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PA Bulletin, Doc. No. 19-487

PROPOSED RULEMAKING

DEPARTMENT OF
LABOR AND INDUSTRY

[ 34 PA. CODE CH. 111 ]

Special Rules of Administrative Practice and Procedure Before the Workers' Compensation Appeal Board

[49 Pa.B. 1661]
[Saturday, April 6, 2019]

 The Department of Labor and Industry (Department), Workers' Compensation Appeal Board (WCAB) proposes to amend 34 Pa. Code Chapter 111, Subchapter B (relating to appeals) to streamline the hearing and disposition of appeals to the WCAB.

Statutory Authority

 The Department proposes these amendments 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).

Background

 The WCAB's regulations currently require oral argument in all appeals and cross appeals unless the parties agreed to submission on briefs. See 34 Pa. Code §§ 111.13(b) and 111.17(a) (relating to processing of appeals and cross appeals; and oral argument). Moreover, these regulations require the petitioner's brief to be filed at or before the date of the oral argument, while the respondent's brief is due 30 days after oral argument. See 34 Pa. Code § 111.16(a) and (b) (relating to briefs: content and form and time for filing). The petitioner generally is the party seeking to review a ruling or decision by a workers' compensation judge, while the respondent is the party or parties in whose favor the matter was decided by the judge. 34 Pa. Code § 111.3(a) (relating to definitions) specifically regarding the definitions of ''petitioner'' and ''respondent.''

 The current briefing and oral argument requirements significantly delay the consideration and disposition of appeals. Oral arguments are scheduled more frequently in major population areas and less frequently in other areas. As a result, there is greater delay in processing appeals from a petitioner in less-populated areas where oral arguments are only held two or three times a year. Consequently, the appeal is not placed in line for decision until after the oral argument and the receipt of briefs. Under current practice, the WCAB's rules further permit oral request for extensions of the petitioner's brief at oral argument, 34 Pa. Code § 111.16(c), thereby facilitating additional delay in case processing. The average time for decision on appeals to the WCAB was approximately 471 days in 2015, 347 days in 2016 and 334 days in 2017.

 The present requirement for oral argument in every case increases the WCAB's travel, lodging and meal expenses, as well as the parties' expenses to the extent that they or their attorneys must attend the arguments. The WCAB generally conducts six argument sessions a year in both Pittsburgh and Philadelphia, four in Harrisburg and Scranton, three in Johnstown, and two in Erie. The majority of these sessions are for multiple days. The WCAB's travel costs for fiscal year 2016-2017 totaled nearly $53,000. These expenses outweigh the benefit of argument in most cases, particularly since the WCAB does not have both parties' briefs prior to the argument, and may not even have either party's briefs if the petitioner requests an extension at argument. The developments in communication and computer technology have reduced the need for the WCAB members to meet in-person to hear arguments, discuss pending cases or circulate decisions for signature.

Compliance with Executive Order 1996-1

 The Department engaged in extensive public and stakeholder outreach during the drafting process. The Department sought comment from all participants in the workers' compensation system through its Workers' Compensation Automation and Integration System (WCAIS). WCAIS is the enterprise tool used regularly by every workers' compensation employer, insurer (or self-insurer) and legal practitioner to file and manage workers' compensation claims. Stakeholder input was also solicited through the Workers' Compensation Committee of the Pennsylvania Bar Association. Additionally, the Secretary of Labor and Industry reconstituted the Workers' Compensation Rules Committee, a committee originally established by the Secretary in 1978 for the purpose of obtaining comments on procedural rules governing the workers' compensation system. The Workers' Compensation Rules Committee voted on December 11, 2017, to approve the regulatory amendments outlined in Annex A.

 This proposed rulemaking was also presented to the Pennsylvania Workers' Compensation Advisory Council created under section 447 of the Workers' Compensation Act on January 10, 2017, for review and comment.

Purpose

 This proposed rulemaking eliminates the mandatory scheduling of oral argument in every case. Instead, the WCAB is given discretion to determine if oral argument is appropriate in select cases. Furthermore, oral argument will be conducted after briefs are submitted and may be conducted by telephone or other electronic means. These changes will streamline the processing and disposition of appeals, reduce the time for decision in most cases and achieve cost savings to both the WCAB and the parties.

Affected Persons

 The persons affected by this proposed rulemaking include the WCAB's Commissioners and staff, attorneys practicing before the WCAB, and parties to appeals filed with the WCAB. The parties in workers' compensation cases include injured employees, possibly their dependents in the case of a fatal injury, self-insured employers, employers typically represented by workers' compensation insurance companies and the Department's Bureau of Workers' Compensation representing special funds created under the act.

Fiscal Impact

 This proposed rulemaking is designed to reduce costs through reduced travel costs and litigation expenses, and will not result in increased costs to the public or private sectors. Because the workers' compensation system is funded through assessments on workers' compensation insurance carriers and self-insured employers, any savings realized in the administration of the system may result in savings to the regulated community through lowered assessments. See section 446 of the Workers' Compensation Act (77 P.S. § 1000.2) (creating the Workers' Compensation Administration Fund and providing for maintenance of the fund through an annual assessment).

Summary of Proposed Rulemaking

§ 111.13. Processing of Appeals and Cross Appeals.

 This section is amended to eliminate the automatic scheduling of oral argument upon appeals or cross appeals as prerequisite to the WCAB's consideration of the appeal. Instead, appeals will be determined on briefs and the record, unless the WCAB decides to conduct oral argument in a particular case.

§ 111.16. Briefs: Content and Form and Time for Filing.

 The proposed amendments to this section address the time for filing briefs. This section is amended to require that the petitioner's brief be filed within 30 days of the acknowledgement of receipt of appeal by the WCAB. The respondent's brief will be due 30 days after service of the petitioner's brief. A request for an extension of time to file a brief must indicate the other parties' position as to the request. The section is amended to eliminate references to oral argument.

 This section is also amended to permit a reply brief by petitioner. A reply brief must be filed within 15 days after service of respondent's brief. The amendments to this section further require parties that wish to request oral argument to include a short statement in the brief addressing the criteria for granting oral argument established in § 111.17.

§ 111.17. Oral Argument.

 The proposed amendments to this section allow oral argument to be scheduled at the WCAB's discretion, following the close of the briefing schedule, and authorizes oral argument to be conducted by telephone or other electronic means.

 In deciding whether to grant oral argument, this section is amended to set forth criteria that the WCAB will use. The criteria include the preference for granting oral argument where there is a substantial or novel issue, where the issue is of precedential value, where the WCAB seeks clarification of a legal or factual point or where intervening court decisions, legislation or regulation may impact on the resolution of the matter. It also provides circumstances in which the granting of oral argument is generally not appropriate, including untimely or frivolous requests, issues lacking specificity, issues that are not novel or are adequately briefed, and issues where there is clear precedent.

 This section is also amended to provide that where oral argument is scheduled, parties will be notified as far in advance as possible of the argument date.

§ 111.18. Decisions of the Board.

 This section is amended to delete current subsection (b), which consists of an obsolete reference to section 441 of The Administrative Code of 1929 (71 P.S. § 151). Section 441 was repealed through the Act of November 9, 2006 (P.L. 1362, No. 147) and replaced by section 401.2 of the Act, 77 P.S. § 710.1. Current subsections (c) and (d) respectively are re-lettered as subsections (b) and (c) in light of this deletion.

Reporting, Recordkeeping and Paperwork Requirements

 This proposed rulemaking does not require any new forms, and thus does not impose any additional reporting, recording or paperwork requirements on either the Commonwealth or the regulated community. They will reduce the need for the WCAB's staff to issue separate argument notices for all cases. The existing forms used by the WCAB to acknowledge appeals, notify parties of briefing requirements and oral argument may require minor modification since oral argument is no longer automatic; briefs are due before any oral argument granted by the WCAB in its discretion; and oral argument may be conducted by teleconference or other electronic means.

Sunset Date

 A sunset date is not appropriate for this proposed rulemaking. The WCAB will periodically monitor this proposed rulemaking and submit amendments as needed.

Effective Date

 This proposed rulemaking will be effective on publication of the final-form regulation in the Pennsylvania Bulletin.

Contact Person

 Interested persons are invited to submit written comments, suggestions or objections regarding this proposed rulemaking to Kelly K. Smith, Executive Deputy Chief Counsel, 651 Boas Street, Harrisburg, PA 17121, fax (717) 787-1303, kellysmith@pa.gov within 30 days after publication of this proposed rulemaking in the Pennsylvania Bulletin.

Regulatory Review

 Under section 5(a) of the Regulatory Review Act (71 P.S. § 745.5(a)), on March 27, 2019, the Department submitted a copy of this proposed rulemaking and a copy of a Regulatory Analysis Form to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the House and Senate Labor and Industry Committees. A copy of this proposed rulemaking is available to the public upon request.

 Under section 5(g) of the Regulatory Review Act, IRRC may convey any comments, recommendations or objections to this proposed rulemaking within 30 days of the close of the public comment period. The comments, recommendations or objections must specify the regulatory review criteria which have not been met. The Regulatory Review Act specifies detailed procedures for review, prior to final publication of this proposed rulemaking, by the Department, the General Assembly and the Governor of comments, recommendations or objections raised.

W. GERARD OLEKSIAK, 
Secretary

Fiscal Note: 12-105. No fiscal impact; (8) recommends adoption.

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 B. APPEALS

§ 111.13. Processing of appeals and cross appeals.

 (a) Upon receipt of an appeal or 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] determined on the briefs or record unless the Board decides, in its discretion, to conduct oral argument as set forth in § 111.17 (relating to oral argument).

 (c) Subsections (a) and (b) supersede 1 Pa. Code § 33.31 (relating to service by the agency).

§ 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 acknowledgement 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 within 30 days after [oral argument] service of the petitioner's brief. 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.

(b.1) If a petitioner desires to address issues raised in respondent's brief, the petitioner may file a reply brief. A reply brief on behalf of the petitioner shall be filed with the Board within 15 days after service of the respondent's brief.

 (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] for filing a brief before the date set for filing that party's brief. The request shall indicate the position of the other parties with respect to the request.

 (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.

(4.1) Where oral argument is requested, a short statement explaining the need for oral argument consistent with the criteria specified in § 111.17 (relating to oral argument).

 (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 §§ 31.35, 33.37, 35.212 and 35.221 and also supersede 1 Pa. Code Chapter 35, Subchapter F (relating to briefs).

§ 111.17. Oral Argument.

 (a) [The Board will schedule oral argument in every appeal or cross appeal unless all parties to the appeal or the cross appeal, upon receiving the acknowledgement of appeal or cross appeal, indicate that no oral argument is requested, or that it is waived.] Oral argument on an appeal or cross appeal may be scheduled at the discretion of the Board. In determining whether to schedule oral argument, the Board will apply the following criteria:

(1) Oral argument is generally unnecessary or inappropriate when:

(i) The request has not been timely filed.

(ii) The request is frivolous.

(iii) The request does not set forth the issue with clarity and specificity.

(iv) The issue is tightly constrained, not novel and the briefs adequately cover the arguments.

(v) The issue in controversy has clearly been decided by the courts.

(vi) The facts and legal arguments have been presented adequately in the record and accompanying briefs and oral argument would not be of significant assistance to the Board in the decisional process.

(2) A request for oral argument may be granted for any of the following reasons:

(i) The request presents a substantial or novel legal issue.

(ii) The resolution of the issue presented will be of institutional or precedential value.

(iii) The Board has asked counsel to clarify an important legal, factual or procedural point. In lieu of, or in combination with, the granting of a request for oral argument, the Board may request the participants to address these points in writing.

(iv) A court decision, legislation, regulation or an event subsequent to the filing of the last brief may bear significantly upon the matter. In lieu of, or in combination with, the granting of a request for oral argument, the Board may request the participants to address these issues in writing.

(v) An important public interest may be affected.

 (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.] Oral argument may be conducted in Harrisburg, Philadelphia, Pittsburgh or other locations in this Commonwealth, or by telephone or other electronic means, as the Board may determine.

 (c) [Oral] If allowed, oral argument will be scheduled at the earliest possible date [pursuant to the schedule as established by the Secretary of the Board] following the close of the briefing schedule.

 (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).] The Board will notify parties of the scheduling of oral argument as far in advance as possible of the argument date.

 (e) Oral argument shall consist of a presentation, including rebuttal, if necessary, by the petitioner and respondent.

 (f) A petitioner or respondent represented by counsel need not be present at oral argument.

 (g) Oral argument may be conducted before one or more members of the Board.

 (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.

[(b) Decisions of the Board on an appeal shall be issued under section 441 of the Administrative Code of 1929 (71 P.S. § 151).

(c)] (b) Decisions of the Board will be served on all parties and the judge from whose decision the appeal was taken.

[(d)](c) Subsections [(a)—(c)] (a) and (b) supersede 1 Pa. Code §§ 31.13, 31.14, 35.201—35.207 and 35.226.

[Pa.B. Doc. No. 19-487. Filed for public inspection April 5, 2019, 9:00 a.m.]



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