Dowhower v. W.C.A.B. (Capco Contracting)
On April 17, 2007, the Pennsylvania Supreme Court issued an Opinion in Dowhower v. W.C.A.B. (Capco Contracting), No. 94 MAP 2006, wherein the Court addressed the question of whether a request for a designation of a physician to perform an IRE that was made before the claimant had received 104 weeks of total disability benefits was valid.
In Dowhower, the claimant came into possession of 104 weeks of total disability benefits as of July 23, 1999. However, on May 20, 1999 the insurer filed a request with the Bureau to have a physician designated to perform an IRE. Thus, insurer's request was made before the claimant received 104 weeks of total disability benefits. In spite of this, the claimant actually attended the IRE and the doctor performing the IRE determined that the claimant had a 10% whole body impairment. In light of the finding of a 10% impairment, the insurer issued a Notice of Change in Disability Status, LIBC 764, and automatically changed the claimant's disability status from total to partial. The claimant challenged the issuance of LIBC 764 and extensive litigation followed.
The litigation culminated in the Supreme Court's April 17, 2007 Opinion. In Dowhower , the Supreme Court determined that a request for a designation of a physician to perform an IRE that was made before the claimant had received 104 weeks of total disability benefits was premature. Because the request was premature, the Court held that the subsequent IRE determination itself was invalid. Since the IRE was invalid, the insurer was not able to automatically change the claimant's disability status from total to partial even though there had been a determination that the claimant was only 10% impaired.
In making its ruling, the Supreme Court stated in no uncertain terms that the language of the Act, in particular Section 306(a.2)(1), 77 P.S. Section 511.2(1), is mandatory and the insurer may only request an IRE once a claimant has come into possession of 104 weeks of temporary total disability benefits and not before.
In light of the Supreme Court's holding it is important to determine when a claimant has come into possession of 104 weeks of total disability when considering the scheduling of an IRE. This becomes a concern when the claimant does not immediately become disabled after a work injury or where benefits are suspended due to a return work or where a claimant receives partial disability benefits--with periods of total disability interspersed. Thus, in cases where an IRE is going to be performed, you should pay careful attention to the claimant's disability status and the weeks of total disability must be properly calculated. You should be aware that it is only when an IRE is requested within 60 days after the claimant receives 104 weeks of total disability benefits that an insurer can automatically change the benefit status from total to partial--assuming the IRE proves that the claimant's whole body impairment rating is 49% or less.
Finally, it should be remembered that even if an IRE is not requested within 60 days after the claimant receives 104 weeks of total disability benefits, an insurer may still get an IRE. However, in these circumstances a Modification Petition must be filed after receipt of the IRE determination and a WCJ must grant that Modification Petition before the change from total to partial disability status can be made. It is clear that this will delay the time that a claimant's disability status can be changed.
Harkness v. Unemployment Compensation Board of Review
Yesterday the Supreme Court of Pennsylvania issued a decision in the Harkness v. Unemployment Compensation Board of Review case. This case raised the question of whether or not the Unemployment Compensation Law permitted employers to be represented by a non-lawyer in compensation hearings before the referee. The Commonwealth Court had previously held that representation by non-lawyers at UC hearings constituted the unlicensed practice of law, and therefore was precluded by both the UC Law and by the rules relating to attorney licensing. As such, employers were required to attend UC hearings with an attorney.
The Supreme Court yesterday reversed this decision. Specifically, the Court held that the activities involved in attendance at UC hearings did not constitute the practice of law because they are largely routine and primarily focus on creating a factual basis for the referee's ultimate compensation decision. The Court likened this function to a "facilitator" rather than a legal practitioner, because they do not analyze complicated and intricate legal questions, but instead just assist in the presentation of the employer (or employee's viewpoint). The Court also noted the informality of UC hearings, which are designed to work quickly, simply, and efficiently. The rules of evidence are not mandated; there is no pre-hearing discovery; the parties have no right to a jury trial; indeed there is no requirement that the referee be a lawyer. Also, and importantly, there are only minimal amounts of money in controversy. The Court that to require employers to hire an attorney in each UC case would not only undermine the informal, speedy and low cost nature of these proceedings, it may dissuade many employers from defending claims for benefits leading to the possibility of an unwarranted drain on the system.
Additionally, the Court also held that the Unemployment Compensation Law specifically provided for the possibility that one or both parties would be accompanied by non-lawyer representatives, citing the passage which provides as follows: “The parties and their attorneys or other representatives of record and the department shall be duly notified of the time and place of a referee’s hearing and of the referee’s decision and the reasons therefore, ….” 43 P.S. §822 (emphasis supplied). The Court noted that the statute’s language does not differentiate between claimant and employer, but instead refers to representation of all parties by attorneys or “other representatives” at the referee’s hearing. As such, the Court found that there is a statutory basis for employer non-lawyer representation.
While this decision is important to employers, who need not worry about hiring an attorney for every routine UC hearing, employers should not take this decision to suggest that lawyers need never be retained for representation at UC hearings. Because testimony is taken at these hearings and a transcript can be obtained thereof, these proceedings can become important when the employee in question is or will be involved in other litigation with the employer regarding his or her employment or separation therefrom. For instance, a Claimant's testimony at a UC hearing in which she alleges she was constructively discharged from her employment due to a sexually hostile work environment would be significant to her Title VII sexual harassment lawsuit against the employer. As such, employers should carefully consider whether or not they will need the insight and expertise of an attorney at a UC hearing before deciding to represent themselves or hire a non-lawyer representative who cannot evaluate the implications of a particular fact or line of questions, notwithstanding the decision of the Supreme Court.
The full decision of the Supreme Court can be found at :
Harkness v. Unemployment Compensation Board of Review - Nos. 112 & 113 MAP 2005
J-148-2005oaj.pdf