Big Changes Coming to the Pennsylvania Workers’ Compensation Appeal Board
The Workers’ Compensation Appeal Board recently amended its rules in a way that will significantly change appellate practice before the Board. The new rules take effect July 11, 2022 and should significantly expedite the resolution of appeals to the Board. However, because the changes to the rules are so significant, workers’ compensation practitioners should be wary regarding certain pitfalls regarding the new deadlines contained in the updated rules. There are two significant changes: expansion of virtual hearings and changes to the timing for submission of parties’ briefs.
Currently, a party appealing a decision from a Workers’ Compensation Judge has 20 days to file an appeal. Once the appeal is received, a hearing is scheduled for a hearing at which the appellant’s brief will be due. The Board schedules hearing dates at a number of locations throughout the Commonwealth and travels as a body to each location to hear cases, once per month at each site. After the hearing his held, the appellee then has 30 days after the hearing date. Under this current system, it takes an average of 72 days after the appeal to hold a hearing and 102 days to have the appeal submitted for decision. Appeals are taking over 180 days after a Judge’s decision to resolve.
Cosmetically, the new rules change the designation of the parties to Petitioner and Respondent from Appellant and Appellee.
The new rules change this in several important ways. First, the Board now has explicit authority to conduct hearings via teleconference and is changing its schedule and practice to take advantage. Traditional in-person hearings will now be held only every other month in each location. Virtual hearings will be held much more frequently and will be accessible regardless of the parties’ location. The Board’s previous practice of “riding circuit” around the Commonwealth and hearing only cases from a specific area on each day will be curtailed. Virtual hearings will allow the Board to hear cases from anywhere, on a first come, first served basis. The Board expects this will result in significant savings of both time and money in holding hearings.
Parties can still choose an in-person hearing, and in the event of a conflict between the parties over holding a hearing in person or virtually, an in-person hearing will be the default. In addition, disfigurement cases will always be held in-person.
More significantly, there will be changes to how the Board accepts the Parties briefs and the deadline for submission of those briefs. As it stands now, a Petitioner/Appellant has until the date of the hearing to submit its brief, currently running to an average of 72 days. Under the new rules, the brief will be due before the hearing, 30 days after the appeal is accepted by the Board. Thus, the Petitioner must be ready with its brief well in advance of the hearing and about 40 days earlier than current practice.
The Respondent must also submit its brief prior to the hearing date, now 30 days after the Petitioner’s brief is submitted. Note that this is a floating deadline – the Respondent’s due date will depend on submission of the Petitioner’s brief. Once Petitioner submits, Respondent’s clock to submit its brief starts ticking. This shifting deadline may prove a trap for unwary or inattentive counsel who calculate the deadline from the due date of their opponent’s brief.
The Board is shifting to hard deadlines through WCAIS as well. Parties will not be able to submit a brief past the due date and will be locked out of submitting briefs in WCAIS. Extensions can be requested, but only prior to the due date. Parties will be unable to request a last-minute extension via WCAIS on the due date of the brief.
Cases with cross appeals will generate duplicate briefing schedules. With each party having the briefing schedule of both a Petitioner and Respondent, with the deadlines appropriate to each. Parties may submit separate briefs on the cross appeals or waive briefs on one and submit a consolidated brief for both.
These changes should speed up the resolution of appeals before the Board. Instead of having 70 to 100 days before an appeal is fully submitted, briefs should now be submitted no more than 60 days from when the appeal is filed. Increased virtual hearings should also result in more efficiency and earlier hearing dates, meaning appeals to the Board should be resolved much earlier than they are now. How much remains to be seen, but the judicial economy of the new practice seems obvious.
The new rules also require submission of a one page summary of argument separate from the brief itself. This summary can be either uploaded by itself or copied into a provided box in WCAIS when the brief is submitted. In addition, when the brief is submitted via WCAIS, the party must choose its hearing preference, either virtual or in-person. Waiving oral argument is also an option.
These changes are effective July 11, 2022 and are some of the most extensive in the Workers’ Compensation Appeal Board’s 50 year history. While there will be undoubtedly be some issues and growing pains with the new practice, they should work to shorten appellate decision times and provide parties with additional certainty and review of Judges’ decisions.
