[32 Pa.B. 1518]
[Continued from previous Web Page]
Subchapter B. TIME § 131.11. Filing, service and proof of service.
(a) Whenever filing is required by this chapter, it [will be] is deemed complete upon delivery in person or, if by mail, upon deposit in the United States Mail, as evidenced by [the] a United States Postal Service postmark, properly addressed, with postage or charges prepaid.
(b) Whenever service is required by this chapter, it [will be] is deemed complete upon delivery in person or, if by mail, upon deposit in the United States Mail, as evidenced by [the] a United States Postal Service postmark, properly addressed, with postage or charges prepaid, except as provided in § 131.81(b) (relating to subpoenas).
(c) Any notice or other written communication required to be served upon or furnished to a party shall also be served upon or furnished to the party's attorney in the same manner as it is served upon the party.
(d) Whenever a proof of service is required by this chapter, the proof of service shall contain the following:
* * * * * (2) The names of the [referee] judge and others served.
(3) The mailing address, the applicable zip code and the manner of service on the [referee] judge and others served.
[(d)] (e) Unless otherwise specifically provided in this chapter, whenever the filing or service is required to be made upon the Bureau, it shall be made to the principal office of the Bureau at: 1171 South Cameron Street, Harrisburg, Pennsylvania [17101] 17104-2501, (717) 783-5421, or another address and telephone number as may be published in the Pennsylvania Bulletin.
[(e)] (f) Subsections (a) [and (b)]--(e) supersede 1 Pa. Code §§ 31.5, 31.11, 31.13, 31.14, 31.26, 33.32 [and], 33.34--33.36 [(relating to timely filing required; service by a participant; and date of service). Subsection (c) supersedes 1 Pa. Code § 33.36 (relating to form of certificate of service)].
§ 131.12. Modification of time.
(a) Except for answers to petitions as set forth in § 131.33 (relating to answers except answers to petitions for joinder and [penalty] challenge proceedings), the time fixed or the period of time prescribed in this chapter may, in the exercise of sound discretion and for good cause, be shortened or extended by the [referee] judge upon the [referee's] judge's motion or at the request of a party.
(b) Modifications of time, other than continuances or postponements of hearings, will be governed by the following:
(1) Requests for extensions of time shall be filed at least 3 days before the time specified or as shortened or extended. Requests made within 3 days prior to the time specified or as shortened or extended may be considered if the [referee] judge is satisfied that the circumstances relating to the request occurred within those 3 days. After the expiration of the time specified, the act may be permitted to be done if reasonable grounds are shown for the failure to act within the time specified or as previously shortened or extended.
(2) Requests for extensions of time shall be made in writing and state the facts upon which the request rests. During the course of a hearing, the request may be made by oral motion to the [referee] judge.
(3) Requests for extensions of time, except those made orally at a hearing, shall be filed with the [referee] judge, served upon all parties, and a proof of service of same shall be filed with the [referee] judge.
(c) Subsections (a) and (b) supersede 1 Pa. Code §§ 31.6, 31.11, 31.15 and 35.18 [(relating to timely filing required; extensions of time; and petitions for issuance, amendment, waiver or deletion of regulations)].
§ 131.13. Continuances or postponements of hearings.
* * * * * (c) A continuance or postponement may be granted as set forth in this [subchapter] chapter for substantial or compelling reasons at the discretion of the [referee] judge, if the continuance or postponement is consistent with this chapter and its purpose of providing an orderly and expeditious determination of proceedings before [referees] judges.
* * * * * (e) Prior to the request for a continuance or a postponement, the party requesting the continuance or postponement shall ascertain the position of all counsel of record and unrepresented parties in the case relating to the continuance or postponement and shall advise the [referee] judge of the foregoing at the time of the request.
(f) A request for a continuance or postponement made within 10 calendar days prior to the hearing date will not be considered unless the [referee] judge is satisfied that circumstances relating to the requested continuance or postponement occurred within 10 calendar days of the hearing date.
* * * * * (h) A party requesting or confirming in writing a request for a continuance or a postponement other than a request made at a hearing shall serve a copy of the request or the confirmation upon all counsel of record, unrepresented parties and the [referee] judge. Counsel requesting or confirming in writing a request for a continuance or a postponement shall serve a copy of the request or confirmation on counsel's client.
(i) Anyone requesting a continuance or postponement shall concurrently with the service of the request or the confirmation file a proof of service with the [referee] judge.
(j) In ruling on requests for a continuance or postponement, the [referee] judge may consider one or more of the following, giving consideration to subsection (a):
* * * * * (8) Another reason deemed to be substantial or compelling by the [referee] judge and consistent with this chapter and the purposes of the act and the Disease Law.
* * * * * (l) If a continuance or a postponement is granted, the [referee] judge may impose conditions and direct action by the parties which the [referee] judge deems reasonable under the circumstances.
(m) In addition to the conditions and actions referred to in subsection (l), the [referee] judge may:
* * * * * (3) Issue a written order modifying in whole or in part a supersedeas ordered or denial previously entered or modifying an order previously entered upon a showing of compliance with the directions of the [referee] judge.
(4) Issue a written order at the end of the case, in the case of a claim petition, with appropriate findings of fact, directing that interest be disallowed. The [referee] judge may limit the disallowance of interest to a specified period on good cause shown.
* * * * * (n) Subsections (a)--(m) supersede 1 Pa. Code §§ 31.15, 33.33 and 35.102 (relating to extensions of time; effect of service upon an attorney; and hearing calendar).
§ 131.15. Computation of time.
(a) Except as otherwise provided by law, in computing a period of time prescribed or allowed by this chapter, the day of the act, event or default after which the designated period of times begins to run may not be included. The last day of the period so computed shall be included, unless it is Saturday, Sunday or a legal holiday in this Commonwealth, in which event the period shall run until the end of the next day which is neither a Saturday, Sunday nor a legal holiday. A part-day holiday shall be considered as other days and not as a legal holiday. Intermediate Saturdays, Sundays and legal holidays shall be included in the computation.
(b) Subsection (a) supersedes 1 Pa. Code § 31.12 (relating to computation of time).
Subchapter C. FORMAL PROCEEDINGS
GENERAL § 131.21. Identifying number.
* * * * * (b) Subsection (a) supersedes 1 Pa. Code § 31.5[(a)], 33.1 and 33.51 (relating to communications and filings generally; title; and docket).
§ 131.22. Transfer of cases or petitions on agreement of all parties.
(a) If the transfer of the case is agreed to by the Bureau, the parties and the [referee] judge, the Bureau will promptly reassign the case or petition. Notice of reassignment will be given to all parties.
* * * * * § 131.24. Recusal of judge.
(a) A motion for recusal shall be addressed to the judge to whom the proceeding has been assigned. The judge will conduct an evidentiary hearing and issue a decision within 15 days following receipt of the evidentiary hearing transcript and post-hearing submissions of the parties. The decision will be interlocutory, unless the judge certifies the record for immediate appeal to the Workers' Compensation Appeal Board.
(b) Subsection (a) supersedes 1 Pa. Code §§ 35.54, 35.55, 35.186, 35.190 and 35.225 and also supersedes 1 Pa. Code Chapter 35, Subchapter D (relating to motions).
§ 131.30. Consolidation.
(a) Where proceedings involve a common question of law or fact, the judge may consolidate the proceedings for hearing on all matters in issue, and may make any appropriate orders concerning the conduct of the proceedings to avoid any unnecessary costs or delay.
(b) Subsection (a) supersedes 1 Pa. Code § 35.45 (relating to consolidation).
PLEADINGS § 131.31. Form of pleadings.
(a) [Sections 402 and 416 of the act (77 P. S. §§ 711 and 821) and sections 403 and 416 of the Disease Law (77 P. S. §§ 1503 and 1516) provide that petitions and answers shall be in the form prescribed by the Bureau.] All proceedings, except challenges under sections 413(c) and 413(d) of the act (77 P. S. §§ 774.2 and 774.3), shall be initiated by petition.
(b) Subsection (a) supersedes 1 Pa. Code §§ 33.1 [33.2]--33.4, 33.11, 33.12 and 35.17 [(relating to title; form; and petitions generally)].
§ 131.32. Petitions except petitions for joinder and [penalty] challenge proceedings.
(a) [Proceedings, except petitions for joinder and penalty proceedings, shall be initialed by petition.] Petitions shall be in the form prescribed by the Bureau.
(b) [An original and four copies of a petition shall be filed with the principal office of the Bureau. The Bureau will serve a copy of the petition on all parties.] If the petition is filed on a Bureau petition form, an original and the number of copies specified on the petition form shall be filed with the Bureau. If there is no applicable Bureau petition form available, an original of the petition shall be filed with the Bureau. The Bureau will serve a notice of assignment specifying the judge to whom the petition has been assigned. The notice will be served on the parties named in the petition.
(c) [At the time of filing a petition,] Concurrently with filing the petition with the Bureau, the moving party shall serve a copy of the petition on all other parties, including the insurance carrier, if the insurance carrier is known, and on the attorneys of all other parties, if the attorneys are known.
(d) [Subsection (a) supersedes 1 Pa. Code § 35.17 (relating to petitions generally). Subsection (b) supersedes 1 Pa. Code § 33.37 (relating to number of copies). Subsection (c) supersedes 1 Pa. Code § 33.32 (relating service by a participant).] The material facts on which a cause of action or defense is based shall be stated in a concise and summary form.
(e) Subsections (a)--(d) supersede 1 Pa. Code §§ 31.26, 33.15, 33.21--3.23, 33.31, 33.32, 33.37, 35.1, 35.2, 35.5--35.7, 35.9--35.11, 35.14, 35.17--35.20, 35.23, 35.24 and 35.27--35.32.
§ 131.33. Answers except answers to petitions for joinder and [penalty] challenge proceedings.
(a) [Except for petitions for joinder and penalty proceedings, a responding part may file an answer within 15 days following service by the Bureau of a petition under the act and within 20 days following service by the Bureau of a petition under the Disease Law.] Failure to file an answer to a claim petition within 20 days after the date of assignment without adequate excuse shall result in the admission of all allegations in the claim petition.
(b) [An original and four copies of an answer filed, together with a proof of service, shall be filed with the referee to whom the petition has been assigned. A responding party shall serve a copy of any answer filed on unrepresented parties and on counsel of record.] A responding party may file an answer to all petitions other than claim petitions within 20 days after the date of assignment by the Bureau.
(c) [Subsection (a) supersedes 1 Pa. Code § 35.35 (relating to answers to complaints and petitions). Subsection (b) supersedes 1 Pa. Code § 33.37 (relating to number of copies).] If the answer is filed on a Bureau answer form, an original and the number of copies specified on the answer form shall be filed with the judge to whom the petition has been assigned. If there is no applicable Bureau answer form available, an original of the answer shall be filed with the judge to whom the petition has been assigned.
(d) Concurrently with filing the answer with the judge, the responding party shall serve a copy of the answer on unrepresented parties and on counsel of record.
(e) An answer shall admit or deny each averment of fact in the petition or any part of the averment to which it is responsive. A party denying only a part of the averment shall specify so much of it as is admitted and shall deny the remainder. When applicable, admissions and denials in an answer shall refer to the specific paragraph in which the averment admitted or denied is set forth.
(f) Subsections (a)--(e) inclusive supersede 1 Pa. Code §§ 33.15, 33.37, 35.35--35.41, 35.54, 35.55 and 35.161 and also supersede 1 Pa. Code Chapter 35, Subchapter D (relating to motions).
§ 131.34. Other filings.
(a) Unless otherwise specifically provided by this chapter, the party filing or submitting a document to the [referee] judge shall serve an original on the [referee] judge and shall serve a copy on unrepresented parties and counsel of record.
(b) Subsection (a) supersedes 1 Pa. Code §§ 31.24, 31.25, 33.42, 35.51 and 35.169 [(relating to copies to parties and agency)].
§ 131.35. Amendments to pleadings.
(a) A party has the right to amend a pleading at any time in a proceeding before a [referee] judge, unless the [referee] judge determines that another party has established prejudice as a result of the amendment.
(b) Subsection (a) supersedes 1 Pa. Code §§ 33.41, 33.42, 35.40 and 35.48--35.51 [(relating to amendments; and amendments of pleadings generally)].
§ 131.36. Joinder.
* * * * * (c) The petition for joinder shall have attached to it copies of petitions and answers previously filed and a list of the dates and locations of all prior hearings held and depositions taken.
(d) [A] An original and the number of copies specified on the Bureau petition for joinder form shall be filed no later than [15] 20 days after the first hearing at which evidence is received regarding the reason for which joinder is sought, unless the time is extended by the [referee] judge for good cause shown.
(e) The petition for joinder shall be filed with the Bureau and an original of any answer shall be filed with the office of the [referee] judge to whom the case [is] has been assigned.
(f) An answer to a petition for joinder may include a motion to strike the joinder and may be filed within [15] 20 days following service of the petition for joinder by the Bureau.
* * * * * (i) After joinder, the original petition shall be deemed amended to assert a claim of the claimant against an additional defendant. The additional defendant is liable to any other party as the [referee] judge orders. The additional defendant shall have the same rights and responsibilities under this chapter as the original defendant.
(j) The [referee] judge may strike the petition for joinder, and the [referee] judge may order the severance or separate hearing of a claim presented therein, or as a result of the joinder.
(k) The [referee] judge will issue an order when the motion to strike a petition for joinder is granted.
(l) An order to strike a petition for joinder does not preclude or delay further proceedings before the [referee] judge.
(m) [Subsection (f) supersedes] Subsections (a)--(l) supersede 1 Pa. Code §§ 31.5, 33.41, 33.42, 35.11, 35.35, 35.40, 35.48--35.51, 35.54 and 35.55 [(relating to answers to complaints and petitions)] and also supersede 1 Pa. Code Chapter 35, Subchapter D (relating to motions).
§ 131.40. Frivolous pleadings.
If a judge determines after a hearing that a petition or other pleading is frivolous, the judge may, upon the judge's own motion or upon motion by a party, issue a decision dismissing the petition or pleading or issue some other decision within the judge's discretion.
SUPERSEDEAS § 131.41. Request for supersedeas or reconsideration of supersedeas.
(a) When a petition contains a request for supersedeas, or when a request for supersedeas is made, the [referee] judge may rule on the request only after a hearing.
(b) After a hearing, the [referee] judge may grant or deny the request for supersedeas in whole or in part. The grant or denial may be for specified or indefinite periods and may be subject to conditions that the [referee] judge orders to implement the intent of the act, Disease Law or this chapter. If a supersedeas has been granted or denied in whole or in part, the [referee] judge may, upon request and after hearing, review and modify the grant or denial as warranted.
(c) The decision of a [referee] judge on a request for or reconsideration of a supersedeas is an interlocutory order.
(d) [Subsection] Subsections (a)--(c) [supersedes] supersede 1 Pa. Code §§ 35.190 and 35.225 (relating to appeals to agency head from rulings of presiding officers; and interlocutory orders).
§ 131.42. Evidence relating to supersedeas.
(a) A party has the right to submit, and the [referee] judge may consider, one or more of the following solely in relation to a request for supersedeas.
* * * * * (b) Subsection (a) supersedes 1 Pa. Code §§ 35.137, 35.138, 35.161, 35.162 and 35.166.
§ 131.43. Disposition of request for supersedeas.
(a) The [referee] judge hearing the request for supersedeas [shall] will, within 14 days of the hearing, issue a written decision on the request for supersedeas, if granted. Unless a supersedeas is granted by a written order, it will be deemed denied from the date of filing of the request.
(b) Subsection (a) supersedes 1 Pa. Code §§ 35.190 and 35.225 (relating to appeals to agency head from rulings of presiding officers; and interlocutory orders).
§ 131.49. Disposition of automatic request for special supersedeas.
* * * * * (c) The [workers' compensation] judge [shall] will 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, unless the [employe] employee establishes by a preponderance of the evidence a likelihood of prevailing on the merits of the employe's defense. In making this determination the [workers' compensation] judge [shall] will consider the physician's affidavit alleging full recovery and may consider the following:
* * * * * (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] will be deemed denied. The automatic request for supersedeas [shall] will remain denied until the judge issues a written order granting the supersedeas, in whole or in part.
(e) Subsections (a)--(d) supersede 1 Pa. Code §§ 35.137, 35.138, 35.161, 35.162, 35.166, 35.190 and 35.225.
§ 131.50. Return to work-modification or suspension.
* * * * * (b) The insurer shall complete and file [Form LIBC--751, ''Notification of Suspension or Modification Pursuant to §§ 413(C) & (D)''] the form prescribed by the Bureau. The form shall be provided to the [employe, employe's] employee, employee's counsel, if known, and the [Department] Bureau 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] employee's benefits under section 413(c) or 413(d) of the act (77 P. S. §§ 774.2 and 774.3), to effectuate a subsequent modification or suspension of the [employe's] employee's workers' compensation benefits, the insurer shall file the form [under] specified in subsection (b), indicating the change in the [employe's] employee's wages and corresponding change in the [employe's] employee's workers' compensation benefits.
(d) Subsections (a)--(c) supersede 1 Pa. Code § 33.33 (relating to effect of service upon an attorney).
§ 131.50a. [Employe] Employee request for special supersedeas hearing under [section] sections 413(c) and 413(d) of the act.
(a) This section governs the disposition of an [employe's] employee's request for a special supersedeas hearing made in connection with a challenge to the suspension or modification of workers' compensation benefits under [section] sections 413(c) and 413(d) of the act (77 P. S. §§ 774.2 and 774.3).
* * * * * (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 [sections] section 413(c) or 413(d) of the act.
(e) Subsections (a)--(d) supersede 1 Pa. Code §§ 35.161, 35.162, 35.190 and 35.225.
HEARING PROCEDURE § 131.52. First hearing procedures.
(a) The purpose of this chapter is to provide a fair and prompt hearing process, to allow all parties to introduce appropriate evidence and to receive a timely decision from the judge. When practicable and appropriate, the entire record relating to any petition shall be completed at the initial hearing.
(b) The hearing process may differ based upon several variables including geographic location, number of parties involved, case volume and availability of experts for testimony.
(c) The hearing process chosen in any specific case, including a determination of whether testimony will be accepted at the initial hearing, is within the discretion of the judge.
(d) The moving party, at the first hearing, shall [orally or in writing as directed by the referee,] advise the [referee] judge and opposing parties of the following:
* * * * * (5) [The] Whether the items and information specified in § 131.61(a) (relating to exchange of [documents and records] information), which are intended to be used as evidence or exhibits, have been provided to the responding party at or before the first hearing.
* * * * * [(b)] (e) The moving party, at the first hearing, unless otherwise directed by the [referee] judge, shall offer and have marked for identification available exhibits of the moving party.
[(c)] (f) The parties shall provide the judge with all documents required by law to be filed with the Bureau and which are relevant to issues in dispute with the same injury date and pertaining to the same claim. The [referee shall] judge will place those documents in evidence [as Bureau exhibits current Bureau documents with the same injury date and pertaining to the same claim, with the exception of the Employer's Report of Occupational Injury or Disease and pleadings of the parties] along with any other documents required to be filed by law with the Bureau or prior judges and which the judge deems relevant to the proceeding. The judge and the employee may not introduce the Employer's Report of Occupational Injury or Disease into evidence.
[(d)] (g) Evidence furnished under this section does not become part of the record, unless otherwise admissible.
[(e)] (h) Unless otherwise ordered by the [referee] judge, the moving party shall present testimony.
[(f)] (i) Subsections (a)--[(e)] (h) supersede 1 Pa. Code §§ 35.101--35.106, 35.111--35.116 [and], 35.121--35.128, 35.137, 35.138, 35.155 and 35.161--35.169. [Subsection (c) supersedes 1 Pa. Code §§ 35.164 and 35.167 (relating to documents on file with agency; and records in other proceedings).]
§ 131.53. Procedures subsequent to the first hearing.
(a) Within 45 days after the date of the first hearing actually held, the responding party shall comply with § 131.52[(a)](d) (relating to first hearing procedures) and shall submit, in writing, to the [referee] judge, with copies to counsel of record and unrepresented parties, the items and information specified in § 131.52[(a)](d).
(b) The responding party, in accordance with the directions of the [referee] judge, shall offer and have marked for identification the responding party's exhibits.
(c) The [referee] judge may issue an order directing the parties to proceed with the litigation in a manner that promotes expeditious resolution and avoids delay.
(d) A party wishing to present testimony in the form of rebuttal or surrebuttal shall notify the [referee] judge in writing within [14] 21 days after conduct of the hearing or deposition at which the testimony to be rebutted or surrebutted has been given.
* * * * * (g) Subsections (a)--[(c)] (f) supersede 1 Pa. Code §§ 35.101--35.106, 35.111--35.116, [and] 35.121--35.128, 35.137, 35.138, 35.155 and 35.161--35.169.
§ 131.53a. Consolidated hearing procedure.
(a) One day trials or other consolidated hearing procedures may be scheduled and conducted under this part to the extent practical. The judge may waive or modify these rules as may be appropriate and adopt and direct procedures which are fair and just for a determination of the issues.
(b) Subject to § 131.3(a) (relating to waiver and modification of rules) in cases proceeding under a consolidated hearing procedure:
(1) Upon request, or on the judge's own motion, testimony from a party or witness may be taken by a trial deposition prior to the obligation of a party to conduct medical depositions, or at another appropriate time to clarify the issues.
(2) Upon request, a party shall have the opportunity to testify before the judge at the pretrial or other hearing prior to the obligation of a party to conduct medical depositions, or at another appropriate time to clarify the issues.
(c) Subsections (a) and (b) supersede 1 Pa. Code §§ 35.101--35.106, 35.111--35.116, 35.121--35.128, 35.137, 35.138, 35.155 and 35.161--35.169.
§ 131.54. Manner and conduct of hearings.
(a) The [referee] judge will conduct [a] fair and impartial [hearing] hearings and maintain order. At the discretion of the judge, the hearings may be conducted by telephone or other electronic means if the parties do not object. Disregard by participants or counsel of record of the rulings of the [referee] judge shall be noted[,] on the record, and if the [referee] judge deems it appropriate, [shall] will be made the subject of a [special] written report[,] to the [Bureau] Bureau's Director of Adjudication together with recommendations.
(b) If the participants or counsel are guilty of disrespectful, disorderly or contumacious language or conduct in connection with a hearing, the [referee] judge may suspend the hearing or take other action as [in the discretion of] the [referee] judge [may be] deems appropriate, including the submission of a written report to the Bureau's Director of Adjudication together with recommendations.
(c) A witness whose identity has not been revealed as provided in this chapter will not be permitted to testify on behalf of the defaulting party unless the testimony is allowed within the judge's discretion.
(d) In addition to subsections (a) [and (b)]--(c), the [referee] judge may proceed under § 131.13(m) (relating to continuances or postponements of hearings).
[(d)](e) Subsections (a) [and (b)]--(d) supersede 1 Pa. Code §§ 31.21--31.23, 31.27[,] and 31.28 [and 35.189 (relating to contemptuous conduct; suspension and disbarment; and manner of conduct of hearings)] and also supersede 1 Pa. Code Chapter 35, Subchapter E (relating to presiding officers).
§ 131.55. [Attorney's] Attorney fees and costs.
(a) Under section 440 of the act (77 P. S. § 996), in a disputed claim under the act when the employer or [insurance carrier] insurer has contested liability in whole or in part, the [employe] employee or a dependent, in whose favor the proceeding has been finally decided, will be awarded attorney fees and costs against the employer or [insurance carrier] insurer, unless the employer or insurer had a reasonable basis for contesting the petition[, or otherwise tendered payment under section 440 of the act, in which case attorneys fees will not be awarded].
(b) Claimant's counsel may file an application for quantum meruit fees at or before the filing of proposed findings of fact, proposed conclusions of law and briefs, and if there are no proposed findings of fact, proposed conclusions of law or briefs requested, at or before the close of the record. The application shall detail the calculation of the fee requested, shall itemize the services rendered and time expended and shall address all factors enumerated in section 440 of the act in support of the application.
(c) Within 15 days after service of the application for quantum meruit fees, an opposing party may file a response to the application detailing the objections to the fee requested.
(d) A decision on the fee award will be made based on the application and response submitted, if any, and the record of the case. If deemed appropriate by the judge, a hearing may be held and evidence presented.
(e) The application and response will be made exhibits of record and shall be served on unrepresented parties and counsel of record as provided in § 131.34(a) (relating to other filings).
(f) Subsections (a)--(e) supersede 1 Pa. Code §§ 35.1 and 35.2 (relating to applications generally; and contents of applications).
§ 131.57. Compromise and release agreements.
(a) Under section 449 of the act (77 P. S. § 1000.5), upon or after filing a petition, the parties may engage in a compromise and release of any and all liability which is claimed to exist under the act on account of injury or death, subject to approval by the judge after consideration at a hearing.
(b) Proposed compromise and release agreements, including the stipulations of the parties, shall be recorded on a form prescribed by the Bureau. The parties may attach additional information to the form if circumstances so require.
(c) If another petition is pending before a judge at the time of the agreement of the parties to compromise and release the claim, any party may, in writing, request the judge to schedule a hearing on the proposed compromise and release agreement. The written request will be treated as an amendment of the pending matter to a petition to seek approval of a compromise and release agreement.
(d) The judge will expedite the convening of a hearing on the compromise and release agreement. The judge will circulate a written decision on the proposed compromise and release agreement within 30 days after the hearing.
(e) Subsections (a)--(d) supersede 1 Pa. Code §§ 33.42, 35.40, 35.41, 35.48--35.51, 35.101--35.106, 35.111--35.116, 35.121--35.128 and 35.155.
§ 131.58. Informal conferences.
(a) Under section 402.1 of the act (77 P. S. § 711.1), the parties upon, or after, filing a petition may agree to participate in an informal conference.
(b) All parties shall agree to participate in the informal conference.
(c) The request for the informal conference shall be recorded on a form prescribed by the Bureau and filed with the judge to whom the pending petition has been assigned.
(d) If no petition is pending, a petition and corresponding request for the informal conference shall be filed with the Bureau on a form prescribed by the Bureau.
(e) The informal conference will be governed by the instructions and procedures specified on the form prescribed by the Bureau and by section 402.1 of the act (77 P. S. § 711.1).
(f) The request shall be served on all parties and the adjudicating judge.
(g) Subsections (a)--(f) supersede 1 Pa. Code §§ 31.21--31.23 and 35.111--35.116.
EXCHANGE OF [DOCUMENTS AND RECORDS] INFORMATION AND DEPOSITIONS AND DISCOVERY § 131.61. Exchange of [documents and records] information.
(a) Parties shall exchange all items and information, including medical documents, reports, records, employment records, wage information, affidavits, tapes, films and photographs, lists of witnesses, CD ROMs, diskettes and other digital recordings, to be used in or obtained for the purpose of prosecuting or defending a case, unless the foregoing are otherwise privileged or unavailable, whether or not intended to be used as evidence or exhibits.
(b) [These items and information shall be exchanged, to the extent practicable, prior to the first hearing actually held.] The moving party shall provide [these] the items and information referred to in subsection (a) to the responding party or parties no later than prior to the commencement of the first pretrial hearing or hearing actually held. [and the] The responding party or parties shall provide [these] the items and information referred to in subsection (a) to the moving party no later than 45 days after the first pretrial hearing or hearing actually held.
(c) A witness whose identity has not been revealed as provided in subsections (a) and (b) will not be permitted to testify on behalf of the defaulting party unless the testimony is allowed within the judge's discretion.
(d) An item or information not exchanged [under subsection (b)] as provided in subsections (a) and (b), which becomes available after the times set forth in subsection (b), shall be exchanged within [10] 15 days after receipt by the party of the item or information.
[(d)] (e) Statements, documents or other records required to be provided by this chapter, if not provided within the time periods in this chapter or modified under § 131.12 (relating to modification of time), will not be admitted, relied upon or utilized in the proceedings or [referee's] judge's rulings, as appropriate.
[(e) A witness whose identity has not been revealed as provided in this chapter is not permitted to testify on behalf of the defaulting party.]
* * * * * (g) Subsections (a)--(f) supersede 1 Pa. Code §§ 35.161 and 35.162 (relating to form and admissibility of evidence; and reception and ruling on evidence).
§ 131.62. Oral depositions.
* * * * * (b) The oral deposition of a party may be taken only upon approval of the judge and, if taken, may be used only as evidence.
(c) Depositions may be taken by telephone or other electronic means upon agreement of counsel of record and unrepresented parties or, upon motion, as directed by the judge.
[(c)] (d) Subsections (a) [and (b)]--(c) supersede 1 Pa. Code §§ 35.145--35.152 [(relating to depositions)].
§ 131.63. Time for taking oral depositions.
* * * * * (b) Oral depositions shall be completed so as not to delay unreasonably the conclusion of the proceedings, and within a time schedule agreed upon by the parties and approved by the [referee] judge provided that medical depositions shall be completed as specified in subsections (c) and (e).
(c) The deposition of a medical expert testifying for the moving party shall be taken within 90 days of the date of the first hearing scheduled unless the time is extended or shortened by the [referee] judge for good cause shown. The deposition of a medical expert testifying for the responding party shall be taken within 90 days of the date of the deposition of the last medical expert testifying on behalf of the moving party.
(d) A party wishing to present depositions for rebuttal or surrebuttal shall notify the [referee] judge in writing within [14] 21 days after the conduct of the hearing or deposition at which the testimony to be rebutted or surrebutted has been given.
* * * * * (f) If a party fails to abide by the time limits established by this section for submitting evidence, the evidence will not be admitted, relied upon or utilized in the proceedings or [referee] the judge's rulings.
(g) Subsections (a)--(f) supersede 1 Pa. Code §§ 35.145--35.152, 35.161 and 35.162 [(relating to depositions)].
§ 131.64. Notice of oral depositions.
(a) The notice of an oral deposition shall be served at least [15] 20 days prior to the date scheduled for the taking of the deposition.
(b) The notice of an oral deposition shall contain the following:
* * * * * (3) A statement of a relevant reason for the taking of the oral deposition.
(4) The following legend:
Notice to Parties and/or Witness: You may object to this oral deposition by mailing or delivering a letter listing your objections to (name and address of party scheduling deposition) at least [seven (7)] 10 days before (date of deposition).(c) The notice of an oral deposition shall be served by the party scheduling the deposition upon each witness to be deposed, counsel of record, unrepresented parties and the [referee] judge.
(d) Subsections (a)--(c) supersede 1 Pa. Code §§ 33.33 and 35.145--35.152 [(relating to depositions)].
§ 131.65. Objections to taking of oral depositions.
(a) A party or witness may object to the oral deposition by serving, at least [7] 10 days prior to the scheduled date of the oral deposition, a written notice upon the party who has scheduled the oral deposition, counsel of record, unrepresented parties and the [referee] judge. The objections shall state the specific reason supporting the objections. The objections shall stay the deposition until it is ordered to be held by the [referee] judge.
(b) A party or witness may request a ruling on objections by filing a written request with the [referee] judge, which shall be accompanied by a copy of the notice of an oral deposition, any subpoena and the objections lodged as required by subsection (a). The requesting party shall serve a copy of the request for ruling on counsel of record, unrepresented parties and the objecting witnesses.
(c) Upon receipt of a request for ruling, as specified in subsection (b), the [referee] judge will, after giving parties and objecting witnesses notice and opportunity to be heard by written submission, in person, or by telephone conference, as the [referee] judge may direct, rule on the objections within 5 [working] business days after the parties and objecting witnesses are heard.
(d) Subsections (a)--(c) supersede 1 Pa. Code §§ 35.145--35.152.
§ 131.66. Admissibility of oral depositions.
(a) Oral depositions taken in accordance with §§ 131.62--131.65 or upon waiver of the formal requirements of those sections by agreement of all parties, will be admissible at the time of hearing or by mail if allowed by the [referee] judge in the same manner as if the deponent appeared before the [referee] judge and testified.
(b) Objections shall be made and the basis for the objections stated at the time of the taking of the depositions. Only objections which are identified in a separate writing, introduced prior to the close of the evidentiary record, as close of the record is specified in § 131.101(c)--(e) (relating to briefs, findings of fact and close of record), and stating the specific nature of the objections and the pages where they appear in the deposition will be preserved for ruling. Objections not so preserved [will be] are waived.
(c) [Subsection] Subsections (a) and (b) [supersedes] supersede 1 Pa. Code §§ 35.126, 35.151, 35.161 and 35.162 [(relating to status of deposition as part of record; and reception and ruling on evidence)].
§ 131.67. Expenses of taking depositions.
(a) If a deposition is to be taken more than 100 miles from where the hearing is or would be scheduled, the [referee] judge may [make an] order [requiring] the payment of reasonable expenses of attorneys, not including counsel fees, to attend the deposition.
* * * * * § 131.68. Discovery of records.
(a) A party may schedule and take the deposition of a custodian of records or a person in a similar capacity. A party has the right to inspect and analyze the records listed in this subsection. Title 42 [of the Pennsylvania Consolidated Statues] Pa.C.S. §§ 6151--[6159] 6160 (relating to medical records) shall be followed, if applicable. The deposition may be used to locate, authenticate and obtain copies of records which are material and relevant to the proceeding, including:
* * * * * (b) A party may take the discovery deposition at any time after the assignment of the petition to a [referee] judge.
* * * * * (d) The service of the notice of discovery shall conform to § 131.64(c).
* * * * * (f) A deposition under this section shall be in the form of a written affidavit of the custodian of records as deponent without interrogation. The affidavit shall be in the form, and contain the information specified in § 131.69 (relating to form of deposition affidavit). Title 42 [of the Pennsylvania Consolidated Statues] Pa.C.S. §§ 6151--[6159] 6160 shall be followed, if applicable.
(g) The deposition affidavit and the records or items authenticated thereby will be [eligible for admission] admissible into evidence in the proceeding before the [referee] judge in the same manner as if the deponent appeared before the [referee] judge and testified to the authenticity of the records or items.
(h) Failure to comply with this section may result in the application of §§ 131.13(m) [and], 131.61(d) and (e) (relating to continuances or postponements of hearings; and exchange of [documents and records] information).
(i) Subsections (a)--(h) supersede 1 Pa. Code §§ 35.145--35.152.
§ 131.69. Form of deposition affidavit.
(a) The deposition affidavit required by § 131.68(f) (relating to discovery of records) shall be in the following form:
DEPOSITION AFFIDAVIT [OR] OF RECORD CUSTODIAN I, the undersigned, being duly sworn according to law, depose and say, that I am the duly authorized custodian of records for (name of hospital, doctor, employer, etc.) with the authority to certify said records, and I hereby certify to the following:[(a)] (1) The records attached hereto are true and correct copies of the records in my custody, pertaining to [--] (claimant or decedent)[; and].[(b)] (2) * * *[(c)] (3) * * *[(d)] (4) * * *(b) Subsection (a) supersedes 1 Pa. Code § 35.149 (relating to oath and reduction to writing).
§ 131.70. Discovery of statements of parties or witnesses.
* * * * * (d) Failure to adhere to this section may result in the application of §§ 131.13(m) [or §], 131.61(d) and (e) (relating to continuances or postponements of hearings; and exchange of [documents and records] information), as appropriate.
(e) Subsections (a)--(d) supersede 1 Pa. Code §§ 35.145--35.152.
SUBPOENAS § 131.81. Subpoenas.
(a) Upon written request of a party or counsel of record in a pending proceeding, the [referee] judge will issue a subpoena to compel the attendance of a witness or require the production of books, documents, records, CD ROMs, diskettes, other digital recordings or other things relevant to the proceeding at a scheduled hearing or deposition within the scope of, and scheduled under, this chapter. The party requesting a subpoena shall serve the judge with the original written request and shall serve a copy of the written request on unrepresented parties and counsel of record as provided in § 131.34(a) (relating to other filings).
(b) The party, counsel of record or their respective agents requesting [the] a subpoena shall serve the subpoena upon the witness or person subpoenaed and upon opposing counsel. Service shall be made in one of the following manners:
(1) By personal service under 231 Pa. Code (relating to Pennsylvania Rules of Civil Procedure).
(2) By any form of mail requiring a return receipt postage prepaid, restricted delivery or as provided in § 131.11(b) (relating to filing, service and proof of service).
(3) The fee for 1 day's attendance and roundtrip mileage shall be tendered upon demand at the time the person is served with the subpoena. If a subpoena is served by mail, a check in the amount of one day's attendance and round-trip mileage shall be enclosed with the subpoena. The fee for 1 day's attendance and roundtrip mileage is as prescribed in 42 Pa.C.S. §§ 5901--5988 (relating to depositions and witnesses).
(c) Upon the filing of written objections by a person served with a subpoena or a party, the judge may, after notice to counsel of record and unrepresented parties, [the referee may] promptly quash or limit the scope of a subpoena issued or served.
(d) If the person fails to appear, or has given notice of the intention not to appear, as required by a subpoena duly served, the [referee] judge will upon request of a party, communicate to the witness the requirements of the act that the person so appear and advise the person of the enforcement provisions under section 436 of the act (77 P. S. § 992).
(e) Subsections (a)--(d) supersede 1 Pa. Code §§ 35.139 and 35.142 (relating to fees of witnesses; and subpoenas).
STIPULATIONS § 131.91. Stipulations of fact.
(a) Stipulations of fact may be filed with the [referee] judge to whom the case has been assigned.
(b) The [referee] judge may issue a decision based on stipulations of fact, if the [referee] judge is satisfied that:
(1) The stipulations of fact are fair and equitable to the parties involved.
* * * * *
BRIEFS, FINDINGS OF FACT, CLOSE OF RECORD AND ORAL ARGUMENT § 131.101. Briefs [and], findings of fact and close of record.
(a) The [referee] judge may require [or] the parties [may] to submit proposed findings of fact, conclusions of law and legal briefs or memoranda to the [referee] judge for review and consideration.
(b) Submissions referred to in subsection (a) shall be made within the time specified by the [referee] judge, but not later than 30 days following the close of the record.
(c) The evidentiary record is closed when the parties have submitted all of their evidence and rested or when the judge has closed the evidentiary record on a party's motion or the judge's own motion. If the judge determines that additional hearings are necessary, or that additional evidence needs to be submitted, or if the judge schedules additional written or oral argument, the evidentiary record may be held open by the judge. When the judge determines that the evidentiary record is closed, the judge will notify the parties that the evidentiary record is closed on the evidentiary record or in writing.
(d) Any party may move to close the evidentiary record and all other parties shall advise the judge within 20 days as to whether the evidentiary record is closed or whether there is additional evidence to be submitted. At the conclusion of the 20 day period, the judge will determine whether the evidentiary record will be closed or will remain open.
(e) A judge may close the evidentiary record on the judge's own motion even if all parties have not rested when the judge determines that the parties have had reasonable opportunity to present their case, provided that reasonable notice of the closing of the evidentiary record has been given to all parties.
(f) All parties shall provide a certification of the contents of the evidentiary record before the judge, including hearing dates, a list of witnesses testifying and a list of offered exhibits. The certification of the evidentiary record shall be provided to the judge after the close of the evidentiary record and at or before the filing of proposed findings of fact, conclusions of law or brief. The judge will specify the contents of the evidentiary record in the decision.
[(c) Briefs and proposed] (g) Proposed findings of fact, proposed conclusions of law, briefs and certification of the evidentiary record not timely filed with the [referee under this section will] judge may not be considered unless, in advance of the date specified in this section, a request for an extension of time has been made to, and granted by, the [referee] judge for good cause shown. [Failure to comply with this subsection will result in disposition of the proceeding without further notice or consideration of the brief or findings of fact of the party failing to comply.]
[(d)] (h) Briefs submitted under this section [may] shall consist of at least the following items[,] separately and distinctly set forth:
* * * * * [(6) A specification of the contents of the record before the referee, including hearing dates, a list of witnesses testifying and a list of exhibits of record.]
[(e) Subsection (d)(6) supersedes] (i) Subsections (a)--(h) supersede 1 Pa. Code §§ 35.54, 35.55, 35.131--35.133, 35.163, 35.173, 35.191--35.193, 35.212, 35.221 and 35.231--35.233 [(relating to designation of relevant portions of documentary evidence)] and also supersede 1 Pa. Code Chapter 35, Subchapter D (relating to motions). [Subsections (a)--(d) supersede 1 Pa. Code §§ 35.191--35.193 (relating to briefs).]
§ 131.102. Oral argument.
(a) The [referee] judge, with notice to the parties, may require[, or a party may request, a closing] oral argument at any time before or after [the completion of the evidentiary portion of the case] the close of the evidentiary record. A party may request oral argument at any time prior to the submission of their proposed findings of fact, proposed conclusions of law or brief. If no proposed findings of fact, proposed conclusions of law or brief are filed, a party may request oral argument prior to the close of the evidentiary record.
(b) Subsection (a) supersedes 1 Pa. Code §§ 35.204, 35.214 and 35.221 (relating to oral argument before presiding officer; oral argument on exceptions; and briefs and oral argument in absence of proposed report).
DECISIONS § 131.111. Decision of judges.
(a) Following the close of the evidentiary record and the hearing of oral argument, if any, as provided in § 131.102(a) (relating to oral argument), the [referee] judge will issue a written decision, which will contain findings of fact, conclusions of law and an appropriate order based upon the entire evidentiary record.
(b) The decision of the [referee] judge will be a final order, subject to correction or amendment under § 131.112 (relating to correction or amendment of decision), or appeal.
(c) Subsections (a) and (b) supersede 1 Pa. Code §§ 31.13 [and], 31.14, 35.190, 35.201--35.207, 35.225, 35.226 and 35.241 [(relating to issuance of agency orders; and effective dates of agency orders)].
§ 131.112. Correction or amendment of decision.
(a) A decision or an order of a [referee] judge may be amended or corrected by the [referee] judge subsequent to the service of notice of the decision and order. A typographical or clerical error or obvious omission or error on the part of the judge may be corrected on the [referee's] judge's motion or on the motion of one or both parties. Other amendments or corrections will be made only upon written agreement [to] of the parties. A request for correction or amendment shall be made within 20 days of the date of service of notice of the decision and order.
(b) The corrected decision and orders will specifically set forth the items in the prior decision and order which are being corrected and amended, and will contain the following provision [that]: ''In all other respects the prior decision and order in the case are hereby reaffirmed.''
(c) Neither the request for correction nor the corrected decision and order will extend the appeal period of the original decision and order [or of a portion of the original decision and order not corrected] as to any part of that decision and order which is not the subject of the request for correction or amendment.
(d) Subsections (a) [and (b)]--(c) supersede 1 Pa. Code §§ 31.13, 31.14, 35.54, 35.55, 35.190 and 35.211--35.214 [(relating to issuance of agency orders)] and also supersede 1 Pa. Code Chapter 35, Subchapter D (relating to motions).
PENALTY PROCEEDINGS § 131.121. Penalty proceedings [in pending cases] initiated by a party.
(a) Penalty proceedings may be initiated by a party [in a pending proceeding may be initiated by] filing a petition [or a motion on the record in the pending proceeding] for penalties as provided in § 131.32 (relating to petitions except petitions for joinder and challenge proceedings).
(b) Penalty proceedings initiated by a party in a pending proceeding may be initiated by a petition under subsection (a) or by motion on the record in the pending proceeding. If penalties are requested by motion on the record, an answer may be made either orally on the record or as provided in subsection (a).
(c) If, in a pending proceeding where no separate penalty petition has been filed in accordance with [this part] subsection (a), it [is alleged by a party or it] appears to the [referee] judge in proceedings before the [referee] judge that there has been noncompliance with the act or this chapter, the [referee] judge will schedule a hearing for the purpose of determining if noncompliance has occurred unless the hearing is waived by the parties. The hearing will be scheduled either upon motion of a party or on the [referee's] judge's own motion unless waived.
[(c)] (d) The [referee] judge will give notice of the scheduling of [a] any penalty hearing to all parties and this notice will specify the nature of the penalty proceeding and that the hearing will involve the question of the imposition of penalties under the act or this chapter.
[(d)] (e) The penalty hearing may be conducted in conjunction with a hearing on the merits in a pending proceeding or at a separate hearing.
[(e)] (f) At the penalty hearing, the [referee] judge will take testimony, receive evidence and hear arguments necessary to create a record sufficient to support, defend or appeal the decision of the [referee] judge regarding noncompliance with the act or this chapter and the imposition of penalties.
(g) A party complaining of a violation of the act or this chapter shall have the burden of proving the violation.
(h) The [referee] judge, in a separate order prior to a final order or in conjunction with the final decision in the proceeding, will rule on the request for penalties and will determine whether noncompliance with the act or this chapter exists, and, if appropriate, impose penalties.
[(g)] (i) Subsections [(b)--(e)] (a)--(h) supersede 1 Pa. Code §§ 35.1, 35.2, 35.5--35.7, 35.9[, and 35.10]--35.11, 35.14, 35.17--35.20, 35.23, 35.24, 35.35--35.41, 35.54, 35.55 and 35.251 [(relating to formal complaints generally; and form and content of formal complaints)] and also supersede 1 Pa. Code Chapter 35, Subchapter D (relating to motions).
§ 131.122. Other penalty proceedings.
(a) Penalty proceedings not conducted under § 131.121 (relating to penalty proceedings [in pending cases] initiated by a party) will be conducted in accordance with other applicable regulations [in this part] of the Bureau.
(b) Subsection (a) supersedes 1 Pa. Code §§ 35.14, 35.37 and 35.251 (relating to orders to show cause; answers to orders to show cause; and reports of compliance).
[Pa.B. Doc. No. 02-457. Filed for public inspection March 22, 2002, 9:00 a.m.]
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