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FORMOLOGY UNDER PENNSYLVANIA WORKERS’ COMPENSATION LAW
By Kevin L. Connors, Esquire
In a brave and emboldened attempt to chart a Pennsylvania workers’ compensation claim by tracing the etiology of forms necessary to accept, deny, and/or administer the claim under the Pennsylvania Workers’ Compensation Act, this is intended to assist all Pennsylvania stakeholders, whether employers, insurance carriers, third-party administrators, as well as other stakeholders, including medical providers and third parties, to illustrate the necessity of viewing a Pennsylvania workers’ compensation claim under the microscope of the controlling or governing form, under which liability for compensation claims and benefits is either accepted, denied, administered, and/or compromised.
A list of the most often-used Pennsylvania workers’ compensation claim forms is set forth below:
· Agreement for Compensation for Disability or Permanent Injury – LIBC-336;
· Agreement for Compensation for Death – LIBC-338;
· Agreement to Stop Weekly Workers’ Compensation Payments – LIBC-340;
· Answer to Petition for Commutation – LIBC-35;
· Answer to Petition to: - LIBC-377;
· Application for Supersedeas Fund Reimbursement – LIBC-662;
· Appeal from Judge’s Findings of Fact and Conclusions of Law – LIBC-25/26;
· Application for Executive Officer Exception – LIBC-509;
· Application for Fee Review – LIBC-507;
· Authorization for Alternative Delivery of Compensation Payments – LIBC-10;
· Claim Petition for Workers’ Compensation – LIBC-362;
· Compromise & Release Agreement – LIBC-755;
· Defendant’s Answer to Claim Petition – LIBC-374;
· Employee Report of Wages and Physical Condition – LIBC-760;
· Employee Verification for Employment – LIBC-760;
· Employee’s Report of Benefits – LIBC-756;
· Employer’s Report of Occupational Injury or Disease – LIBC-344;
· Fatal Claim Petition for Compensation by Dependents of Deceased Employees – LIBC-363;
· Fatal Claim Petition for Compensation by Dependents for Death Resulting from Occupational Disease – LIBC-386;
· Fatal Claim Petition for Compensation by Dependents for Death Covered by the Act – LIBC-384;
· Impairment Rating Evalutions Face Sheet & Appointment – LIBC-765;
· Informal Conference Agreement Form – LIBC-754;
· Notice of Ability to Return to Work – LIBC-757;
· Notice of Change of Workers Compensation Disability Status – LIBC-764;
· Notice of Compensation Payable – LIBC-495;
· Notice of Reinstatement of Workers’ Compensation Benefits – LIBC-763;
· Notice of Suspension for Failure to Return – LIBC-762;
· Notice of Temporary Compensation Payable – LIBC-761;
· Notice of Workers’ Compensation Benefit Offset – LIBC-761;
· Notice of Workers’ Compensation Denial – LIBC-496;
· Notice Stopping Temporary Compensation – LIBC-502;
· Notice to Claimant – LIBC-758;
· Notification of Suspension or Modification – LIBC-751;
· Occupational Disease Claim Petition – LIBC-396;
· Peer Review Request – LIBC-620;
· Peer Review Transmittal Sheet – LIBC-621;
· Petition for Commutation of Compensation – LIBC-34;
· Petition for Joinder of Additional Defendant – LIBC-376;
· Petition for Penalties – LIBC-686;
· Petition for Physical Examination – LIBC-499;
· Petition for Review of Utilization Determination – LIBC-603;
· Physician’s Affidavit of Recovery – LIBC-497;
· Request for Designation of a Physician to Perform an Impairment Rating Evaluation – LIBC-766;
· Statement of Account of Compensation Paid – LIBC-392;
· Statement of Wages – LIBC-494;
· Supplemental Agreement for Compensation for Death – LIBC-339;
· Supplemental Agreement for Compensation for Disability of Permanent Injury – LIBC-337;
· Third Party Settlement Agreement – LIBC-380;
· Utilization Review Determinate Face Sheet – LIBC-604;
· Utilization Review Request for Consideration – LIBC-602;
· Utilization Review Request – LIBC-601;
· Workers’ Compensation Medical Report Form – LIBC-9;
In the beginning, there is the Report of Injury, identified as LIBC-344, with the Act and the Bureau’s Regulations requiring that it be filed by the employer, typically prepared and filed by the insurer or administrator, after an injury is reported by the employee to the employer or insurer within 48 hours of a work-related fatality, or whenever disability (lost time) exceeds 1 day.
This form is relatively generic, leaving little to the imagination, in terms of name, rank, SSN, DOB, relevant contact information for claimant, for employer, insurer, with other relevant information being the claimant’s original date of hire, date the claimant reported the injury or lost time to the employer, and a very brief description of how the injury is reported to have occurred, with no diagnostic impression of the injury being included.
The Report of Injury is akin to an OSHA report of injury.
The filing of the Report of Injury, with it being absolutely critical to understand that this Report is never admissible as evidence in a workers’ compensation litigated proceeding, then requires the employer/insurer/administrator to investigate the claim, to either accept, deny, or otherwise “compromise”, the claim within 21 days of the injury (lost time) being reported.
Consider further that Pennsylvania is a wage loss/disability jurisdiction, devoid of any true permanency standard that has any real relevance in terms of claim resolution, other than the utilization of an Impairment Rating Examination, which is simply a claim mechanism for capping the payment of temporary total disability benefits, being wage loss benefits that are payable when a claimant is unable to perform the time-of-injury job, at a total of 604 weeks of disability benefits.
Do the math!
So, an injury/lost time has been reported, and that requires the employer/insurer/administrator to either issue one of three forms, within 21 days of the injury/lost time being reported, with there being no suggestion of priority, in terms of the form to be utilized, the forms being:
1. The employee did not suffer a work-related injury. The definition of injury also includes aggravation of a pre-existing condition, or disease contracted as a result of employment.
2. The injury was not within the scope of employment.
3. The employee was not employed by the defendant.
4. The employee has not suffered a loss of wages as a result of an already accepted injury.
5. The employee did not give notice of his/her injury or disease to the employer within 120 days within the meaning of Sections 311-313 of the Workers’ Compensation Act.
6. Other good cause. Please explain fully in the space below.
Oftentimes, the utilization of “other good cause” on the NCD is utilized when there is insufficient information upon which to accept a claim, such as the claim has not been medically verified through medical reports, diagnostic impressions, or causation opinions.
This form, like most Pennsylvania forms, must be “served”, meaning mailed, to all parties involved with the claim, to include the Bureau now requiring electronic submission, by the insurer.
This filing almost always triggers the filing of a Claim Petition, which is the mechanism for the claimant to formally allege that he/she is entitled to workers’ compensation benefits, requiring 16 disclosures by the claimant, to include how he/she was injured, a description of the injury, when notice was given, when disability first occurred, as well as the types of benefits that the claimant is seeking for the claim.
If the claim is not being denied at the outset, two other forms come into play.
One form is a Notice of Compensation Payable, identified as LIBC-495.
Under this form, liability for the Workers’ Compensation claim is being accepted, with the parties being identified, the injury being described, the mechanism of injury being described, and the benefits being paid also being described, with the employer/insurer/administrator having an election as to whether to pay indemnity and medical compensation benefits, or only medical compensation benefits, as there had been a complete derailment of sanity at the Bureau level, in a wake of several appellate decisions that seemingly made no statutory rational sense whatsoever, when a workers’ compensation claim was a “medical only” claim, as there is no statutory requirement for an employer/insurer/administrator to file any forms for “medical only” claims, which would seem to be the much more rational approach to the issue, given the number of “medical only” claims that routinely arise without ever evolving into “lost time” claims, although there is now decisional authority under several Pennsylvania Commonwealth Court decisions, essentially predicated on claimants being forced to litigate the compensability of “medical only” claims, prior to the expiration of the three year statute of limitations for a claimant to file a Claim Petition to prove the compensability of an injury, irrespective of whether that injury results in medical treatment only, or also involves lost time.
The most notable “medical only” decisions by the Commonwealth Court are as follows:
· Waldameer Park, Inc. v. WCAB (Morrison), 819 A.2d 164 (Pa. Cmwlth. 2003)
· City of Philadelphia v. WCAB (Brown), 830 A.2d 649 (Pa. Cmwlth. 2003)
· Orenich v. WCAB (Geisinger Wyoming Valley Medical Center), 863 A.2d 165 (Pa. Cmwlth. 2004)
So, the third form that might appear before you, when deciding to deny, accept, or alternatively, to pay temporary compensation benefits, with no admission of liability, for the first 90 days post-injury, is a Notice of Temporary Compensation Payable, identified as LIBC-501.
The three forms that we have discussed so far, are the Notice of Compensation of Denial (NCD), identified as LIBC-496, which results in outright denial of the compensability of the claim, the Notice of Compensation Payable (NCP), identified as LIBC-495, which results in an outright admission of liability for the compensability of the claim, and the Notice of Temporary Compensation Payable as LIBC-501 (“NTCP”, or “TNCP”), depending upon how much coffee you have had that morning, allowing you to pay temporary compensation benefits with no admission of liability for the first 90 days of disability, although that NTCP/TNCP will automatically convert to an NCP, where you are again back to an outright admission of compensability for injury and disability, if the NTCP/TNCP is not “stopped” with a Notice to Stop Temporary Compensation Payable (“NSTC”), identified as LIBC-502, under which temporary compensation benefits are “stopped”, although it must be concurrently filed with a Notice of Compensation Denial, indicating the reason for denial of the compensability of the claim.
Oh what a wicked web of forms we weave!
To repeat, we have now covered the Report of Injury, the Notice of Compensation Denial, the Notice of Compensation Payable, the Notice of Temporary Compensation, the Notice to Stop Temporary Compensation, and where are we now?
Well, that is a form of a completely different number.
And that depends upon whether you have denied or accepted the claim.
If you have denied the claim, the claim most likely is headed into court, with a claimant most likely filing a Claim Petition, which is LIBC-362.
The claim petition contains 16 paragraphs, the answers to which are essentially a claimant’s burden of proof for establishing the compensability of both injury and disability.
The 16 paragraphs deal with the basic elements of a workers’ compensation claim, including date of injury, description of injury, mechanism of injury, when notice was given to the employer, when disability began, the claimant’s compensation wage rates, requiring both the pre-injury wage and the compensation payable rate for payment of weekly workers’ compensation benefits, as well as requiring the claimant to specify exactly what benefits the claimant is seeking, there being five basic compensation benefits as follows:
The Claim Petition also allows a claimant seeking workers’ compensation benefits to claim entitlement to unreasonable contest to attorneys’ fees under Section 440, if it can be proven that a claim denial does not have a “reasonable basis”.
The filing of a Claim Petition with a Bureau results in the Bureau randomly assigning the petition to workers’ compensation Judge for a hearing and disposition. The petition is assigned to a workers’ compensation Judge in the hearing district in which the claimant lives, typically assigned according to the county where the claimant lives.
There are 22 hearing districts in Pennsylvania.
There are a total of approximately 82 workers’ compensation Judges, appointed by the Department of Labor and Industry and the Bureau of Workers’ Compensation, after being formally tested as to their knowledge of workers’ compensation law.
The assignment of a claim petition to a workers’ compensation Judge requires the employer/insurer/administrator to file an answer to the Claim Petition, within 20 days of the Bureau’s assignment of the Petition to a workers’ compensation Judge. The assignment is perfected through issuance of a Notice of Assignment, with the assignment date placed in the top, right hand corner of the NOA.
Filing an answer to a Claim Petition requires that the answer be filed on Bureau form LIBC-374 with it being required that every allegation in the Claim Petition be specifically answered, in terms of either an admission and/or a denial, with the Answer also requiring an identification of affirmative defenses under the Act, the most recognized affirmative defenses, tracking the same grounds for denial on a Notice of Compensation Denial, to include:
· The claimant did not sustain a work-related injury;
· Include an alleged aggravation of pre-existing condition;
· The alleged injury did not occur within the course of scope of employment;
· The claimant was not employed by the defendant;
· The claimant did not suffer a loss of wages as a result of an injury;
· The claimant did not give notice of the injury within 120 days as required under Section 311-313 of the WCA; or,
· That “other good cause”, requiring explanation as to the basis thereof.
After the Answer is filed, through the WCAIS Link, launched by the Bureau in September of 2013, the claim proceeds through administrative litigation, subject to the Special Rules of Practice and Procedure before Workers’ Compensation Judges.
After the assignment of the petition to a Workers’ Compensation Judge, the judge is required, by the WCA and the Bureau regulations, to schedule hearings, with WCJ’s electing to either schedule serial hearings, usually every 90 days, or to schedule “one day trials”, which results in a pre-trial hearing being scheduled at the outset of the litigation, and a final hearing being scheduled prior to the record being closed and briefs being submitted by the parties, with all evidence required to be presented to the WCJ at the final hearing.
That is all evidence by all parties.
If the claim is denied and a Claim Petition is filed, the claim is then litigated, either until it is settled, resolved by stipulation, or decided by the workers’ compensation Judge under a Bureau-circulated Decision, which becomes final and non-appealable, if not appealed within 20 days of its circulation.
If a workers’ compensation claim is accepted, the employer/insurer/administrator is then required to continue to make regular payments of workers’ compensation benefits to the claimant, paying temporary total disability benefits consistent with the claimant’s pre-injury average weekly wage and compensation payable rate and to pay reasonable necessary and related medical expenses, subject to fees schedules, within 30 days of bill receipt.
When paying temporary total disability benefits, the payments must be made on the same payment schedule as when the claimant was working.
When medical bills are received by the employer/insurer/administrator, the medical bills must be reviewed for relatedness, and then reviewed for reasonableness and necessity, with the medical bills then being subject to Medicare reimbursement rates, with medical bills required to be paid within 30 days of bill receipt, absent the filing of a Utilization Review, which can only challenge the reasonableness and necessity of the treatment being provided and billed for the work injury.
Requesting Utilization Review requires the filing of an LIBC-601 form, with all medical bills required to be submitted by the provider with an attached Workers’ Compensation Medical Report form, LIBC-9.
Utilization Reviews are filed with the Bureau and randomly assigned to utilization reviewers, who are then required to make utilization review determinations on LIBC-604, a Utilization Review Determination Face Sheet.
Once a claim is accepted as compensable and work-related, and benefits are paid to the claimant in accordance with the WCA, the workers’ compensation benefits must continue to be paid absent one of the following conditions occurring:
(1) The Claimant dies, and compensation benefits terminate by operation of death;
(2) The Claimant voluntarily returns to work in their pre-injury capacity, and there is no continuing wage loss post-return to work, such that the Claimant’s compensation benefits are suspended;
(3) The Claimant returns to work in a modified-duty capacity, with some reduction in return-to-work wages, such that the Claimant’s compensation benefits are modified, and temporary partial disability benefits are paid, subject to the 500 week limitation;
(4) The Claimant executes a Supplemental Agreement, perfecting either a termination, suspension, or modification of the Claimant’s workers’ compensation benefits;
(5) The Claimant signs a Final Receipt (almost never used), under which the Claimant agrees that all compensation benefits have been paid;
(6) The Claimant is deported by virtue of not being able to prove legal immigration status;
(7) The claim is settled under a Compromise and Release Agreement, perfecting some type of compromise of the indemnity and medical compensation benefits liability associated with the claim; and,
(8) The Claimant’s compensation benefits are terminated, modified, or suspended by order of a workers’ compensation judge, with the employer/insurer carrying the burden of proving the entitlement to a change in the Claimant’s benefit entitlement status.
To match the requisite forms with the triggering events listed above, the following forms are relevant:
Like the Claim Petition, the Petition for Termination results in assignment to a WCJ, with hearings convened for the presentation of evidence, in the WCJ deciding the case on the evidence presented, the parties stipulating to a claim resolution, or entering into a Compromise & Release Agreement.
Other forms necessary for review are:
The employer and employee to agree on the compensation to be paid as well as the period for which the benefits are being paid, with the Agreement limiting the benefits to those reflected in the Agreement, although medical compensation benefits can remain open;
· The Agreement for Compensation for Death (LIBC-338), seemingly self-explanatory;
· Application for Supersedeas Fund Reimbursement (LIBC-662), where an overpayment of compensation benefits has occurred and the employers/insurer/administrator seeks reimbursement from the Supersedeas Fund;
· Appeal from Judge’s Findings of Fact and Conclusions of Law (LIBC-25/26), required to be filed within 20 days of the issuance of a WCJ decision, and requiring specificity with regard to the Findings of Fact being appealed, as well as to the Conclusions of Law in dispute;
· Application for Fee Review (LIBC-507), filed by a medical provider contesting a fee schedule or fee reimbursement by and employer/insurer/administrator;
· Authorization for Alternative Delivery of Compensation Payments (LIBC-10), required to be executed by a claimant, when an employee requests that compensation benefits payments be mailed to an alternate address;
· The Employee Report of Wages and Physical Condition (LIBC-750), required to be executed by a claimant within 30 days of issuance, with use limited to every 6 months;
· Employee Verification for Employment (LIBC-760), again requiring execution within 30 days of issuance, and use limited to every 6 months, although claimant’s failure to return the executed form within 30 days results in a suspension of compensation benefits, requiring issuance of a Notice of Suspension for Failure to Return (LIBC-762);
· Fatal Claim Petition (LIBC-363), used to seek fatal claim benefits for a work-related fatality;
· Impairment Rating Evaluation Face Sheet (LIBC-765), when an impairment rating is being requested by an employer/insurer/administrator, although impairment ratings can only be requested after:
(1) The claimant has received 104 weeks of temporary total disability benefits; and,
(2) The claimant has reached maximum medical improvement;
· Notice of Ability to Return to Work (LIBC-757), required to be issued and served on the claimant whenever the claimant is released to return to some level of work, and the issuance of this form must pre-date work being offered to the claimant, if there is any contest as to the claimant’s compensation benefits being suspended or modified based on a job offer or RTW;
· Notice of Change of Workers’ Compensation Disability Status (LIBC-764), used after an IRE, resulting in an impairment rating establishing that the claimant’s “whole person impairment” is less than 50%, with the claimant’s compensation benefits then being “automatically converted” from temporary total to temporary partial disability benefits, limiting the claimant to receiving temporary partial disability benefits for 500 weeks under Section 306 (b) Act, with a conversion of temporary total to temporary partial being “automatically converted” if the IRE is requested either 60 days before or 60 days after the claimant receives 104 weeks of compensation benefits, requiring the employer/insurer/administrator to litigate the “conversion” from temporary total to temporary partial and disability benefits, if the IRE request is made more than 60 days after the claimant has received 104 weeks of temporary total disability benefits, ultimately requiring the “conversion” to be decided by the WCJ;
· Notice of Reinstatement of WC Benefits (LIBC-763), utilized if there has been a suspension of compensation benefits, for failure to return an Employee Verification of Employment (LIBC-760);
· Peer Review Request (LIBC-620), rarely used;
· Petition for Commutation of Compensation (LIBC-34), rarely used since the statutory approval of Compromise & Release Agreement in 1996;
· Petition for Joinder of Additional Defendant (LIBC-376), required to filed within 15 days of the party seeking joinder having evidence supporting the joinder;
· Petition for Penalties (LIBC-686), utilized by claimants alleging violations of the Act;
· Petition for Physical Examination (LIBC-499), utilized by employers and insurers seeking independent medical examination under Section 314 of the WCA, which allows IMEs of claimants every six months;
· Petition for Review of Utilization Determination (LIBC-603), filed when a party seeks review before a WCJ of a Utilization Determination, with the employers and insurers, carrying the burden of proof before the WCJ as to the UD;
· Request for Designation of a Physician to Perform an IRE (LIBC-766), requested by employer/insurer/administrator seeking an IRE of a claimant;
· Statement of Account of Compensation Paid (LIBC-392), utilized by employers and insurers as a final statement of the compensation of benefits that have been paid on a particular WC claim;
· Statement of Wages (LIBC-494), requiring the calculation of the claimant’s pre-injury wage in compensation benefit payable rate, a reliance upon disclosure of the claimant’s quarterly wages for the fifty-two (52) weeks preceding the alleged work injury;
· Third Party Settlement Agreement (LIBC-380), required to be filed to reflect the resolution of a workers’ compensation subrogation lien when a claimant secures a third party recovery.
As is probably self-evident, the Pennsylvania WCA and the Bureau’s Regulations effectively require that every change in the status of a workers’ compensation claim be reflected with the issuance and filing of a form reflecting that change, as Pennsylvania’s Workers’ Compensation Law absolutely prohibits an employer’s “self-help” in stopping or discontinuing workers’ compensation benefits, after acceptance of a workers’ compensation claim, except in very limited circumstances, such as when a claimant returns to work, and refuses or fails to notify the employer/insurer/administrator of the return to work, as well as refusing or failing to execute the appropriate documentation to reflect the stoppage or reduction in the workers’ compensation benefit payments, although even then there is some risk that the workers’ compensation claim remains open, and can be subject to reinstatement, if the stoppage is litigated as being violative of the WCA by a claimant whose status might change after returning to work, i.e., and the claimant stops working, for whatever reason, with the potential being that the claimant can file for reinstatement of compensation benefits, typically granted by WCJs, except for very limited circumstances, with it being best to secure claim closure through the filing of a Suspension or Modification Petition for protection against the a claim that disabilities have recurred.
This summary is intended to be a compendium contracting the most important and most often used workers’ compensation forms into a synoptic abbreviation of their utilization.
Questions concerning the utilization of workers’ compensation forms in Pennsylvania, that we have identified as being relevant for the administration of Pennsylvania workers’ compensation claims, can be directed to our brilliantly and sagaciously-experienced workers’ compensation partners, including:
Kevin L. Connors, Esquire
Kate O’Dell, Esquire
Jeffrey D. Snyder, Esquire
Lisa A. Miller, Esquire
Trust us, we just get it! It is trust well spent!
Defending workers’ compensation claims throughout Pennsylvania for employers, self-insureds, insurance carriers, and third party administrators, our 100+ years of cumulative experience defending our clients against compensation-related liabilities, empowers our workers’ compensation practice group attorneys to be more than mere claim denials, entrusting us to create the factual and legal leverage to expeditiously resolve claims, in the course of limiting/reducing/extinguishing our clients’ liabilities under the Pennsylvania’s Workers’ Compensation Act.
With every member of our workers’ compensation practice group being AV-rated, our partnership with the NWCDN magnifies the lens through which our professional expertise imperiously demands that we always be dynamic and exacting advocates for our clients, businesses, corporations, and insurance carriers, seeking our trial and compensation acumen, navigating the frustrating and form-intensive minefield pervasive throughout Pennsylvania workers’ compensation practice and procedure.