Pennsylvania’s workers’ compensation system continues to struggle with how to move matters along, considering that the ongoing COVID-19 crisis has rendered live hearings impossible.
An underlying principle of administrative law practices such as workers’ compensation is that matters should be dealt with expeditiously. Two recent announcements have provided new avenues of relief. However, they are not without concerns about how to effectively provide employers and insurers protection from future challenges and how to employ best defense practices.
The first deals with how Pennsylvania will facilitate the Compromise and Release process, whereby a claimant settles all of part of his or her claim with the employer/insurer. The second deals with how hearings will proceed in general.
On March 23, 2020, Pennsylvania, via its website known as “WCAIS,” provided that:
In order to facilitate the C & R approval process, Governor Tom Wolf has approved the Workers' Compensation Office of Adjudication's request to temporarily suspend Section 449(c) of the Act requiring Claimant's signature to be "Attested by two witnesses or acknowledged before a notary public." Stated another way, counsel and parties will not need Claimant's signature on the C & R Agreement to be witnessed OR notarized. All other information on the C & R Agreements must be completed and submitted to the WCJ hearing the matter. This is a temporary suspension designed to limit non-essential personal contact during the Governor's disaster declaration related to the COVID-19 crisis.
The concern with this pronouncement is that it defies the precise language of the Pennsylvania Workers’ Compensation Act. The Compromise and Release provisions of the Act, as enacted by the state legislature, provide that claimant’s signature must be attested to by two witnesses or acknowledged before a notary public. In general, it is unclear whether a legislative act can be usurped in this manner, even if the act itself provides great deference to administrative law rule making by the Bureau of Workers’ Compensation.
Nonetheless, we suspect that in large part, parties will be willing to take the chance that any Compromise and Release approved without witnesses or acknowledged before a notary public will proceed without incident and may likely survive appellate review under our present unusual circumstances.
As a practical matter, it does not appear that employers/insurers would challenge a judicial ruling approving a Compromise and Release. This would leave an aggrieved claimant to do so, but a well-founded transcript of claimant’s testimony at the Compromise and Release hearing would likely (but not assuredly) allow for a judicial decision approving a settlement to survive appellate review.
Defense counsel should be encouraged to take every measure to identify the claimant at the hearing, by requesting, for example, that claimant provide the last four digits of his or her social security number and date of birth. Further, that claimant’s lawyer identify claimant as someone he or she well recognizes. Further, that the parties clearly establish that claimant has had ample time to consider the ramifications of the settlement and is willing to enter into same without undue pressure, corrosion or influence.
A second change to judicial procedures came to us via the Philadelphia Bar Association’s Workers’ Compensation Section, on March 25, 2020. It provides as follows:
Update – WCOA- Message from Co-Chairs
It is our understanding that, at this time, a majority of Workers’ Compensation Judges are operating remotely. Further, WCOA staff is being trained and will be operational shortly as well.
Effective March 30, 2020, all events scheduled shall proceed via teleconference. Please direct any inquiry concerning specific WCJ procedures or manner in which to proceed with hearings and mediations directly to the particular WCJ by email or WCAIS request.
Below is the link to the Department of Labor and Industry website with more specific information.
Please continue to check the WCAIS alert page as the Director DeRita regularly updates information on this very fluid situation.
While it is certainly in the interests of employers/insurers to move cases along, there is something lost in not having your lawyer at least “eyeball” the claimant and access credibility. More importantly, your defense counsel loses the opportunity to see how the judge responds to claimant. Often, cases do come down to what the judge thinks of the claimant’s credibility and we will not be able to use our trained eye to get a clear understanding of same.
Further, telephone hearings for more than routine matters can get messy. The participants talk over each other. The transcripts do not always reflect properly who was speaking or what was said. Extra caution will be necessary to review transcripts of telephone hearings. Further, technical issues might pop up with call in numbers, access codes, clarity of connections and so forth.
Last, as of March 24, 2020, WCAIS has provided the following new COVID-19 EDI reporting codes. We provide this to you without additional commentary, so that you are aware of how to file an alleged COVID-19 alleged claims.
COVID-19 EDI Reporting
The Workers' Compensation Insurance Organizations (WCIO) has approved the addition of a new Cause Code of 83 for Pandemic and a new Nature Code of 83 for COVID-19. Pennsylvania's system has been updated to accept these codes for reporting COVID-19 claims. The codes are anticipated to be used for the reporting for any COVID-19 claim effective December 2019 or later. The International Association of Industrial Accidents, Boards, and Commissions (IAIABC) recommends that EDI reporting and collection systems be modified to recognize these new codes by April 1, 2020. However, until you are able to update your system to use these codes, we ask that you use Type of Loss field, DN0290 as Occupational Disease and listing COVID-19 in the Accident/Injury Description Narrative, DN0038 so we can both easily identify these claims.
We remain available to help you with all your legal matters through these unusual times. Please stay safe and healthy.