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UPDATE: Pennsylvania Workers' Compensation

Pennsylvania
March 26, 2020
March 26, 2020
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Updated 06/15/20

Chartwell Law partner Joshua Gray participated in a conference call with Joseph DeRita, Director of Workers’ Compensation Office of Adjudication for the Pennsylvania Department of Labor and Industry and attorneys from across the Commonwealth. Director DeRita provided updated information on how hearing offices, which are in ‘green’ counties, will operate.  

Counties with hearing offices that have been moved to the “green” phase of Governor Wolf’s program will be allowed to begin live hearings. Currently these consist of Lycoming County, York County and counties in the Western District of Pennsylvania, except Erie. The majority of the south central Pennsylvania counties will also be moved in to the “green” phase as of June 19, 2020.  A date for the beginning of live hearings has not yet been determined but will be communicated soon.

Requests for live hearings shall be made through WCAIS and the presiding judge must approve of same. Live hearings will be limited to testimony only.  Pre-trials, status hearings, and other hearings that do not require testimony will continue to be handled telephonically. 

Security guards will question all people entering a hearing office if they have a temperature, sore throat, cough or have been around anyone with these symptoms recently. If they answer in the affirmative, they will not be permitted entry.  A limited number of individuals will be allowed entry into hearing offices at any given time. Those in attendance must wear masks. Witnesses will be allowed to remove masks only when they take the stand to testify. Only one or two judges per hearing office will be allowed to conduct hearings each day and hearing times will be staggered in order to eliminate close contact between individuals. Wipes and hand sanitizers will be available.

Furthermore, any individual who does not wish to go to a hearing office for live testimony due to health concerns will be given wide latitude. In those instances, hearings may be completed by telephone, Webex, or video deposition.

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Members of Chartwell Law’s workers’ compensation team participated in a conference call with Joseph DeRita, Director of Workers' Compensation Office of Adjudication for the Pennsylvania Department of Labor and Industry, and members of the Pennsylvania Bar workers’ compensation section. Below are some highlights of the discussion we thought might be of interest to you.

HEARINGS:

  • Beginning March 30, 2020, until further notice, all scheduled hearings will be conducted telephonically.
  • It is anticipated that there will be at least four to six weeks with no live hearings. 
  • Petitions are to be filed as they normally have been filed. A hearing notice will be sent out.  Once the hearing notice is sent, the judge’s assistant will then send an email for a Skype call with information to access the hearing, send a copy to a court reporter and translator if necessary. 
  • Judges were instructed to conduct pre-trials first and as they become more comfortable, they may go on to conducting testimony hearings. That said, some
    judges are now ready to handle testimony by phone.
  • The Commonwealth is working hard to educate its employees and judges to handle this type of practice.
  • While subpoenas and decisions are already e-signed, the WCOA is working with the Governor’s office to allow all documents in the workers’ compensation field to
    be e-signed during this crisis.
  • The Workers' Compensation Conference scheduled for June 1 - 2, 2020, in Hershey, PA is cancelled.

QUESTIONS ASKED DURING CALL

Q: Does a Notification of Suspension need to be notarized with COVID issues? 

A. Discussion is taking place to allow e-signature to be acceptable, but, for now, it still needs to be notarized. 

Q: Will there be a waiver of penalties when a delay in payment is due to Covid-19 issues? 

A: Practically, the judges should be providing leeway to employers.  That said, there is no specific waiver of penalties yet.

Q: Is there a policy about IREs/IMEs yet?

A: Tele-med is being considered but not all claimants have video capable computers. Petitions to compel will likely be granted but there is still an issue about when a claimant should be compelled to attend the IME. This is a policy consideration that is currently being addressed. Hopefully we will have an answer soon.

Q. Will all judges accept evidence uploaded prior to a hearing as some require evidence to be uploaded to WCAIS after the hearing? 

A. It is recommended that all judges allow evidence to be uploaded prior to a hearing.  That said, the practitioner is encouraged to contact the individual judge’s office to determine their specific rules.

Q. How do we confirm identity of claimant when they are on the phone?  

A. For now, we will have to rely on the certification of claimant’s counsel that the claimant is the person on the phone.

Q. How will scars be measured? 

A. This may have to wait until we can have live hearings.  Photos don’t always provide an accurate depiction of a scar. Parties can stipulate the photo of scar is accurate but that is unlikely to occur.

Q. Will judges agree to brief continuances to deal with getting C&R paperwork to claimants? 

A. The judges have the ability to liberally grant continuance requests. 

Q. Will there be a process to facilitate mediations? 

A. With Skype calls, the judge cannot mute one party to allow for private conversations with an individual party about the case. That said, it is recommended that we use cell phones instead of using Skype for mediations.

Q. Challenge Petitions, do they have to be scheduled in accordance with the Act? 

A. Yes, the Act says what it says. Since we now have phone hearings there should be no delay.

Q. Kachinski style job offer, if claimant is under quarantine do they have to go to job interview? 

A.  We suspect they do not.