[27 Pa.B. 3141]
[Continued from previous Web Page] § 123.5. Offset for benefits already received.
(a) If the insurer receives information that the employe has received benefits from one or more of the sources in § 123.3 (relating to employe report of benefits subject to offset), the insurer shall be entitled to an offset to the workers' compensation benefit.
(b) The net amount received by the employe shall be calculated consistent with §§ 123.6--123.11. The amount received by the employe, prior to notification to the insurer, shall be divided by the weekly workers' compensation rate. The result shall be the number of weeks, and fraction thereof, the insurer is entitled to offset against future payments of workers' compensation benefits.
(c) The insurer shall notify the employe, the employe's counsel, if known, and the Department of the offset as specified in § 123.4(b) (relating to application of the offset, generally).
(d) The employe may challenge the offset by filing a petition for review with the Department.
§ 123.6. Application of offset for unemployment compensation (UC) benefits.
(a) Workers' compensation benefits otherwise payable shall be offset by the amount an employe receives in UC benefits subsequent to the work-related injury. This offset shall apply only to UC benefits which an employe receives and which are attributable to the same time period in which an employe also receives workers' compensation benefits.
(b) The offset may not apply to benefits for which an employe may be eligible, but is not receiving.
(c) When an employe calculates and remits payment for amounts due for Federal, State and local taxes, the insurer may be required to repay the employe for amounts previously offset from workers' compensation benefits, when the offset was calculated on the pretax amount of the UC benefit. To receive repayment for amounts previously offset, the employe shall notify the insurer in writing of the amounts paid in taxes.
(d) The offset to workers' compensation benefits for amounts received in UC benefits is triggered when an employe becomes eligible and begins receiving the UC benefits.
(1) When an employe receives UC benefits which the employe is later required to repay based upon a determination of ineligibility, the insurer may not offset the workers' compensation benefits.
(2) When an employe's workers' compensation benefits have been offset by the amount received in UC benefits and the employe is required to repay UC benefits based upon a determination of ineligibility, the insurer shall repay the employe for the amounts previously offset from the workers' compensation benefits. The employe may request that the insurer remit repayment directly to the Bureau of Unemployment Compensation Benefits and Allowances (BUCBA).
(e) When an employe receives a lump-sum award from BUCBA, the insurer may offset the amount received by the employe against future payments of workers' compensation benefits. The amount received by the employe shall be divided by the weekly workers' compensation rate. The result shall be the number of weeks, and fraction thereof, the insurer is entitled to offset against future payments of workers' compensation benefits.
§ 123.7. Application of offset for Social Security (old age) benefits.
(a) Workers' compensation benefits otherwise payable shall be offset by 50% of the net amount received in Social Security (old age) benefits. The offset shall only apply to amounts which an employe receives subsequent to the work-related injury. The offset may not apply to Social Security (old age) benefits which commenced prior to the work-related injury and which the employe continues to receive subsequent to the work-related injury.
(b) The offset may not apply to benefits to which an employe may be entitled, but is not receiving.
(c) The offset shall be applied on a weekly basis. To calculate the weekly offset, 50% of the net monthly Social Security (old age) benefit received by the employe shall be divided by 4.34.
§ 123.8. Offset for pension benefits, generally.
(a) Workers' compensation benefits otherwise payable shall be offset by the amount an employe receives in pension benefits to the extent funded by the employer directly liable for the payment of workers' compensation.
(b) The pension offset shall apply to amounts received from defined-benefit and defined-contribution plans.
(c) The offset may not apply to pension benefits to which an employe may be entitled, but is not receiving.
(d) In calculating the offset amount for pension benefits, investment income attributable to the employer's contribution to the pension plan shall be included on a pro-rata basis.
§ 123.9. Application of offset for pension benefits.
(a) Offsets of amounts received from pension benefits shall be achieved on a weekly basis. If the employe receives the pension benefit on a monthly basis, the net amount contributed by the employer and received by the employe shall be divided by 4.34. The result is the amount of the weekly offset to the workers' compensation benefit.
(b) When an employe receives a pension benefit in the form of a lump-sum payment, the actuarial equivalent of the lump-sum with respect to the annuity options (qualified joint and survivor annuity or life annuity) available at the time of the employe's receipt shall be used as the basis for calculating the offset to the workers' compensation benefit. The monthly annuity equivalent shall be divided by 4.34. The result shall be the offset to the workers' compensation benefit on a weekly basis.
(c) Pension benefits which are rolled over into an IRA or other similarly restricted account may not offset workers' compensation benefits, so long as the employe does not utilize or otherwise withdraw funds from the account while simultaneously receiving workers' compensation benefits from the liable employer.
(d) If the employe, while receiving workers' compensation benefits from the liable employer, utilizes or otherwise withdraws funds from the IRA or other similarly restricted account, when the IRA or account is funded in whole or in part by the liable employer's contributions, the insurer shall be entitled to an offset to workers' compensation benefits.
(1) If the employe begins receiving a monthly payment from the IRA or other similarly restricted account, the insurer shall receive an offset to the workers' compensation benefit equal to the offset the insurer would be entitled to if the employe were receiving a monthly pension benefit under subsection (a).
(2) If the employe utilizes or otherwise withdraws an amount from the IRA or other similarly restricted account which is greater than the actuarial equivalent of the lump sum with respect to the annuity options (qualified joint and survivor annuity or life annuity) available at the time of the employe's receipt, the insurer may be entitled to an offset against future payments of workers' compensation benefits in an amount equal to the amount of the funds utilized or otherwise withdrawn by the employe.
(e) The employe shall report the subsequent receipt of funds from the IRA or other similarly restricted account to the insurer on Forms LIBC-756A or LIBC-750.
§ 123.10. Multi-employer pension fund offsets.
(a) When the pension benefit is payable from a multi-employer pension plan, only that amount which is contributed by the employer directly liable for the payment of workers' compensation shall be utilized in calculating the offset to workers' compensation benefits.
(b) To calculate the appropriate offset amount, the portion of the annuity purchased by the liable employer's contributions shall be as determined by the pension fund's actuary. The ratio of the portion of the annuity purchased by the liable employer's contributions to the total annuity shall be multiplied by the net amount received by the employe from the pension fund on a weekly basis. The result is the amount of the offset to be applied to the workers' compensation benefit on a weekly basis.
(c) If the employe receives the multi-employer pension benefit on a monthly basis, the net amount received by the employe shall be multiplied by the ratio of the liable employer's contribution to the pension plan on behalf of the employe; and that product shall be divided by 4.34. The result is the amount of the offset to be applied to the workers' compensation benefit on a weekly basis.
(d) If the employe receives the multi-employer pension benefit in a lump sum, the actuarial equivalent of the lump sum with respect to the annuity options (qualified joint and survivor annuity or life annuity) available at the time of the employe's receipt of the benefit shall be used as the basis for calculating the offset to the workers' compensation benefit. The ratio of the employer's contribution to the pension plan shall be multiplied by the monthly annuity value of the pension benefit. The result shall be divided by 4.34 to achieve the offset to the workers' compensation benefit on a weekly basis.
§ 123.11. Application of offset for severance benefits.
(a) Workers' compensation benefits otherwise payable shall be offset by amounts an employe receives in severance benefits subsequent to the work-related injury. The offset may not apply to severance benefits to which an employe may be entitled, but is not receiving.
(b) The net amount of any severance benefits shall offset workers' compensation benefits on a weekly basis, except as provided in subsections (c) and (d).
(c) When the employe receives severance benefits in a lump-sum payment, the net amount received by the employe shall be divided by the weekly workers' compensation rate. The result is the number of weeks, and fraction thereof, the insurer may offset against future payments of workers' compensation benefits.
(d) When an employe receives a severance benefit in the form of tangible property, the market value of the property, as determined for Federal tax purposes, shall be divided by the weekly workers' compensation rate. The result is the number of weeks, and fraction thereof, the insurer may offset against future payments of workers' compensation benefits.
Subchapter B. IMPAIRMENT RATINGS Sec.
123.101. Purpose. 123.102. Impairment rating evaluation (IRE) requests. 123.103. Physicians. 123.104. Appointment of physician by Department. 123.105. Impairment rating determination. § 123.101. Purpose.
This subchapter interprets section 306(a.2) of the act (77 P. S. § 511.2) which provides for a determination of whole body impairment due to the compensable injury after the receipt of 104 weeks of total disability compensation.
§ 123.102. Impairment rating evaluation (IRE) requests.
(a) Commencing 60 days prior to, and continuing up to 60 days after, the expiration of the employe's receipt of 104 weeks of total disability benefits, the insurer may request the employe's attendance at an IRE. If the evaluation is requested and performed during this time period the adjustment of the benefit status shall relate back to the expiration of the employe's receipt of 104 weeks of total disability benefits. When the evaluation is performed more than 60 days after the expiration of the employe's receipt of 104 weeks of total disability benefits, the adjustment of the disability status shall be effective as of the date of the evaluation or as determined by the evaluating physician.
(b) Absent agreement between the insurer and the employe, an IRE may not be performed prior to the expiration of the employe's receipt of 104 weeks of total disability benefits.
(c) The employe's receipt of 104 weeks of total disability benefits shall be calculated on a cumulative basis.
(d) The insurer shall request the employe's attendance at the IRE in writing on a form designated by the Department, and therein specify the date, time and location of the evaluation and the name of the physician chosen to perform the evaluation. The request shall be made to the employe and employe's counsel, if known.
(e) If the parties cannot agree upon the physician to perform the IRE, the Department will appoint a physician consistent with § 123.104 (relating to appointment of physician by Department).
(f) The insurer's failure to request the evaluation within 60 days of the expiration of 104 weeks of total disability may not result in a waiver of the insurer's right to compel the employe's attendance at an IRE. The insurer maintains the right to request and receive an IRE twice in a 12-month period. The request and performance of IREs may not preclude the insurer from compelling the employe's attendance at independent medical examinations or other expert interviews under section 314 of the act (77 P. S. § 651).
(g) The employe's failure to attend the IRE under this section may result in a suspension of the employe's right to benefits consistent with section 314(a) of the act.
§ 123.103. Physicians.
(a) Physicians performing impairment rating evaluations (IREs) shall:
(1) Be licensed in this Commonwealth and certified by an American Board of Medical Specialties-approved board or its osteopathic equivalent.
(2) Be active in clinical practice at least 20 hours per week.
(b) For purposes of this subchapter, the phrase ''active in clinical practice'' means the act of providing preventive care and the evaluation, treatment and management of medical conditions of patients on an ongoing basis.
(c) Physicians chosen by employes to perform IREs, for purposes of appealing a previous adjustment of benefit status, shall possess the qualifications enumerated in subsections (a) and (b).
§ 123.104. Appointment of physician by Department.
(a) When the parties are not able to reach agreement on the physician to perform the impairment rating evaluation (IRE), the parties may request the Department to appoint the physician.
(b) The parties may request the Department to appoint a physician on a form designated ''Request for Appointment of Physician to Perform Impairment Rating Evaluation.''
(c) Within 20 days of receipt of the appointment request, the Department will appoint a physician to perform the IRE.
(d) The Department will provide the name and address of the physician appointed to perform the IRE to the employe, the insurer or employer, and the attorneys, if known. The insurer is responsible for scheduling the time and date of the evaluation.
§ 123.105. Impairment rating determination.
(a) When properly requested under § 123.102 (relating to impairment rating evaluation requests), an impairment rating evaluation (IRE) shall be conducted in all cases and an impairment rating determination must result, unless the evaluating physician indicates on the ''Impairment Rating Determination Face Sheet'' (Face Sheet) that the impairment of the employe is not subject to being rated under the most recent edition of the ''AMA Guides to the Evaluation of Permanent Impairment.''
(b) To ascertain an accurate percentage of the employe's whole body impairment, in cases when the evaluating physician determines that the compensable injury incorporates more than one pathology, the evaluating physician may refer the employe to one or more physicians specializing in the specific pathologies which constitute the compensable injury. The referring physician remains responsible for determining the whole body impairment rating of the employe.
(c) The physician performing the IRE shall complete a face sheet, which sets forth the impairment rating as determined by the physician. The physician shall attach to the face sheet the ''Report of Medical Evaluation'' as utilized by the ''AMA Guides to the Evaluation of Permanent Impairment.'' The face sheet and report is to be provided to the employe, employe's counsel, if known, insurer and the Department within 30 days from the date of the impairment evaluation.
(d) If the evaluation results in an impairment rating that is equal to or greater than 50%, the employe shall be presumed totally disabled and shall continue to receive total disability compensation. The presumption of total disability may be rebutted at any time by a demonstration of earning power in accordance with section 306(b)(2) of the act (77 P. S. § 512(b)(2)) or by an IRE which results in an impairment rating of less than 50%.
(e) If the evaluation results in an impairment rating of less than 50%, the employe shall receive benefits partial in character. To adjust the status of the employe's benefits from total to partial, the insurer shall provide notice to the employe, the employe's counsel, if known, and the Department, on a form to be prescribed by the Department, of the following:
(1) The evaluation has resulted in an impairment rating of less than 50%.
(2) Sixty days from the date of the notice the employe's benefits status shall be adjusted from total to partial.
(3) The adjustment of benefit status does not change the amount of the weekly workers' compensation benefit.
(4) An employe may only receive partial disability benefits for a maximum of 500 weeks.
(5) The employe may appeal the adjustment of benefit status to a Workers' Compensation judge by filing a petition for review with the Department.
(f) At any time during the receipt of 500 weeks of partial disability compensation, the employe may appeal the adjustment of benefit status to a Workers' Compensation judge by filing a petition for review.
Subchapter C. QUALIFICATIONS FOR VOCATIONAL EXPERTS APPROVED BY THE DEPARTMENT Sec.
123.201. Purpose. 123.202. Qualifications. § 123.201. Purpose.
This subchapter interprets the provisions of the act which require the Department to approve experts who will conduct earning power assessment interviews under sections 306(b)(2) and 449 of the act (77 P. S. §§ 512(b)(2) and 1000.5). The experts contemplated by this subchapter are vocational evaluators.
§ 123.202. Qualifications.
To be an expert approved by the Department for the purposes of conducting earning power assessment interviews, the individual shall possess a minimum of one of the following:
(1) Both of the following:
(i) Certification by one of the following Nationally recognized professional organizations:
(A) The American Board of Vocational Evaluators.
(B) The National Board of Certified Rehabilitation Counselors.
(C) The National Certification of Disability Management Specialists.
(ii) One year experience in analyzing labor market information and conditions, industrial and occupational trends, with primary duties providing actual vocational rehabilitation services, which include, but are not limited to, the following:
(A) Job seeking skills.
(B) Job development.
(C) Job analysis.
(D) Career exploration.
(E) Placement of individuals with disabilities.
(2) Certification by a Nationally recognized professional organization under the direct supervision of an individual possessing the criteria in paragraph (1).
(3) Possession of a Bachelor's degree or a valid license issued by the Department of State's Bureau of Professional and Occupational Affairs, so long as the individual is under the direct supervision of an individual possessing the criteria in paragraph (1).
(4) At least 5 years experience primarily in the workers' compensation field prior to August 23, 1996, as a vocational evaluator, with experience in analyzing labor market information and conditions, industrial and occupational trends, with primary duties providing actual vocational rehabilitation services, which include, but are not limited to, the following:
(i) Job seeking skills.
(ii) Job development.
(iii) Job analysis.
(iv) Career exploration.
(v) Placement of individuals with disabilities.
Subchapter D. EARNING POWER DETERMINATIONS Sec.
123.301. Notice of ability to return to work. 123.302. Employer job offer obligation. 123.303. Evidence of earning power. § 123.301. Notice of ability to return to work.
(a) After receipt of medical evidence which indicates that an employe is able to return to work in any capacity, the insurer shall provide prompt written notice on Form LIBC-757, ''Notice of Ability to Return to Work,'' to the employe of the following:
(1) The nature of the employe's physical condition or change in condition.
(2) The employe's obligation to seek available employment and that proof of available employment may jeopardize the employe's right to receive benefits.
(3) The employe's right to consult with an attorney.
(b) This notice shall be provided prior to, or contemporaneous with, the filing of a petition for modification or suspension. The insurer shall provide the notice required by subsection (a), to the employe and the employe's counsel, if known, regardless of whether the insurer intends to file a petition for modification or suspension.
§ 123.302. Employer job offer obligation.
(a) If a specific job vacancy exists, within the usual employment area, with the liable employer, which the employe is capable of performing, the employer shall offer that job to the employe prior to seeking a modification or suspension of benefits based on earning power.
(b) The employer's obligation to offer a specific job vacancy to the employe commences when the insurer provides the notice to the employe required by § 123.301 (relating to notice of ability to return to work) and shall continue for 30 days or until the filing of a petition for modification or suspension, whichever is longer.
(c) When more than one job which the employe is capable of performing becomes available, the employer maintains the right to select which job will be offered to the employe.
(d) The employer's duty under subsections (a)--(c) does not require the employer to hold a job open for a minimum of 30 days. Job offers shall be made consistent with the employer's usual business practice. If the making of job offers is controlled by the provisions of a collective bargaining agreement, the offer shall be made consistent with those provisions.
(e) The employer's duty under subsections (a)--(c) may be satisfied if the employer avers on the petition for modification or suspension and provides evidence that one of the following exists:
(1) The employe was notified of a job vacancy and failed to respond.
(2) A specific job vacancy was offered to the employe, which the employe refused.
(3) The employer offered a modified job to the employe, which the employe refused.
(4) No job vacancy exists within the usual employment area.
(f) Where the employer avers that no job vacancy exists, the employe may rebut the employer's averment by demonstrating facts which may include, but are not limited to, the following:
(1) During the period in which the employer has or had a duty to offer a specific job, the employer is or was actively recruiting for a specific job vacancy that the employe is capable of performing.
(2) During the period in which the employer had a duty to offer a specific job, the employer posted or announced the existence of a specific job vacancy, that the employe is capable of performing, which the employer intends to fill.
(g) A job will not be considered vacant if the employe's ability to fill the position is precluded by any applicable collective bargaining agreement.
§ 123.303. Evidence of earning power.
An insurer may demonstrate an employe's earning power by expert opinion evidence relative to the employe's capacity to perform a job and the existence of a job in the usual employment area of the employe. For injuries suffered on or after June 24, 1996, the employer's job offer obligation to the employe is limited as set forth in § 123.302 (relating to employer job offer obligation).
Subchapter E. COLLECTIVE BARGAINING Sec.
123.401. Use of alternative dispute resolution (ADR) systems. § 123.401. Use of alternative dispute resolution (ADR) systems.
(a) Collective bargaining agreements (CBAs) may provide for an ADR system which may include, but is not limited to, arbitration, mediation and conciliation, for the resolution of claims for work-related injuries.
(b) Standard forms and filing requirements of the act remain in effect for parties participating in an ADR system under section 450 of the act (77 P. S. § 1000.6). Forms submitted to the Department shall indicate that the parties involved are participating in an ADR system under section 450 of the act (77 P. S. § 1000.6).
(c) Once established by a CBA, an ADR system shall be the exclusive system for resolving claims for work-related injuries during the existence of the CBA or longer, if the CBA provides for the continuation of the ADR system. When the ADR system governing a work-related injury is no longer in effect, resolution of claims regarding the work-related injury shall be fully subject to the act, including review by a Workers' Compensation judge.
(d) Determinations rendered under an ADR system shall be binding and enforceable.
(e) Appeals from determinations rendered under an ADR system are limited to those made under the conditions specified by 42 Pa.C.S. § 7314 (relating to Vacating award by court).
Subchapter F. EMPLOYE REPORTING AND VERTIFICATION REQUIREMENTS Sec.
123.501. Reporting requirement . 123.502. Verification. § 123.501. Reporting requirement.
An insurer shall notify the employe of the employe's reporting requirements under sections 204 and 311.1(a) and (d) of the act (77 P. S. §§ 71 and 631.1(a) and (d)). In addition, the insurer shall provide to the employe the forms required to fulfill the employe's reporting and verification requirements.
§ 123.502. Verification.
(a) Insurers may submit Form LIBC-760, ''Employee Verification of Employment, Self-employment or Change in Physical Condition,'' to the employe and employe's counsel, if known, to verify that the status of the employe's entitlement to receive compensation has not changed.
(b) The employe shall complete and return the verification form to the insurer within 30 days of receipt of the form.
(c) If the employe fails to comply with subsection (b), the insurer may suspend payments of wage-loss benefits until the verification form is returned by the employe. It is the insurer's burden to demonstrate that the employe received the verification form. The insurer's burden is met if it provides evidence that the form was mailed to the employe at the employe's last known address, by first-class mail.
(d) To suspend payments of compensation due to the employe's failure to comply with subsection (b), the insurer shall provide written notice to the employe, the employe's counsel, if known, and the Department, on Form LIBC-762, ''Notice of Suspension for Failure to Return Form LIBC-760 (Employee Verification of Employment, Self-employment and Change in Physical Condition)'' of the following:
(1) The workers' compensation benefits have been suspended because of the employe's failure to return the verification form within the statutorily prescribed time period.
(2) The workers' compensation benefits shall be reinstated by the insurer within 15 days of receipt of the completed verification form.
(3) The employe has the right to challenge the suspension of benefits by filing a petition for review with the Department.
(e) Within 15 days of receipt of the completed verification form, the insurer shall reinstate the workers' compensation benefits for which the employe is eligible. The insurer shall provide written notice to the employe, employe's counsel, if known, and the Department, on Form LIBC-763, ''Notice of Reinstatement of Workers' Compensation Benefits,'' that the employe's workers' compensation benefits have been reinstated due to the return of the completed verification form. The notice shall further indicate the date the verification form was received by the insurer and the date of reinstatement of workers' compensation benefits.
(f) Employes are not entitled to payments of workers' compensation during periods of noncompliance with subsection (b).
Subchapter G. SPECIAL SUPERSEDEAS Sec.
123.601. Disposition of automatic request for special supersedeas. 123.602. Return to work--modification or suspension. 123.603. Employe request for special supersedeas hearing. § 123.601. Disposition of automatic request for special supersedeas.
(a) The filing of a petition alleging full recovery, accompanied by a physician's affidavit to that effect, which was prepared in connection with an examination of the employe no more than 21 days from the filing of the petition, shall act as an automatic request for supersedeas.
(b) A special supersedeas hearing will be held within 21 days of the assignment of the petition filed under this section.
(c) The Workers' Compensation judg shall approve the request for supersedeas if prima facie evidence of a change in the medical status or of any other fact which would serve to modify or terminate the payment of compensation is submitted at the hearing. In making this determination the Workers' Compensation judge shall consider the physician's affidavit alleging full recovery and may consider the following:
(1) The report of the physician.
(2) The testimony of a party or witness.
(3) The records of a physician, hospital or clinic or other similar entity.
(4) The written statements or reports of another person expected to be called by a party at the hearing of the case.
(5) Other evidence relevant to the request for supersedeas.
(d) If the judge to whom the special supersedeas request has been assigned fails to hold a hearing within 21 days of assignment of the request to the judge or fails to issue a written order within 7 days of the hearing of the supersedeas request, the automatic request for supersedeas shall be deemed denied.
(e) The automatic request for supersedeas shall remain denied until the judge issues a written order granting the supersedeas, in whole or in part.
§ 123.602. Return to work--modification or suspension.
(a) If an employe returns to work the insurer may modify or suspend the workers' compensation benefits.
(b) The insurer shall complete and file Form LIBC-751, ''Notification of Modification or Suspension Pursuant to §§ 413(C) & (D) and Form LIBC-752, ''Insurer's Affidavit Pursuant to Section 413(c) and (d).'' Both forms shall be provided to the employe, employe's counsel, if known, and the Department within 7 days of the effective date of the suspension or modification of the workers' compensation benefits.
(c) When the insurer previously modified or suspended the employe's benefits under section 413(c) or (d) of the act (77 P. S. § 774.2 or § 774.3), to effectuate a subsequent modification or suspension of the employe's workers' compensation benefits, the insurer shall file the forms under subsection (b) indicating the change in the employe's wages and corresponding change in the employe's workers' compensation benefits.
§ 123.603. Employe request for special supersedeas hearing.
(a) This section governs the disposition of an employe's request for a special supersedeas hearing made in connection with a challenge to the suspension or modification of workers' compensation benefits under section 413(c) and (d) of the act (77 P. S. §§ 774.2 and 774.3).
(b) A special supersedeas hearing will be held within 21 days of the employe's filing of the notice of challenge.
(c) The Workers' Compensation judge to whom the notice of challenge has been assigned will issue a written order on the challenge within 14 days of the hearing.
(d) If the judge fails to hold a hearing within 21 days or fails to issue a written order approving the suspension or modification of benefits within 14 days of the hearing, the insurer shall reinstate the employe's workers' compensation benefits at the weekly rate the employe received prior to the insurer's suspension or modification of benefits under section 413(c) or (d) of the act.
Subchapter H. INFORMAL CONFERENCE Sec.
123.701. Representation of corporation at informal conferences. § 123.701. Representation of corporation at informal conference.
A corporation may be represented by an agent or other representative of the corporation, other than an attorney, at an informal conference conducted under section 402.1 of the act (77 P. S. § 711.1). When the case is transferred from an informal conference to a Workers' Compensation judge for an adjudication, a corporation shall be represented by an attorney.
Subchapter I. USE OF OPTICALLY SCANNED DOCUMENTS Sec.
123.801. Use of optically scanned documents. 123.801. Use of optically scanned documents.
(a) The Bureau may optically scan original documents, or make other images or paper copies which accurately reproduce the originals, and may dispose of the originals so copied.
(b) A copy made under this section, and certified by the custodian of records for the Bureau, shall be admissible in evidence in a proceeding with the same effect as though it were an original.
Subchapter J. UNREASONABLE OR EXCESSIVE DELAY Sec.
123.901. Penalty for unreasonable or excessive delay. 123.901. Penalty for unreasonable or excessive delay.
An employer which violates a provision of the act or regulations accompanied by an unreasonable or excessive delay may be assessed a penalty of up to 50% of the sum of compensation awarded. A delay of 10 or more days shall be presumed to be an unreasonable or excessive delay.
CHAPTER 127. WORKERS' COMPENSATION MEDICAL COST CONTAINMENT § 127.105. Outpatient providers subject to the Medicare fee schedule--chiropractors.
* * * * * (b) Payments for spinal manipulation procedures by chiropractors shall be based on the Medicare fee schedule for HCPCS [code A2000] codes 98940-98943, multiplied by 113%.
* * * * *
BILLING TRANSACTIONS § 127.208. Time for payment of medical bills.
* * * * * (e) The 30-day period in which payment shall be made to the provider may be tolled only if review of the reasonableness or necessity of the treatment is requested during the 30-day period under the UR provisions of Subchapter C (relating to medical treatment review). The insurer's right to suspend payment shall continue throughout [both the initial review and the reconsideration review of] the UR process. The insurer's right to suspend payment shall further continue beyond the UR process to a proceeding before a Workers' Compensation judge, unless there is a UR determination made [at reconsideration] that the treatment is reasonable and necessary.
(f) The nonpayment to providers within 30 days shall only apply to that particular treatment or portion thereof in dispute; if a portion of the treatment is not in dispute, payment shall be made within 30 days.
(g) If a URO determines that medical treatment is reasonable or necessary, [at reconsideration,] the insurer shall pay for the treatment. Filing a petition for review before a Workers' Compensation judge, does not further suspend the obligation to pay for the treatment once there has been a determination [at reconsideration] that the treatment is reasonable or necessary. If it is finally determined that the treatment was not reasonable or necessary, and the insurer paid for the treatment in accordance with this chapter, the insurer may seek reimbursement from the Supersedeas Fund under section 443(a) of the act (77 P. S. § 999(a)).
REVIEW OF MEDICAL FEE DISPUTES § 127.252. Application for fee review--filing and service.
(a) Providers seeking review of fee disputes shall file the original and one copy of a form prescribed by the Bureau as an application for fee review. The application shall be filed no more than 30 days following notification of a disputed treatment or 90 days following the original billing date of the treatment which is the subject of the fee dispute, whichever is later. The form shall be accompanied by documentation required by § 127.253 (relating to application for fee review--documents required generally).
* * * * * (d) The time for filing an application for fee review will be tolled if the insurer has the right to suspend payment to the provider due to a dispute regarding the reasonableness and necessity of the treatment under Subchapter C (relating to medical treatment review).
Subchapter C. MEDICAL TREATMENT REVIEW § 127.401. Purpose-review of medical treatment.
* * * * * (c) UR may be requested by [by multiple parties, depending on whether it is an initial request or a reconsideration request] or on behalf of the employer, insurer or employe.
[(1) The initial request for UR may be made by, or on behalf of, the employer, insurer or employe.
(2) The request for reconsideration may be made by, or on behalf of the employer, insurer, employe or health care provider.]
(d) A party, including a health care provider, aggrieved by the UR [reconsideration] determination, may file a petition for review of UR, to be heard and decided by a Workers' Compensation judge.
§ 127.404. Prospective, concurrent and retrospective review.
* * * * * (b) If an insurer or employer seeks retrospective review of treatment, the [initial] request for UR shall be filed within 30 days of the receipt of the bill and medical report for the treatment at issue. Failure to comply with the 30-day time period shall result in a waiver of retrospective review. If the insurer is contesting liability for the underlying claim, the 30 days in which to request retrospective UR is tolled pending an acceptance or determination of liability.
(c) If an employe files [an initial] a request for UR of treatment, the Bureau will confirm whether the insurer is liable for the underlying alleged work injury. The Bureau will process the UR request only where workers' compensation liability for the underlying injury has been accepted or determined.
(d) If an employe files [an initial] a request for UR of prospective treatment which satisfies the requirements of subsection (c), the Bureau will determine whether the insurer is denying payment for the treatment.
(1) The Bureau will send a copy of the employe's [initial] request for UR to the insurer, together with a written notice asking the insurer whether it will accept payment for the treatment or is denying payment for the treatment. The insurer shall respond in writing to the Bureau's written notice within 7 days of receipt of the notice.
* * * * * (3) If the insurer is denying payment for the treatment, the insurer shall state the reasons for the denial in its written response. If no reasons are stated for the denial, or if the insurer's written response to the Bureau notice is untimely, the insurer shall pay for the cost of the [initial] UR and pay for treatment found to be reasonable or necessary by an uncontested UR determination.
* * * * * § 127.405. UR of medical treatment in medical only cases.
* * * * * (b) If the insurer files [an initial] a request for UR in a medical only case, then the insurer shall be responsible for paying for the costs of the [initial] UR.
(c) If the insurer files [an initial] a request for UR in a medical only case, then the insurer shall be liable to pay for treatment found to be reasonable or necessary by an uncontested UR determination.
UR--[INITIAL] REQUEST § 127.451. [Initial requests] Requests for UR--who may file.
[Initial requests] Requests for UR may be filed by an employe, employer or insurer. Health care providers may not file [initial] requests for UR.
§ 127.452. [Initial requests] Requests for UR--filing and service.
(a) A party seeking UR of treatment rendered under the act shall file the original and 8 copies of a form prescribed by the Bureau as [an initial] a request for UR. All information required by the form shall be provided. If available, the filing party shall attach authorizations to release medical records of the providers listed on the request.
(b) The [initial] request for UR shall be served on all parties and their counsel, if known, and the proof of service on the form shall be executed. If the proof of service is not executed, the request for UR will be returned by the Bureau.
(c) [Initial requests] Requests for UR shall be sent to the Bureau at the address listed on the form.
(d) The request for UR shall identify the provider under review. Except as specified in subsection (e), the provider under review shall be the provider who rendered the treatment or service which is the subject of the UR request.
(e) When the treatment or service requested to be reviewed is anesthesia, incident to surgical procedures, diagnostic tests, prescriptions or durable medical equipment, the request for UR shall identify the provider who made the referral, ordered or prescribed the treatment or service as the provider under review.
§ 127.453. [Initial requests] Requests for UR--assignment by the Bureau.
* * * * * § 127.454. [Initial requests] Requests for UR--reassignment.
* * * * * (c) A URO shall return a request for UR assigned to it by the Bureau if the URO has a conflict of interest with the request, as set out in § 127.455 (relating to [initial] requests for UR--conflicts of interest).
§ 127.455 [Initial requests] Requests for UR--conflicts of interest.
* * * * * § 127.456. [Initial requests] Requests for UR--withdrawal.
(a) A party who wishes to withdraw [an initial] a request for UR shall notify the Bureau of the withdrawal in writing. The withdrawal notice may not be sent directly to the URO.
* * * * * § 127.457. Time for requesting medical records.
A URO shall request records from the treating provider listed on the [initial] request for UR within 5 days from receipt of the Bureau's notice of assignment.
§ 127.465. [Initial requests] Requests for UR--deadline for URO determination.
* * * * * § 127.466. Assignment of UR request to reviewer by URO.
[(a)] Upon receipt of the medical records, the URO shall forward the records, the [initial] request for UR, the notice of assignment and a Bureau-prescribed instruction sheet to a reviewer licensed by the Commonwealth in the same profession and having the same specialty as the provider under review.
[(b) Review of physical therapy, occupational therapy, anesthesia incident to surgical procedures, diagnostic tests, prescriptions and durable medical equipment shall be performed by a reviewer licensed by the Commonwealth in the same profession and having the same specialty as the provider who made the referral, ordered or prescribed the treatment or service.]
§ 127.477. Payment for [initial] requests for UR.
The insurer or the employer shall pay the reasonable and customary charge of the URO for the [initial] UR determination, regardless of who the requesting party is. Payment shall be made within 30 days of the date the [initial] UR determination was received. The URO shall send its itemized bill to the insurer responsible for payment and a copy of the itemized bill to the Bureau.
§ 127.479. Determination against insurer--payment of medical bills.
If the [initial] UR determination finds that the treatment reviewed was reasonable or necessary, the insurer shall pay the bills submitted for the treatment in accordance with § 127.208 (relating to time for payment of medical bills) [unless the insurer timely files a request for reconsideration of the initial UR determination under § 127.502 (relating to reconsideration--time for filing)].
(Editor's Note: The Department is proposing to delete §§ 127.501--127.515 (relating to UR--reconsideration) as they currently appear in the Pennsylvania Code at pps. 127-54--127-58 (serial pps. (203498)--(203502)).
UR--PETITION FOR REVIEW § 127.551. Petition for review by Bureau of UR determination.
If the provider under review, the employe, the employer or the insurer disagrees with the determination rendered [on reconsideration] by the URO, a request for review by the Bureau may be filed on a form prescribed by the Bureau as a petition for review of a UR determination.
§ 127.552. Petition for review by Bureau--time for filing.
The original and eight copies of the petition for review shall be filed with the Bureau within 30 days of receipt of the URO's determination [on reconsideration].
§ 127.553. Petition for review by Bureau--notice of assignment and service by Bureau.
* * * * * (c) Before assigning a petition for review, the Bureau will review the petition to ensure that a [reconsideration] UR has been filed and a determination has been rendered.
§ 127.555. Petition for review by Bureau--transmission of URO records to Workers' Compensation judge.
(a) Upon the Workers' Compensation judge's own motion, or motion of any party to the proceeding, the Workers' Compensation judge may order the URO to forward all medical records obtained for its [reviews] review to the Workers' Compensation judge. The URO shall forward all records within 10 days of the date of the Workers' Compensation judge's order.
(b) [The URO may not forward the report of the reviewer to the Workers' Compensation judge.] When a petition for review has been filed, the Bureau will forward the URO report to the Workers' Compensation judge assigned to the case.
* * * * * § 127.556. Petition for review by Bureau--de novo hearing.
The hearing before the Workers' Compensation judge shall be a de novo proceeding. The URO report shall be part of the record before the Workers' Compensation judge and the Workers' Compensation judge shall consider the report as evidence; however, [The] the Workers' Compensation judge will not be bound [by prior determinations made during the UR process] by the URO report.
Subchapter D. EMPLOYER LIST OF DESIGNATED PROVIDERS § 127.751. Employer's option to establish a list of designated health care providers.
* * * * * (b) If an employer has established a list of providers which meets the requirements of the act and this subchapter, an employe with a work-related injury or illness shall seek treatment with one of the designated providers from the list. The employe shall continue to treat with the same provider or another designated provider for [30] 90 days from the date of the first visit for the treatment of the work injury or illness.
* * * * * (d) An employe may not be required to obtain emergency medical treatment from a listed provider. However, once emergency conditions no longer exist, the injured employe shall treat with a listed provider for the remainder of the [30] 90-day period.
* * * * * (g) If a designated provider prescribes invasive surgery for the employe, the employe may seek an additional opinion from any health care provider of the employe's choice. If the additional opinion differs from the opinion of the designated provider and the additional opinion provides a specific and detailed course of treatment, the employe shall determine which course of treatment to follow. If the employe opts to follow the course of treatment outlined by the additional opinion, the treatment shall be performed by one of the health care providers on the employer's designated list for a period of 90 days from the date of the first visit to the provider of the additional opinion.
§ 127.752. Contents of list of designated health care providers.
(a) If an employer establishes a list of designated health care providers, there shall be at least six providers on the list.
* * * * * (2) No more than [two] four of the providers on the list may be CCOs.
* * * * * (e) The employer may change the designated providers on a list. However, changes to the list may not affect the options available to an employe who has already commenced the [30] 90-day treatment period.
§ 127.755. Required notice of employe rights and duties.
* * * * * (b) The contents of the written notice shall, at a minimum, contain the following information [that the employe has]:
(1) That the employe has the duty to obtain treatment for work-related injuries and illnesses from one or more of the designated health care providers for [30] 90 days from the date of the first visit to a designated provider.
(2) That the employe has the right to have all reasonable medical supplies and treatment related to the injury paid for by the employer as long as treatment is obtained from a designated provider during the [30] 90-day period.
(3) That the employe has the right, during this [30] 90-day period, to switch from one health care provider on the list to another provider on the list, and that all the treatment shall be paid for by the employer.
* * * * * (5) That the employe has the right to seek emergency medical treatment from any provider, but that subsequent nonemergency treatment shall be by a designated provider for the remainder of the [30] 90-day period.
(6) That the employe has the right to seek treatment or medical consultation from a nondesignated provider during the [30] 90-day period, but that these services shall be at the employe's expense for the applicable [30] 90 days.
(7) That the employe has the right to seek treatment from any health care provider after the [30] 90-day period has ended, and that treatment shall be paid for by the employer, if it is reasonable and necessary.
* * * * * (9) That the employe has the right to seek an additional opinion from any health care provider of the employe's choice when a designated provider prescribes invasive surgery for the employe. If the additional opinion differs from the opinion of the designated provider and the additional opinion provides a specific and detailed course of treatment, the employe shall determine which course of treatment to follow. If the employe opts to follow the course of treatment outlined by the additional opinion, the treatment shall be performed by one of the health care providers on the employer's designated list for a period of 90 days from the date of the first visit to the provider of the additional opinion.
* * * * *
[Pa.B. Doc. No. 97-1067. Filed for public inspection June 27, 1997, 9:00 a.m.]
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