PROPOSED RULEMAKING
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 the Workers' Compensation Judges
[32 Pa.B. 1518] The Department of Labor and Industry (Department), Bureau of Workers' Compensation (Bureau), proposes amendments to clarify and provide detailed guidance for practice and procedure before workers' compensation judges (''judges,'' formerly ''referees'') and the Workers' Compensation Appeal Board (the ''Board,'' formerly, the ''Workmen's Compensation Appeal Board''). The Department also proposes to amend 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) (Rules) to provide additional guidance for the litigation of matters before judges and the Board, and to refine existing regulations governing practices and procedures before judges and the Board.
Statutory Authority
The Department proposes these Rules under the authority contained in sections 401.1 and 435(a) and (c) of the Workers' Compensation Act (act) (77 P. S. §§ 710 and 991(a) and (c)), and section 2205 of The Administrative Code of 1929 (71 P. S. § 565), as well as section 414 of the 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 consisted of workers' compensation judges, as well as equal numbers of representatives of the claimant's and defense bar and representatives of the Department. This committee was reactivated in 1987 to revise the existing rules. These revisions were published in 1991 and this rulemaking is intended to amend the 1991 publication. The committee, composed of the same general representation, again met in 1996 to review the Rules because of amendments to the act. The committee wanted to incorporate legislative amendments and changes in workers' compensation jurisprudence which occurred since the 1991 publication. Since assembling in 1996, the committee has established various subcommittees to review various subchapters and specific provisions of the regulations. From 1991 to the present, the committee received written comments from various parties suggesting changes to the 1991 publication of the Rules. The commentators included members of the bar and representatives of various parties who litigate within the Pennsylvania workers' compensation system. The committee as a whole reviewed these comments and forwarded the meritorious comments to subcommittees for further review and analysis. In response, the various subcommittees issued written reports regarding the recommended changes. Thereafter, the committee as a whole drafted proposed revisions which have been incorporated into this rulemaking.
Similarly, the committee allowed interested parties an opportunity to address the committee. Since at least 1996, the committee has undertaken an outreach program through announcements and addresses at workers' compensation section meetings of the Pennsylvania Bar Association, which met at least annually. In March 1998, the committee circulated its first draft of these proposed amendments to the Rules. Additionally, the committee has met with the Workers' Compensation Advisory Council (Council). In a meeting on September 17, 1998, the committee explained to the Council the committee's purpose and the process by which it reviewed commentary or suggested regulatory amendments.
The Department previously submitted these regulations for review as a final-omitted rulemaking on November 16, 2001, and withdrew this final-omitted rulemaking on December 7, 2001.
Purpose
These proposed amendments clarify and expedite the hearing and determination of matters in the workers' compensation system and update existing regulations to ensure timely and fair disposition of matters as required by the act. The present Rules have not been comprehensively reviewed since at least 1991. Since that time, the act has been amended on at least three occasions. See the act of July 2, 1993 (P. L. 190, No. 44) (Act 44); act of February 23, 1995 (P. L. 1, No. 1) (Act 1); and the act June 24, 1996 (P. L. 350, No. 57) (Act 57). These proposed amendments incorporate changes made necessary by these legislative amendments and ensure that parties will continue to be advised of up-to-date rules for practice and procedures before judges and the Board.
Affected Persons
Those affected by these proposed amendments include workers' compensation judges, Workers' Compensation Appeal Board Commissioners and officials, employees of the Department of Labor and Industry, Bureau of Workers' Compensation and Workers' Compensation Appeal Board, and attorneys and litigants in the Pennsylvania workers' compensation system.
Fiscal Impact
There is no significant impact associated with this proposed rulemaking. However, the proposed amendments may provide the following savings to the regulated community: (1) reduced travel costs, as hearings may now take place electronically; (2) reduced copying costs, reflecting the regulations' reduced copy requirements; and (3) reduced overall litigation expenses attributable to the more expeditious process defined by the regulations.
Summary of Proposed Rulemaking
These proposed amendments clarify and provide detailed guidance for practice and procedure before workers' compensation judges and the Worker's Compensation Appeal Board.
Chapter 111
Special Rules of Administrative Practice and Procedure before the Workers' Compensation Appeal Board The Department proposes to amend Chapter 111 by removing all references to the ''Workmen's Compensation Appeal Board'' and substituting ''Workers' Compensation Appeal Board.''
Similarly, the Department proposes to amend § 111.3 (relating to definitions) to clarify that documents are properly filed and served by mail only upon deposit in the United States mail as evidenced by a United States Postal Service postmark.
The Department proposes to amend:
Section 111.11 (relating to content and form) to provide for cross appeals.
Section 111.12 (relating to filing, service and proof of service) to provide that two copies of an appeal or a cross appeal, rather than four, must be filed with the Board.
Section 111.13 (relating to process of appeals and cross appeals) to provide for cross appeals.
Section 111.14 (relating to motions to quash) to clarify that a motion to quash may be filed within 20 days of service of the appeal or the cross appeal, and that two copies of a motion to quash, rather than four, must be filed with the Board.
Section 111.15 (relating to no other pleadings allowed) to provide for cross appeals.
Section 111.16 (relating to briefs: time for filing and content) to provide that petitioner's brief must be filed before oral argument, or, if oral argument is waived, within 30 days of the date of the Board's acknowledgment of receipt of the appeal. Also, the Department proposes to amend § 111.16 to provide that respondent's brief must be filed 30 days after oral argument, and that two copies of briefs, rather than four, must be filed with the Board.
Section 111.17 (relating to oral argument) to clarify that oral argument will be scheduled by the Secretary of the Board, rather than established by the closing of the briefing schedule. The proposed amendment also provides for cross appeals.
Section 111.18 (relating to decisions of the Board) to provide for cross appeals.
Section 111.21 (relating to form/content) to clarify that a request for supersedeas must be filed as a separate petition from the appeal, and to set forth the criteria for determining whether supersedeas is appropriate.
Section 111.22 (relating to filing) to provide that only two copies of a request for supersedeas, rather than four, must be filed with the Board. The proposed amendments also provide that a request for supersedeas shall be filed within the time set for appealing the judge's decision.
Section 111.23 (relating to answers) to provide that only two copies of an answer, instead of four, shall be filed with the Board.
Section 111.24 (relating to disposition of request for supersedeas) to clarify that the Board will rule on requests for supersedeas within 20 days of the date when the answer is due, regardless of when the answer is received.
Section 111.31 (relating to applicability) to remove references to sections 306(f) and 314 of the act (77 P. S. §§ 531(f) and 651) as these sections of the act have been amended.
Section 111.32 (relating to form/content) to provide that only two copies of petitions and requests, rather than four, must be filed with the Board.
Section 111.33 (relating to specific petitions/requirements) to remove references to section 314 of the act as this section of the act has been amended.
Section 111.34 (relating to answers to petitions) to provide that two copies of an answer, rather than four, must be filed with the Board.
Chapter 111 by removing all references to ''referees'' and substituting ''judges.'' Similarly, the Department proposes to amend Chapter 111 by specifically superseding each applicable General Rule of Administrative Practice and Procedure.
Chapter 131
Special Rules for Administrative Practice and Procedure before Workers' Compensation Judges The Department, through this proposed rulemaking, proposes to:
Amend § 131.5 (relating to definitions) to include definitions for the following terms: ''Bureau record,'' ''insurer'' and ''judge.'' In addition, this proposed rulemaking deletes the following terms: ''close of the record'' and ''referee.'' The proposed amendments to this section are intended to define terms used throughout this chapter and remove definitions for terms that these amendments have eliminated in this chapter.
Amend § 131.11 (relating to filing, service and proof of service) to clarify that items required to be served upon a party must also be served upon the party's attorney in the same manner as the party is served, and that documents are properly filed and served by mail only upon deposit in the United States mail as evidenced by a United States Postal Service postmark.
Add § 131.15 (relating to computation of time). To promote consistency, these proposed amendments adopt the method of calculation currently utilized in proceedings under the General Rules of Administrative Practice and Procedure.
Add § 131.24 (relating to recusal of judge). The proposed amendments require that the judge hold a hearing regarding a motion for recusal and issue a decision within 15 days following receipt of the evidentiary hearing transcript and post-hearing submissions. The proposed amendment also provides that decisions on motions for recusal are interlocutory unless certified for immediate appeal.
Add § 131.30 (relating to consolidation) to provide a mechanism for a judge to consolidate proceedings involving a common question of law or fact and to provide for the expeditious and economical disposition of proceedings.
Amend § 131.31 (relating to form of pleadings) to clarify that all proceedings, with the exception of challenges under sections 413(c) and 413(d) of the act (77 P. S. §§ 774.2 and 774.3), shall be initiated by petition.
Amend § 131.32 (relating to petitions except petitions for joinder and challenge proceedings) to provide that petitions shall be on a Bureau petition form. In addition, these proposed amendments clarify that the number of copies required shall be as prescribed on the Bureau form. Additionally, the proposed amendments require that the facts on which a cause of action or defense is based shall be stated in a concise and summary form.
Amend § 131.33 (relating to answers except answers to petitions for joinder and challenge proceedings) to clarify that a failure to answer a claim petition within 20 days of assignment of the petition shall result in the admission of all allegations of the claim petition, and that answers must specifically admit or deny the averments of each paragraph of the petition, where applicable. The proposed amendments further clarify that all petitions other than claim petitions may be answered within 20 days after assignment by the Bureau. Further, these proposed amendments specify the form and number of answers, as well as service requirements for answers.
Amend § 131.36 (relating to joinder) to require that the petition for joinder have attached to it a list of the dates and locations of all prior hearings held and depositions taken, to require that an original and the number of copies specified on the Bureau petition for joinder form be filed and to provide that answers to petitions for joinder may be filed within 20 days following service of the petition for joinder.
Amend this chapter to add § 131.40 (relating to frivolous pleadings) to provide a mechanism for the dismissal or other disposition of frivolous pleadings.
Amend § 131.50 (relating to return to work-modification or suspension) to clarify that the form utilized under this section shall be the form prescribed by the Bureau.
Amend § 131.52 (relating to first hearing procedures) to clarify the chapter's purpose of providing a fair and prompt hearing process, and of allowing all parties to introduce appropriate evidence and to receive a timely decision from the judge. The Department also proposes to amend § 131.52 to reaffirm that, where practicable and appropriate, the entire record shall be completed at the first hearing. The proposed amendments further provide that the procedures utilized for hearings may differ based upon a number of factors and that the process ultimately utilized in any particular case is within the discretion of the judge.
Amend § 131.53 (relating to procedures subsequent to the first hearing) to provide that a party wishing to present rebuttal or surrebuttal testimony must notify the judge within 21 days after the initial testimony is presented, instead of notifying the judge within 14 days.
Amend this chapter to add § 131.53a (relating to consolidated hearing procedure) to provide a mechanism for the implementation of expedited hearing procedures including 1 day trials. The proposed amendments further provide that trial or deposition testimony may be taken from witnesses prior to a party's obligation to conduct medical depositions.
Amend § 131.54 (relating to manner and conduct of hearings) to clarify that hearings may, at the discretion of the judge, be conducted by telephone or other electronic means if the parties do not object. The proposed amendments also provide that a witness whose identity has not been revealed as provided in this chapter will not be permitted to testify on behalf of the defaulting party unless the testimony is allowed within the judge's discretion.
Amend § 131.55 (relating to attorney fees and costs) to provide for the calculation of quantum meruit fees, objections to these fees and the issuance of decisions awarding quantum meruit fees. The proposed amendments allow applicants for quantum meruit attorney fees to submit a detailed itemized calculation of these fees. The opposing party may then respond to the request within 15 days after service of the application. A decision on the fee award will be made on the application and response submitted, if any, and the record of the case. If deemed appropriate by the judge, a hearing may be held and evidence presented. The application and response will be made exhibits and must be served upon the judge, counsel and unrepresented parties according to § 131.34(a) (relating to other filings).
Amend this chapter to add § 131.57 (relating to compromise and release agreements) which delineates procedures for the filing and approval of compromise and release agreements under section 449 of the act (77 P. S. § 1000.5). The proposed amendments also provide that proposed compromise and release agreements, including the parties' stipulations, shall be recorded on a form prescribed by the Bureau, and that the parties may attach additional information to the form if circumstances so require. The proposed amendments further provide that a pending matter may, at the request of one or more parties, be amended to a Petition to Seek Approval of a Compromise and Release Agreement. Additionally, the proposed amendments clarify that compromise and release agreements are subject to an expedited resolution, and that the judge will circulate a decision within 30 days after a hearing on the compromise and release agreement.
Add § 131.58 (relating to informal conferences) which provides procedures for requesting and participating in informal conferences. The proposed amendments provide that requests for informal conferences shall be recorded on a form prescribed by the Bureau, and shall be filed with the judge to whom a pending petition has been assigned. If no petition is pending, a petition and the request for informal conference shall be filed with the Bureau.
Amend § 131.61 (relating to exchange of information) to clarify that digital recordings, including CD ROMs and diskettes, are included in the types of information which must be exchanged prior to the first hearing. Additionally, the proposed amendments clarify the requirement that the moving party provide this information prior to the first hearing and that the respondent provide it within 45 days after the first hearing. The proposed amendments also provide that information that was not exchanged prior to the first hearing, which becomes available after the times set forth in subsection (b), must be provided within 15 days after a party's receipt of the item or information. Formerly, this section required disclosure of the material within 10 days of receipt. Finally, the proposed amendments provide that witnesses may not be permitted to testify and statements, documents or other records may be excluded if a party fails to comply with this section.
Amend § 131.62 (relating to oral depositions) to provide that the deposition of a party may only be taken upon approval of the judge and, if taken, may be used only for evidence. The proposed amendments also provide that depositions may be taken by other electronic means, in addition to the telephone, upon motion as directed by the judge, in addition to being taken upon agreement of counsel of record and unrepresented parties.
Amend § 131.63 (relating to time for taking oral depositions) to provide that a party wishing to present depositions for rebuttal or surrebuttal must notify the judge within 21 days, rather than 14 days, after the hearing or deposition at which the initial testimony was given.
Amend § 131.64 (relating to notice of oral depositions) to provide that the notice of oral deposition shall be served at least 20 days, rather than 15 days, prior to the date scheduled for the taking of the deposition and to provide notice that objections must be mailed or delivered at least 10 days, rather than 7 days, before the deposition.
Amend § 131.65 (relating to objections to taking of oral depositions) to provide that objections to an oral deposition must be served no later than 10 days, rather than 7 days, prior to the scheduled date of the deposition.
Amend § 131.81 (relating to subpoenas) to clarify that digital recordings, including CD ROMS and diskettes, are among the items subject to subpoena. The Department proposes to amend this section to provide that service of a subpoena under this section shall be made by personal service, by any form of mail requiring a return receipt, postage prepaid and restricted delivery, or by first-class United States mail as provided in § 131.11(b). Further, the Department proposes to amend this section to require that witness fees for witness testimony and travel: (1) be tendered upon the witness's demand at the time of the service of the subpoena; or (2) accompany the subpoena if served by mail. 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).
Amend § 131.101 (relating to briefs, findings of fact and close of record) to set forth that the record is closed when the parties have submitted all of their evidence and rested, or when the judge has closed the evidentiary record on a party's motion or on the judge's own motion. The proposed amendments also provide that the judge may hold open the record if the judge determines that additional hearings are necessary, additional evidence needs to be submitted, or if the judge schedules additional written or oral argument, the evidentiary record may be held open by the judge. Any party may move to close the record and all other parties shall advise the judge within 20 days as to whether the evidentiary record is closed or whether there is additional evidence to be submitted. The proposed amendments further provide for certification of the record at or before the filing of proposed findings of fact, conclusions of law or briefs. The proposed amendments provide that the judge will specify the contents of the evidentiary record in the decision.
Amend § 131.102 (relating to oral argument) to clarify that a party may request oral argument any time prior to the submission of its proposed findings of fact, conclusions of law or brief. If these submissions are not filed, a party may request oral argument prior to the close of the evidentiary record.
Amend § 131.112 (relating to correction or amendment of decision) to clarify that a judge may correct an ''obvious omission or error'' either on the judge's motion or on the motion of one or both parties.
Amend 131.121 (relating to penalty proceedings initiated by a party) to clarify that answers may be filed as provided in § 131.33. Additionally, the proposed amendments specify that penalty proceedings may be initiated by petition or by motion on the record of a pending proceeding. Further, the proposed amendment provides that a party complaining of a violation of the act or this chapter bears the burden of proving the violation.
Amend Chapter 131 by removing all references to ''referees'' and substituting ''judges.'' Similarly, the Department proposes to amend Chapter 131 by specifically superseding each applicable General Rule of Administrative Practice and Procedure.
Reporting, Recordkeeping and Paperwork Requirements
The proposed amendments do not require the creation of any new forms. Existing forms relating to practice before the Board and judges require few modifications. Therefore, the proposed amendments do not impose any additional reporting, recording or paperwork requirements on either the Commonwealth or the regulated community.
Effective Date
These proposed amendments will be effective on publication in the Pennsylvania Bulletin.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on March 7, 2002, the Department submitted a copy of this proposed rulemaking to the Independent Regulatory Review Commission (IRRC) and the Chairpersons of the Senate Committee on Labor and Industry and the House Labor Relations Committee. In addition to submitting the proposed rulemaking, the Department has provided IRRC and the Committees with a copy of a detailed Regulatory Analysis Form prepared by the Department.
Under section 5(g) of the Regulatory Review Act (71 P. S. § 745.5(g)), if IRRC has objections to any portion of the proposed rulemaking, it shall notify the Department within 10 days after the expiration of the Committees' review period. The notification shall specify the regulatory review criteria that have not been met by the portion of the proposed rulemaking to which an objection is made. The Regulatory Review Act specifies detailed procedures for review, prior to final-form publication of the regulations, by the Department, the General Assembly and the Governor of objections raised.
Contact Persons and Public Comment
The contact persons are: (1) Elizabeth A. Crum, Director of Adjudication, Bureau of Workers' Compensation, Department of Labor and Industry, 1171 South Cameron Street, Room 324, Harrisburg, PA 17104-2501 (717) 783-5421; and (2) Susan McDermott, Chairperson, Workers' Compensation Appeal Board, 1712 State Office Building, 1400 Spring Garden Street, Philadelphia, PA 19130 (215) 560-4583.
Interested persons may submit written comments to Elizabeth A. Crum, Director of Adjudication, Bureau of Workers' Compensation, Department of Labor and Industry, WCAB/WCJ Regulations Comments, P. O. Box 15121, Harrisburg, PA 17106, within 30 days of the publication of this proposed rulemaking in the Pennsylvania Bulletin. Written comments received by the Department may be made available to the public.
JOHNNY J. BUTLER,
SecretaryFiscal Note: 12-61. No fiscal impact; (8) recommends adoption.
Annex A
TITLE 34. LABOR AND INDUSTRY
PART VII. [WORKMEN'S] WORKERS' COMPENSATION APPEAL BOARD
CHAPTER 111. SPECIAL RULES OF ADMINISTRATIVE PRACTICE AND PROCEDURE BEFORE THE [WORKMEN'S] WORKERS' COMPENSATION APPEAL BOARD
Subchapter A. GENERAL PROVISIONS § 111.1. Scope [of chapter].
(a) This chapter applies to proceedings before the Board under the act and the Disease Law. [Insofar as practicable, this chapter applies to proceedings pending on or after April 8, 1989.]
(b) Subsection (a) supersedes 1 Pa. Code § 31.1 (relating to scope of part).
§ 111.2. Applicability of [general rules] General Rules of Administrative Practice and Procedure.
(a) [The General Rules of Administrative Practice and Procedure set forth in 1 Pa. Code Part II, are not applicable to the activities of and proceedings before the Board. This chapter is intended to supersede the General Rules of Administrative Practice and Procedure and establish special rules for practice before the Board.] This chapter is intended to supersede 1 Pa. Code Part II (relating to General Rules of Administrative Practice and Procedure). The General Rules of Administrative Practice and Procedure are not applicable to activities of and proceedings before the Board.
(b) [The following sections of the General Rules of Administrative Practice and Procedure are not applicable to activities of and proceedings before the Board:
(1) 1 Pa. Code § 31.4 (relating to information and special instructions).
(2) 1 Pa. Code § 31.5(c) and (d) (relating to communications and filings generally).
(3) 1 Pa. Code § 31.6 (relating to amendments to rules).
(4) 1 Pa. Code § 31.11 (relating to timely filing required).
(5) 1 Pa. Code § 31.12 (relating to computation of time).
(6) 1 Pa. Code § 31.13 (relating to issuance of agency orders).
(7) 1 Pa. Code § 31.14 (relating to effective dates of agency orders).
(8) 1 Pa. Code § 31.15(b) (relating to extensions of time).
(9) 1 Pa. Code § 31.21 (relating to appearance in person).
(10) 1 Pa. Code § 31.22 (relating to appearance by attorney).
(11) 1 Pa. Code § 31.23 (relating to other representation prohibited at hearings).
(12) 1 Pa. Code § 31.24 (relating to notice of appearance).
(13) 1 Pa. Code § 31.25 (relating to form of notice of appearance).
(14) 1 Pa. Code § 31.27 (relating to contemptuous conduct).
(15) 1 Pa. Code § 31.28 (relating to suspension and disbarment).
(16) 1 Pa. Code § 33.2 (relating to form).
(17) 1 Pa. Code § 33.3 (relating to incorporation by reference).
(18) 1 Pa. Code § 33.4 (relating to single pleading or submittal covering more than one matter).
(19) 1 Pa. Code § 33.11 (relating to execution).
(20) 1 Pa. Code § 33.12 (relating to verification).
(21) 1 Pa. Code § 33.21 (relating to filing fees).
(22) 1 Pa. Code § 33.22 (relating to mode of payment of fees).
(23) 1 Pa. Code § 33.23 (relating to copy fees).
(24) 1 Pa. Code § 33.33 (relating to effect of service upon an attorney).
(25) 1 Pa. Code § 33.34 (relating to date of service).
(26) 1 Pa. Code § 33.41 (relating to amendments).
(27) 1 Pa. Code § 33.42 (relating to withdrawal or termination).
(28) 1 Pa. Code § 33.51 (relating to docket).
(29) 1 Pa. Code § 33.61 (relating to applications for waiver of formal requirements).
(30) 1 Pa. Code § 35.1 (relating to applications generally).
(31) 1 Pa. Code § 35.2 (relating to contents of applications).
(32) 1 Pa. Code § 35.5 (relating to form and content of informal complaints).
(33) 1 Pa. Code § 35.6 (relating to correspondence handling of informal complaints).
(34) 1 Pa. Code § 35.7 (relating to discontinuance of informal complaints without prejudice).
(35) 1 Pa. Code § 35.9 (relating to formal complaints generally).
(36) 1 Pa. Code § 35.10 (relating to form and content of formal complaints).
(37) 1 Pa. Code § 35.11 (relating to joinder of formal complaints).
(38) 1 Pa. Code § 35.14 (relating to orders to show cause).
(39) 1 Pa. Code § 35.18 (relating to petitions for issuance, amendment, waiver, or repeal of regulations).
(40) 1 Pa. Code § 35.19 (relating to petitions for declaratory orders).
(41) 1 Pa. Code § 35.20 (relating to appeals from actions of the staff).
(42) 1 Pa. Code § 35.23 (relating to protest generally).
(43) 1 Pa. Code § 35.24 (relating to effect of protest).
(44) 1 Pa. Code § 35.27--35.30 (relating to initiation of intervention; eligibility to intervene; form and contents of petitions to intervene; and filing of petitions to intervene).
(45) 1 Pa. Code § 35.45 (relating to consolidation).
(46) 1 Pa. Code § 35.48--35.51 (relating to amendment and withdrawal of pleadings).
(47) 1 Pa. Code § 35.54 and 35.55 (relating to motions).
(48) 1 Pa. Code Chapter 35 Subchapter B (relating to hearings and conferences).
(49) 1 Pa. Code Chapter 35 Subchapter C (relating to evidence and witnesses).
(50) 1 Pa. Code Chapter 35 Subchapter D (relating to motions).
(51) 1 Pa. Code Chapter 35 Subchapter E (relating to presiding officers).
(52) 1 Pa. Code § 35.191 (relating to proceedings in which briefs are to be filed).
(53) 1 Pa. Code Chapter 35 Subchapter G (relating to proposed reports).
(54) 1 Pa. Code § 35.221 (relating to briefs and oral arguments in absence of proposed report).
(55) 1 Pa. Code §§ 35.225 and 35.226 (relating to interlocutory orders; and final orders).
(56) 1 Pa. Code §§ 35.231--35.233 (relating to reopening of record).
(57) 1 Pa. Code § 35.241 (relating to application for rehearing or reconsideration).
(58) 1 Pa. Code § 35.251 (relating to reports of compliance).
(c) Subsections] Subsection (a) [and (b) supersede] supersedes 1 Pa. Code § [31.1] 31.4 (relating to [scope of part] information and special instructions).
§ 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 [Pennsylvania Workmen's] Workers' Compensation Act (77 P. S. §§ 1--[1031]1041.4 and 2501--2506).
Appeal--A proceeding to review a ruling or decision by a [referee] judge.
Board--The [Workmen's] Workers' Compensation Appeal Board.
* * * * * Filing--Delivery in person or by mail. If filing is by mail, it is deemed complete upon [depositing] deposit in the United States mail, [postage or charges prepaid,] as evidenced by [the] a United States Postal Service postmark, properly addressed, with postage or charges prepaid.
Judge--A workers' compensation judge assigned by the Bureau as provided in section 401 of the act (77 P. S. § 701) or assigned by the Bureau to determine a petition filed under the Disease Law.
* * * * * Petitioner--Anyone seeking to review a ruling or decision by a [referee] 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 [referee] judge or other than the moving party in any petition filed under Subchapter D.
Service--Delivery in person or by mail. If service is by mail, it is deemed complete upon [depositing] deposit in the United States mail, [postage or charges prepaid,] as evidenced by [the] a United States Postal Service postmark, properly addressed, with postage or charges prepaid.
(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 [to the Board] or cross appeal shall be filed with the Board on a form provided by the Board or on a form containing substantially the following information:
* * * * * (5) Identification of the [referee] judge whose decision is in question, including as an attachment, a copy of that [referee's] judge's decision.
(6) A proof of service as specified in § 111.12[(c)] (d) (relating to filing, service and proof of service).
(b) An appeal or a cross appeal shall be served on all parties and the [referee] judge.
* * * * * (d) [Subsection] Subsections (a)--(c) [supersedes] supersede 1 Pa. Code §§ 31.5 [(a) and (b) and], 33.1--33.4, 33.11, 33.12, 35.17 and 35.20 [(relating to communications and filings generally; and petitions generally)].
§ 111.12. Filing, service and proof of service.
(a) An original and [four] two copies of each appeal or cross appeal shall be filed. Only the original appeal shall have attached a copy of the [referee's] judge's decision which is in question as required by § 111.11(a)(5) (relating to content and form).
(b) The petitioner shall serve a copy of any appeal upon all parties and the [referee] judge.
(c) The respondent shall serve a copy of any cross appeal upon all parties and the judge.
[(c)] (d) The petitioner or respondent shall, concurrently with the filing of an appeal or a cross appeal, on a form prescribed by the Board or in substantial compliance therewith, file a proof of service with the Board containing:
* * * * * (2) The names of parties and [referee] judge served.
(3) The mailing address, the applicable zip code and the manner of service on the parties and [referee] judge served.
[(d) Subsection] (e) Subsections (a)--(d) [supersedes] supersede 1 Pa. Code §§ 31.26, 33.15, 33.21--33.23, 33.32, 33.33 and 33.35--33.37 [(relating to number of copies). Subsection (b) supersedes 1 Pa. Code § 31.26 (relating to service on attorneys). Subsection (c) supersedes 1 Pa. Code § 33.32 (relating to service by a participant). This section supersedes 1 Pa. Code §§ 33.35 and 33.36 (relating to proof of service; and form of certificate of service).]
§ 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. The date of acknowledgment will be 3 days subsequent to the date the acknowledgment is mailed.
(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) [Subsection] Subsections (a) and (b) [supersedes] 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 [following receipt of the acknowledgment described in § 111.13 (relating to processing of appeals). A motion to quash may be presented prior to the scheduling of oral argument so that the motion may be considered and decided at the time of oral argument] of service of the appeal or the cross appeal.
* * * * * (c) A motion to quash shall be accompanied by a proof of service conforming to § 111.12[(c)] (d) (relating to filing, service and proof of service), insofar as applicable.
* * * * * (e) An original and [four] two copies of a 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 Chapter 35, Subchapter D.
§ 111.15. No other pleadings allowed.
(a) Other than a motion to quash as set forth in [this subchapter] § 111.14 (relating to motions to quash) and a cross-appeal, as set forth in § 111.11 (relating to content and form), no answer or other pleading may be filed or considered in conjunction with an appeal or a cross appeal.
(b) Subsection (a) supersedes 1 Pa. Code §§ 31.24, 31.25, 33.41, 33.42, 33.61, 35.1, 35.2, 35.5--35.7, 35.9--35.11, 35.14, 35.18, 35.19, 35.23, 35.24, 35.27--35.30, 35.35--35.41, 35.48--35.51, 35.54, 35.55, 35.211, 35.213, 35.231, 35.241 and 35.251 [(relating to answers to complaints and petitions)].
§ 111.16. Briefs: time for filing and content.
(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 [by the Board] 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 [within] 30 days after [service of the brief of the petitioner] 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 request of a party, 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 [in advance of] at or before the date set for filing [of] that party's brief.
* * * * * (e) Briefs, except as otherwise allowed, shall consist of the following items, separately and distinctly set forth:
* * * * * (5) A proof of service as specified in § 111.12[(c)] (d) (relating to filing, service and proof of service).
(f) An original and [four] two copies of briefs shall be filed.
* * * * * (h) [Subsection (d) supersedes] Subsections (a)--(g)] supersede 1 Pa. Code §§ 31.15[(a)], 33.37, 35.212 and 35.221 [(relating to extensions of time)] and also supersede Chapter 35, Subchapter F. [Subsection (e) supersedes 1 Pa. Code § 35.192 (relating to content and form of briefs). Subsections (a), (b) and (e)(5) supersede 1 Pa. Code § 35.193 (relating to filing and service of briefs).]
§ 111.17. Oral argument.
(a) The Board will schedule oral argument in every appeal or cross appeal unless all parties to [that] the appeal or the cross appeal, upon receiving the acknowledgment of appeal or cross appeal, indicate that no oral argument is requested, or that it is waived.
(b) The Board will hear oral argument on appeals and cross appeals according to a schedule prepared in advance for each calendar year. Oral argument will be conducted in Harrisburg, Philadelphia and Pittsburgh and in other locations throughout this Commonwealth, as the Board may schedule, or, as is appropriate in the Board's judgment.
(c) Oral argument will be scheduled at the earliest possible date [following the close of the briefing schedule] under the schedule as established by the Secretary of the Board.
(d) Parties shall be advised as far in advance as possible of the date of oral argument by the acknowledgment of appeal or cross appeal as specified in § 111.13(b) (relating to processing of appeals and cross appeals).
* * * * * (h) Subsections (a)--(g) supersede 1 Pa. Code §§ 33.51, 35.204, 35.214 and 35.221.
§ 111.18. Decisions of the Board.
(a) The decision of the Board on an appeal and a cross appeal shall be issued as promptly as possible following oral argument or the receipt of briefs, whichever occurs later.
* * * * * (c) Decisions of the Board will be served on all parties and the [referee] judge from whose decision the appeal was taken.
(d) Subsections (a)--(c) supersede 1 Pa. Code §§ 31.13, 31.14, 35.201--35.207 and 35.226.
Subchapter C. SUPERSEDEAS ON APPEAL TO THE BOARD AND COURTS § 111.21. Form/content.
(a) A request for supersedeas shall [contain] be filed as a separate petition from the appeal and be accompanied by the following:
(1) A copy of the decision of the [referee] judge or order and opinion of the Board from which the supersedeas is requested.
* * * * * (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[(c)] (d) (relating to filing, service and proof of service), insofar as applicable.
* * * * * (c) [Subsection] Subsections (a) and (b) [supersedes] supersede 1 Pa. Code §§ 35.1, 35.2, 35.17, 35.190 and 35.225 [(relating to petitions generally)].
§ 111.22. Filing.
(a) A request for supersedeas shall be filed with the Board within the time allowed by law for appeal from the [referee's] judge's decision or Board order from which the supersedeas is requested.
(b) An original and [four] two copies of the request for supersedeas shall be filed. Only the original request for supersedeas shall have attached a copy of the [referee's] judge's decision or Board order from which the supersedeas is requested.
(c) A request for supersedeas not served as part of an appeal shall be served on all the parties and be accompanied by a proof of service as specified in § 111.12[(c)] (d) (relating to filing, service and proof of service), insofar as applicable, and shall be filed within the time limits specified in subsection (a).
(d) [Subsection (b) supersedes] Subsections (a)--(c) supersede 1 Pa. Code § 33.15 (relating to number of copies).
§ 111.23. Answers.
* * * * * (b) An original and [four] two copies of an answer shall be filed.
(c) An answer filed under this subsection shall be served on all [of the] parties.
(d) An answer filed under this subsection shall be accompanied by a proof of service as specified in § 111.12[(c)] (d) (relating to filing, service and proof of service), insofar as applicable.
(e) [Subsection (b) supersedes] Subsections (a)--(d) supersede 1 Pa. Code §§ 33.15 [(relating to number of copies)] and [generally supersedes 1 Pa. Code § ] 35.35 (relating to number of copies; and answers to complaints and petitions).
§ 111.24. Disposition of request for supersedeas.
* * * * * (b) The Board will rule on requests for supersedeas within 20 days of the date when the answer is due [or the answer is received, whichever occurs first], 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.
* * * * * [(2) A petition for further medical expenses under section 306(f) of the act in effect prior to May 1, 1972, if applicable.]
[(3)] (2) A petition for appointment of guardian under section 307 of the act (77 P. S. § 542).
[(4) ] (3) A petition alleging a meretricious relationship under section 307 of the act (77 P. S. § 562).
[(5) A request for physical examinations under section 314 of the act (77 P. S. § 651).]
[(6)] (4) A petition for commutation under section 316 of the act (77 P. S. § 604).
[(7)] (5) A petition under section 317 of the act (77 P. S. § 603).
[(8)] (6) A petition for rehearing under section 426 of the act (77 P. S. § 871).
[(9)] (7) A petition for attorney's fees under [sections] [section] 442 or 501 of the act (77 P. S. §§ 998 or 1021).
§ 111.32. Form/content.
(a) Petitions and requests shall contain and be accompanied by the following:
* * * * * (4) An explanation as to the status of the case, including the status of a pending appeal or petition before a [referee] judge, the Board or a court.
* * * * * (6) A proof of service as specified in § 111.12[(c)] (d) (relating to filing, service and proof of service), insofar as applicable.
(b) Petitions and requests shall be served on all parties and on the [referee] judge if the case is pending before a [referee] judge.
(c) An original and [four] two copies of petitions and requests shall be filed.
(d) [Subsection] Subsections (a)--(c) [supersedes] 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 [(relating to petitions generally)].
§ 111.33. Specific petitions/requirements.
(a) [A request for physical examinations under section 314 of the act (77 P. S. § 651), in addition to the information required by § 111.32(a) (relating to form/content) shall state:
(1) The date of the last examination of claimant by or at the request of the defendant, employer, insurer or self-insurer.
(2) The name, address and specialty of the physician proposed to perform the examination.
(3) The current address of the claimant.]
[(b)] A petition for commutation under section 316 of the act (77 P. S. § 604), in addition to the information required by § 111.32(a) (relating to form/content), shall have attached to it:
* * * * * [(c)] (b) A petition under section 317 of the act (77 P. S. § 603), in addition to the information required by § 111.32(a), shall have attached to it:
* * * * * [(d)] (c) Subsections (a) and (b) supersede 1 Pa. Code §§ 33.15, 35.17 and 35.155 (relating to number of copies; petitions generally; and presentation and effect of stipulations).
§ 111.34. Answers to petitions.
* * * * * (b) An original and [four] two copies of an answer shall be filed.
* * * * * (d) An answer filed shall be accompanied by a proof of service as specified in § 111.12[(c)] (d) (relating to filing, service and proof of service), insofar as applicable.
(e) [Subsection] Subsections (a)--(d) [supersedes] supersede 1 Pa. Code §§ 33.15 and 35.35 [(relating to answers to complaints and petitions) and subsection (b) supersedes 1 Pa. Code § 33.15] (relating to number of copies; and answers to complaints and petitions).
§ 111.35. Dispositions of petitions.
* * * * * (d) The Board may, if appropriate, or will, if required by law, refer a petition or request to a [referee] judge for conducting hearings, preparing findings or proposed orders. Thereafter, the petition or request shall, if appropriate or required, be returned to the Board.
(e) Subsections (a)--(d) supersede 1 Pa. Code Chapter 35, Subchapters B, C, E and I.
PART VIII. BUREAU OF WORKER'S COMPENSATION
CHAPTER 131. SPECIAL RULES OF ADMINISTRATIVE PRACTICE AND PROCEDURE BEFORE [REFEREES] WORKERS' COMPENSATION JUDGES
Subchapter A. GENERAL PROVISIONS § 131.1. Purpose.
(a) The purpose of this chapter is to promote, consistent with fairness and due process, the orderly and expeditious determination of proceedings before [referees] judges under the act and the Disease Law to implement the remedial intent of the act and the Disease Law.
(b) Subsection (a) supersedes 1 Pa. Code § 31.2 (relating to liberal construction).
§ 131.2. Scope.
(a) This chapter applies to proceedings before [referees] judges under the act and the Disease Law. [Insofar as practicable, this chapter applies to proceedings pending on March 30, 1991.]
(b) Subsection (a) supersedes 1 Pa. Code § 31.1 (relating to scope of part).
§ 131.3. Waiver and modification of rules.
(a) The [referee] judge may, for good cause, waive or modify a provision of this chapter upon motion of a party, agreement of all parties or upon the [referee's] judge's own motion.
(b) Subsection (a) supersedes 1 Pa. Code §§ 33.61, 35.18, 35.54 and 35.55 [(relating to petitions for issuance, amendment, waiver or deletion of regulations)] and also supersedes 1 Pa. Code Chapter 35, Subchapter D (relating to motions).
§ 131.4. Applicability of [general rules] General Rules of Administrative Practice and Procedure.
(a) This chapter is intended to supersede 1 Pa. Code Part II (relating to [general rules of administrative practice and procedure] General Rules of Administrative Practice and Procedure). The [general rules of administrative practice and procedure] General Rules of Administrative Practice and Procedure [are] do not [applicable] apply to activities of and proceedings before [referees] judges.
(b) [The following sections of the general rules of administrative practice and procedure are not applicable to activities of and proceedings before referees:
(1) 1 Pa. Code § 31.4 (relating to information and special instructions).
(2) 1 Pa. Code § 31.5(c) and (d) (relating to communications and filings generally).
(3) 1 Pa. Code § 31.6 (relating to amendments to rules).
(4) 1 Pa. Code § 31.13 (relating to issuance of agency orders).
(5) 1 Pa. Code § 31.14 (relating to effective dates of agency orders).
(6) 1 Pa. Code § 31.15(b) (relating to extensions of time).
(7) 1 Pa. Code § 31.21 (relating to appearance in person).
(8) 1 Pa. Code § 31.22 (relating to appearance by attorney).
(9) 1 Pa. Code § 31.23 (relating to other representation prohibited at hearings).
(10) 1 Pa. Code § 31.24 (relating to notice of appearance).
(11) 1 Pa. Code § 31.25 (relating to form of notice of appearance).
(12) 1 Pa. Code § 33.3 (relating to incorporation by reference).
(13) 1 Pa. Code § 33.4 (relating to single pleading or submittal covering more than one matter).
(14) 1 Pa. Code § 33.11 (relating to execution).
(15) 1 Pa. Code § 33.12 (relating to verification).
(16) 1 Pa. Code § 33.21 (relating to filing fees).
(17) 1 Pa. Code § 33.22 (relating to mode of payment of fees).
(18) 1 Pa. Code § 33.23 (relating to copy fees).
(19) 1 Pa. Code § 33.42 (relating to withdrawal termination).
(20) 1 Pa. Code § 33.51 (relating to docket).
(21) 1 Pa. Code § 33.61 (relating to applications for waiver of formal requirements).
(22) 1 Pa. Code § 35.1 (relating to applications generally).
(23) 1 Pa. Code § 35.2 (relating to contents of applications).
(24) 1 Pa. Code § 35.5 (relating to form and content of informal complaints).
(25) 1 Pa. Code § 35.6 (relating to correspondence handling of informal complaints.
(26) 1 Pa. Code § 35.7 (relating to discontinuance of informal complaints without prejudice).
(27) 1 Pa. Code § 35.11 (relating to joinder of formal complaints).
(28) 1 Pa. Code § 35.14 (relating to orders to show cause).
(29) 1 Pa. Code § 35.19 (relating to petitions for declaratory orders).
(30) 1 Pa. Code § 35.20 (relating to appeals from actions of the staff).
(31) 1 Pa. Code § 35.23 (relating to protest generally).
(32) 1 Pa. Code § 35.24 (relating to effect of protest).
(33) 1 Pa. Code §§ 35.27--35.32 (relating to intervention).
(34) 1 Pa. Code § 35.36 (relating to answers to petitions to intervene).
(35) 1 Pa. Code § 35.37 (relating to answers to orders to show cause).
(36) 1 Pa. Code § 35.38 (relating to respondents seeking affirmative relief).
(37) 1 Pa. Code § 35.39 (relating to replies to respondents seeking affirmative relief).
(38) 1 Pa. Code § 35.40 (relating to answers to amendments of pleadings).
(39) 1 Pa. Code § 35.41 (relating to satisfaction of complaints).
(40) 1 Pa. Code § 35.45. (relating to consolidation).
(41) 1 Pa. Code §§ 35.49--35.51 (relating to amendments to conform to the evidence; directed amendments; and withdrawal of pleadings).
(42) 1 Pa. Code § 35.54 and 35.55 (relating to motions as to complaint; and motions as to answer).
(43) 1 Pa. Code § 35.101--35.106, 35.111--35.116 and 35.121--35.128.
(44) 1 Pa. Code § 35.161 (relating to form and admissibility of evidence).
(45) 1 Pa. Code § 35.165 (relating to public documents).
(46) 1 Pa. Code § 35.166 (relating to prepared expert testimony).
(47) 1 Pa. Code § 35.168 (relating to form and size of documentary evidence).
(48) 1 Pa. Code § 35.173 (relating to official notice of facts).
(49) 1 Pa. Code Chapter 35 Subchapter D (relating to motions).
(50) 1 Pa. Code Chapter 35 Subchapter E (relating to presiding officers).
(51) 1 Pa. Code Chapter 35 Subchapter G (relating to proposed reports).
(52) 1 Pa. Code Chapter 35 Subchapter H (relating to agency action).
(53) 1 Pa. Code § 35.226 (relating to final orders).
(54) 1 Pa. Code §§ 35.231--35.233 (relating to reopening of record).
(55) 1 Pa. Code § 35.241 (relating to application for rehearing or reconsideration).
(56) 1 Pa. Code § 35.251 (relating to application for rehearing or reconsideration).]
Subsection (a) supersedes 1 Pa. Code § 31.4 (relating to information and special instructions).
[(c) Subsections (a) and (b) supersede 1 Pa. Code § 31.1 (relating to scope of part).]
§ 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 [Pennsylvania Workmen's] Workers' Compensation Act (77 P. S. §§ 1--[1031] 1041.4 and 2501--2506).
* * * * * Bureau record--Official copies of documents received by the Bureau, on forms prescribed by the Bureau, if forms prescribed by the Bureau are available, or official copies of documents received by the Bureau on forms prepared by a party if no forms prescribed by the Bureau are available, which record transactions between the parties and which are determined by the judge to pertain to the case.
* * * * * [Close of the record--That date as established by the referee, of which the parties are advised, on which the record will be deemed closed.]
* * * * * Insurer--A workers' compensation insurance carrier or self-insured employer, as applicable.
Judge--A workers' compensation judge assigned by the Bureau as provided in section 401 of the act (77 P. S. § 701) or assigned by the Bureau to determine a petition filed under the Disease Law.
* * * * * 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--[1928.110] 1928.1027 (relating to Occupational Safety and Health Administration, Department of Labor).
[Referee--A workers' compensation referee assigned by the Bureau as provided in section 401 of the act (77 P. S. § 701) or assigned by the Bureau to determine a petition filed under the Disease Law.]
* * * * * (b) Subsection (a) supersedes 1 Pa. Code §§ 31.3 and 33.33 (relating to definitions; and effect of service upon an attorney) [; various sections of 1 Pa. Code Part II (relating to general rules of administrative practice and procedure); and specifically, the term ''party'' supersedes 1 Pa. Code § 33.33 (relating to effect of service upon an attorney)].
[Continued on next Web Page]
No part of the information on this site may be reproduced for profit or sold for profit.This material has been drawn directly from the official Pennsylvania Bulletin full text database. Due to the limitations of HTML or differences in display capabilities of different browsers, this version may differ slightly from the official printed version.
