COVID-19 Workers' Compensation Updates
As Pennsylvania and the nation continue to implement mitigation efforts to slow the spread of COVID-19, the Department of Labor & Industry, Bureau of Workers' Compensation, Workers' Compensation Office of Adjudication, and Workers' Compensation Appeal Board have taken rapid and impactable measures to keep the workers' compensation system operating in Pennsylvania.
The following updates provide the current status, and future workers' compensation initiatives that will ensure the system maintains operation for all stakeholders.
The WCAIS system is a web-based system, so many staff members have the ability to work from home and continue to perform their daily functions.
WC claims are submitted through the electronic EDI process by insurers, so the bureau continues to receive, and process claims at the pre COVID-19 levels at BWC. All forms generated via an accepted EDI transaction will continue to generate and be returned via the same method as previously, which is electronic format, and automatically attached to the claim in WCAIS.
The filing of agreements and notifications of modification/suspension continue to be processed. We can expect short delays due to mail process delays so BWC staff are asking that all documents of this type be uploaded to WCAIS using the Actions Tab.
We can expect short delays in the response time for record requests due to mail handling – either by subpoena or regular request. Staff are working diligently to complete requests.
Responding to subpoenas will be our priority as we continue to keep the workers' compensation process moving forward. We are doing a WCAIS enhancement release on April 2, 2020, that will allow for a revised electronic process for record requests.
Medical fee applications will continue to be processed. Staff are requesting online filing and have adapted procedures to assist with that process. Staff are also adapting correspondence to be delivered electronically rather than by regular mail.
Claims litigation process – most judges and staff members have been trained on conducting telephonic hearings. Additional staff have been brought into process mail and process printings. This will assist with the petition's unit process continuance.
Telephonic C&R approval hearings began March 16, 2020, with success and are being expanded.
The protocol to request a special C&R telephone hearing during this period is as follows:
- Send an e-mail request to the Judge Manager of the district where the case is pending (SE District, JM San Angelo, firstname.lastname@example.org; Eastern District, JM Wertheimer, email@example.com; Central District, JM Goduto, firstname.lastname@example.org; Western District, JM Cicola, email@example.com)
- Your request must include the case caption, dispute number, names and e-mail addresses of counsel, telephone numbers if available, and whether the case requires translation services (include language of testimony to be translated). WCOA staff will schedule the court reporter.
- The WCJ assigned to hear the case will advise the parties how the telephone conference is to be arranged and how the C&R documents are to be transmitted prior to the telephone hearing.
The suspension of Section 449 of the Workers' Compensation Act (77 P.S. 1000.5), (c) (below/strikethrough) has been approved and implemented. Compromise and Release Agreements are no longer required to be attested by two witnesses or a notary public for the duration of the Governor's disaster declaration.
- Telephonic petition hearings will begin on March 30, 2020.
- Requests to schedule C&R hearings are being accepted in all district offices.
- The majority of workers' compensation judges are trained, willing and ready to get their cases moving and keep the WC process in motion.
- Two additional staff trainings are taking place today on the topic of telephonic hearings.
The Workers' Compensation Appeal Board is currently operating, but services are restricted to essential functions.
As part of the ongoing disaster declaration to address the spread of COVID-19, the Governor has suspended Section 424 of the Workers' Compensation Act (77 P.S. Section 855) and portions of the Special Rules of Administrative Practice and Procedure before the Workers' Compensation Appeal Board that require the Board to conduct oral argument (Section 111.17).
ACCORDINGLY: Appeals scheduled for argument before the Appeal Board shall be decided "on-briefs- only" unless a party files a specific request that its appeal be re-listed for oral argument at a future date.
Specific requests to re-list a hearing should be uploaded to WCAIS under the "Documents & Correspondence Tab" of the specific appeal. "Incoming Correspondence" should be selected from the Category drop-down and document type is "Inbound Appeal Related Correspondence." The "document description" should read "Request to re-list for Oral Argument."
Other requests or questions may be submitted by email to the WCAB Resource Account at RA-LI-WCAB@pa.gov, which will be actively monitored.
Suspended Portions of the Workers' Compensation ActAs part of the on-going disaster declaration to address the spread of COVID-19, In alliance with the Governor's objectives to mitigate the impacts of COVID-19 within the workers' compensation system in Pennsylvania, the Governor has suspended the bolded portions of Section 413 of the Act and the bolded portions of the following regulations:
Section 413(c) Notwithstanding any provision of this act, an insurer may suspend the compensation during the time the employee has returned to work at his prior or increased earnings upon written notification of suspension by the insurer to the employee and the department, on a form prescribed by the department for this purpose. The notification of suspension shall include an affidavit by the insurer that compensation has been suspended because the employee has returned to work at prior or increased earnings. The insurer must mail the notification of suspension to the employee and the department within seven days of the insurer suspending compensation.
(1) If the employe contests the averments of the insurer's affidavit, a special supersedeas hearing before a workers' compensation judge may be requested by the employee indicating by a checkoff on the notification form that the suspension of benefits is being challenged and filing the notification of challenge with the department within twenty days of receipt of the notification of suspension from the insurer. The special supersedeas hearing shall be held within twenty-one days of the employee's filing of the notification of challenge.
(2) If the employee does not challenge the insurer's notification of suspension within twenty days under paragraph (1), the employee shall be deemed to have admitted to the return to work and receipt of wages at prior or increased earnings. The insurer's notification of suspension shall be deemed to have the same binding effect as a fully executed supplemental agreement for the modification of benefits.
(d) Notwithstanding any provision of this act, an insurer may modify the compensation payments made during the time the employee has returned to work at earnings less than the employe earned at the time of the work-related injury, upon written notification of modification by the insurer to the employee and the department, on a form prescribed by the department for this purpose. The notification of modification shall include an affidavit by the insurer that compensation has been modified because the employee has returned to work at lesser earnings. The insurer must mail the notification of modification to the employee and the department within seven days of the insurer's modifying compensation.
(1) If the employee contests the averments of the insurer's affidavit, a special supersedeas hearing before a workers' compensation judge may be requested by the employee indicating by a checkoff on the notification form that the modification of benefits is being challenged and filing the notification of challenge with the department within twenty days of receipt of the notification of modification from the insurer. The special supersedeas hearing shall be held within twenty-one days of the employee's filing of the notification of challenge.
(2) If the employee does not challenge the insurer's notification of modification within twenty days under paragraph (1), the employee shall be deemed to have admitted to the return to work and receipt of wages at lesser earnings as alleged by the insurer. The insurer's notification of modification shall be deemed to have the same binding effect as a fully executed supplemental agreement for the modification of benefits.
Self-Insurance regulations – Self-Insurance Applications: 34 Pa. Code § 125.3(b) provides that "Initial applications shall be filed with the Bureau no later than 3 months prior to the requested effective date of self-insurance. Renewal applications shall be filed with the Bureau no later than 3 months prior to the expiration of the current permit." 34 Pa. Code § 125.7(b) provides, in pertinent part, that "If the Bureau fails to issue an initial decision with respect to a renewal application under § 125.6 (relating to decision on application) prior to the expiration of the permit for the prior year, the prior permit will be automatically extended under the prior conditions as set forth under § 125.6(c)(2) beyond the permit's original expiration date, until a decision on the renewal application is issued by the Bureau. This automatic extension applies only in cases when the renewal application has been timely filed under § 125.3 (relating to application) and the applicant has submitted or is submitting all data, information, explanation, corrections and missing items, or has corrected or is correcting inaccurate data, within the time period prescribed in writing by the Bureau."
Medical Cost Containment regulations – Fee Review Decisions:34 Pa. Code § 127.256 provides in pertinent part that "When a provider has filed all the documentation required and is entitled to a decision on the merits of the application for fee review, the Bureau will render an administrative determination within 30 days of receipt of all required documentation from the provider."
Health & Safety regulations – Workplace Safety Committee Applications:34 Pa. Code § 129.1002(c) provides that "Applications shall be submitted to the Bureau between 90- and 30-calendar days prior to the annual renewal of a workers' compensation policy, self-insurance renewal year or group self-insurance fund year." 34 Pa. Code § 129.1008(a) provides in pertinent part that "After initial certification, the applicant-employer may, using form LIBC-372R, Certification Renewal Affidavit of Workplace Safety Committee, apply to the Bureau for renewal of its initial safety committee certification. Affidavits will be generated by the Bureau and provided to eligible applicant-employers for submission. Affidavits shall be submitted to the Bureau between 90 and 15 calendar days prior to the annual renewal of a workers' compensation policy, self-insurance renewal year or group self-insurance fund year."
COVID-19 Safety Committee FAQs
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Can our safety committee miss monthly meetings during the COVID-19 crisis?
The Bureau of Workers’ Compensation commends all employers for making the safety of their employees a priority – especially when dealing with COVID-19. The Bureau recognizes what an asset a safety committee can be during a crisis. However, we will not view the lack of in-person safety committee meetings as an issue of non-compliance. When evaluating compliance with the regulations, the safety committee process is evaluated for a three-year period. The inability to hold meetings during this defined crisis period will not impact that evaluation. In addition, we do not intend to require employers focused on getting operational again to double-up on safety committee meetings.
What happens if all committee members do not receive their annual training?
Annual training can be conducted anytime during the safety committee’s policy period. Training is not required to be the last step prior to submitting a renewal application. As a result of the COVID-19 crisis we understand that many safety committees will be unable to meet to receive the training. Health and Safety will continue offering the certification at least once a week throughout the COVID-19 situation. Committee members can register for certification training by going to the PATHS training calendar at www.dli.pa.gov/PATHS. Once registered, you can log in from home as long as you have a cell phone, tablet or computer with internet access. In instances where all committee members are not trained we will not view the lack of training as an issue of noncompliance.
Will there be any extensions to the certification deadline to get our initial or renewal application submitted?
We encourage everyone to attempt to submit their applications via HandS within the regulated timeframe of 90-30 days prior to the policy renewal for initial applications and 90-15 days prior to the policy renewal for renewal applications. We understand that the evolving COVID-19 situation is affecting everyone’s ability to maintain normal operations; for this reason we will allow for late submissions of safety committees that have deadlines that fall during the defined crisis period. Once your company resumes daily operations contact BWC, Health & Safety at RA-LI-BWC-Safety@pa.gov.