2006 Amendments To The Act Are On the Governor’s Desk For Signature

by Michael J. McCadden, Esquire

Although most of us remember the Act 57 amendments as being just yesterday, it has been ten years since there have been any substantial amendments to the Pennsylvania Workers’ Compensation Act. On June 7, 2006, new reforms were introduced into the House through House Bill 2738. A number of changes were made to that House Bill both in the House and in the Senate. As a result the “2006 Amendments” are now on Governor Rendell’s desk awaiting signature.

House Bill 2738 will not significantly alter the handling of workers’ compensation cases as did Act 57. The following is a summary of the new legislation as well as its predicted impact:

• Any person receiving benefits under Sections 306(a) [TTD], 306(c)(23) [TTD because of certain specific losses] and 307 [death benefits] as a result of an accident or injury which occurred prior to August 31, 1993 shall receive a minimum of $100.00 per week.

  Predicted Impact: None. Where applicable, the statute provides that any increase is to be reimbursed to the carrier or self-insured by the Commonwealth.

• Each workers’ compensation judge is to establish a mandatory trial schedule at the first hearing. These schedules are to be strictly applied unless “good cause” is shown.

  Predicted Impact: None in Eastern PA, but more significant in Western PA. Most judges on the eastern side of the Commonwealth establish trial procedures at the outset and many use one day trials. This will be a new practice for the most part in Western PA. Individual judges have their unique practices available for review online through the Bureau’s website.

• Every trial schedule shall include a specific date for a Mediation Conference. Mediations shall take place on all cases not later than 30 days prior to the submission of findings and briefs unless upon “good cause shown” the judge believes that mediation would be futile.

  Predicted Impact: There may be a slight increase in earlier settlements. However, most judges now encourage mediation as an alternative to an all or nothing decision. This legislation does not and can not mandate forced settlements. Therefore, if the parties do not wish to settle, the case will not settle, which is no different than the current practice.

  Special note: The legislation states that the trial judge may conduct the mediation! It also requires the personal or telephonic attendance all of the parties, including the claimant and employer and their respective counsel. Whoever attends should have authority to negotiate!

• A Resolution Court procedure is to be established, whereby a C&R hearing must be held within 14 business days of notice of a C&R. The hearing can go forward even if the actual petition has not yet been assigned to a particular judge. Thereafter, the decision must be circulated within 5 business days of the hearing.

  Predicted Impact: It should be easier throughout the state to have C&R’s heard and decided in a timely manner. It should eliminate the need for a “bench order” as is the practice in some areas of the state where decisions are often delayed.

• The Workers’ Compensation Appeal Board will be limited to a maximum of 15 members who may sit in panels of three. One member of the panel will draft a decision and order which will then be circulated to all Board Members. Any decision still requires a majority vote of the entire Board. A failure of a Board Member to respond within 30 days after receipt of the draft will be deemed to concur in the decision. Each Board member will be given two opinion writers. The Board members will now be subject to a code of ethics similar to the judges and board members will be required to attend at least 8 hours of continuing education per year in the field of workers’ compensation.

  Predicted Impact: None. The original legislation required a “professionalization” of the Board which would require board members to have at least the same level of experience as the wcj’s whom they review. However, this language was removed. The Board already sits in panels which typically consist of two members, an attorney and a non-attorney. Not all Board members attend all hearings throughout the state. By requiring larger panels, more Board members may have to travel, thereby slowing down the decisions that they are able to write.

• No single judge may hear more than 75% of cases in a particular county.

  Predicted Impact: This is a favorable change and will help to eliminate some unfair decisions from biased judges. It may also mean that a different judge could hear a subsequent round of litigation.

• Attorney’s fees are limited to 20%. The exception under Section 442 which would have allowed a percentage higher than 20% for complex cases has been eliminated.

  Predicted Impact: None. This provision was included to stop certain very limited abuses of the above noted exception at the expense of the claimant.

• An Uninsured Employers Guaranty Fund has been created to provide benefits to employees of uninsured employers. The funding for this will be through an assessment against insurance carriers and self-insureds. This assessment may not exceed 0.1% of the total compensation paid by all insurers or self-insured employers during the previous calendar year.
• The Effective Date of these changes, with the exception of the mandatory mediation and trial scheduling will be 60 days after signature by the Governor. The mandatory mediation and trial scheduling will take effect immediately upon approval of this legislation by the Governor.

Please feel free to contact our attorneys with any questions you may have regarding this new legislation. We will make sure that we utilize any of these changes from the outset where they benefit our clients!

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