By Charlene Stewart Barnaba and Anthony M. Napoli.
COVID-19 has gripped the entire world and each of our local communities. The PMT Law Firm is working to keep our clients informed during these unprecedented times. PMT’s resource of knowledge and industry experts in a variety of important fields are working to keep you up to date and your business protected. We are here to answer your questions and address your concerns. As the impact of the COVID-19 pandemic continues to evolve, businesses should carefully consider a number of contractual provisions and operational issues that are likely to play a significant role in the short and long term and may be the subject of disputes and litigation to come. Early retention of counsel to assess these issues may help to reduce litigation risk.
Please use these links to view how it’s affected your state: New York, Pennsylvania & New Jersey
New York
Updates to Workers’ Compensation Rules and Procedures – New York, Pennsylvania and New Jersey
Below is a summary of some of the provisions of Executive Order 202 necessitated by the coronavirus pandemic. The Board is conducting workers’ compensation hearings remotely, using the Board’s Virtual Hearings service. Injured workers can also choose to appear by phone. If an unrepresented injured worker is unable to participate in a hearing, it will be rescheduled. DVD and other evidence that the parties wish to introduce, should be mailed to the Board and the opposing parties within two days of introducing it at the hearing.
In addition, if claimant is unable to see his/her attending physician due to the physician’s unavailability or the claimant being quarantined, the Board will take into consideration a claimant’s or his or her attorney’s assertion that the claimant was unable to secure a required 90-day report of ongoing medically-necessary treatment due to the coronavirus outbreak. If a claimant cannot appear at a scheduled IME due to the coronavirus outbreak, he/she should let his or her attorney know, and notify the IME doctor and the Board in order to avoid benefits being suspended if the claimant offers a reasonable excuse for the failure to attend the IME.
With respect to a claim for a surgical procedure costing more than $1,000, existing law allows for the conflicting second opinion to be based on a records review instead of an in-person examination. With respect to other situations in which an IME may be directed by the Board, such as permanency exams and in controverted claims, if the failure to schedule an IME is attributable to circumstances surrounding the coronavirus outbreak, the carrier can request that the Workers’ Compensation Law Judge (WCLJ) excuse the lateness and allow additional time to procure an IME. For the opportunity to obtain a permanency examination as directed by the Board, if the failure to schedule an IME, or the claimant’s inability to attend an IME, is attributable to circumstances surrounding the coronavirus outbreak, the carrier can request an extension of time by correspondence with the Board, which includes an affidavit or affirmation that demonstrates the circumstances related to the coronavirus outbreak that warrant an extension.
For off-calendar depositions of medical witnesses, it is anticipated that there will be problems with scheduling that are caused by the coronavirus outbreak, centered around the limited availability of the medical witnesses and, therefore, requests for extensions of time that are necessitated by these scheduling difficulties should include a description of the situation.
If a timely written application for review of a WCLJ or Board Panel decision with the Board and/or a timely rebuttal to an application for review or full board review is due to the coronavirus outbreak, the Board will consider exercising its discretion to excuse an untimely filing, if the reason for lateness is fully set forth in the application or rebuttal, stating in detail the circumstances directly related to coronavirus that caused the delay. The application or rebuttal must be filed as soon as feasible after the filing deadline has passed, and the Board will determine whether the application or rebuttal was filed within a reasonable time. In addition, with respect to a redetermination of the imposition of penalties for a failure to maintain proper benefits coverage and for penalties for the failure to timely provide requested records, in light of the coronavirus outbreak, the Board will consider applications to excuse delays and defaults in complying with the timelines to seek redetermination. In light of the coronavirus outbreak, Payor Compliance will consider applications to excuse delays and defaults in complying with various WCL provisions used in the measurements of timely First Report of Injury (FROI), timely Subsequent Report of Injury (SROI) showing initial payment, timely initial payment, timely initial installment payment and timely Notice of Controversy. The above applications must be supported by affidavits which indicate that the delay or default was caused by conditions over which the applicant had no control, and include statements indicating the date the applicant filed the late document. Any application seeking relief based on novel coronavirus must be filed with the Board within fourteen (14) business days of the deadline date that is the subject of the application.
The Board has suspended until further notice the requirement for original handwritten signatures on certain forms, which require the signatures of claimants, attorneys and licensed representatives, payers, including insurance carriers, self-insured employers and third-party administrators, and administrators, during the current state of emergency. The signator may do so in several ways: (1) by signing the form electronically in accordance with the New York State Electronic Signatures and Records Act (ESRA) and its accompanying regulations (9 NYCRR Part 540); or (2) by indicating his or her approval of the document in another manner (for example, an email) to his or her legal representative; along with an additional attestation by the attorney, on the letterhead of his or her firm.
Pennsylvania
Updates to Workers’ Compensation Rules and Procedures – New York, Pennsylvania and New Jersey
Hearings and Mediations
The latest information comes directly from a message circulated by the Director of Adjudication, Joseph DeRita, on March 27, 2020, the pertinent portions cited as follows. Due to the COVID-19 pandemic, the Office of Adjudication will be continuing operations on a modified telephone-only hearing schedule effective Monday, March 30, 2020. Further details provided are:
- The emergency C&R protocol initiated two weeks ago (March 17, 2020) is suspended effective March 30, 2020 (note that this previous protocol required filing the C&R request with the Judge Manager and suspended the requirement that the claimant’s signature be notarized or witnessed by two signatures). All disputes scheduled for a special C&R hearing previously will be processed under this prior protocol. All requests for C&R hearings made on or after March 30, 2020, will be made by filing a new Petition to Approve or by amending an existing petition pending before the adjudicating WCJ. We assume that the suspension of the requirement that the claimant’s signature be witnessed/notarized remains in effect, but there is some confusion as the new directive suspends the old directive. Common sense dictates that notary/signatures are not practical.
- Communications with the assigned WCJ or their staff, for existing disputes and for those filed on or after March 30, 2020, should be limited to WCAIS requests and Judge Communications (or also direct emails to judge if that was the judge’s allowable practice in the past). The Office of Adjudication (judges’ offices) is closed, with staff working remotely, so there should be no attempts to contact the judge’s secretaries.
- Hearings conducted and scheduled during the Governor’s disaster declaration will be by telephone only. For hearings scheduled within two weeks after March 30, 2020, the parties will be contacted immediately. Some hearings have been cancelled and will be rescheduled. Many will take place as scheduled under the new protocol (see below). This pertains to a very limited two-week timeframe.
- Going forward, under the new protocol, hearings will be scheduled using an Outlook conference invitation sent out by the WCJ or their staff. These are audio-only conferences. The system will “patch” litigants into the conference call and the judge will then start the hearing. The Court Reporter and interpreter, if required, will be included on the Outlook invitation. The Office of Adjudication will be placing the Call-in Number and Access Code on the Hearing Notices in the “Special Instructions” box of the hearing notice. Note that there is nothing in the directive as to conducting status versus testimonial hearings. We expect that parties may prefer to defer testimony until the emergency order lifts, and that the WCJ will agree to this request.
- Mandatory and Voluntary Mediations will be scheduled and conducted using the Outlook scheduling procedure outlined above. There are acknowledged issues that the technology does not permit the WCJ to conduct discussion with just one party (which is often the way this works), and raises the possibility of the WCJ speaking directly with one party only simply by cell phone (this had already been an acceptable practice). The director stated to defer to the WCJ’s preference for those details.
- All Petitions and Answers will be filed as normal. Likewise, case assignments, hearing notices and regular WCOA correspondence will continue to be processed as usual. There is nothing in this directive about extension of any statute of limitations, time periods to answer petitions or scheduling orders (e.g., dates when IMEs should be taken, doctor’s depositions, etc.). However, we expect much lenience in this regard. The concern is with timely Answers to Claim Petitions (Yellow Freight concerns). However, given service by mail of a Claim Petition on an employer’s physical location – which may be closed – we believe that the defense of adequate excuse for a late answer will prevail.
The Director concluded by stating “Lastly, while we perceive they will be minimal, we certainly recognize that there will be delays, technical and IT malfunctions and many other issues going forward under the new hearing procedures outlined above. Please be patient. We are all working together to restore WCOA functionality under emergency conditions.”
Appeals
All WCAB hearings are cancelled for the duration of the COVID-19 disaster declaration. The Act and Special Rules requirement that the Board conduct oral argument are suspended and appeals 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.
Other/Non-litigation filings
The Bureau posted: “Because WCAIS is an Internet based system; any associated automated processes will continue to be available for external users. This includes both the EDI Web Portal data entry screens, the claim-related activities on the Actions tab of the claim, and the EDI flat-file batch schedules run four times a day 24×7. Regardless of submission method, any forms generated via an accepted EDI transaction will continue to generate and be returned via the same method as they are currently.”
Depositions
As of this writing, there is no Bureau direction as it pertains to the taking of depositions. Nearly all vendors have the capacity to conduct depositions remotely, either by video or simply by telephone. In practice, remote depositions might be practical and strategic only with expert depositions as opposed to fact witnesses including that of the claimant.
Independent Medical Evaluations
There has been no directive as to a moratorium on IMEs. However, individual doctors or vendors may reasonably be enacting a practice of cancelling scheduled IMEs or withholding scheduling future IMEs until the COVID-19 emergency is abated. It should be expected that a claimant will push back against an IME for fear of COVID-19 exposure. Prudence should be exercised as to the risk/benefit analysis of the value of scheduling an IME on a proactive basis (e.g., seeking determination of full recovery) during any period of a “stay-at-home order”. For IMEs in defense of a Claim Petition, we suspect that much leeway will be afforded by the WCJ in extending any scheduling orders if it is not possible to timely schedule the IME.
New Jersey
Updates to Workers’ Compensation Rules and Procedures – New York, Pennsylvania and New Jersey
The latest directive from the Division posted mid-morning of March 30, 2020 reads as follows:
“All N.J. workers’ compensation courts will remain closed to the public and to non-essential court personnel until April 13, 2020. However, on Monday, April 6, 2020, all Administrative and Supervising Judges shall be designated by the N.J. Department of Labor and Workforce Development and the N.J. Division of Workers’ Compensation as essential personnel and shall report to their home vicinages for the purpose of hearing as many Workers’ Compensation matters as possible by telephonic conferencing, including all emergent matters and the following non-emergent matters: pre-trial conferences, general motions for medical and temporary benefits, and settlements by affidavit. There will be no in-person Workers’ Compensation Court proceedings (except for extremely limited emergent matters and certain ongoing motions for medical and temporary benefits and trials in which case social distancing will be enforced).”
No specific details were provided as to conducting telephonic conferencing, and we expect that the closure may extend past April 13, 2020. There is no directive or any other communication by the Director as to suspension of statute of limitations or any filing deadlines at this point. Electronic filings will continue. Depositions are not a common practice in New Jersey workers’ compensation proceedings. Regarding IMEs, there is no directive on this, and much of our same reasoning of practicality would apply as above (in New Jersey, consider the lack of exigency of a permanency evaluation versus need for treatment evaluation).
Should you have any questions, please call our office at (914) 703-6300 or contact:
Jeffrey T. Miller, Executive Partner
jmiller@pmtlawfirm.com