Articles Posted in PA Workers Compensation Bureau Update

The Uninsured Employers’ Guaranty Fund (UEGF), and its role in the Pennsylvania workers’ compensation system, has been discussed previously in this Blog.  While the UEGF plays under different rules than every insurance carrier that writes PA workers’ compensation insurance coverage, and the UEGF can be incredibly difficult and frustrating to litigate against, there is no argument that the UEGF is an improvement over how things were, before the UEGF was enacted.

The different rules which apply to the UEGF were further set when the legislature passed, and Governor Thomas Wolf signed, Act 132 in October, 2018 (has it been a year already?).  This new legislation provided new protections for the UEGF to enjoy, in an effort to protect limited resources in the face of the increasing number of claims (perhaps a more effective method of protecting UEGF assets, rather than leave injured workers without remedy, would be to focus on the employers who violate PA law by failing to carry PA workers’ compensation insurance).

Among the changes to the UEGF rules in Act 132 are:

Our attorneys were out of the office earlier this week, to attend the annual Pennsylvania Bureau of Workers’ Compensation Conference, in Hershey, PA.  While we hate to have our attorneys both unavailable to help our clients, we feel it is important for us to attend these seminars.  This conference is presented by the Bureau itself, so there is an opportunity to obtain information allowing us to stay current on all topics of interest in Pennsylvania workers’ compensation.

While there are not many attorneys, like us, who represent injured workers in attendance, we think listening in is helpful.  Most of the attendees at this conference are not attorneys at all; they are adjusters, risk management and safety officials from all across PA.  Additionally, many of the Workers’ Compensation Judges (WCJs) are in attendance.  We can hear what these folks are being told regarding different aspects of the PA workers’ compensation system.  This can help us anticipate issues and avoid some pitfalls that could pertain to our clients.

Topics addressed at the different sessions ranged from medical issues (including medical marijuana, the future of “telehealth,” and the role of nurse case managers), to internet surveillance, to Workers Compensation Medicare Set-Asides (WCMSAs), to different insights on how WCJs feel about varying issues.

Though the Pennsylvania Workers’ Compensation Act does not have a cost-of-living increase, as seen with Social Security Disability benefits, the maximum workers’ compensation rate does increase every year.  This, of course, does not impact existing injuries, only those that take place in this calendar year.  The PA Bureau of Workers’ Compensation has just announced that the maximum workers’ compensation rate for injuries taking place in 2019 will be $1,049.00 per week.  This is up from the $1,025.00 maximum rate for 2018 work injuries.

Calculating the specific workers’ compensation rate in a case can become complicated.  Essentially, we look at the wages earned by the injured worker in the year prior to the work injury. This year is then split into four quarters, and an average is taken of the highest three of the quarters.  We are then left with the Average Weekly Wage (AWW).  Depending on the figures, the workers’ compensation rate is usually 2/3 of the AWW, though that can vary. For lower wages, the rate can be as high as 90% of the AWW. Those workers earning very high wages, creating a rate that would be above the  maximum compensation rate, will receive less than 2/3 of the AWW.

There can also be confusion over what is allowed to be included in an AWW calculation.  Another job held by the employee (called “concurrent employment”) is certainly includable, as is overtime and most bonuses.  Fringe benefits and self-employment earnings are two things that are not part of the AWW.

As we have noted in the past, generally, the Pennsylvania Bureau of Workers’ Compensation does not publicize when Workers’ Compensation Judges (WCJs) move from county to county, or even when they change into a different role in the Bureau.  So, it falls to us to share with injured workers what seems to be happening from our view.  Since none of this has actually been confirmed by the Bureau, all of what we are saying here is purely rumor.

Perhaps the most significant change is the appointment of Judge Joseph DeRita (who had been hearing cases in Easton and Doylestown) to the role of Director of Adjudication for the Bureau.  We offer sincere congratulations to Judge DeRita in his new role.  While we will miss his intelligent and patient view from the bench, his leadership will now benefit the entire Bureau of Workers’ Compensation.

It appears that the Easton workers’ compensation hearing office will now feature Judge Brian Puhala, along with Judge Bruce Doman.  Judge Thomas Kuzma, who had been in Reading, will assume half a case load in Allentown (and the remainder still in Reading).  The Doylestown workers’ compensation hearings will be conducted by Judge Karen Wertheimer (who is the Judge Manager for the Eastern District), and Judge Robert Benischeck, who had been stationed in Bristol.

We have been following the status of the Impairment Rating Evaluation (IRE) process in PA closely, ever since the Supreme Court of Pennsylvania declared the IRE process unconstitutional in Protz v. Workers’ Compensation Appeal Board (Derry Area School District).  This has included interpretations by the Commonwealth Court of PA in the  Whitfield and Timcho cases.

As we long suspected, though, the real response would come from the Pennsylvania legislature.  In their ever-present desire to bend to the wishes and desires of the insurance industry, the legislature passed Act 111 (formerly known as House Bill 1840).  This was signed into law by Governor Thomas Wolf on October 24, 2018.  This immediately reinstates the IRE aspect of the Pennsylvania Workers’ Compensation Act.

Since we have previously discussed what the IRE process involves, we will not again detail that information.  If you would like to see more of that discussion, we would suggest reviewing the prior blog entries regarding the Protz, Whitfield and Timcho cases.

We had heard on the grapevine that The Honorable Joseph Hagan, the current Judge Manager for the Southeastern District for the Pennsylvania Bureau of Workers’ Compensation, would be stepping down in the near future.  We have now heard confirmation of this change from the Bureau.  We are pleased to relate that Judge Hagan will, indeed, be retiring in the middle of April.  While we will miss practicing before Judge Hagan, we wish him health and happiness in his retirement.

Meanwhile, since the cases keep coming, no matter who leaves, the Judge Manager position must be filled.  We are also pleased to let everyone know that the new Judge Manager for the Southeastern District will be The Honorable Holly San Angelo.  From practicing in front of Judge San Angelo for several years, we are sure that she will do a terrific job in this role.  This will be effective as of March 16, 2018.  For reference, the Southeastern District includes the workers’ compensation hearing offices in Philadelphia and Upper Darby.

As we have previously mentioned, the Pennsylvania Bureau of Workers’ Compensation rarely provides official or formal notice regarding the addition or subtraction of Workers’ Compensation Judges (WCJs) in the Commonwealth.  As usual, it is up to us to point out these changes, from our contact with other attorneys, and from our appearances in the many workers’ compensation hearing offices across PA.

Along these lines, we announce, with mixed feelings, the retirement of The Honorable Paul Baker.  Over his illustrious career, Judge Baker has presided over cases in Philadelphia, Pottsville and Harrisburg (at least these are the courts where we have appeared before him over the years).  Judge Baker was always known for his thoughtful and thorough handling of his cases, and we will miss his intelligence and compassion from the bench.  On the other hand, we are thrilled for him personally, in that he can step away from the bench, and enjoy his retirement.

Please join us in congratulating Judge Baker on a wonderful career as a jurist, and wishing him well in his retirement!

In past blog posts, we have discussed the Uninsured Employers’ Guaranty Fund (UEGF).  This is the safety net available for workers who have been injured while working for an employer who (in violation of Pennsylvania law) fail to carry PA workers’ compensation insurance.  While the UEGF does give these injured workers an avenue to pursue to get wage loss and medical benefits, there are hurdles to clear which are not present with a typical PA workers’ compensation case.

Ordinarily, when a worker gets hurt in Pennsylvania, he or she simply files a Claim Petition and can seek benefits from the date of the work injury.  When a claim is being made against the UEGF, however, one must first file a Notice of Claim Against Uninsured Employer (the form is LIBC-551).  Unless the Notice is filed within 45 days of the injured worker knowing the employer failed to carry PA workers’ compensation insurance, no medical or wage benefits are payable until the Notice is filed.

Once the Notice is filed, the injured worker must wait at least 21 days to file a Claim Petition for Benefits from the Uninsured Employer and the Uninsured Employer’s Guaranty Fund (form LIBC-550).  In contrast, there is no requirement (in a typical PA workers’ comp case) of waiting any time before filing a regular Claim Petition.

When a party to a PA workers’ compensation litigation receives a decision of the Workers’ Compensation Judge (WCJ), the party can file an appeal to the Workers’ Compensation Appeal Board (WCAB).  If a party is not successful before the WCAB, then the party can file an appeal to the Commonwealth Court of Pennsylvania.  The losing party at that level can request an appeal to the Supreme Court of PA, but whether the appeal is accepted by the Supreme Court is discretionary with the Court.

Oral argument is available on every case before the WCAB, even before briefs are submitted (though the parties can waive the right to oral argument if they wish).  At the Commonwealth Court and Supreme Court levels, however, the Courts decide whether they want oral argument (typically requested only on novel or complicated issues), and the arguments would be after the briefs are submitted.

At least, that’s how it was.  We were just notified by the Pennsylvania Department of Labor & Industry that a change is being proposed to the rules regarding oral argument before the WCAB.  There are two basic elements looking to be changed.  First, the briefs would be submitted before any oral argument would be done (so the WCAB Commissioners could know the case before hearing the oral arguments cold).  Second, mirroring the higher courts, the use of oral argument would be discretionary with the WCAB, reserved for novel or complex issues.

The fallout from the decision rendered by the Supreme Court of Pennsylvania in the Protz case is only just beginning.  Since this decision will change how workers’ compensation cases are handled in PA (at least for the moment), the PA Bureau of Workers’ Compensation has now issued a statement on the front page of its official website (WCAIS).  In its entirety, the statement reads:

On June 20, 2017, the Pennsylvania Supreme Court issued its decision in Protz v. WCAB (Derry Area School District), Nos 6 WAP 2016, 7 WAP 2017, holding that Section 306(a.2) of the Workers’ Compensation Act (77 P.S. § 511.2) is an unconstitutional delegation of legislative authority.  The Court’s opinion makes clear that the entirety of Section 306(a.2) is unconstitutional.  Therefore, effective immediately, the Bureau of Workers’ Compensation will no longer designate physicians to perform Impairment Rating Evaluations.”

As the Protz decision has rocked the PA workers’ compensation system, we will be closely following developments.  Check our blog often for updates!