RULES AND REGULATIONS
Title 34—LABOR AND INDUSTRY
DEPARTMENT OF LABOR AND INDUSTRY
[34 PA. CODE CHS. 111 AND 131]
Special Rules of Administrative Practice and Procedure before the Workers' Compensation Appeal Board and Workers' Compensation Judges
[44 Pa.B. 7837]
[Saturday, December 20, 2014]The Department of Labor and Industry (Department), Workers' Compensation Appeal Board (Board) and Office of Adjudication (Office), amends Chapters 111 and 131 (relating to special rules of administrative practice and procedure before the Workers' Compensation Appeal Board; and special rules of administrative practice and procedure before workers' compensation judges) to provide additional guidance for the litigation of matters before the Board, the Office and workers' compensation judges (judges), and to refine the regulations governing practices and procedures before the Board, the Office and judges.
Statutory Authority
This final-form rulemaking is adopted under the authority in sections 401.1, 435(a) and (c) and 1608 of the Workers' Compensation Act (act) (77 P. S. §§ 710, 991(a) and (c) and 2708), section 2205 of The Administrative Code of 1929 (71 P. S. § 565) and section 414 of The Pennsylvania Occupational Disease Act (77 P. S. § 1514).
Background
In 1980, the Secretary of the Department established a Rules Committee (Committee) to develop rules and procedures for the workers' compensation system. The Committee is comprised of Board representatives, judges, equal numbers of representatives of the claimant and defense bar, and Department representatives. From time to time, this Committee reconvenes to review Chapters 111 and 131 and to consider whether amendments are necessary in light of changes in existing workers' compensation law, practice or procedures.
Chapters 111 and 131 have been amended in 1989, 1991, 2002 and 2009. Most recently, the Committee reconvened on November 18, 2011, for the purpose of reviewing Chapters 111 and 131 in light of recent appellate decisions and the advent of the Department's new computer system, Workers' Compensation Automation and Information System (WCAIS). The Committee also considered comments received from various stakeholders since the last amendments took effect in 2009. Additionally, the Committee discussed the need for rules to address issues raised by the creation of the Uninsured Employers Guaranty Fund (UEGF) in 2007.
After several meetings between 2011 and 2012, the Committee created a draft proposed rulemaking. In fall 2012, the draft was widely circulated throughout the workers' compensation community for the purpose of receiving additional comment. The Committee conducted interactive meetings with various groups, including the Pennsylvania Bar Association at the Workers' Compensation Fall Section Meeting, the Philadelphia Bar Association, the Allegheny County Bar Association and the Lancaster County Bar Association to discuss the proposed changes and solicit comments. Additionally, the Committee presented the suggested amendments to the Pennsylvania Self-Insurers Association and the Workers' Compensation Advisory Council.
Several Committee meetings were conducted for the purpose of reviewing the suggestions and revising the proposed changes, after which the Committee voted on and approved proposed revisions to Chapters 111 and 131 on May 2, 2013. Thereafter, a proposed rulemaking was published at 44 Pa.B. 996 (February 22, 2014). As a result, the Department received written comments from the following: Thomas C. Lowry, Esq.; Workers' Compensation Judge Geoffrey L. Seacrist; Samuel R. Marshall, Esq. (on behalf of The Insurance Federation of Pennsylvania, Inc. (IFP)); Wendy A. Fleming, Esq., Joseph Turchi, Esq. and Workers' Compensation Judge Holly A. San Angelo (on behalf of the Philadelphia Bar Association's Workers' Compensation Section (PBAWCS)); Workers' Compensation Judge Joseph Hakun; Workers' Compensation Judge Ada Guyton (on behalf of the Pennsylvania Workers' Compensation Judges Professional Association (PWCJPA)); Workers' Compensation Judge Karl Baldys; Ronald L. Calhoon, Esq.; Workers' Compensation Judge Kenneth P. Walsh; G. Michael Spates, Esq. (on behalf of Rawle & Henderson LLP); and Workers' Compensation Judges Susan E. Kelley, Paul E. Baker, Francine Lincicome and Kelly F. Melcher. The Department also received written comments from the Independent Regulatory Review Commission (IRRC) dated April 23, 2014.
In response to the comments received, the Department carefully reviewed and considered all of the suggestions and concerns raised by the commentators. The Department also participated in discussions with certain commentators and Committee members regarding their concerns relating to the new procedural rules involving the UEGF. The Committee met on May 16, 2014, to discuss the comments, after which several subcommittees were convened to consider specific comments. The Committee again met on July 11, 2014, to discuss revisions to the provisions, which included several changes in response to the comments. Ultimately, the Committee voted to approve, unopposed, the revisions that are incorporated into this final-form rulemaking.
Purpose
This final-form rulemaking updates Chapters 111 and 131 to promote efficiency and to address new technological and statutory changes. Chapters 111 and 131 have not been updated since 2009. Since that time, the Department has been working on implementing WCAIS, an online workers' compensation claims information system encompassing the processes handled by the Bureau of Workers' Compensation (Bureau), the Office and the Board. Also, during these years, the Department has monitored proceedings involving the UEGF and discovered inefficiencies and increased costs for the parties under the current system. The final-form rulemaking addresses these issues by incorporating necessary changes to improve the efficiency of the system, expand filing options and ensure that parties will continue to be advised of up-to-date rules for practice and procedures before the Board, the Office and judges.
Summary of Final-Form Rulemaking and Responses to Comments
This final-form rulemaking clarifies and provides detailed guidance for practice and procedure before the Board, the Office and judges.
IRRC made the general comment that the Department should make every effort to resolve and reach consensus among the regulated community as it prepares the final-form rulemaking. In response to the comments, the Department held discussions and met with certain commentators to discuss their concerns. These meetings included a discussion of the insurance community's concerns with Samuel R. Marshall, Esq. on behalf of IFP, as well as discussion of the judges' concerns about the UEGF provisions with Ada Guyton, who was present on behalf of the PWCJPA. Following these discussions, several changes were made to the final-form rulemaking consistent with the comments received. With regard to the UEGF provisions, the significant final-form changes represent an agreed-upon compromise which retains language which reasonably satisfies the need for rules specific to UEGF proceedings in a manner which accommodates the judges' ability to exercise discretion in conducting UEGF proceedings following the first hearing.
IFP commented that future projects should include insurers as well as other stakeholders since the defense bar is not always the same. The Department closely monitors its various regulations and is committed to seeking and considering input from all stakeholders, including the insurance community, regarding concerns or suggestions for improvement to promote the efficiency of the workers' compensation system. Insofar as the Chapter 111 and 131 regulations impact litigation before the Board and judges, the Committee established by the Department is primarily compromised of representatives directly involved in the litigation process, including attorneys with many years of experience representing both claimant and insurer interests in these proceedings. However, the Department will continue to strive to be as inclusive as possible to ensure that all stakeholders' interests are considered in future regulatory projects.
IRRC also generally commented that the Department should ensure that the preamble and Regulatory Analysis Form make clear the need for the changes implemented by the final-form rulemaking. Many of the changes implemented in the final-form rulemaking were necessary to accommodate electronic filings and transactions as the result of the Department's implementation of its new computer system, WCAIS, to eliminate multiple or duplicative filings or to reflect the current practice in the community. Further changes, including those in Chapter 131, Subchapter D (relating to proceedings involving the UEGF), were necessitated to address procedural issues that have developed since the creation of the UEGF in 2007 under the act of November 9, 2006 (P. L. 1362, No. 147). The Department has also addressed this issue more specifically throughout the preamble, as necessary, in its discussion of the comments to individual rules, as well as in the Regulatory Analysis Form.
Chapter 111. Special rules of administrative practice and procedure before the Workers' Compensation Appeal Board
The Department amends Chapter 111 to delete requirements that multiple copies of documents shall be filed with the Board.
Section 111.3 (relating to definitions) is amended to clarify filing dates if filing by mail, common carrier, electronically or by hand-delivery, and to provide that a United States Postal Service Certificate of Mailing, USPS Form 3817 or similar form can be used as evidence of the filing date.
IRRC questioned whether the proposed definition of ''common carrier'' in § 111.3 was intended to include taxicabs and utility companies, commenting that the Department should clarify the definition of common carrier, as appropriate. IFP recommended consistency of the filing requirements in § 111.3 of the Board rules and § 131.11(a) (relating to filing, service and proof of service) of the judges rules. The Department does not intend to include taxicabs and utility companies as methods of filing by ''common carrier.'' Therefore, in response to the comments from IRRC, the Department replaced the proposed definition of ''common carrier'' with language within the definition of ''filing'' which clarifies that an appeal may be delivered by a ''common carrier of property'' which is subject to the authority of the Pennsylvania Public Utility Commission or the United States National Surface Transportation Board. This language is now consistent with the common carrier filing provisions recently promulgated in other Department regulations. See §§ 63.25(c) and 101.82(b)(2) (relating to filing methods; and time for filing appeal from determination of Department). Upon further consideration, the Department also agrees with IFP that the filing requirements within the Board and judges rules should be consistent to avoid confusion within the workers' compensation community. Therefore, reference to the use of the United States Postal Service Certificate of Mailing has been added to the definition of ''filing'' in § 111.3, and the subsections within that definition have been reordered consistent with § 131.11(a).
Section 111.11 (relating to content and form) is amended to clarify that an appeal of a judge's decision is deemed to include all claim numbers, dispute numbers and petition numbers referenced in the decision being appealed.
IFP questioned whether the proposed language in § 111.11(a)(1) that an appeal is deemed to include ''all claims, disputes and petitions'' intends that there cannot be partial appeals. IRRC commented that if it is the Department's intent to disallow partial appeals under § 111.11(a), the Department should explain the need for, and reasonableness of, this requirement. IRRC asked the Department to clarify this provision if disallowance of partial appeals is not intended. In response, the Department does not intend this change to disallow partial appeals. Rather, this change is intended to streamline the appeal process by preventing the need for separate, duplicative appellate filings by the same party where the judge's decision involves matters which are identified by multiple claim numbers, dispute numbers or petition numbers in WCAIS. To clarify this, ''numbers'' was added after the references to claim, dispute and petition in this final-form rulemaking. Notwithstanding this provision, it remains that only issues properly raised in the appellate filing are on appeal, consistent with current case law.
Section 111.12 (relating to filing, service and proof of service) is amended to clarify requirements for appeals filed with the Board.
IRRC commented that § 111.12 does not provide information on where online electronic filing procedures will be located and asked that the Department clarify how electronic filing will be implemented. The electronic filing procedures are set forth in detail on the Department's web site at www.dli.state.pa.us. For clarity, the Department added a reference to the web site in this provision.
Section 111.13 (relating to processing of appeals and cross appeals) is amended to delete the requirement that the date of the acknowledgement is 3 days subsequent to the date the acknowledgement is mailed.
Section 111.14 (relating to motions to quash) is amended to delete the requirement that two copies of a motion to quash shall be filed with the original motion.
Section 111.16 (relating to briefs: content and form and time for filing) is amended to delete the requirement that two copies of a brief shall be filed with the original brief.
Section 111.21 (relating to content and form) is amended to clarify that the decision and order of the judge must be included with a request for supersedeas filed with the Board.
Section 111.22 (relating to filing) is amended to clarify the requirements for a request for supersedeas filed with the Board.
Section 111.24 (relating to disposition of request for supersedeas) is amended to specify that the Board will have 30 days from the date of the receipt of the request for supersedeas to rule on a request or the request will be deemed denied.
Section 111.31 (relating to applicability) is amended to clarify that Chapter 111, Subchapter D (relating to other petitions) also applies to petitions for reconsideration under section 426 of the act (77 P. S. § 871).
Section 111.32 (relating to form/content) is amended to delete the requirement that two copies of a petition or request shall be filed with the original petition or request.
Section 111.34 (relating to answers to petitions) is amended to delete the requirement that two copies of an answer shall be filed with the original answer.
Chapter 131. Special rules of administrative practice and procedure before workers' compensation judges
The Department amends Chapter 131 to replace reference to the Bureau with reference to the Department.
Section 131.3 (relating to waiver and modification of rules) is amended to provide that the judge cannot waive or modify the provisions in § 131.202 (relating to first hearing information and stay).
IRRC commented that the Department should revise the proposed language in § 131.3, which provided that the judge cannot waive or modify the provisions in ''Subchapter D,'' to clarify the specific provisions in Chapter 131, Subchapter D that are being addressed. Joseph Hakun commented that references to ''Subchapter D'' in § 131.3 may be read as expanding the bar to a judge's ability to waive or modify rules, to all rules involving the UEGF. PWCJPA commented that reference to ''Subchapter D'' prohibits any exercise of discretion on the part of the judge. Susan E. Kelley, Paul E. Baker, Francine Lincicome and Kelly F. Melcher raised an identical concern to this section. Karl Baldys also noted his support of PWCJPA's comment. In response to the comments, and in connection with further changes made to Chapter 131, Subchapter D in this final-form rulemaking, the Department clarified the amendment to § 131.3 to specify that only the first hearing provisions of § 131.202 are included in the exception to the waiver and modification of rules.
Related comments to those received regarding § 131.3 were also received regarding the proposed rulemaking's exception of ''Subchapter D'' from the one-day trial provisions in § 131.53a(a) (relating to consolidated hearing procedure). The Department disagreed that the proposed amendment to § 131.53a(a) would operate as a complete bar or prohibition of all judicial discretion. However, based upon further consideration and discussion with some of the commentators, which discussion resulted in the previously discussed clarification to § 131.3 as well as the Department's inclusion of new, discretionary language regarding the scheduling of hearings in UEGF matters in § 131.203 (related to hearing procedures), the proposed amendment to § 131.53a is no longer necessary and has been withdrawn.
Section 131.5 (relating to definitions) is amended to add definitions of ''Board,'' ''claim petition'' and ''UEGF claim petition.'' The Department adds a definition of ''writing'' to clarify that a ''writing'' can include electronic communications. The Department adds ''UEGF'' to the definition of ''Uninsured Employers Guaranty Fund.''
IFP and IRRC commented that the Department should explain the need for amending the definition of ''party'' in § 131.5 to include ''employee'' and how an employee differs from a claimant. Upon further consideration, the Department deleted the proposed reference to ''employee'' within the definition of ''party'' to avoid redundancy, as it is otherwise included within the definition of ''claimant.''
Section 131.11 is amended to clarify current filing and service requirements, including allowing filing by common carrier, and to provide that a United States Postal Service Certificate of Mailing, USPS Form 3817 or similar form can be used as evidence of the filing date.
IFP commented that the filing provisions in § 131.11 should be consistent with the revisions to the filing provisions in § 111.3, including filing by common carrier, or in the alternative, the Department should explain the reasons for differences in the filing requirements. IRRC commented that the Department should ensure that the proposed language in § 131.11(a)(3) provides clear filing requirements for the regulated community. IRRC also recommended that the filing and service information and address for the Department in § 131.11(e), and any changes thereto, be published both in the Pennsylvania Bulletin and on the Department's web site, not just in one or the other location. As addressed in the response to § 111.3, the Department agrees that the filing requirements in the final-form rulemaking should be consistent throughout and has made the necessary changes to § 131.11(a) to ensure clarity and consistency by including language similar to § 111.3 and its other regulations that also allows filing by a ''common carrier of property.'' In addition, the Department agrees with the recommendation by IRRC regarding § 131.11(e), and amended this subsection to provide for publication in the Pennsylvania Bulletin and on the Department's web site.
Section 131.32 (relating to petitions except petitions for joinder and challenge proceedings) is amended to provide that a party shall file forms as prescribed by the instructions on the form. If a form is not prescribed by the Department, the party shall file an original of the petition with the Department.
Section 131.33 (relating to answers except answers to petitions for joinder and challenge proceedings) is amended to clarify requirements for filing answers to claim petitions and other petitions, except petitions for joinder and challenge proceedings.
IFP commented that the distinction between claim petitions and all other petitions in proposed § 131.33(a) is confusing. IFP also commented that the Department should explain the reason for the addition of petitions to review utilization review determination to § 131.33(a). The distinction between claim petitions and all other petitions in this section is based upon, and consistent with, section 416 of the act (77 P. S. § 821), which provides, in part, that the failure to timely answer and deny facts alleged in a claim petition only, may result in those facts being deemed admitted. It is also consistent with the long-standing Commonwealth Court decision in Yellow Freight Sys., Inc. v. WCAB (Madara), 423 A.2d 1125 (Pa. Cmwlth. 1981). To avoid confusion however, the Department agrees with IFP that the proposed additional reference to petitions to review utilization review determination should be deleted, as those petitions are separately addressed in § 127.554 (relating to petition for review by Bureau—no answer allowed).
Section 131.36 (relating to joinder) is amended to specify that petitions for joinder and answers to the joinder petitions should be filed with the Department.
Section 131.52 (relating to first hearing procedures) is amended to specify that, at the first hearing, parties shall identify Department documents that are relevant to the claim or dispute and, if not available electronically, provide actual copies of those documents to the judge.
IRRC commented that the proposed language in § 131.52(e) seems to move responsibility for obtaining documents to the judge and, therefore, asked that the Department explain the need for, and reasonableness of, this change. Geoffrey L. Seacrist commented that § 131.52(e) should not eliminate the requirement that the parties provide to the judge copies of all relevant documents filed with the Department. The Department's intent is not to move responsibility for obtaining documents to the judge, but rather to eliminate the duplicate filing of documents which are already electronically available to the judge within the Department's new electronic system, WCAIS. This section does not preclude the parties from also providing copies of the filed documents to the judge if necessary and, to this end, the Department has clarified this provision to provide that the parties shall provide the documents if not otherwise electronically available to the judge.
Section 131.53b (relating to bifurcation and motions for disposition of a petition) is amended to allow motions for disposition of a petition and establish guidelines for their handling.
IFP commented that the Department should clarify what motions were envisioned under the proposed language in § 131.53b(b), which as proposed involved motions for ''summary disposition of a claim.'' IFP also commented that the Department should clarify the process after the motion is filed, including the opportunity for response, and questioned whether the motions have any particular requirements. IRRC commented that the proposed language in § 131.53b(b) was silent as to whether and when an opposing party may file a response to a motion. IRRC asked the Department to explain the need for, and reasonableness of, this provision, and to ensure it is clear. PBAWCS commented that the 45-day motion procedure in § 131.53b(b) adds unnecessary delay to the litigation process and appears to leave no mechanism for when or whether an opposing party may respond.
The Department intends § 131.53b(b) to streamline litigation by providing an expedited method, upon a party's motion, for judges to dispose of a petition pending before them. To clarify its purpose, the Department deleted the reference to ''summary disposition of a claim'' and replaced it with ''disposition of a petition.'' The Department believes that requirements as to the form, as well as the timing, of a response, should be left to the discretion of the judge. To better clarify the process however, the Department added specific language indicating that the response shall be made within a time specified by the judge, and that the judge will issue an order or provide reasons for not doing so within 30 days of the response due date. The Department also deleted the language that the articulated reasons for not ruling on the motion be ''substantial and compelling.'' Insofar as the provision provides that pendency of the motion does not act as a stay, the Department disagrees with the comment that the procedure will add unnecessary delay to the litigation process. To the contrary, the Department believes that this procedure will aid in streamlining the litigation.
Section 131.55 (relating to attorney fees and costs) is amended to require claimant's counsel to submit a copy of the fee agreement or any other statement or claim for disbursements, costs and expenses, and to obtain approval from the judge or the Board before the agreement, statement or claim will be valid.
Thomas C. Lowry inquired whether § 131.55(a) precludes an attorney who is operating with a signed fee agreement from obtaining, without approval of a judge, an advance from the claimant to pay litigation costs as set forth in the agreement. Ronald L. Calhoon commented that if a claimant's attorney cannot charge or collect costs of litigation from a client unless approved by a judge under § 131.55(a), many injured workers will not be able to find representation because attorneys may not advance these costs. IRRC questioned the need for the proposed language in § 131.55(a), commenting that this requirement could delay legal representation or eliminate it altogether for a claimant seeking assistance. IRRC also asked whether an attorney must be expected to advance costs on behalf of a client even when there is a contingent fee in place. Further, IFP commented that the Department should clarify the meaning of ''claim'' in proposed § 131.55(a).
The amended language in § 131.55(a) was previously in § 121.24. In 2007, the Department rescinded that section by final-form rulemaking published at 37 Pa.B. 4181 (August 4, 2007), noting in the preamble that the requirements concerning attorney fees are more appropriately addressed in Chapter 131. This language is based upon, and consistent with, the approval requirements in sections 440, 442 and 501 of the act (77 P. S. §§ 996, 998 and 1021). This language is not intended to alter the existing fee approval requirements under sections 440, 442 and 501 of the act or to change the current practice for seeking fee approval, and therefore should not delay or eliminate legal representation for injured workers. The language neither requires nor prohibits the advancement of costs, but rather reinforces the existing requirements in the act and Rules of Professional Conduct regarding the need for executed fee contracts regardless of which party is ultimately determined to be liable for the payment of the fees and costs in the case. The Department believes that this section reasonably ensures that the necessary approval of fee agreements and claims for disbursements, costs and expenses is promptly obtained by counsel, both when and as required under sections 440, 442 and 501 of the act. Further, the Department intends that ''claim'' in this section refers to a claim for fees or other disbursements, costs or expenses. To clarify this meaning, the Department deleted the initial use of the term in the first sentence.
Section 131.63 (relating to time for taking oral depositions) is amended to provide that an oral deposition may be taken at any time subsequent to the date of the assignment, rather than the date of service, of the petition by the Department.
Section 131.81 (relating to subpoenas) is amended to provide for electronic subpoena requests and to prohibit service of subpoenas until 10 days after issuance by the judge unless otherwise agreed to by the parties.
IRRC made several comments regarding the proposed language in § 131.81(b) pertaining to the proposed 7-day period to object to subpoena requests. IRRC inquired about what was to occur following the filing of an objection, why objections were to be made to a request rather than service of a subpoena and how the Department determined that a 7-day period was appropriate. IRRC commented that the Department should explain the need for, and reasonableness of, the provision and ensure the procedures are clear. IFP also commented that the Department should explain how the 7-day period for objecting to a request for a subpoena was determined, and whether this new rule is consistent with the filing rules in § 131.11 or a different rule. Geoffrey L. Seacrist commented that the proposed period for objections to a subpoena in § 131.81(b) should begin on the date of service, not the date the request is made to the judge. G. Michael Spates commented that the proposed 7-day period for objections to a subpoena in § 131.81(b) is too short and should be extended to 10 calendar days. G. Michael Spates also suggested adding language to § 131.81(b) requiring that the judge circulate an interlocutory order on the party's objection prior to the issuance of the subpoena. Thomas C. Lowry questioned the requirement in § 131.81(a) that the party requesting a subpoena ''shall complete the subpoena,'' noting his experience that a records deposition date was usually left blank due to the time delay between submission and return of a paper subpoena from a judge. Thomas C. Lowry also commented that § 131.81(c) should include a requirement that a copy of the service of a subpoena also be served on the judge.
In response to the comments about the proposed 7-day period to object to a subpoena request in § 131.81(b), and upon further consideration, the Department deleted this requirement from the final-form rulemaking. The Department agrees that the proposed 7-day period was both short and difficult to calculate. Moreover, the Department believes that the current practice for objecting to subpoenas under proposed § 131.81(c) (final-form § 131.81(d)) is sufficient. The Department has retained as modified the amended language in § 131.81(b) requiring that a subpoena may not be served until 10 days after its issuance absent agreement of the parties. The Department believes that this requirement will reasonably encourage prompt communication and resolution of potential concerns about subpoenas, and provide opportunity for objections to be raised promptly prior to service, if necessary. While a judge may issue an interlocutory order concerning an objection to a subpoena, the Department does not agree with the comment that this should be required by regulation, and this change has not been made. The Department believes that this should be left to the discretion of the judge. In addition, the amended language in § 131.81(a) requiring parties to ''complete the subpoena'' is not intended to change current practice, but rather to emphasize that it is the responsibility of the party, not the judge, to fill out the paper or electronic subpoena request. In response to the comment about delay in issuance of subpoenas, the Department notes that the new electronic system, WCAIS, has greatly reduced the time between the subpoena request and the issuance of the signed subpoena by the judge. In WCAIS, registered parties can file subpoena requests, and judges can issue subpoenas, electronically and almost immediately to those who have elected electronic service. Moreover, while the parties are not prohibited from providing a copy of service of the subpoena on the judge if they desire, it is not necessary. Therefore, the Department does not agree with the comment that § 131.81(c) should require this service in all cases, and this change has not been made.
Section 131.91(b) (relating to stipulations of fact) is amended to add a paragraph requiring stipulations to be signed by the claimant, all counsel and the employer, if the employer is unrepresented. The Department further adds paragraphs requiring the stipulation to expressly provide which petitions are being resolved, whether a petition is being withdrawn, granted or dismissed, and whether the parties are requesting an interlocutory order or a final order.
IFP commented that the Department should clarify what stipulations fall within the phrase ''dispositive of the case,'' as used in the proposed language in § 131.91(b), to require satisfaction of the signature requirements in this subsection. IFP also sought clarification of the purpose of requiring a claimant to sign a stipulation when they are represented by counsel or the matter involves a petition to review utilization review determination. Upon further consideration, the Department deleted the reference to ''dispositive of the case'' from § 131.91(b)(3) to avoid confusion concerning the signature requirement. The final-form regulation now clarifies that the signatures, including the signature of claimant, are required for all stipulations. The Department believes that requiring the claimant's signature, even when represented by counsel, is reasonable and necessary to allow the judge to be satisfied, as required under § 131.91(b)(2), that the claimant understands the effect of the stipulation on future compensation and medical expenses. This is also reasonable and necessary for stipulations involving a petition to review utilization review determination, whether or not the petition was filed by the claimant, to ensure that the claimant understands the effect on his medical expenses for treatment with the provider under review.
The Department adds Chapter 131, Subchapter D to provide specific guidelines concerning these proceedings.
IRRC commented that the Department should explain the need for, and reasonableness of, adding Chapter 131, Subchapter D based on the concerns regarding certain provisions raised by commentators. Joseph Hakun commented that the UEGF rules as proposed would bar the exercise of discretion by judges in procedural matters. PWCJPA, as well as Susan E. Kelley, Paul E. Baker, Francine Lincicome and Kelly F. Melcher, also commented that the UEGF rules as proposed would prohibit judicial discretion. However, each commentator also acknowledged that procedural rules may be appropriate to address legitimate needs of the UEGF. Karl Baldys noted his support of PWCJPA's comment.
Chapter 131, Subchapter D is intended to promote the efficient use of all parties' litigation resources through better coordination of the claim petition against the employer (LIBC-362 claim petition) with the related claim petition filed against the employer and the UEGF (UEGF claim petition). The UEGF is a secondarily liable party to a UEGF claim petition and does not have a pre-existing relationship with the parties which would provide it prelitigation access to much of the information or witnesses required to defend a claim. More so than other parties in typical workers' compensation proceedings, the UEGF must rely heavily on information brought out after the filing of a UEGF claim petition through subsequent discovery and hearings. The Department believes, as acknowledged by the commentators, that procedural rules are appropriate to address the legitimate needs of this statutorily-created fund. Indeed, in enacting the UEGF, the General Assembly provided in section 1608 of the act that the Department ''may promulgate regulations for the administration and enforcement'' of the UEGF. The procedural rules in Chapter 131, Subchapter D benefit all parties, including the UEGF, by promoting quicker consolidation and resolution of the claims in UEGF proceedings and reducing the additional time and effort required to obtain information, join all appropriate parties and reach a judicial determination regarding potential liability and award of the claim. In doing so, the final-form rulemaking reasonably provides for judicial involvement as necessary to ensure that the litigation proceeds to a resolution efficiently and fairly for all parties.
Section 131.201 (relating to petitions) provides that all references to petitions in Chapter 131, Subchapter D are defined as under § 131.5.
Section 131.202 directs a judge to provide information about the UEGF to a claimant in an LIBC-362 claim petition when a UEGF claim petition has not been filed and there is not an insurer listed on the notice of assignment or the insurer has filed a motion for dismissal based on noncoverage. If the claimant indicates an intention to file a UEGF claim petition, the judge is directed to stay the proceedings on the LIBC-362 claim petition until 20 days after the assignment of the UEGF claim petition. If the UEGF claim petition is not filed within 45 days, the LIBC-362 claim petition will proceed. This section cannot be waived or modified, as otherwise provided in § 131.3.
IRRC commented that the Department should explain the need for, and reasonableness of, the requirement in § 131.202(a) that the judge is to inform the claimant of the existence of the UEGF. PWCJPA commented that the requirement of informing the claimant of the existence of the UEGF compromises the judge's independence, may subject the judge to being called as a witness and is contrary to certain of the judges' code of ethics requirements involving avoiding impropriety, performing duties impartially and upholding the integrity of the workers' compensation system in section 1404(a) of the act (77 P. S. § 2504(a). Susan E. Kelley, Paul E. Baker, Francine Lincicome and Kelly F. Melcher raised an identical concern to this section. Karl Baldys also noted his support of PWCJPA's comment.
This regulation aims to promote due process and judicial economy by ensuring prompt inclusion of all potential parties, including the UEGF, to a claim against an uninsured employer. By requiring a judge to provide information about the UEGF and to stay the first hearing on an LIBC-362 claim petition until 20 days after the notice of assignment of the UEGF claim petition (if one is filed), this regulation promotes efficiency and reduces costs for all parties by eliminating duplicative hearings and depositions necessitated by the UEGF's late arrival to the claim proceeding. The Department does not agree that requiring the judge to provide information on the existence of the UEGF either compromises judicial independence or is contrary to the judicial code of ethics. The Department also does not believe provision of this information will subject the judge to being called as a witness. First, it is anticipated that this information will be documentary in nature and will be done on the record. The Department recognizes that varying information concerning the UEGF's existence is currently being provided verbally by judges in some matters, sometimes on-the-record and sometimes off-the-record. This final-form rulemaking simply ensures that the provision of the information is uniform across this Commonwealth for all claimants, to allow claimants to make informed decisions as to whether they wish to file a UEGF claim petition. Moreover, insofar as this section relates to judicial procedures in these matters only, the requirement that a claimant inform the judge whether he intends to file a UEGF claim petition following provision of the information is not intended to preclude a later filing to the extent otherwise allowed by law. Second, this section is only applicable in the limited number of cases when a UEGF claim petition has not been filed and there is not an insurer listed on the notice of assignment for the LIBC-362 claim petition or the insurer has filed a motion for dismissal based on noncoverage. Due to the uniqueness of the UEGF from other types of workers' compensation litigation, provision of this information by the judge at the first hearing on the LIBC-362 claim petition, and allowing for a stay for the filing of a UEGF claim petition, is reasonable and necessary to accomplish the goals of due process, judicial economy and fairness. For these reasons, although the Department has agreed to otherwise delete the nonwaiver provisions regarding the ''one day one trial'' procedure proposed in § 131.203 and proposed § 131.204 (relating to waiver and modification of §§ 131.202 and 131.203), the nonwaiver language regarding § 131.202 has been retained by adding § 131.202(e) in this final-form rulemaking. By way of compromise however, following discussions with PWCJPA, § 131.202(e) specifically recognizes that the nonwaivability of § 131.202 is ''in the interests of judicial economy and due process to have all parties joined as soon as possible, and in recognition of the uniqueness of the UEGF from other types of workers' compensation litigation.''
Section 131.203 provides that if the UEGF requests live testimony of witnesses before the judge, the judge will schedule hearings to accommodate the request, unless denied for good cause shown and stated on the record.
IRRC commented that the Department should explain the need for, and reasonableness of, the requirement of the agreement of all parties in writing or on the record for a judge to waive or modify this section and § 131.202, as found in proposed § 131.204(a). IRRC also asked the Department to explain how this is in the public interest. Joseph Hakun commented that requiring the agreement of all participating parties for waiver or modification of the rules under proposed § 131.204(a), rather than requiring a ''good cause'' standard, gives an employer who may be subject to criminal sanctions the ability to ''veto'' a waiver or modification. PWCJPA, Joseph Hakun and Kenneth Walsh commented that requiring agreement of all participating parties inappropriately prohibits any exercise of discretion on the part of the judge in cases involving the UEGF. PWCJPA specifically commented that the judge's discretion should not be subject to employers' consent. Susan E. Kelley, Paul E. Baker, Francine Lincicome and Kelly F. Melcher raised identical concerns to this section. Karl Baldys also noted his support of PWCJPA's comment.
Upon further consideration and discussion with some of the commentators, the Department agreed to delete the waiver provision in proposed § 131.204 in its entirety, including the requirement that agreement of all parties was required. In addition, the Department deleted the proposed language in § 131.203 which provided that § 131.53a would not apply to Subchapter D proceedings. The Department replaced the proposed language in § 131.203 with new language providing that if the UEGF requests live testimony of witnesses before the judge, the judge will schedule hearings to accommodate the request unless denied for good cause shown and stated on the record. The Department believes this language reasonably affords the UEGF, which has no pre-existing relationship with the other parties, the necessary opportunity to develop the facts of a case through testimony at a hearing prior to the final hearing in a matter, but also provides the judge with discretion to deny that request utilizing a good cause standard, as suggested by the commentators.
Final-form § 131.204 (proposed § 131.205) (relating to UEGF subpoenas and interrogatories) authorizes judges to issue subpoenas, order testimony and compel completion of written interrogatories concerning the uninsured employer's financial history, condition or ability to pay an award. Additionally, this section authorizes a judge to compel the attendance of the parties at mediation.
Joseph Hakun commented that the UEGF rules should be delayed because there may be interplay between the information to be obtained under proposed § 131.205(a) (final-form § 131.204(a)) and pending legislation in the 2013-2014 session of the General Assembly. The Department disagrees. The legislation as proposed has no impact on these procedural changes to the practice before judges, nor is there any interplay or overlap between the information to be obtained under this specific section and any of the provisions contemplated in the legislative bill.
Ronald L. Calhoon commented that the rule requiring that independent medical examinations take place within 45 days of the first hearing should be amended to include first hearings of any type, including hearings where testimony is not taken. This rule is found in § 131.53(g) (relating to procedures subsequent to the first hearing). This section, however, was not part of the Department's proposed rulemaking. The Department has taken this comment under advisement and will review and monitor the suggestion, with the assistance of the Committee, for a possible future rulemaking.
Affected Persons
Those affected by this final-form rulemaking include the Board Commissioners and officials, employees of the Department, the Office and judges, as well as attorneys and litigants in the workers' compensation system in this Commonwealth.
Fiscal Impact
There is no significant fiscal impact associated with this final-form rulemaking. However, the final-form rulemaking may provide savings to the regulated community through: (1) reduced copying and mailing costs, as the number of copies of filings has been reduced and documents may be filed electronically; and (2) reduced overall litigation expenses for all parties to claim proceedings involving the UEGF due to better coordination and handling of the litigation process in these matters.
Reporting, Recordkeeping and Paperwork Requirements
The final-form rulemaking does not require the creation of new forms. There are no other additional reporting, recording or paperwork requirements on either the Commonwealth or the regulated community.
Effective Date
This final-form rulemaking is effective upon publication in the Pennsylvania Bulletin.
Sunset Date
A sunset date is not necessary. The Department will continue to monitor the impact and effectiveness of the regulations.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on February 10, 2014, the Department submitted a copy of the notice of proposed rulemaking, published at 44 Pa.B. 996, to IRRC and the Chairpersons of the Senate Labor and Industry Committee and the House Labor and Industry Committee for review and comment.
Under section 5(c) of the Regulatory Review Act, IRRC and the House and Senate Committees were provided with copies of the comments received during the public comment period, as well as other documents when requested. In preparing the final-form rulemaking, the Department has considered all comments from IRRC, the House and Senate Committees and the public.
Under section 5.1(j.2) of the Regulatory Review Act (71 P. S. § 745.5a(j.2)), on November 5, 2014, the final-form rulemaking was deemed approved by the House and Senate Committees. Under section 5.1(e) of the Regulatory Review Act, IRRC met on November 6, 2014, and approved the final-form rulemaking.
Findings
The Department finds that:
(1) Public notice of proposed rulemaking was given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202) and the regulations promulgated thereunder, 1 Pa. Code §§ 7.1 and 7.2.
(2) A public comment period was provided as required by law and all comments were considered.
(3) The final-form rulemaking is necessary and appropriate for the administration and enforcement of the authorizing statutes.
Order
The Department, acting under the authorizing statute, orders that:
(a) The regulations of the Department, 34 Pa. Code Chapters 111 and 131, are amended by adding §§ 131.201—131.204 and by amending §§ 111.3, 111.11—111.14, 111.16, 111.21—111.24, 111.31, 111.32, 111.34, 131.3, 131.5, 131.11, 131.21, 131.32, 131.33, 131.36, 131.50, 131.52, 131.53b, 131.55, 131.57, 131.58, 131.60, 131.63, 131.81 and 131.91 to read as set forth in Annex A, with ellipses referring to the existing text of the regulations.
(Editor's Note: The proposed amendments to § 131.53a published at 44 Pa.B. 996 have been withdrawn by the Department. Proposed § 131.204 has been withdrawn by the Department. Final-form § 131.204 was published in the proposed rulemaking as § 131.205.)
(b) The Secretary of the Department shall submit this order and Annex A to the Office of General Counsel and the Office of Attorney General for approval as to legality and form as required by law.
(c) The Secretary of the Department shall submit this order and Annex A to the Independent Regulatory Review Commission and the Senate and House Committees as required by law.
(d) The Secretary of the Department shall certify this order and Annex A and deposit them with the Legislative Reference Bureau as required by law.
(e) This order shall take effect upon publication in the Pennsylvania Bulletin.
JULIA K. HEARTHWAY,
Secretary(Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 44 Pa.B. 7424 (November 22, 2014).)
Fiscal Note: Fiscal Note 12-99 remains valid for the final adoption of the subject regulations.
Annex A
TITLE 34. LABOR AND INDUSTRY
PART VII. WORKERS' COMPENSATION APPEAL BOARD
CHAPTER 111. SPECIAL RULES OF ADMINISTRATIVE PRACTICE AND PROCEDURE BEFORE THE WORKERS' COMPENSATION APPEAL BOARD
Subchapter A. GENERAL PROVISIONS § 111.3. Definitions.
(a) The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
Act—The Workers' Compensation Act (77 P. S. §§ 1—1041.4 and 2501—2708).
Appeal—A proceeding to review a ruling or decision by a judge.
Board—The Workers' Compensation Appeal Board.
Disease Law—The Pennsylvania Occupational Disease Act (77 P. S. §§ 1201—1603).
Filing—Filing is deemed complete upon one of the following:
(i) Delivery in person.
(ii) If by electronic submission, upon receipt and in a format as prescribed by the Department and published in the Pennsylvania Bulletin or the Department's web site located at www.dli.state.pa.us.
(iii) If by mail, upon deposit in the United States mail, properly addressed, postage or charges prepaid, as evidenced by one of the following:
(A) United States Postal Service postmark.
(B) United States Postal Service Certificate of Mailing (USPS Form 3817 or other similar United States Postal Service form from which the date of deposit can be verified), enclosed with the filing or submitted separately to the Department.
(iv) An appeal may be delivered by a common carrier of property which is subject to the authority of the Pennsylvania Public Utility Commission or the United States National Surface Transportation Board. The date of filing is the date the document was delivered to the common carrier, as established by a document or other record prepared by the common carrier in the normal course of business. If the date of delivery to the common carrier cannot be determined by the documents in the record, the date of filing will be the date of its receipt by the Board.
Judge—A workers' compensation judge assigned by the Office of Adjudication as provided in section 401 of the act (77 P. S. § 701) or assigned by the Office of Adjudication to determine a petition filed under the Disease Law.
Office of Adjudication—The Office of the Department created under section 1401(a) of the act (77 P. S. § 2501(a)).
Party—A petitioner or respondent. An act required or authorized by this chapter, to be done by or to a party, may be done by or to that party's counsel of record.
Petitioner—Anyone seeking to review a ruling or decision by a judge or the moving party in a petition filed under Subchapter D (relating to other petitions).
Respondent—Anyone in whose favor the matter was decided by the judge or other than the moving party in any petition filed under Subchapter D.
Service—Delivery in person, by mail or electronics. If service is by mail, it is deemed complete upon deposit in the United States mail, as evidenced by a United States Postal Service postmark, properly addressed, with postage or charges prepaid.
Supersedeas—A temporary stay affecting a workers' compensation case.
(b) Subsection (a) supersedes 1 Pa. Code §§ 31.3, 31.11 and 33.34 (relating to definitions; timely filing required; and date of service).
Subchapter B. APPEALS § 111.11. Content and form.
(a) An appeal or cross appeal shall be filed with the Board on a form provided by the Board. All references to forms mean paper forms or an electronic format prescribed by the Board and published in the Pennsylvania Bulletin or the Department's web site located at www.dli.state.pa.us. All forms must contain the following information:
(1) The name and address of the claimant, name and address of the defendant, date of the injury, type of petition, insurance carrier and circulation date of the decision at issue. An appeal from a workers' compensation judge's decision is deemed to include all claim numbers, dispute numbers and petition numbers referenced in the decision and order which are the subject of the appeal. This paragraph does not supersede the other requirements of this section.
(2) A statement of the particular grounds upon which the appeal is based, including reference to the specific findings of fact which are challenged and the errors of the law which are alleged. General allegations which do not specifically bring to the attention of the Board the issues decided are insufficient.
(3) A statement of the relief which is requested.
(4) A statement whether the petitioner seeks an opportunity to file a brief or present oral argument or whether the case should be heard on the record without brief or oral argument.
(5) Identification of the judge whose decision is in question, including as an attachment, a copy of that judge's decision.
(6) A proof of service as specified in § 111.12(e) (relating to filing, service and proof of service).
(b) An appeal or a cross appeal shall be served on all parties and the judge.
(c) A request for supersedeas, if desired, shall be indicated on the appeal and conform to § 111.21 (relating to content and form).
(d) Subsections (a)—(c) supersede 1 Pa. Code §§ 31.5, 33.1—33.4, 33.11, 33.12, 35.17 and 35.20.
§ 111.12. Filing, service and proof of service.
(a) When filing other than electronically, an original of each appeal or cross appeal shall be filed. The appeal shall have attached a copy of the judge's decision which is in question as required by § 111.11(a)(5) (relating to content and form).
(b) When filing electronically, the petitioner shall follow the online procedures established by the Department on its web site located at www.dli.state.pa.us.
(c) The petitioner shall serve a copy of any appeal upon all parties and the judge.
(d) The respondent shall serve a copy of any cross appeal upon all parties and the judge.
(e) The petitioner or respondent shall, concurrently with the filing of an appeal or cross appeal, on a form prescribed by the Board or in substantial compliance therewith, file a proof of service with the Board containing:
(1) A statement of the date of service.
(2) The names of parties and judge served.
(3) The mailing address, the applicable zip code and the manner of service on the parties and judge served.
(f) Subsections (a)—(e) supersede 1 Pa. Code §§ 31.26, 33.15, 33.32, 33.33 and 33.35—33.37.
§ 111.13. Processing of appeals and cross appeals.
(a) Upon receipt of an appeal or a cross appeal, the Board will acknowledge receipt to all parties.
(b) The Board will, in addition to acknowledging receipt of the appeal or the cross appeal, establish the briefing schedule and indicate that the appeal and the cross appeal will be scheduled for oral argument unless all parties agree to submission of the case on only briefs or record.
(c) Subsections (a) and (b) supersede 1 Pa. Code § 33.31 (relating to service by the agency).
§ 111.14. Motions to quash.
(a) A party may submit a motion to quash an appeal or a cross appeal within 20 days of service of the appeal or the cross appeal.
(b) A motion to quash shall be served on all parties.
(c) A motion to quash shall be accompanied by a proof of service conforming to § 111.12(e) (relating to filing, service and proof of service), insofar as applicable.
(d) The Board shall dispose of a motion to quash in conformity with the procedures set forth in § 111.35 (relating to dispositions of petitions).
(e) An original motion to quash shall be filed.
(f) Subsections (a)—(e) supersede 1 Pa. Code §§ 31.26, 33.15, 33.32, 33.33, 33.35—33.37, 35.54 and 35.55 and also supersede 1 Pa. Code Chapter 35, Subchapter D (relating to motions).
§ 111.16. Briefs: content and form and time for filing.
(a) A brief on behalf of a petitioner shall be filed with the Board at or before the date of oral argument. If oral argument is waived, petitioner shall file a brief within 30 days of the date of the Board's acknowledgment of receipt of the appeal as set forth in § 111.13 (relating to processing of appeals and cross appeals).
(b) A brief on behalf of a respondent shall be filed with the Board 30 days after oral argument. Otherwise, the respondent shall file a brief with the Board within 60 days of the date of the Board's acknowledgment of receipt of the appeal as set forth in § 111.13.
(c) Upon written request of a party directed to the Secretary of the Board or upon oral request at the time of oral argument, and with notice to all parties, the Board may extend or shorten the time for filing of the party's brief only for good cause shown. A party shall present a request to extend or shorten the time at or before the date set for filing that party's brief.
(d) Briefs not filed with the Board in accordance with the schedule in this section or as modified by the Board under subsection (c) will not be considered and will result in disposition of the appeal without further notice or consideration of the brief of the party failing to comply with these deadlines or schedule.
(e) Briefs, except as otherwise allowed, shall consist of the following items, separately and distinctly set forth:
(1) A short statement of the questions involved.
(2) A statement of the facts by the petitioner, or counterstatement of the facts by the respondent.
(3) The argument.
(4) A short conclusion setting forth the precise relief sought.
(5) A proof of service as specified in § 111.12(e) (relating to filing, service and proof of service) insofar as applicable.
(f) An original brief shall be filed.
(g) Briefs shall be served on all parties.
(h) Subsections (a)—(g) supersede 1 Pa. Code §§ 31.15, 33.37, 35.212 and 35.221 and also supersede 1 Pa. Code Chapter 35, Subchapter F (relating to briefs).
Subchapter C. SUPERSEDEAS ON APPEAL TO THE BOARD AND COURTS § 111.21. Content and form.
(a) A request for supersedeas shall be filed as a separate petition from the appeal and be accompanied by the following:
(1) A copy of the decision and order of the judge or order and opinion of the Board from which the supersedeas is requested.
(2) A short statement setting forth reasons and bases for the request for supersedeas.
(3) A specific statement as to the issues of law, if any, involved in the underlying appeal.
(4) Information on the current employment status of the claimant, if known.
(5) The court, if any, to which an appeal from the Board decision has been taken.
(6) Other relevant information for the Board's consideration in determining whether the supersedeas request meets the following standards:
(i) The petitioner makes a strong showing that it is likely to prevail on the merits.
(ii) The petitioner shows that, without the requested relief, it will suffer irreparable injury.
(iii) The issuance of a stay will not substantially harm other interested parties in the proceeding.
(iv) The issuance of a stay will not adversely affect the public interest.
(7) A proof of service as specified in § 111.12(e) (relating to filing, service and proof of service), insofar as applicable.
(b) Requests for supersedeas shall be served on all parties.
(c) Subsections (a) and (b) supersede 1 Pa. Code §§ 35.1, 35.2, 35.17, 35.190 and 35.225.
§ 111.22. Filing.
(a) A request for supersedeas from the judge's decision shall be filed with the Board within the time specified in section 423 of the act (77 P. S. § 853).
(b) A request for supersedeas from a Board order shall be filed under the applicable Pennsylvania Rules of Appellate Procedure.
(c) An original request for supersedeas shall be filed. The supersedeas request shall have attached a copy of the judge's decision and order or Board opinion and order from which the supersedeas is requested.
(d) A request for supersedeas shall be served on all the parties and be accompanied by a proof of service as specified in § 111.12(e) (relating to filing, service and proof of service).
(e) Subsections (a)—(d) supersede 1 Pa. Code § 33.15 (relating to number of copies).
§ 111.23. Answers.
(a) An answer to a request for supersedeas may be filed with the Board within 10 days of service of the request for supersedeas.
(b) An original answer shall be filed.
(c) An answer filed under this subsection shall be served on all parties.
(d) An answer filed under this subsection shall be accompanied by a proof of service as specified in § 111.12(e) (relating to filing, service and proof of service), insofar as applicable.
(e) Subsections (a)—(d) supersede 1 Pa. Code §§ 33.15 and 35.35 (relating to number of copies; and answers to complaints and petitions).
§ 111.24. Disposition of request for supersedeas.
(a) The Board may grant the request for supersedeas in whole or in part.
(b) The Board will rule on requests for supersedeas within 30 days of the date of receipt by the Board of the request, or the request shall be deemed denied.
(c) Subsections (a) and (b) supersede 1 Pa. Code §§ 35.190 and 35.225 (relating to appeals to agency head from rulings of presiding officers; and interlocutory orders).
Subchapter D. OTHER PETITIONS § 111.31. Applicability.
This subchapter applies to the following petitions or requests:
(1) A petition under section 306 of the act (77 P. S. § 513).
(2) A petition for appointment of guardian under section 307 of the act (77 P. S. § 542).
(3) A petition alleging a meretricious relationship under section 307 of the act (77 P. S. § 562).
(4) A petition for commutation under section 316 of the act (77 P. S. § 604).
(5) A petition under section 317 of the act (77 P. S. § 603).
(6) A petition for rehearing or reconsideration under section 426 of the act (77 P. S. § 871).
(7) A petition for attorney's fees under section 442 or 501 of the act (77 P. S. §§ 998 and 1021).
§ 111.32. Form/content.
(a) Petitions and requests shall contain and be accompanied by the following:
(1) A short statement setting forth the reasons and basis for the petition or request.
(2) The facts upon which the petition or request is based.
(3) A specific statement as to the issues of law, if any, involved in the petition or request.
(4) An explanation as to the status of the case, including the status of a pending appeal or petition before a judge, the Board or a court.
(5) The employment status of the claimant.
(6) A proof of service as specified in § 111.12(e) (relating to filing, service and proof of service), insofar as applicable.
(b) Petitions and requests shall be served on all parties and on the judge if the case is pending before a judge.
(c) An original petition and request shall be filed.
(d) Subsections (a)—(c) supersede 1 Pa. Code §§ 31.5, 33.1—33.4, 33.11, 33.12, 33.15, 33.21—33.23, 35.1, 35.2 and 35.17.
§ 111.34. Answers to petitions.
(a) An answer to a petition or request may be filed with the Board within 20 days of service of the petition or request.
(b) An original answer shall be filed.
(c) An answer filed shall be served on all parties.
(d) An answer filed shall be accompanied by a proof of service as specified in § 111.12(e) (relating to filing, service and proof of service), insofar as applicable.
(e) Subsections (a)—(d) supersede 1 Pa. Code §§ 33.15 and 35.35 (relating to number of copies; and answers to complaints and petitions).
PART VIII. BUREAU OF WORKERS' COMPENSATION
CHAPTER 131. SPECIAL RULES OF ADMINISTRATIVE PRACTICE AND PROCEDURE BEFORE WORKERS' COMPENSATION JUDGES
Subchapter A. GENERAL PROVISIONS § 131.3. Waiver and modification of rules.
(a) The judge may, for good cause, waive or modify a provision of this chapter, except as otherwise provided in §§ 131.59b(a) and 131.202 (relating to mandatory mediation; and first hearing information and stay), upon motion of a party, agreement of all parties or upon the judge's own motion.
(b) Subsection (a) supersedes 1 Pa. Code §§ 33.61, 35.18, 35.54 and 35.55 and also supersedes 1 Pa. Code Chapter 35, Subchapter D (relating to motions).
§ 131.5. Definitions.
(a) The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
Act—The Workers' Compensation Act (77 P. S. §§ 1—1041.4 and 2501—2708).
Additional defendant—An insurance carrier, the Commonwealth or an employer, other than the insurance carrier or employer against which the original petition was filed, joined under this chapter, not including the Uninsured Employers Guaranty Fund.
Adjudicating judge—A judge assigned to hold hearings and issue decisions relating to a petition or petitions.
Board—The Workers' Compensation Appeal Board.
Challenge proceeding—A proceeding governed by § 131.50a (relating to employee request for special supersedeas hearing under section 413(c) and (d) of the act).
Claim petition—A petition filed with the Department under section 410 of the act (77 P. S. § 751).
Claimant—An individual who files a petition for, or otherwise receives, benefits under the act or the Disease Law.
Defendant—An employer, insurance carrier and the Commonwealth, unless specifically designated individually, and the Uninsured Employers Guaranty Fund, except for purposes of joinder, penalties or assessment of counsel fees under section 440 of the act (77 P. S. § 996).
Department—The Department of Labor and Industry of the Commonwealth.
Department record—Official copies of documents received by the Department, on forms prescribed by the Department, if forms prescribed by the Department are available, or official copies of documents received by the Department on forms prepared by a party if forms prescribed by the Department are not available, which record transactions between the parties and which are determined by the judge to pertain to the case.
Director of Adjudication—The individual specified in section 1402 of the act (77 P. S. § 2502).
Disease Law—The Pennsylvania Occupational Disease Act (77 P. S. §§ 1201—1603).
Insurer—A workers' compensation insurance carrier or self-insured employer, as applicable.
Judge—A workers' compensation judge assigned by the Office of Adjudication as provided in sections 401 and 401.1 of the act (77 P. S. §§ 701 and 710) or assigned by the Office of Adjudication to determine a petition filed under the act or the Disease Law.
Judge manager—A workers' compensation judge with management responsibilities appointed under the Civil Service Act (71 P. S. §§ 741.1—741.1005).
Mandatory mediation—A mediation conducted by a mediating judge under § 131.59b (relating to mandatory mediation).
Mediating judge—A judge assigned to mediate petitions in accordance with sections 401 and 401.1 of the act and this chapter.
Mediation—A conference conducted by a judge, having as its purpose an attempt to reconcile any or all disputes under the act or this chapter existing between contending parties. Mediation can be either mandatory or voluntary.
Office of Adjudication—The Office of the Department created under section 1401(a) of the act (77 P. S. § 2501(a)).
Party—A claimant, defendant, employer, insurance carrier, additional defendant, health care provider and, if relevant, the Commonwealth and the Uninsured Employers Guaranty Fund. An act required or authorized by this chapter, to be done by or to a party, may be done by or to that party's counsel of record.
Penalty proceeding—A proceeding governed by section 435(d) of the act (77 P. S. § 991(d)).
Records of work environment—Records and documents relating to work place health, safety, hazards and exposure, including records or documents which may be obtained under the Worker and Community Right-to-Know Act (35 P. S. §§ 7301—7320) and 29 CFR 1901.1—1928.1027 (relating to Occupational Safety and Health Administration, Department of Labor).
Resolution hearing—A procedure established by the Office of Adjudication with the sole purpose of providing a venue to present a compromise and release to a judge in an expedited fashion.
Statement previously made—A written statement signed or otherwise adopted or approved by the persons making it, or a stenographic, mechanical, electrical, computer-generated or other recording, or transcription thereof, which is a substantially verbatim recital of an oral statement by the person making it and contemporaneously recorded. The term does not include statements made by parties which are protected by the attorney-client privilege or which are protected as the work product of counsel.
Supersedeas—A temporary stay affecting a workers' compensation case.
UEGF—Uninsured Employers Guaranty Fund—The special fund established under Article XVI of the act (77 P. S. §§ 2701—2708).
UEGF claim petition—A petition filed with the Department under section 1604 of the act (77 P. S. § 2704)
Voluntary mediation—A mediation conducted by a judge under § 131.59a (relating to voluntary mediation) upon the agreement of the contending parties and the judge.
Writing—Includes electronic communications in a format as prescribed by the Department.
(b) Subsection (a) supersedes 1 Pa. Code §§ 31.3 and 33.33 (relating to definitions; and effect of service upon an attorney).
Subchapter B. TIME § 131.11. Filing, service and proof of service.
(a) Whenever filing is required by this chapter, it is deemed complete upon one of the following:
(1) Delivery in person.
(2) If by electronic submission, upon receipt at the electronic address and in a format as prescribed by the Department and published in the Pennsylvania Bulletin or the Department's web site located at www.dli.state.pa.us.
(3) If by mail, upon deposit in the United States mail, properly addressed, postage or charges prepaid, as evidenced by one of the following:
(i) United States Postal Service postmark.
(ii) United States Postal Service Certificate of Mailing (USPS Form 3817 or other similar United States Postal Service form from which the date of deposit can be verified), enclosed with the filing or submitted separately to the Department.
(4) A filing may be delivered by a common carrier of property which is subject to the authority of the Pennsylvania Public Utility Commission or the United States National Surface Transportation Board. The date of filing is the date the document was delivered to the common carrier, as established by a document or other record prepared by the common carrier in the normal course of business. If the date of delivery to the common carrier cannot be determined by the documents in the record, the date of filing will be the date of its receipt by the Department.
(b) Whenever service is required by this chapter, it is deemed complete upon one of the following:
(1) Delivery in person.
(2) If by electronic submission, upon receipt and in a format as prescribed by the Department and published in the Pennsylvania Bulletin or the Department's web site located at www.dli.state.pa.us.
(3) Except as provided in § 131.81(b) (relating to subpoenas), if by mail, upon deposit in the United States Mail properly addressed, postage or charges prepaid and accompanied by proof of service.
(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 must contain the following:
(1) A statement of the date of service.
(2) The names of the judge and others served.
(3) The mailing address, the applicable zip code and the manner of service on the judge and others served, and, if applicable, the electronic address to which service was made.
(e) Unless otherwise specifically provided in this chapter, whenever the filing or service is required to be made upon the Department, it shall be made to an address as may be published in the Pennsylvania Bulletin and on the Department's web site located at www.dli.state.pa.us. Electronic filing and service on the Department shall be at the electronic address and in a format as prescribed by the Department and published in the Pennsylvania Bulletin and on the Department's web site located at www.dli.state.pa.us.
(f) Subsections (a)—(e) supersede 1 Pa. Code §§ 31.5, 31.11, 31.13, 31.14, 31.26, 33.32 and 33.34—33.36.
Subchapter C. FORMAL PROCEEDINGS
GENERAL § 131.21. Identifying number.
(a) Pleadings, documents and other submittals filed in a proceeding shall be identified by an identifying number assigned by the Department.
(b) Subsection (a) supersedes 1 Pa. Code §§ 31.5, 33.1 and 33.51 (relating to communications and filings generally; title; and docket).
PLEADINGS § 131.32. Petitions except petitions for joinder and challenge proceedings.
(a) Petitions shall be in the form prescribed by the Department.
(b) Any petition, filed in accordance with this chapter, shall be filed with the Department as prescribed by the form. If there is no applicable Department petition form available, an original of the petition shall be filed with the Department. The Department 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) Concurrently with filing the petition with the Department, 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) 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—33.23, 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 challenge proceedings.
(a) Answers to claim petitions shall be filed in accordance with section 416 of the act (77 P. S. § 821) within 20 days after the date of assignment to the judge. Except petitions for joinder under § 131.36 (relating to joinder), and challenge proceedings which require no answer, answers to all other petitions may be filed within 20 days after the date of assignment to the judge.
(b) Any answer filed in accordance with this chapter shall be filed with the Department as prescribed on the answer form. If there is no applicable Department answer form available, an original of the answer shall be filed with the Department.
(c) Concurrently with filing the answer, the responding party shall serve a copy of the answer on unrepresented parties and on counsel of record.
(d) 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. Where applicable, admissions and denials in an answer shall refer to the specific paragraph in which the averment admitted or denied is set forth.
(e) Subsections (a)—(d) 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).
§ 131.36. Joinder.
(a) A party desiring to join another defendant to assert a claim relevant to the pending petition may do so as a matter of right by filing a petition for joinder.
(b) A petition for joinder shall set forth the identity of employers and insurance carriers sought to be joined and the reasons for joining a particular employer or insurance carrier as well as the specific facts and the legal basis for the 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) The petition for joinder form shall be filed with the Department no later than 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 judge for good cause shown.
(e) An answer to a petition for joinder shall be filed in accordance with section 416 of the act (77 P. S. § 821) within 20 days after the date of assignment by the Department to the judge and may include a motion to strike.
(f) A party filing a petition for joinder or an answer to it shall serve unrepresented parties and counsel of record.
(g) A proof of service shall be attached to the petition for joinder or answer.
(h) 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 judge orders. The additional defendant shall have the same rights and responsibilities under this chapter as the original defendant.
(i) The judge may strike the petition for joinder, and the judge may order the severance or separate hearing of a claim presented therein, or as a result of the joinder.
(j) The judge will issue an order when the motion to strike a petition for joinder is granted.
(k) An order to strike a petition for joinder does not preclude or delay further proceedings before the judge.
(l) Subsections (a)—(k) 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 and also supersede 1 Pa. Code Chapter 35, Subchapter D (relating to motions).
SUPERSEDEAS § 131.50. Return to work—modification or suspension.
(a) If an employee returns to work, the insurer may modify or suspend the workers' compensation benefits.
(b) The insurer shall complete and file the form prescribed by the Department. The form shall be provided to the employee, employee'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 employee's benefits under sections 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 employee's workers' compensation benefits, the insurer shall file the form specified in subsection (b), indicating the change in the employee's wages and corresponding change in the employee's workers' compensation benefits.
(d) Subsections (a)—(c) supersede 1 Pa. Code § 33.33 (relating to effect of service upon an attorney).
HEARING PROCEDURE § 131.52. First hearing procedures.
* * * * * (e) The parties shall identify and provide, if not otherwise electronically available to the judge, all documents required by law to be filed with the Department and which are relevant to issues in dispute with the same injury date and pertaining to the same claim. The judge will place those documents in evidence along with any other documents required to be filed by law with the Department or prior judges and which the judge deemsrelevant to the proceeding. The judge and the employee may not introduce the First Report of Injury into evidence.
* * * * * § 131.53b. Bifurcation and motions for disposition of a petition.
(a) The judge may, upon request or upon the judge's own motion, consider bifurcation of issues to promote expeditious resolution of cases.
(b) A motion which may result in disposition of a petition may be filed at any time. A response shall be made within a time specified by the judge. The judge will issue an order granting or denying the motion, or will provide reasons why the motion will not be ruled upon, within 30 days of when the response is due. If the motion will not be ruled upon, the judge will articulate in writing or on the record the reasons for not ruling on the motion. Pendency of the motion will not operate as a stay.
(c) Subsections (a) and (b) supersede 1 Pa. Code §§ 35.54, 35.55, 35.177—35.180 and 35.225.
§ 131.55. Attorney fees and costs.
(a) In all cases, claimant's counsel shall submit a copy of the fee agreement, and a copy of any statement or claim for disbursements, costs and expenses. No agreement or claim for fees or other disbursements, costs or expenses by claimant's counsel shall be valid, and no payments shall be made pursuant thereto, unless approved for payment by the judge before whom the matter is heard or by the Board as provided by law. Except as otherwise approved, no further fee, cost or expense is to be charged.
(b) Under section 440 of the act (77 P. S. § 996), in a disputed claim under the act when the employer or insurer has contested liability in whole or in part, the employee or a dependent, in whose favor the proceeding has been finally decided, will be awarded attorney fees and costs against the employer or insurer, unless the employer or insurer had a reasonable basis for contesting the petition.
(c) 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.
(d) 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.
(e) A decision on the fee award will be made based on the record of the case and, if filed, the application and response. If deemed appropriate by the judge, a hearing may be held and evidence presented.
(f) 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).
(g) Subsections (a)—(f) 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 Department. 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. This subsection does not apply if a resolution hearing has been requested in accordance with § 131.60 (relating to resolution hearings).
(e) Subsections (a)—(d) supercede 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 Department 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 Department on a form prescribed by the Department.
(e) The informal conference will be governed by the instructions and procedures specified on the form prescribed by the Department and by section 402.1 of the act.
(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.
§ 131.60. Resolution hearings.
(a) A resolution hearing must be requested in writing.
(b) Counsel for either party, or any unrepresented party, may request a resolution hearing at any time after all parties are prepared to proceed within the time limits prescribed by the act and this rule for resolution hearings.
(c) If a petition is pending before a judge, the request for a resolution hearing must be directed to the assigned judge.
(d) If a petition is not pending before a judge, the request for a resolution hearing must be directed to the Judge Manager for the judge's office serving the county of the claimant's residence. If the claimant resides outside of this Commonwealth, the request must be directed to the Judge Manager for the judge's office most proximate to the claimant's residence. The Judge Manager will assign a judge to conduct the resolution hearing.
(e) The assigned judge's office will schedule the resolution hearing within 14 business days of receiving the request for a resolution hearing.
(f) The Judge Manager may reassign any case from one judge to another to ensure compliance with the resolution hearing requirements of sections 401 and 401.1 of the act (77 P. S. §§ 701 and 710). The Judge Manager will notify both judges of the reassignment.
(g) The judge conducting the resolution hearing will require proof that a petition has been filed with the Department under § 131.11 (relating to filing, service and proof of service), and will make the proof a part of the record. Upon receiving the proof, the judge shall proceed with the hearing and circulate a final decision within 5 business days of the hearing.
(h) The assigned judge need not comply with the procedures in this rule if any party is unable to proceed within the time limits established by the act for resolution hearings.
(i) Subsections (a)—(h) supersede 1 Pa. Code §§ 31.21—31.23, 35.48—35.51, 35.111—35.116, 35.185, 35.201—35.207 and 35.226.
EXCHANGE OF INFORMATION AND DEPOSITIONS AND DISCOVERY § 131.63. Time for taking oral depositions.
(a) An oral deposition may be taken at any time subsequent to 30 days after the date of assignment of the petition by the Department.
(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 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 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 judge in writing within 21 days after the conduct of the hearing or deposition at which the testimony to be rebutted or surrebutted has been given.
(e) Depositions for rebuttal or surrebuttal shall be taken in accordance with § 131.53(e) (relating to procedures subsequent to the first hearing).
(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 the judge's rulings.
(g) Subsections (a)—(f) supersede 1 Pa. Code §§ 35.145—35.152, 35.161 and 35.162.
SUBPOENAS § 131.81. Subpoenas.
(a) Upon written or electronic request of a party or counsel of record in a pending proceeding, the 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 complete the subpoena and 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) Subpoenas may not be served until 10 days from the date of issuance unless waived by agreement of the parties.
(c) The party, counsel of record or their respective agents requesting a subpoena shall serve the subpoena that the judge has issued upon the witness or person subpoenaed and upon opposing counsel.
(1) Service shall be made by one of the following:
(i) Personal service under the Pennsylvania Rules of Civil Procedure.
(ii) 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).
(2) 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 1 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).
(d) 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, promptly quash or limit the scope of a subpoena issued or served.
(e) If the person fails to appear, or has given notice of the intention not to appear, as required by a subpoena duly served, the 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).
(f) Subsections (a)—(e) 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 judge to whom the case has been assigned.
(b) The judge may issue a decision based on stipulations of fact, if the judge is satisfied that:
(1) The stipulations of fact are fair and equitable to the parties involved.
(2) The claimant understands the stipulations of fact and the effect of the stipulations of fact on future payments of compensation and medical expenses.
(3) The stipulation shall be signed and dated by the claimant, all counsel participating in the agreement and the employer, when unrepresented.
(4) The stipulation states which petitions are being resolved and which petitions are not being resolved.
(5) The stipulation states whether each petition should be withdrawn, granted or dismissed, and whether the parties are requesting an interlocutory or a final order.
(c) Subsections (a) and (b) supersede 1 Pa. Code § 35.155 (relating to presentation and effect of stipulations).
Subchapter D. PROCEEDINGS
INVOLVING THE UEGFSec.
131.201. Petitions. 131.202. First hearing information and stay. 131.203. Hearing procedures. 131.204. UEGF subpoenas and interrogatories. § 131.201. Petitions.
(a) All references to petitions in this subchapter are as defined under § 131.5 (relating to definitions).
(b) Subsection (a) supersedes 1 Pa. Code § 31.3 (relating to definitions).
§ 131.202. First hearing information and stay.
(a) At the first hearing on a claim petition where no UEGF claim petition has been filed and there is either no insurer listed on the notice of assignment or the listed insurer files a motion to dismiss for lack of coverage, the judge will inform the claimant on the record of the existence of the UEGF and give the claimant information about the UEGF, as provided by the Office of Adjudication.
(b) If the claimant informs the judge on the record that he may wish to file a UEGF claim petition, the judge will stay the proceeding in the claim petition until 20 days after the assignment of the UEGF claim petition. The stay may not apply to the exchange of information referenced in § 131.61 (relating to exchange of information).
(c) If no UEGF claim petition is filed within 45 days of the first hearing, the claim petition will proceed against the uninsured employer.
(d) If the claimant informs the judge on the record that he does not wish to file a UEGF claim petition, testimony may be taken as directed by the judge.
(e) In the interests of judicial economy and due process to have all parties joined as soon as possible, and in recognition of the uniqueness of the UEGF from other types of workers' compensation litigation, this section cannot be waived or modified as otherwise provided in § 131.3 (relating to waiver and modification of rules).
(f) Subsections (a)—(e) supersede 1 Pa. Code §§ 33.61, 35.18, 35.123—35.128, 35.187 and 35.188.
§ 131.203. Hearing procedures.
(a) If the UEGF requests live testimony of witnesses before the judge, the judge will schedule such hearings to accommodate the request, unless denied for good cause shown and stated on the record.
(b) Subsection (a) supersedes 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.
§ 131.204. UEGF subpoenas and interrogatories.
(a) The judge may issue subpoenas, order testimony or compel the completion of written interrogatories with respect to the alleged uninsured employer's financial history, condition or ability to pay an award.
(b) The judge may compel the attendance of all parties at mediation.
(c) Subsections (a) and (b) supersede 1 Pa. Code §§ 35.111—35.116, 35.137—35.147, 35.150, 35.161, 35.162, 35.187 and 35.188.
[Pa.B. Doc. No. 14-2617. Filed for public inspection December 19, 2014, 9:00 a.m.]
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