RULES AND REGULATIONS
Title 34—LABOR AND INDUSTRY
DEPARTMENT OF LABOR AND INDUSTRY
[34 PA. CODE CH. 111]
Special Rules of Administrative Practice and Procedure Before the Workers' Compensation Appeal Board
[51 Pa.B. 7687]
[Saturday, December 11, 2021]
The Workers' Compensation Appeal Board (Board) amends 34 Pa. Code Chapter 111, Subchapter B (relating to appeals), to streamline the disposition of appeals to the Board, as set forth in Annex A.
The Board promulgates these amendments under the authority contained in section 435(c) of the Workers' Compensation Act (act) (77 P.S. § 991(c)), which directs the Board to establish rules of procedure ''. . .which are reasonably calculated to expedite the hearing and determination of appeals to the board and to insure full payment of compensation when due.'' Furthermore, section 506 of the Administrative Code of 1929 (71 P.S. § 186) provides authority for the promulgation of rules and regulations for departmental administrative boards, stating: ''the several departmental administrative boards and commissions, are hereby empowered to prescribe rules and regulations, not inconsistent with law, for the government of their respective departments, boards, or commissions. . .[and] the distribution and performance of their business. . . .''
The Board is a departmental administrative board under section 401 of the act (77 P.S. § 701). The Board is established under sections 202, 207.1, 503 and 2208 of the Administrative Code of 1929 (71 P.S. §§ 62, 67.1, 183 and 568). The Board voted to adopt the proposed amendments on October 27, 2020. On August 6, 2021, the Board voted to adopt the final-form amendments in Annex A, which were unchanged from those in the proposed rulemaking.
The Board's regulations currently require oral argument in all appeals and cross appeals unless the parties agree to submission on briefs. See §§ 111.13(b) and 111.17(a) (relating to processing of appeals and cross appeals; and oral argument). Moreover, these regulations currently require the petitioner's brief to be filed at or before the date of the oral argument, while the respondent's brief is due 30 days after oral argument. See § 111.16(a) and (b) (relating to briefs: content and form and time for filing). The petitioner generally is the party seeking to review a ruling or decision by a workers' compensation judge, while the respondent is the party or parties in whose favor the matter was decided by the judge. See § 111.3(a) (relating to definitions) regarding the definitions of petitioner and respondent.
The current briefing and oral argument requirements significantly delay the consideration and disposition of appeals. Oral arguments are scheduled more frequently in major population areas and less frequently in other areas. As a result, there is greater delay in processing appeals from petitioners in less-populated areas where oral arguments are only held two or three times a year. Consequently, the appeal is not placed in line for decision until after the oral argument and the receipt of briefs. Under current practice, the Board's rules further permit oral request for extensions of the petitioner's brief at oral argument, § 111.16(c), thereby facilitating additional delay in case processing. A decrease in time to process an appeal will benefit all parties within the workers' compensation system. The average time for the Board to issue a decision was approximately 11.36 months in 2018, 12.28 months in 2019 and 11.20 months in 2020. Although timeliness has improved over the last several years, adjudication times can be shortened. A delay in issuing decisions can exact financial hardship on claimants and is at odds with the timeliness dictates of the act.
The present requirement for in-person oral argument in every case increases the Board's travel, lodging and meal expenses, as well as the parties' expenses to the extent that they or their attorneys must attend the arguments. Prior to the novel coronavirus (COVID-19) pandemic, the Board conducted six argument sessions a year in Philadelphia, Pittsburgh, Harrisburg and Scranton, and three argument sessions in Erie. Most of these sessions are for multiple days. The Board's travel costs for Fiscal Year 2018-2019, the last full year prior to the COVID-19 pandemic, totaled $60,000, some of which can be greatly reduced, but more so, considerable in-office time can be saved by both Commissioners and litigant attorneys by allowing for electronic/virtual hearings in addition to in-person hearings. The developments in communication and computer technology, and the experience using that technology during the pandemic, have reduced the need for the Board members to meet in-person to hear arguments, discuss pending cases or circulate decisions for signature.
Compliance with Executive Order 1996-1
The Board engaged in extensive public and stakeholder outreach during the drafting process. In 2017, the Department of Labor and Industry (Department) sought stakeholder input as to a proposal to amend the regulations to (1) require both parties' briefs to be submitted before making a decision to schedule oral argument and use the briefs, not oral argument, to start the internal appellate review process; and (2) make oral arguments discretionary with the Board where necessary to address novel or complex legal issues, as is the practice in other Commonwealth appellate courts. Stakeholder input was solicited through the Workers' Compensation Committee of the Pennsylvania Bar Association and more widely from insurance carriers, attorneys, third-party administrators and self-insured employers through the Workers' Compensation Automation and Integration System (WCAIS), which is the enterprise vehicle by which all workers' compensation claims are filed, adjudicated, appealed and managed. Every workers' compensation employer, insurer (or self-insurer) and legal practitioner has access to and routinely uses WCAIS. In addition, the Department posted a general notice of the proposed rulemaking and the rationale for it on its web site, for which interested persons and organizations could submit comments, and also posted notice on the WCAIS home page for all WCAIS users. More than 50 comments were received, the vast majority of them in favor of these changes. The Workers' Compensation Rules Committee (established in 1978 by the Secretary of the Department of Labor and Industry for the purpose of obtaining comment on procedural rules governing the practice of workers' compensation) convened to provide input to the proposed oral argument procedures and approved the proposed rulemaking. The proposed rulemaking was presented to and discussed with the Pennsylvania Workers' Compensation Advisory Council established under section 447 of the act (77 P.S. § 1000.3).
In 2019, following additional coordination with key stakeholders, the Board determined that the humanitarian purposes of the act were better served by continuing to offer oral argument in every appeal, unless waived by the parties. In addition, the Board wishes to make better use of telecommunications to further streamline the appeal process. Accordingly, the amendments provide for oral argument, unless waived, at the earliest possible date following the close of the briefing schedule and authorize oral argument or by telephonic or electronic means. The proposed rulemaking was presented to members of the Pennsylvania Workers' Compensation Advisory Council for review and comment on March 23, 2020. The Deputy Secretary for Compensation and Insurance coordinated the proposed regulatory amendments with members of the Workers' Compensation Rules Committee on April 24, 2020. The Board voted to adopt the proposed rulemaking on October 27, 2020.
The proposed rulemaking was published at 51 Pa.B. 1019 (February 27, 2021). As a result, one written comment was received from Neil Dombrowski, Esquire, of The Dombrowski Group, as co-chair of the Pennsylvania Defense Institute Worker's Compensation Section. By correspondence dated April 28, 2021, the Independent Regulatory Review Commission (IRRC) advised that it had no objections, comments or recommendations to the proposed regulation.
On August 6, 2021, the Board voted to adopt the final-form amendments in Appendix A, which were unchanged from those in the proposed rulemaking.
This final-form rulemaking ensures that oral argument will be conducted after briefs are submitted, rendering argument more meaningful for the parties, as the Board will have a better understanding of the issues at the time of argument. This final-form rulemaking permits arguments to be conducted either by telephone or other electronic means or in person, giving the Board the flexibility to timely schedule arguments regardless of the location of the parties. These changes will streamline the processing and disposition of appeals, reduce the time for decision in some cases, and achieve travel and time cost savings to both the Board and the parties.
The persons affected by this final-form rulemaking include the Board's members and staff, attorneys practicing before the Board and parties to appeals filed with the Board. The parties in workers' compensation cases include injured employees, possibly their dependents in the case of a fatal injury, self-insured employers, employers typically represented by workers' compensation insurance companies and the Department's Bureau of Workers' Compensation representing special funds created under the act (77 P.S. §§ 101—1304).
This final-form rulemaking is designed to reduce costs, through reduced travel costs and litigation expenses, and will not result in increased costs to the public or private sectors. Because the workers' compensation system is funded through assessments on workers' compensation insurance carriers and self-insured employers, any savings realized in the administration of the system may result in savings to the regulated community through lowered assessments. See section 446 of the act (77 P.S. § 1000.2) regarding creating the Workers' Compensation Administration Fund and providing for maintenance of the fund through an annual assessment.
Summary of Final-Form Rulemaking
§ 111.13. Processing of appeals and cross appeals
The minor final-form amendment to this section clarifies that the Board will issue a briefing schedule upon receipt of an appeal or cross appeal.
§ 111.16. Briefs: content and form and time of filing
The final-form amendments to this section address the time for filing briefs. This section is amended to require that the petitioner's brief be filed within 30 days of the acknowledgement of receipt of appeal by the Board, unless subsequent or cross appeals are filed. In the case of subsequent or cross appeals, the Board will issue a revised briefing schedule. The respondent's brief will be due 30 days after service of the petitioner's brief, or the due date of petitioner's brief, unless there are subsequent or cross appeals. A request for an extension of time to file a brief must indicate the other parties' position as to the request. This section is also amended to permit the Board to direct the filing of a supplemental brief.
The final-form amendments require that briefs filed with the Board include a summary of the argument, not to exceed one page.
§ 111.17. Oral argument
The final-form amendments to this section specifically authorize oral argument to be conducted by telephone or other electronic means. This section is amended to provide that argument will be scheduled following the close of the briefing schedule.
§ 111.18. Decisions of the Board
This section is amended to delete current subsection (b), which consists of an obsolete reference to section 441 of the Administrative Code of 1929 (71 P.S. § 151). Section 441 regarding the Workmen's Compensation Appeal Board was repealed under the act of November 9, 2006 (P.L. 1362, No. 147) and replaced by section 401.2 of the act (77 P.S. § 710.1) regarding the Workers' Compensation Appeal Board.
Responses to Comments
The Board received one public comment regarding the proposed rulemaking. On behalf of the Pennsylvania Defense Institute Workers' Compensation Section, Neil Dombrowski, Esquire of The Dombrowski Group commented that an additional amendment should be added to § 111.17, to provide a specific rule permitting requests for en banc argument before the Board. However, the Board notes that en banc argument is currently permitted, and has been held by the Board at its discretion, under existing subsection (g) of § 111.17, which states that ''[o]ral argument may be conducted before one or more members of the Board.'' As such, the Board does not believe that any further amendment to add a specific rule relating to en banc argument is required or necessary at this time.
IRRC advised that it had no objections, comments or recommendations to the proposed rulemaking.
Based on the comments received, the Board made no changes to the proposed amendments in this final-form rulemaking.
Reporting, Record-keeping and Paperwork Requirements
This final-form rulemaking does not require any new forms, and thus does not impose any additional reporting, recording or paperwork requirements on either the Commonwealth or the regulated community. The existing forms used by the Board to acknowledge appeals, notify parties of briefing requirements, and oral argument may require minor modification since briefs are due before any oral argument and oral argument may be conducted by teleconference or other electronic means.
A sunset date is not appropriate for this final-form rulemaking. The Board will periodically monitor this final-form rulemaking and submit amendments as needed.
The final-form amendments to §§ 111.16(a), (b), (b.1) and (c), and 111.17(c) and (d), will be effective upon publication of a notice of effective date by the Secretary of the Department in the Pennsylvania Bulletin, following completion of the required system changes, which are necessary to accommodate these new procedures, to the Department's electronic appellate filing and notification process in WCAIS. The remainder of this final-form rulemaking will be effective upon publication in the Pennsylvania Bulletin.
Persons who require additional information about this final-form rulemaking may submit inquiries to Kelly K. Smith, Acting Chief Counsel, 651 Boas Street, Harrisburg, PA 17121, fax (717) 787-1303, email@example.com.
Under section 5(a) of the Regulatory Review Act (71 P.S. § 745.5(a)), on February 16, 2021, the Board submitted a copy of the notice of proposed rulemaking, published at 51 Pa.B. 1019 (February 27, 2021), to IRRC and the Chairpersons of the House and Senate Labor and Industry Committees for review and comment.
Under Section 5(c) of the Regulatory Review Act, the Board shall submit to IRRC and the House and Senate Labor and Industry Committees copies of comments received during the public comment period, as well as other documents when requested. In preparing the final-form rulemaking, the Board has considered all comments from IRRC. IRRC had no objections, comments or recommendations. The House and Senate Labor and Industry Committees did not comment.
Under section 5.1(j.2) of the Regulatory Review Act (71 P.S. § 745.5a(j.2), on October 20, 2021, this final-form rulemaking was deemed approved by the House and Senate Labor and Industry Committees. Under sections 5(g) and 5.1(e) of the Regulatory Review Act, IRRC met on October 20, 2021, and approved this final-form rulemaking.
The Department finds that:
(1) 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), referred to as the Commonwealth Documents Law, and the regulations in 1 Pa. Code §§ 7.1 and 7.2 (relating to notice of proposed rulemaking required; and adoption of regulations).
(2) A public comment period was provided as required by law and all comments were considered.
(3) The final-form rulemaking is necessary and appropriate for the efficient administration and adjudication of workers' compensation appeals under the authorizing statute.
The Department, acting under the authorizing statute, orders that:
(a) The regulations of the Department, 34 Pa. Code Chapter 111, Subchapter B, are amended by amending §§ 111.13 and 111.16—111.18 to read as set forth in Annex A.
(b) The Board shall submit this final-form rulemaking to the Office of General Counsel and the Office of Attorney General for approval as required by law.
(c) The Board shall submit this final-form rulemaking to IRRC and the Legislative Standing Committees as required by law.
(d) The Board shall certify this final-form rulemaking, as approved for legality and form, and shall deposit it with the Legislative Reference Bureau as required by law.
(e) Except as provided in paragraph (f), this final-form rulemaking shall take effect upon publication in the Pennsylvania Bulletin.
(f) The final-form amendments to §§ 111.16(a), (b), (b.1) and (c) and 111.17(c) and (d), will be effective upon publication of a notice of effective date by the Secretary of the Department in the Pennsylvania Bulletin, following completion of the required system changes, which are necessary to accommodate these new procedures, to the Department's electronic appellate filing and notification process in WCAIS.
ALFONSO FRIONI, Jr., Esq.,
Workers' Compensation Appeal Board
Fiscal Note: 12-105. (1) Worker's Compensation Administration Fund; (2) Implementing Year 2021-22 is $1,475,000; (3) 1st Succeeding Year 2022-23 through 5th succeeding Year 2026-27 are $0; (4) 2020-21 Program—$3,013,867.90; 2019-20 Program—$2,954,095; 2018-19 Program—$2,925,834; (8) recommends adoption. The 2021-22 appropriation is able to absorb this increase.
TITLE 34. LABOR AND INDUSTRY
PART VII. WORKERS' COMPENSATION
CHAPTER 111. SPECIAL RULES OF ADMINISTRATIVE PRACTICE AND
PROCEDURE BEFORE THE WORKERS' COMPENSATION APPEAL BOARD
Subchapter B. APPEALS
§ 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.
(b) The Board will, in addition to acknowledging receipt of the appeal or the cross appeal, establish a 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)
§ 111.16. Briefs: content and form and time for filing.
(a) A brief on behalf of a petitioner shall be filed with the Board 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) In the event subsequent appeals or cross appeals are filed, the Board will issue revised briefing schedules.
(b) A brief on behalf of a respondent shall be filed with the Board within 30 days after service of the petitioner's brief, or where petitioner fails to timely file a brief, within 30 days of the date the petitioner's brief was to be filed. In the event subsequent appeals or cross appeals are filed, the Board will issue a revised briefing schedule.
(b.1) The Board may direct the filing of a supplemental brief.
(c) Upon written request of a party directed to the Board, and with notice to all parties, the Board may extend the time for filing of the party's brief only for good cause shown. A party shall file a request to extend the time for filing a brief before the date set for filing that party's brief. The request shall indicate the position of the other parties with respect to the request.
(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.
(2.1) A summary of the argument, not to exceed one page.
(3) The argument.
(4) A short conclusion setting forth the precise relief sought.
(5) A proof of service as specified in § 111.1(e) (relating to filing, service and proof of service) insofar as applicable.
(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 1 Pa. Code Chapter 35, Subchapter F (relating to briefs).
§ 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 may be conducted in Harrisburg, Philadelphia and Pittsburgh or other locations in this Commonwealth, or by telephonic or electronic means, as the Board may determine.
(c) Oral argument will be scheduled at the earliest possible date following the close of the briefing schedule.
(d) The Board will notify parties of the scheduling of oral argument as far in advance as possible of the argument date.
(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.
(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.
[Pa.B. Doc. No. 21-2059. Filed for public inspection December 10, 2021, 9:00 a.m.]
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