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RULES AND REGULATIONS

Title 34--LABOR
AND INDUSTRY

DEPARTMENT OF LABOR AND INDUSTRY

[34 PA. CODE CHS. 111 AND 131]

Special Rules of Administrative Practice and Procedure Before the Workers' Compensation Appeal Board and Workers' Compensation Judges

[32 Pa.B. 6043]

   The Department of Labor and Industry (Department), Bureau of Workers' Compensation (Bureau), adopts the following amendments to clarify and provide detailed guidance for practice and procedure before workers' compensation judges (''judges,'' formerly ''referees'') and the Workers' Compensation Appeal Board (''Board,'' formerly, ''Workmen's Compensation Appeal Board''). The Department also amends Chapters 111 and 131 (relating to special rules of administrative practice and procedure before the Workers' Compensation Appeal Board; and special rules of administrative practice and procedure before workers' compensation judges) to provide additional guidance for the litigation of matters before judges and the Board and to refine existing regulations governing practices and procedures before judges and the Board.

Statutory Authority

   The Department adopts these Special Rules of Administrative Practice and Procedure before Workers' Compensation Judges and Special Rules of Administrative Practice and Procedure before the Workers' Compensation Appeal Board (collectively, the ''Rules'') under the authority contained in sections 401.1 and 435(a) and (c) of the Workers' Compensation Act (act) (77 P. S. §§ 710 and 991(a) and (c)); section 2205 of The Administrative Code of 1929 (71 P. S. § 565); and section 414 of the Occupational Disease Act (77 P. S. § 1514).

Background

   In 1980, the Secretary of the Department established a Rules Committee (committee) to develop rules and procedures for the workers' compensation system. The committee consisted of workers' compensation judges, as well as equal numbers of representatives of the claimant's and defense bar and representatives of the Department. This committee was reactivated in 1987 to revise the existing rules. These revisions were published in 1991 and this final-form rulemaking is intended to amend the 1991 publication. The committee, composed of the same general representation, again met in 1996 to review the Rules because of amendments to the act. The committee wanted to incorporate legislative amendments and changes in workers' compensation jurisprudence which occurred since the 1991 publication. Since assembling in 1996, the committee has established various subcommittees to review various subchapters and specific provisions of the regulations. From 1991 to the present, the committee received written comments from various parties suggesting changes to the 1991 publication of the Rules. The commentators included members of the bar and representatives of various parties who litigate within the Commonwealth workers' compensation system. The committee as a whole reviewed these comments and forwarded the meritorious comments to subcommittees for further review and analysis. In response, the various subcommittees issued written reports regarding the recommended changes. Thereafter, the committee as a whole drafted proposed revisions which have been incorporated into this final-form rulemaking.

   Similarly, the committee allowed interested parties an opportunity to address the committee. Since at least 1996, the committee has undertaken an outreach program through announcements and addresses at workers' compensation section meetings of the Pennsylvania Bar Association, which meets at least annually. In March 1998, the committee circulated its first draft of the proposed proposed changes to the Rules. Additionally, the committee has met with the Workers' Compensation Advisory Council (Advisory Council). In a meeting on September 17, 1998, the committee explained to the Advisory Council the committee's purpose and the process by which it reviewed commentary or suggested regulatory amendments.

   The Department previously submitted the final-form rulemaking for review as a final-omitted rulemaking on November 16, 2001, and withdrew the final-omitted rulemaking on December 7, 2001.

   At 32 Pa.B. 1518 (March 23, 2002), the Department published the notice of proposed rulemaking. As a result, the Department received written comments from the following group and individual: the Pennsylvania Workers' Compensation Judges' Professional Association (PWCJPA) and Thomas C. Lowry, Esquire (Attorney Lowry). The Department also received written comments from the Independent Regulatory Review Commission (IRRC) by means of a letter dated May 23, 2002. In response to comments received, some changes have been made in the final-form rulemaking.

Purpose

   The final-form rulemaking clarifies and expedites the hearing and determination of matters in the workers' compensation system and updates existing regulations to ensure timely and fair disposition of matters as required by the act. The present Rules have not been comprehensively reviewed since at least 1991. Since that time, the act has been amended on at least three occasions. See the act of July 2, 1993 (P. L. 190, No. 44); the act of February 23, 1995 (P. L. 1, No. 1); and the act of June 24, 1996 (P. L. 350, No. 57). The final-form rulemaking incorporates changes made necessary by these legislative amendments and ensure that parties will continue to be advised of up-to-date rules for practice and procedures before judges and the Board.

Affected Persons

   Those affected by the final-form rulemaking include workers' compensation judges, Workers' Compensation Appeal Board Commissioners and officials, employees of the Department, Bureau of Workers' Compensation and Workers' Compensation Appeal Board, and attorneys and litigants in the Commonwealth workers' compensation system.

Fiscal Impact

   There is no significant fiscal impact associated with this final-form rulemaking. However, the final-form rulemaking may provide the following savings to the regulated community: (a) reduced travel costs, as hearings may now take place electronically; (b) reduced copying costs, reflecting the final-form rulemaking's reduced copy requirements; and (c) reduced overall litigation expenses attributable to the more expeditious process defined by the final-form rulemaking.

Response to Comments

   The comments received as a result of the notice of proposed rulemaking are addressed on a section-by-section basis as follows.

Chapter 111

   As a general comment, IRRC noted that some of the section titles in Chapter 111 were inconsistent. In response, the Department revised the section titles for §§ 111.16 and 111.21 (relating to briefs: content and form and time for filing; and content and form) to make these section titles consistent with § 111.11 (relating to content and form).

   The Department had amended § 111.3 (relating to definitions) to clarify that documents are properly filed and served by mail only upon deposit in the United States mail as evidenced by a United States Postal Service postmark. By way of comment to this section, IRRC noted that a number of sections in Chapters 111 and 131 contain language referring to forms provided or prescribed by the Board or the Department. IRRC suggested that the Department add information identifying and addressing the handling of these forms, including reference to either the form number or title. The Department does not believe, however, that reference to specific form titles or numbers is helpful with respect to these rules, given the unusually large number of forms used in the workers' compensation system. Consistent with longstanding practice, forms are easily attainable by title by contacting the Bureau's helpline at (800) 482-2383 or (717) 772-4447 or accessing the Department's website at www.dli.state.pa.us. In light of IRRC's comment that § 131.5 (relating to definitions) should include a definition of ''supersedeas,'' the Department has added a definition of ''supersedeas'' in § 111.3.

   The Department had amended § 111.11 to provide for cross appeals. IRRC commented with regard to § 131.21(a) (relating to identifying number), that for confidentiality reasons, Social Security numbers should not be used for purposes of identification. The Department generally agrees with these confidentiality concerns and has amended § 111.11(a)(1) to replace the reference to the Social Security number of the claimant with a reference to the Bureau claim number.

   The Department had amended § 111.16 to modify the time periods for filing of briefs before the Board. IRRC commented that the Department should clarify the Board's ability to extend or shorten the time for filing a brief ''[u]pon request of a party'' in § 111.16(c) to indicate how and to whom requests may be made. As a result, the Department has amended the first sentence of § 111.16(c) to indicate that a party's request may be made in writing to the Secretary of the Board or orally at the time of oral argument.

   The Department had amended § 111.18 (relating to decisions of the Board) to provide for the filing of cross appeals. IRRC further requested that a time limit for Board decisions be included in § 111.18(a), suggesting that the phrase ''as promptly as possible'' is vague in this regard. The Department did not make this change because no time period could be given in light of the many variables involved in the issuance of a decision, including briefing schedules, obtaining a complete record for adjudicating the appeal, resolving Commonwealth Court remands and the possibility of resolution by agreement of the parties. These issues are often outside the Board's control and make it difficult to determine a specific time period.

   The Department had amended § 111.22 (relating to filing) to provide that only two copies of the request for supersedeas, rather than four, must be filed with the Board. The final-form rulemaking now further provides for the time period in which requests for supersedeas from a judge's decision or from a Board order shall be filed. IRRC suggested that the Department should include in § 111.22(a) either the specific time period allowed for a supersedeas request to be filed or the statutory citation where that time period can be found because the phrase ''within the time allowed by law'' is unclear. The Department agrees and has modified this section accordingly for both supersedeas requests from a judge's decision and from a Board order.

Chapter 131

   Section 131.3 (relating to waiver and modification of rules) allows judges to waive or modify provisions within Chapter 131 for good cause, upon motion or agreement. PWCJPA suggested that the language ''for good cause'' should be replaced by ''within the Judge's discretion'' for consistency and to prevent litigation of what constitutes good cause. The Department determined that it is not necessary to change this language because the ''good cause'' requirement is intended to limit waiver or modification to cases with specific facts that warrant action and to discourage blanket waiver of rules in all cases. Moreover, judges may still use their discretion to determine whether good cause exists in a given case.

   The Department had amended § 131.5 to include definitions for the terms ''Bureau record,'' ''insurer'' and ''judge,'' and to delete the definitions of the terms ''close of the record'' and ''referee.'' IRRC commented that the definition of the term ''insurer'' in the regulation differs from that found in section 109 of the act (77 P. S. § 29), and that the definition in the regulation should be replaced with a citation to section 109 of the act. The term ''insurer'' is defined in more than one place in the act, however as this final-form rulemaking is procedural in nature, the Department chose as its analytical framework the procedural definition of the term which is found in section 401 of the act (77 P. S. § 701). Thus, the Department has not changed the definition to that found in section 109 of the act. The Department also has amended § 131.5 to include the definitions for the terms ''challenge proceeding,'' ''penalty proceeding'' and ''supersedeas'' to further clarify the final-form rulemaking.

   The Department had amended § 131.11 (relating to filing, service and proof of service) to clarify that items required to be served upon a party must also be served upon the party's attorney in the same manner as the party is served, and that documents are properly filed and served by mail only upon deposit in the United States mail as evidenced by a United States Postal Service postmark. PWCJPA requested that the language ''as evidenced by the postmark'' in § 131.11(b) be left unchanged, without specific reference to a ''United States Postal Service'' postmark. The Department does not concur, as the inclusion of this reference reflects the current workers' compensation case law, as articulated in the Pennsylvania Supreme Court case of Sellers v. Workers' Compensation Appeal Board, 713 A.2d 87 (Pa. 1998).

   Section 131.21 had provided for identification of submissions in proceedings before judges by the social security number of the employee, unless another identifying number has been assigned by the Bureau. IRRC and PWCJPA commented that, for confidentiality reasons, social security numbers should not be used for purposes of identification. IRRC further suggested that the use of the phrase ''another identifying number'' is unclear and should be deleted. The Department agrees with the confidentiality concerns of IRRC and PWCJPA, and has amended § 131.21(a) to eliminate reference to social security numbers and to simply indicate that submissions in proceedings before judges shall be identified ''by an identifying number assigned by the Bureau.''

   Section 131.22 (relating to transfer of cases or petitions on agreement of all parties) had provided for the transfer or reassignment of cases upon agreement of the Bureau, the parties and the judge. PWCJPA suggested that the reference to the Bureau be deleted, so that only agreement of the parties and the judge would be necessary for the transfer of a case. The Department chose not to adopt this suggestion, as it is necessary for the Bureau to retain the discretion in the transfer and reassignment of cases to properly manage case loads and limit forum shopping.

   The Department had added § 131.24 (relating to recusal of judge) to require that the judge hold a hearing regarding a motion for recusal and issue a decision within 15 days following receipt of the evidentiary hearing transcript and post-hearing submissions. The amendment also had provided that decisions on motions for recusal are interlocutory unless certified for immediate appeal. PWCJPA requested the addition of language indicating that recusal may be upon the judge's own motion and that, for privacy reasons, the judge may recuse himself or herself ''without comment.'' The Department has modified and rearranged this section to set forth in subsection (a) the judge's inherent right to recuse himself on the judge's own motion. The language formerly in subsections (a) and (b) in the proposed rulemaking may now be found in subsections (b) and (c), respectively. The Department did not accept the suggestion to allow recusal ''without comment,'' however, as the Department believes that the parties have a right to know the reason for the judge's recusal.

   The Department had amended § 131.32 (relating to petitions except petitions for joinder and challenge proceedings) to provide that petitions shall be on a Bureau petition form. In addition, this amendment had clarified that the number of copies required shall be as prescribed on the Bureau form. Additionally, the amendment had required that the facts on which a cause of action or defense is based shall be stated in a concise and summary form. IRRC raised concerns about the service of the notice of assignment of petitions under § 131.32(b). IRRC suggested the inclusion of a timeline for assignment by the Bureau and a description of what will constitute notice. The Department has not made this change. The Department believes that it is inappropriate to include this information in these rules because these regulations govern procedures before judges, and not Bureau procedures themselves.

   The Department had amended § 131.33 (relating to answers except answers to petitions for joinder and challenge proceedings) to clarify that a failure to answer a claim petition within 20 days of assignment of the petition shall result in the admission of all allegations of the claim petition, and that answers must specifically admit or deny the averments of each paragraph of the petition, where applicable. The amendment further clarifies that all petitions other than claim petitions may be answered within 20 days after assignment by the Bureau. Further, this amendment specifies the form and number of copies of answers, as well as service requirements for answers. IRRC commented that the phrase ''challenge proceeding'' should be defined. The Department has added a definition of the term ''challenge proceeding'' in § 131.5. IRRC further questioned whether the term ''claim petition'' was synonymous with the term ''petition'' as used elsewhere in the rulemaking and, if not, commented that the term ''claim petition'' should be described or defined. There are many types of petitions, including a claim petition, addressed throughout the regulations. The Department does not believe that a description or definition of the self-evident term ''claim petition'' is warranted in the final-form rulemaking, however, as the act itself specifically refers to and describes a claim petition in sections 410 and 416 of the act (77 P. S. §§ 751 and 821).

   In addition, IRRC suggested that the term ''adequate excuse'' in § 131.33(a) is unclear and should either be defined or explained by example. PWCJPA commented that the changes to § 131.33 that reflected case law and addressed what may or may not be contested on a petition should be eliminated. Attorney Lowry additionally requested that § 131.33(b) be clarified to reflect that, under that subsection, the filing of an answer to petitions other than claim petitions was not mandatory. In light of the changing case law in this area and to avoid confusion, the Department has redrafted subsection (a), thereby removing the reference to ''adequate excuse'' in the final-form rulemaking and replacing it with a general reference to section 416 of the act. This change further allowed the Department to consolidate subsections (a) and (b) to improve the clarity of the section regarding the filing of answers.

   Attorney Lowry further commented that the requirement that answers must be responsive in denying or admitting allegations in § 131.33(e) is in the nature of ''notice pleading,'' which unfairly burdens employers in light of time constraints in the transmittal of files to employer counsel. Attorney Lowry further questions whether this will open the door for a ''motion for judgment on the pleadings'' practice in workers' compensation. The Department does not agree with this position. The Department believes that meaningful, responsive answers are possible under this section without creating these problems. The Department does not believe the requirements of § 131.33(e) place an undue burden on respondents, particularly in light of the existing, more detailed requirements for answers filed with State courts. In addition, the issue of time constraints in the transmittal of files from employers to their counsel is an internal issue that is not appropriately addressed in the final-form rulemaking.

   The Department had amended § 131.36 (relating to joinder) to require that the petition for joinder have attached to it a list of the dates and locations of all prior hearings held and depositions taken, to require that an original and the number of copies specified on the Bureau petition for joinder form be filed and to provide that answers to petitions for joinder may be filed within 20 days following service of the petition for joinder. IRRC and PWCJPA suggested that the Department revise the language in subsection (f) to reflect the fact that, although the filing of the joinder petition itself is optional, the timeline following the filing of a joinder petition is mandatory. In response, the Department acknowledges the validity of these suggestions and thus has amended § 131.36(f) to remove any ambiguity about the timeline. IRRC additionally commented that the term ''joinder'' was unclear and suggested that it be defined. The Department has determined that it is not necessary to define the term, as the meaning of the term is obvious from the context and plain meaning of this section and because there is a specific Bureau form for joinder of an additional defendant.

   The Department had added § 131.40 (relating to frivolous pleadings) to provide a mechanism for the dismissal or other disposition of frivolous pleadings. IRRC commented that the phrase ''or issue some other decision within the judge's discretion'' in this section is vague. IRRC suggested that the Department specify the types of decision, other than dismissal, which can be issued. The Department believes that inclusion of a list is not warranted, as there are several alternatives to dismissing a petition that may be appropriate based upon individual circumstances including, among others, the options discussed in § 131.13(m) (relating to continuances or postponements of hearings).

   Section 131.41 (relating to request for supersedeas or reconsideration of supersedeas) had addressed the procedural aspects of requests for supersedeas before judges. IRRC commented that there is no definition of ''supersedeas'' in § 131.5 and suggested that the Department explain the meaning of the term as used in this section. The Department agrees and has included a definition in § 131.5.

   The Department had amended § 131.52 (relating to first hearing procedures) to clarify the chapter's purpose of providing a fair and prompt hearing process, and of allowing all parties to introduce appropriate evidence and to receive a timely decision from the judge. The Department also had amended § 131.52 to reaffirm that, where practicable and appropriate, the entire record shall be completed at the first hearing. The amendment further had provided that the procedures utilized for hearings may differ based upon a number of factors and that the process ultimately utilized in any particular case is within the discretion of the judge. IRRC commented that subsections (a) and (b) are redundant insofar as the general purpose and scope of this chapter are addressed by §§ 131.1 and 131.2 (relating to purpose; and scope). The Department does not concur. Although these sections address common issues, the information in § 131.52 is specific to first hearing procedures and does not appear to be redundant in light of §§ 131.1 and 131.2.

   IRRC further commented that the phrase ''all documents required by law'' in § 131.52(f) is vague and should be replaced with a citation to applicable law or a list of specific documents. The Department determined that it is not necessary to replace this language as there are numerous sections of the act, regulations and other acts that may require the filing of documents, and citation to all of these provisions would unreasonably lengthen the regulation.

   PWCJPA additionally commented that § 131.52(f) should be revised to require that the Bureau, in addition to the parties, shall provide the judge with all documents required by law. The Department has declined to place an additional administrative burden on the Bureau, which is not a party, by subjecting it to this requirement in all cases. Moreover, it is up to the parties to determine what documents may be relevant for introduction in any given case. PWCJPA further requested the removal of the sentence in § 131.52(f) prohibiting the judge and employee from introducing the Employer's Report of Occupational Injury or Disease. The Department does not believe that removal of the sentence is warranted because the language is consistent with the statutory prohibition on the use of these reports as evidence against employers, found in section 438 of the act (77 P. S. § 994).

   Attorney Lowry also commented that the discretionary nature of the first hearing procedures allowed by § 131.52 may lead to widespread differences among judges and may lead to conflicts for a busy law practice. The Department believes no change is warranted, as any conflicts caused by the scheduling of judges should be worked out between the judge and the parties on a case-by-case basis. Attorney Lowry further commented that this section is at variance with the time periods set forth for the exchange of information in § 131.61 (relating to exchange of information). The Department disagrees with this position, insofar as § 131.53a (relating to consolidated hearing procedure) gives the judge authority to waive or modify the rules in § 131.61 for the purposes of conducting a 1-day trial.

   The Department had added § 131.53a to provide a mechanism for the implementation of expedited hearing procedures including 1-day trials. The amendment further had provided that trial or deposition testimony may be taken from witnesses prior to a party's obligation to conduct medical depositions. IRRC questioned the reasonableness of the provision in subsection (a) which allows judges to waive or modify rules to accommodate 1-day trials. IRRC further suggested that subsections (a) and (b) be consolidated into one subsection. The Department has not adopted this suggestion. The Department believes that the waiver provision is necessary to allow judges to manage their caseload and to be flexible to meet docket demands. In addition, the Department believes that combining the subsections would reduce clarity.

   IRRC also commented that the terms ''trial deposition'' and ''medical deposition'' in § 131.53a are not defined. PWCJPA also requested that the term ''trial deposition'' be changed simply to ''deposition.'' The Department utilized the term ''trial deposition'' to distinguish it from a discovery deposition, which is not allowed in workers' compensation matters. The term ''trial deposition'' is used to provide clarity to indicate that the deposition is to be for use at the hearing rather than as a means of discovery prior to the hearing. The term ''medical deposition'' is commonly used in workers' compensation proceedings and its meaning is obvious by its use, without further definition. Thus, the Department has declined to accept these suggestions. PWCJPA further commented that subsection (b)(2) should be redrafted to specifically address concerns about parties waiting months to testify. The Department believes that this suggestion is not warranted, as it would interfere with the judge's existing ability to set hearing procedures under the Rules. Moreover, the Rules already provide the judge with the discretion to vary the hearing procedures in any given case.

   The Department had amended § 131.54 (relating to manner and conduct of hearings) to clarify that hearings may, at the discretion of the judge, be conducted by telephone or other electronic means if the parties do not object. The amendment also had provided that a witness whose identity has not been revealed as provided in this chapter shall not be permitted to testify on behalf of the defaulting party unless the testimony is allowed within the judge's discretion. PWCJPA suggested that the ''if the parties do not object'' language would limit the judge's use of his discretion where a party objects. PWCJPA therefore requested that it be stricken. The Department does not concur, as a party's objection and the judge's discretion are not mutually exclusive. In addition, the inclusion of this language necessarily addresses due process and fairness concerns in these circumstances.

   The Department had amended § 131.55 (relating to attorney fees and costs) to provide that a decision on the fee award will be made on the application and response submitted, if any, and the record of the case. If deemed appropriate by the judge, a hearing may be held and evidence presented. PWCJPA commented that the phrasing of subsection (d), requiring that the decision will be made ''based on the application and response submitted, if any, and the record of the case,'' is in conflict with current case law on this subject. In response, for purposes of clarity, the Department has rearranged the language to provide that a decision will be made ''based on the record of the case and, if filed, the application and response.''

   The Department had added § 131.57 (relating to compromise and release agreements) to delineate procedures for the filing and approval of compromise and release agreements under section 449 of the act (77 P. S. § 1000.5). The proposed amendment had clarified that compromise and release agreements are subject to an expedited resolution, and that the judge will circulate a decision within 30 days after a hearing on the compromise and release agreement. IRRC commented that the phrase ''[t]he judge will circulate a decision'' in subsection (d) is vague. IRRC requested an explanation as to whom the decision is distributed. The Department disagrees and believes that the parties to whom the decision is circulated is clear from the language of this section and the context of section 449 of the act. PWCJPA requested that the language ''after the hearing'' in subsection (d) be changed to ''after the close of the record'' to reflect that the record may stay open after the hearing for exhibits. The Department does not believe that a change is necessary, as the language ''after the hearing'' is a valid interpretation of the statutory provision.

   The Department had added § 131.58 (relating to informal conferences) to provide procedures for requesting and participating in informal conferences. The amendment had provided that requests for informal conferences shall be recorded on a form prescribed by the Bureau, and shall be filed with the judge to whom a pending petition has been assigned. If no petition is pending, a petition and the request for informal conference shall be filed with the Bureau. IRRC commented that the instructions and procedures specified in the Bureau form and section 402.1 of the act (77 P. S. § 711.1), which are referenced in subsection (e), should be specifically included. The Department does not believe the inclusion of this information is warranted, however, as the Bureau form already contains the necessary instructions and procedures for the parties. Moreover, the procedures in this area are new and evolving.

   The Department had amended § 131.61 to clarify that digital recordings, including CD-ROMs and diskettes, are included in the types of information which must be exchanged prior to the first hearing. Additionally, the amendment had clarified the requirement that the moving party provide this information prior to the first hearing and that the respondent provide it within 45 days after the first hearing. PWCJPA commented that the phrase ''no later than'' in subsection (b) was redundant and should be stricken in light of the Department's addition of the phrase ''prior to'' in that subsection. The Department agrees and, accordingly, has removed the ''no later than'' language from this subsection.

   The Department had amended § 131.81 (relating to subpoenas) to require that witness fees for witness testimony and travel: (1) be tendered upon the witness' demand at the time of the service of the subpoena; or (2) accompany the subpoena if served by mail. The fee for 1 day's attendance and roundtrip mileage is as prescribed in 42 Pa.C.S. §§ 5901--5988 (relating to depositions and witnesses). PWCJPA suggested that subsection (b)(3), providing for subpoena fees, be stricken in its entirety. PWCJPA commented that this subsection will complicate cases and place individuals who are receiving no income at a disadvantage. The Department does not agree with this position. This provision reflects the current state of the law and is intended to provide necessary notice since this statutory requirement is in addition to those requirements found in the act.

   The Department had amended § 131.101 (relating to briefs, findings of fact and close of record) to set forth that the record is closed when the parties have submitted all of their evidence and rested, when the judge has closed the evidentiary record on a party's motion or on the judge's own motion. The amendment also had provided that the judge may hold open the record if the judge determines that additional hearings are necessary, additional evidence needs to be submitted, or, if the judge schedules additional written or oral argument, the evidentiary record may be held open by the judge. The amendment had further provided for certification of the record at or before the filing of proposed findings of fact, conclusions of law or briefs. The amendment had provided that the judge will specify the contents of the evidentiary record in the decision. IRRC and PWCJPA suggested that the final use of the word ''evidentiary'' in the last sentence of § 131.101(c) was not necessary and should be deleted. The Department concurs with this suggestion. As a result, the Department has clarified the sentence by removing the final ''evidentiary'' reference in that sentence. PWCJPA also commented that, since certification of the record is not required in each case, the word ''shall'' in the first sentence of § 131.101(f) should be changed to ''may.'' The Department has not made this change, as the use of the word ''shall'' was intended to provide a clear directive to the parties of their obligation to provide a certification of the record, to assist the judges in identifying the evidentiary record and properly deciding cases.

   PWCJPA further commented regarding § 131.101 that the judge should have discretion to have the parties' written arguments submitted in a format most useful to the judge, and therefore requested that the word ''shall'' in § 131.101(h) be changed to ''may.'' The Department does not agree. The intent of the change is to provide uniform Statewide standards with respect to the content and form of briefs; however, judges may still waive or modify requirements under § 131.3.

   The Department had amended § 131.121 (relating to penalty proceedings initiated by a party) to clarify that answers may be filed as provided in § 131.33. Additionally, the amendment had specified that penalty proceedings may be initiated by petition or by motion on the record of a pending proceeding. Further, the amendment had provided that a party complaining of a violation of the act or this chapter bears the burden of proving the violation. IRRC requested that the Department include a definition of the term ''penalty proceeding.'' In response, the Department has added a definition of the term ''penalty proceeding'' in § 131.5. PWCJPA suggested that § 131.121(g), which refers to the burden of proof, be stricken because it is substantive and follows case law rather than the act. The Department disagrees with this suggestion. This subsection is merely informational with the intent to give guidance to the parties.

   Section 131.122 (relating to other penalty proceedings) had provided that penalty proceedings not conducted under § 131.121 will be conducted in accordance with other applicable regulations of the Bureau. IRRC commented that the Department should provide a citation for the other ''applicable regulations'' referenced in this section. The Department concurs and has therefore included in § 131.122 a citation to the regulations in Chapter 121 (relating to general provisions).

   PWCJPA proposed that the Department further add § 131.59 with language reflecting the use of mediation and settlement conferences and the Bureau's effort to promote the use of alternative dispute resolution within the workers' compensation system. The Department does not believe that the addition of this new section is warranted, however, as the procedures in this area are still new and evolving. In addition, the Department believes that the use of these conferences is presently encompassed under the language in § 131.53a.

Reporting, Recordkeeping and Paperwork Requirements

   The final-form rulemaking does not require the creation of any new forms. Existing forms relating to practice before the Board and judges require few modifications. Therefore, the final-form rulemaking does not impose any additional reporting, recording or paperwork requirements on either the Commonwealth or the regulated community.

Effective Date

   The final-form rulemaking will be effective on publication in the Pennsylvania Bulletin.

Regulatory Review

   Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on March 7, 2002, the Department submitted a copy of the notice of proposed rulemaking, published at 32 Pa.B. 1518, to IRRC and to the Chairpersons of the Senate Committee on Labor and Industry and the House Labor Relations Committee for review and comment.

   Under section 5(c) of the Regulatory Review Act (71 P. S. § 745.5(c)), IRRC and the Committees were provided with copies of the comments received during the public comment period, as well as other documents when requested. In preparing this final-form rulemaking, the Department has considered the comments received from IRRC, the Committees and the public.

   Under section 5.1(d) of the Regulatory Review Act (71 P. S. § 745.5a(d)), on October 14, 2002, this final-form rulemaking was deemed approved by the House and Senate Committees. Under section 5.1(e) of the Regulatory Review Act, IRRC met on October 24, 2002, and approved the final-form rulemaking.

Contact Persons

   The contact persons are Elizabeth A. Crum, Acting Deputy Secretary of Compensation and Insurance, Department of Labor and Industry, 1700 Labor and Industry Building, Seventh and Forster Streets, Harrisburg, PA 17120, (717) 787-5082; and Susan McDermott, Chairperson, Workers' Compensation Appeal Board, 1712 State Office Building, 1400 Spring Garden Street, Philadelphia, PA 19130, (215) 560-4583.

Findings

   The Department finds that:

   (a)  Public notice of proposed rulemaking was given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202), and the regulations promulgated thereunder, 1 Pa. Code §§ 7.1 and 7.2.

   (b)  The amendment of the regulations of the Department in the manner provided in this order is necessary and appropriate for the administration and enforcement of the authorizing statute.

Order

   The Department, acting under the authorizing statutes, orders that:

   (a)  The regulations of the Department, 34 Pa. Code Chapters 111 and 113, are amended by adding §§ 131.15, 131.24, 131.30, 131.40, 131.53a, 131.57 and 131.58; and by amending §§ 111.1--111.3, 111.11--111.18, 111.21--111.24, 111.31--111.35, 131.1--131.5, 131.11--131.13, 131.21, 131.22, 131.31--131.36, 131.41--131.43, 131.49, 131.50, 131.50a, 131.52--131.55, 131.61--131.70, 131.81, 131.91, 131.101, 131.102, 131.111, 131.112, 131.121 and 131.122 to read as set forth in Annex A.

   (b)  The Secretary of the Department shall submit this order and Annex A to the Office of Attorney General and the Office of General Counsel for approval as to legality and form as required by law.

   (c)  The Secretary of the Department shall certify this order and Annex A and deposit them with the Legislative Reference Bureau as required by law.

   (d)  This order shall take effect upon publication in the Pennsylvania Bulletin as a final-form regulation.

JOHNNY J. BUTLER,   
Secretary

   Fiscal Note: Fiscal Note 12-61 remains valid for the final adoption of the subject regulations.

   (Editor's Note: For the text of the order of the Independent Regulatory Review Commission, relating to this document, see 32 Pa.B. 5582 (November 9, 2002).)

Annex A

TITLE 34.  LABOR AND INDUSTRY

PART VII.  WORKERS' COMPENSATION
APPEAL BOARD

CHAPTER 111.  SPECIAL RULES OF ADMINISTRATIVE PRACTICE AND PROCEDURE BEFORE THE WORKERS' COMPENSATION APPEAL BOARD

Subchapter A.  GENERAL PROVISIONS

§ 111.1.  Scope.

   (a)  This chapter applies to proceedings before the Board under the act and the Disease Law.

   (b)  Subsection (a) supersedes 1 Pa. Code § 31.1 (relating to scope of part).

§ 111.2.  Applicability of General Rules of Administrative Practice and Procedure.

   (a)  This chapter is intended to supersede 1 Pa. Code Part II (relating to General Rules of Administrative Practice and Procedure). The General Rules of Administrative Practice and Procedure are not applicable to activities of and proceedings before the Board.

   (b)  Subsection (a) supersedes 1 Pa. Code § 31.4 (relating to information and special instructions).

§ 111.3.  Definitions.

   (a)  The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:

   Act--The Pennsylvania Workers' Compensation Act (77 P. S. §§ 1--1041.4 and 2501--2506).

   Appeal--A proceeding to review a ruling or decision by a judge.

   Board--The Workers' Compensation Appeal Board.

   Bureau--The Bureau of Workers' Compensation of the Department.

   Disease Law--The Pennsylvania Occupational Disease Act (77 P. S. §§ 1201--1603).

   Filing--Delivery in person or by mail. If filing is by mail, it is deemed complete upon deposit in the United States mail, as evidenced by a United States Postal Service postmark, properly addressed, with postage or charges prepaid.

   Judge--A workers' compensation judge assigned by the Bureau as provided in section 401 of the act (77 P. S. § 701) or assigned by the Bureau to determine a petition filed under the Disease Law.

   Party--A petitioner or respondent. An act required or authorized by this chapter, to be done by or to a party, may be done by or to that party's counsel of record.

   Petitioner--Anyone seeking to review a ruling or decision by a judge or the moving party in a petition filed under Subchapter D (relating to other petitions).

   Respondent--Anyone in whose favor the matter was decided by the judge or other than the moving party in any petition filed under Subchapter D.

   Service--Delivery in person or by mail. If service is by mail, it is deemed complete upon deposit in the United States mail, as evidenced by a United States Postal Service postmark, properly addressed, with postage or charges prepaid.

   Supersedeas--A temporary stay affecting a workers' compensation case.

   (b)  Subsection (a) supersedes 1 Pa. Code §§ 31.3, 31.11 and 33.34 (relating to definitions; timely filing required; and date of service).

Subchapter B.  APPEALS

§ 111.11.  Content and form.

   (a)  An appeal or cross appeal shall be filed with the Board on a form provided by the Board or on a form containing substantially the following information:

   (1)  The name and address of the claimant, name and address of the defendant, date of the injury, type of petition, Bureau claim number, insurance carrier and circulation date of the decision at issue.

   (2)  A statement of the particular grounds upon which the appeal is based, including reference to the specific findings of fact which are challenged and the errors of the law which are alleged. General allegations which do not specifically bring to the attention of the Board the issues decided are insufficient.

   (3)  A statement of the relief which is requested.

   (4)  A statement whether the petitioner seeks an opportunity to file a brief or present oral argument or whether the case should be heard on the record without brief or oral argument.

   (5)  Identification of the judge whose decision is in question, including as an attachment, a copy of that judge's decision.

   (6)  A proof of service as specified in § 111.12(d) (relating to filing, service and proof of service).

   (b)  An appeal or a cross appeal shall be served on all parties and the judge.

   (c)  A request for supersedeas, if desired, shall be indicated on the appeal and shall conform to § 111.21 (relating to content and form).

   (d)  Subsections (a)--(c) supersede 1 Pa. Code §§ 31.5, 33.1--33.4, 33.11, 33.12, 35.17 and 35.20.

§ 111.12.  Filing, service and proof of service.

   (a)  An original and two copies of each appeal or cross appeal shall be filed. Only the original appeal shall have attached a copy of the judge's decision which is in question as required by § 111.11(a)(5) (relating to content and form).

   (b)  The petitioner shall serve a copy of any appeal upon all parties and the judge.

   (c)  The respondent shall serve a copy of any cross appeal upon all parties and the judge.

   (d)  The petitioner or respondent shall, concurrently with the filing of an appeal or a cross appeal, on a form prescribed by the Board or in substantial compliance therewith, file a proof of service with the Board containing:

   (1)  A statement of the date of service.

   (2)  The names of parties and judge served.

   (3)  The mailing address, the applicable zip code and the manner of service on the parties and judge served.

   (e)  Subsections (a)--(d) supersede 1 Pa. Code §§ 31.26, 33.15, 33.21--33.23, 33.32, 33.33 and 33.35--33.37.

§ 111.13.  Processing of appeals and cross appeals.

   (a)  Upon receipt of an appeal or a cross appeal, the Board will acknowledge receipt to all parties. The date of acknowledgment will be 3 days subsequent to the date the acknowledgment is mailed.

   (b)  The Board will, in addition to acknowledging receipt of the appeal or the cross appeal, establish the briefing schedule and indicate that the appeal and the cross appeal will be scheduled for oral argument unless all parties agree to submission of the case on only briefs or record.

   (c)  Subsections (a) and (b) supersede 1 Pa. Code § 33.31 (relating to service by the agency).

§ 111.14.  Motions to quash.

   (a)  A party may submit a motion to quash an appeal or a cross appeal within 20 days of service of the appeal or the cross appeal.

   (b)  A motion to quash shall be served on all parties.

   (c)  A motion to quash shall be accompanied by a proof of service conforming to § 111.12(d) (relating to filing, service and proof of service), insofar as applicable.

   (d)  The Board shall dispose of a motion to quash in conformity with the procedures set forth in § 111.35 (relating to dispositions of petitions).

   (e)  An original and two copies of a motion to quash shall be filed.

   (f)  Subsections (a)--(e) supersede 1 Pa. Code §§ 31.26, 33.15, 33.32, 33.33, 33.35--33.37, 35.54 and 35.55 and also supersede Chapter 35, Subchapter D.

§ 111.15.  No other pleadings allowed.

   (a)  Other than a motion to quash as set forth in § 111.14 (relating to motions to quash) and a cross-appeal, as set forth in § 111.11 (relating to content and form), no answer or other pleading may be filed or considered in conjunction with an appeal or a cross appeal.

   (b)  Subsection (a) supersedes 1 Pa. Code §§ 31.24, 31.25, 33.41, 33.42, 33.61, 35.1, 35.2, 35.5--35.7, 35.9--35.11, 35.14, 35.18, 35.19, 35.23, 35.24, 35.27--35.30, 35.35--35.41, 35.48--35.51, 35.54, 35.55, 35.211, 35.213, 35.231, 35.241 and 35.251.

§ 111.16.  Briefs: content and form and time for filing.

   (a)  A brief on behalf of a petitioner shall be filed with the Board at or before the date of oral argument. If oral argument is waived, petitioner shall file a brief within 30 days of the date of the Board's acknowledgment of receipt of the appeal as set forth in § 111.13 (relating to processing of appeals and cross appeals).

   (b)  A brief on behalf of a respondent shall be filed with the Board 30 days after oral argument. Otherwise, the respondent shall file a brief with the Board within 60 days of the date of the Board's acknowledgment of receipt of the appeal as set forth in § 111.13.

   (c)  Upon written request of a party directed to the Secretary of the Board or upon oral request at the time of oral argument, and with notice to all parties, the Board may extend or shorten the time for filing of the party's brief only for good cause shown. A party shall present a request to extend or shorten the time at or before the date set for filing that party's brief.

   (d)  Briefs not filed with the Board in accordance with the schedule in this section or as modified by the Board under subsection (c), will not be considered and will result in disposition of the appeal without further notice or consideration of the brief of the party failing to comply with these deadlines or schedule.

   (e)  Briefs, except as otherwise allowed, shall consist of the following items, separately and distinctly set forth:

   (1)  A short statement of the questions involved.

   (2)  A statement of the facts by the petitioner, or counterstatement of the facts by the respondent.

   (3)  The argument.

   (4)  A short conclusion setting forth the precise relief sought.

   (5)  A proof of service as specified in § 111.12(d) (relating to filing, service and proof of service) insofar as applicable.

   (f)  An original and two copies of briefs shall be filed.

   (g)  Briefs shall be served on all parties.

   (h)  Subsections (a)--(g) supersede 1 Pa. Code §§ 31.15, 33.37, 35.212 and 35.221 and also supersede Chapter 35, Subchapter F.

§ 111.17.  Oral argument.

   (a)  The Board will schedule oral argument in every appeal or cross appeal unless all parties to the appeal or the cross appeal, upon receiving the acknowledgment of appeal or cross appeal, indicate that no oral argument is requested, or that it is waived.

   (b)  The Board will hear oral argument on appeals and cross appeals according to a schedule prepared in advance for each calendar year. Oral argument will be conducted in Harrisburg, Philadelphia and Pittsburgh and in other locations throughout this Commonwealth, as the Board may schedule, or, as is appropriate in the Board's judgment.

   (c)  Oral argument will be scheduled at the earliest possible date pursuant to the schedule as established by the Secretary of the Board.

   (d)  Parties shall be advised as far in advance as possible of the date of oral argument by the acknowledgment of appeal or cross appeal as specified in § 111.13(b) (relating to processing of appeals and cross appeals).

   (e)  Oral argument shall consist of a presentation, including rebuttal, if necessary, by the petitioner and respondent.

   (f)  A petitioner or respondent represented by counsel need not be present at oral argument.

   (g)  Oral argument may be conducted before one or more members of the Board.

   (h)  Subsections (a)--(g) supersede 1 Pa. Code §§ 33.51, 35.204, 35.214 and 35.221.

§ 111.18.  Decisions of the Board.

   (a)  The decision of the Board on an appeal and a cross appeal shall be issued as promptly as possible following oral argument or the receipt of briefs, whichever occurs later.

   (b)  Decisions of the Board on an appeal shall be issued under section 441 of The Administrative Code of 1929 (71 P. S. § 151).

   (c)  Decisions of the Board will be served on all parties and the judge from whose decision the appeal was taken.

   (d)  Subsections (a)--(c) supersede 1 Pa. Code §§ 31.13, 31.14, 35.201--35.207 and 35.226.

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