Articles Posted in PA Workers Compensation Bureau Update

As we have previously discussed, within the Pennsylvania Workers’ Compensation Act, there lies a trap for unwary injured workers.  Actually, there are many traps in the Act, but for today, we’ll just deal with this one.

When a workers’ comp insurance carrier thinks (and this is a critical word) that an injured worker has returned to work, the insurance company can file a Notification of Modification (if there remains a partial wage loss) or a Modification of Suspension (wages are believed to be at or higher than the pre-injury wages).  If there is no “challenge” filed by the injured worker, within the allotted time period, the Notification of Modification or Suspension has the same legal effect as if the injured worker has agreed to the change in status.  This is certainly a trap for an injured worker who knows better than to sign a document without legal counsel, but is unaware that not signing a document can also have dire consequences.

The PA Bureau of Workers’ Compensation announced that:

***UPDATE 3/17/20*** A statement was issued by Joseph DeRita, Director of the Pennsylvania Workers’ Compensation Office of Adjudication:

“As you are all aware, Governor Wolf ordered the closure of all Pennsylvania state government offices for 14 days effective Tuesday, March 17, 2020. All hearings and mediations scheduled during that time are cancelled and will be rescheduled as soon as practicable. Some of the WCJ’s, who are already equipped to work from home, have already reached out to discuss rescheduling arrangements for mediations. Those will go forward.  In addition, in an effort to provide some adjudicatory services, I have authorized the use of telephone hearings on a limited basis for Petitions to Approve C & R Agreements.  Requests to schedule C & R hearings will be accepted beginning March 17, 2020 in the Southeastern and Eastern district offices only as described below.  We hope to expand this limited service to the Central and Western districts by week’s end.  Beyond that, we will be expanding WCJ telework capabilities generally to conduct telephone hearings on other types of petitions.

For now, the protocol to request a special C & R telephone hearing during the time of government shutdown is as follows:  send an e-mail request to the Judge Manager of the district in which the case is pending (JM Karen Wertheimer, Eastern District,kwertheime@pa.gov and JM Holly San Angelo, Southeastern District, hsanangelo@pa.gov). Your request must include the case caption, dispute #, names and e-mail addresses of counsel and whether the case requires translation services (include language of testimony to be translated).  WCOA staff will schedule the court reporter.  The JM will re-assign the case to a specially selected WCJ who will then schedule and conduct the C & R hearing telephonically.  Claimant must be present in Claimant’s counsels office.  The C & R agreement must be notarized.  The WCJ assigned to hear the case will advise how the telephone conference is to be arranged and how the C & R documents are to be transmitted prior to the telephone hearing. 

Pennsylvania workers’ compensation hearings are generally held in each county in the Commonwealth.  Some smaller counties may share hearing facilities, while more populous counties may have a second location.  The county in which the injured worker resides is typically the county in which hearings will be held, provided the injured worker lives in PA.

For several years, hearings in Bucks County have been divided between Bristol (for Lower Bucks County) and Doylestown (for Central and Upper Bucks County).  While that will still be the case, hearings in Doylestown which had been held at the Bucks County Courthouse will now be moved to the Bucks County Administrative  Building (which is across the street from the Courthouse).  For those unfamiliar with Doylestown, the Bucks County Administrative  Building is actually the former courthouse.  While the two buildings are across the street from one another, injured workers should be sure they are heading to the correct hearing location.

Bucks County is not the only one with multiple hearing locations.  Several others split their cases between two offices.  Montgomery County spreads its caseload between Malvern (for Western Montgomery County) and Dresher (for Eastern Montgomery County).  Injured workers who reside in Northampton County may have hearings in Tannersville (North) or Easton (South).  Philadelphians used to have the convenience of hearing locations in both Center City Philadelphia and Northeast Philadelphia, but the latter was closed several years ago.

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:

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.