a workers’ compensation judge (WCJ) for hearings and decision-making purposes. The Bureau typically assigns the petition to a WCJ based on the county in which the claimant lives. If the claimant lives out-of-state, the Bureau typically assigns the petition to a WCJ in a county where the claimant worked for the employer.
2. Following assignment of the petition to a WCJ, the employer is allowed 20 days to answer the petition. The employer’s Answer to the claimant’s petition is required to be filed with the assigned WCJ. If the employer’s Answer to the Claim Petition is not filed within 20 days of the Bureau’s assignment to a WCJ, the employer may be subject to a finding by the WCJ that the answer is untimely and that, therefore, the allegations in the claimant’s petition are deemed admitted, subject to evidence either of an “adequate excuse” to the late answer, or to a challenge of disability from the date that the answer should have been filed into the indefinite future.
3. The Bureau’s assignment of the petition to a WCJ will result in the scheduling of hearings by the WCJ. Currently, hearing procedures vary widely from judge to judge and from county to county. New Act mandates trial schedules be established at the first hearing by the judge and strictly enforcedly unless good cause.
a. Most judges either abide by a “one-day trial” procedure or the more traditional hearing schedule of taking claimant’s testimony at the first hearing and then continuing the case for status hearings with the claimant being required to schedule and take a medical deposition in support of his/her Claim Petition within 90 days of the first hearing and the employer then having 90 days from the date of claimant’s expert medical witness deposition to take and complete its expert medical witness deposition.
b. Either under a “one-day trial” or a traditional hearing procedure, most judges require the employer to schedule and take its independent medical examination within 45 days of the first hearing.
c. If the WCJ hears the case on a “one-day trial” basis, the WCJ typically will use the first hearing as a “pre-trial” and will require the parties to submit pre-trial stipulations. The WCJ will typically schedule the case for a final hearing in either six or nine months, at which time the parties are required to be prepared to present all evidence in support of and in opposition to the pending petition with the record closing and the parties being given a briefing schedule at that hearing. Mandatory mediation may be scheduled before briefs are due.
E. Claim Petition if Accepted
Claimant must treat for 90 days with panel. Investigation should contain medical management may be necessary. Surveillance and/or IME should be considered. If referral to return to work – find suitable job with vocational workup.
F. Record Closing
1. The evidentiary record is closed at the final hearing with all exhibits being marked and introduced into evidence. The parties are given a briefing schedule. Typically, the moving party is directed to be the first to file its brief. The responding party is typically directed to file its brief within 30 or 45 days after the moving party has filed its brief. Certain judges require both parties to file briefs at the same time.
2. After the record has closed and the briefs have been submitted, the WCJ is empowered to issue a Bureau-circulated decision, granting or denying the pending petition.
The decision circulated by the WCJ is required to be “well-reasoned” and must set forth findings of fact supported by substantial competent evidence and conclusions of law granting or denying the relief requested.
3. Within 20 days of the circulation and issuance of the decision, the WCJ retains the authority to amend, correct or vacate the decision.
If the circulated decision of the WCJ is not corrected, amended or vacated within 20 days of its issuance, the decision becomes final and non-appealable unless one or both parties has filed a timely appeal with the Workers’ Compensation Appeal Board (WCAB).
1. When a WCJ’s decision is appealed to the WCAB, the WCAB will docket the appeal and will schedule the appeal for oral argument if the parties have so requested.
If the parties have not requested oral argument, the WCAB requires that the parties submit briefs.
2. The briefing schedule, when oral argument has not been requested, requires the appealing party (appellant) to file a brief within 30 days of the appeal having been filed.
The responding party (appellee) is required to file its brief within 30 days thereafter.
3. If oral argument has been requested, the same briefing schedule applies.
4. When an appeal is filed with the WCAB, either party may request Supersedeas.
- A Supersedeas request must be perfected with the separate filing of an Application for Supersedeas with the WCAB.
b. Supersedeas is requested when the party taking the appeal wants the WCAB to preliminarily rule for or against the payment of compensation, subject to the relief granted by the WCJ during the pendency of the appeal.
Practice Tip: Employers should always request Supersedeas when appealing the decision of a WCJ granting a petition that results in the payment of compensation to a claimant.
5. The WCAB is empowered to review the evidence presented to the WCJ but cannot overturn the WCJ’s credibility determinations. The WCAB must determine whether the WCJ’s findings and conclusions are supported by substantial competent evidence, defined as that which a reasonable mind would accept as adequate to support a conclusion, and whether the WCJ made all necessary findings of fact and conclusions of law. The WCAB may also determine whether the WCJ’s decision is “well-reasoned” under Section 422 of the Act.
a. The WCAB does not, except for very special circumstances, have power to hear evidence with respect to pending appeals.
- The WCAB also has the power to affirm, reverse and/or remand the WCJ’s decision.
6. If the decision is affirmed or reversed, the decision can be appealed to the Pennsylvania Commonwealth Court within 30 days of its circulation via a Petition to Review.
If the WCJ’s decision is remanded, the WCAB will return the record to the WCJ with an order directing the WCJ to reopen the record for purposes of either taking additional evidence or for issuing new findings of fact or conclusions of law.
7. If an appeal is filed to the Commonwealth Court, the Court, at its discretion, can decide whether to rule on the appeal by hearing argument from the parties or by limiting the parties’ argument to the submission of briefs. (Note: The Majority of cases are heard only on the submission of briefs.)
- The Commonwealth Court can issue a decision that is reported, and thus has precedential value, or a memorandum opinion, that does not have precedential value and cannot be relied upon as binding legal authority before a WCJ, the WCAB, or the Commonwealth Court.
- A mandatory mediation program has been enacted by the CWCT wherein the court selects certain cares for mediation. The court will establish a date and time for mediation. A mediation memo is required to be filed with the Court prior to your mediation date.
8. A decision circulated by the Commonwealth Court can be appealed to the Pennsylvania Supreme Court via within 30 days – a Petition for Allowance of Appeal.
The Pennsylvania Supreme Court generally will only grant petitions when it involves an issue of first impression or the Court, for its own reasons, deems the appeal worthy of an opportunity to clarify a prior holding or issue of law.
The Supreme Court rarely grants the allowance of appeal.
H. Alternative Dispute Resolution
The Bureau has established an Office of Adjudication for purposes of coordinating settlement conferences, mediations and informal conferences under Section 402.1 of the Act. There is no cost to the parties to conduct mediations and settlement conferences.
- Mediations And Settlement Conferences
Mediation with Judge not necessarily the one assigned to the case.
New Act – Mandatory mediation in every trial schedule with date and time for mediation conference. 30 days prior to Briefs are due unless Judge Determines it or would be futile.
Mediations and settlement conferences serve an important function in administering and litigating workers’ compensation claims. Mediation is a voluntary, non-binding process by which the parties can either agree to mediate the claim before a WCJ or an Attorney Examiner Mediator.
a. If the parties are requesting an informal conference to settle or mediate the claim, that request typically requires that a Request for Informal Conference be filed with the Bureau for assignment to the requested mediating judge.
b. Independent of the informal conference procedures under Section 402.1 of the Act, the Bureau liberally allows the mediation and/or conferencing of claims for resolution purposes.
c. Claims, which are already being litigated, either by virtue of a claimant-filed or an employer-filed petition, can be heard for mediation or settlement conference purposes before either a mediating judge or a mediating attorney.
d. Parties rarely agree to mediate or conference a case before the WCJ who has been assigned to hear and decide the case. More typically, the parties agree to mediate or to conference a case before an agreed-upon mediating judge or attorney.
e. Mediations can be a successful tool for all parties involved in to quickly resolve claims saving time and expense.