The Pennsylvania Bureau of Workers’ Compensation has revised the Notification of Suspension or Modification Pursuant to 413 (c) & (d); form LIBC-751

This change is effective February 20, 2022.

What does this mean?  The form is simpler to use!

Here is a copy of the Bureau announcement -

On Dec. 22, 2021, Governor Tom Wolf signed Act 95 (House Bill 1837) into law. This act amended Section 413(c) & (d) of the PA Workers Compensation Act such that an affidavit is no longer required on the Notification of Suspension or Modification Pursuant to 413(c) & (d) - LIBC 751, effective February 20, 2022.

The Bureau of Workers Compensation has revised the Notification of Suspension or Modification, LIBC-751, to comply with Act 95. 

 

The notification now includes two verification boxes which must be checked before the document is signed. 

 

The notification must still be sent to the claimant and the bureau within seven days of the modification or suspension of benefits. 

 

Due to the substantive change to the form, the revised form must be used beginning February 20, 2022.

 After March 2, 2022, prior versions of the form will be marked incomplete.

Please upload completed forms into WCAIS. Filing in WCAIS is available 24/7 and reflects a "filed date" when uploaded. This practice offers cost savings,

timely filing to the bureau without the need for a valid US Post Mark and makes the document available for instant viewing by all parties to the claim. Uploading can be done within the Action Tab of a claim, using the "Document Type" Notification of Suspension or Modification (LIBC-751) in the tab's drop-down list. The form may also be mailed to the bureau for filing.

Here is a reproduction of the “new” sections – 

NOTIFICATION OF SUSPENSION OR MODIFICATION PURSUANT              TO §§ 413 (c) & (d)  LIBC-751 REV 12-21

INSTRUCTIONS

This form must be completed, mailed to the employee, and uploaded to WCAIS or mailed to the Bureau of Workers’ Compensation within seven days of the suspension or modification of benefits under the provisions of the Workers’ Compensation Act. You must submit an EDI transaction to match the LIBC-751 to update the status of the claim in WCAIS.

*** 

You are notified that because you returned to work on  month day year  your weekly disability benefits for this injury have been:

 __  Suspended effective month day year  because you have returned to work at earnings equal to or greater       

        than your time- of-injury earnings of $._____.

 OR

__  Modified to the rate of $ ____ per week, effective month day year  because you returned to work at earnings

       less than your time-of-injury earnings.

 *** 

 ___   I confirm I have served a copy of this form to the Bureau of Workers’ Compensation.

___    I confirm I have served a copy of this form to the employee.

***                                             

Claims representative’s signature                                                   

Claims representative’s name (typed/printed) 

phone number

This Insurer’s Verification language appears to the right of the Claim rep signature lines -

 INSURER’S VERIFICATION

I verify that this information is true and correct based upon my knowledge, information and belief. I understand false statements are subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsifications to authorities. Any individual filing misleading or incomplete information knowingly and with intent to defraud is in violation of Section 1102 of the Pennsylvania Workers’ Act and may also be subject to criminal and civil penalties through Pennsylvania Act 165 of 1994.

If you have any questions regarding the proper usage, preparation or filing of this revised form – please feel free to ask your workers compensation attorney at www.ChartwellLaw.com 

2022 Pennsylvania Workers' Compensation - State Wide Average Weekly Wage and Total Disability Benefit Rates

 
Pursuant to the Workers’ Compensation Act, Section 105.1, the Department of Labor & Industry has determined the statewide average weekly wage for injuries occurring on and after January 1, 2022, shall be $1,205.00 per week.  

The maximum weekly compensation rate for calendar year 2022 is $1,205.00. 

The weekly compensation rate is 66 2/3 percent of the employee's average weekly wage if the average weekly wage falls between $1,807.50 and $903.76.

The weekly compensation rate is $602.50 if the employee's average weekly wage is between $903.75 and $669.44.

If the employee's average weekly wage is $669.43 or less; the weekly compensation rate is 90 percent of the employee's average weekly wage.

 NOTE: For purposes of calculating the update to payments for medical treatment rendered on and after January 1, 2022, the percentage increase in the Statewide Average Weekly Wage is 6.6 percent.

PA Employers are not entitled to workers' comp benefit credit for Federal Pandemic Unemployment Compensation paid under the CARES Act

Federal Pandemic Unemployment Compensation paid to an Employee under the CARES Act is not equivalent to "Unemployment Compensation Benefits" for which an Employer is entitled to a credit under Section 204(a) of the PA Act.

See: Carbon Lehigh Intermediate Unit #21 v. WCAB (Waardal), a Pennsylvania Commonwealth Court decision published at No. 750 C.D. 2021; filed on January 3, 2022.

HOLDING: The sole issue before the Court was whether Federal Pandemic Unemployment Compensation under the CARES Act is the equivalent to UC benefits for which a PA Employer is entitled to a credit under Section 204(a) of the Workers Compensation Act.

The Carbon Lehigh decision relied upon its prior analysis in Dietrich Industries, Inc. v. WCAB (Shank) (Pa. Cmwlth. 1999) to conclude that no credit is available to the Employer for the CARES benefits paid. In Shank the Court disallowed a credit under Section 204(a) for federally funded trade readjustment allowance (TRA) benefits a claimant received.

The Carbon Lehigh decision arose from Employer's  appeal of the WCAB order affirming the WCJ decision to deny the Employer a credit against its payment of workers’ compensation benefits for the Federal Pandemic Unemployment Compensation that Claimant received pursuant to Section 2104(b)(1) of the Coronavirus Aid, Relief, and Economic Security (CARES) Act, 15 U.S.C. § 9023(b)(1).

REASONING of the COURT

As one may have anticipated, the Commonwealth Court relied upon its decision at Shank to deny the Employer a credit in the instant matter.

In Shank the claimant received sickness and accident benefits following a work-related lower back injury along with UC benefits and TRA benefits, which “were intended to supplement state unemployment insurance benefits.” Shank’s receipt of TRA benefits was subject to various statutory requirements, including exhaustion of his entitlement to “unemployment insurance benefits.”

Shank’s employer sought a credit against workers’ compensation in the amount of Shank’s UC and TRA benefits. A WCJ granted the credit for Shank’s sickness and accident and UC benefits but disallowed a credit for his TRA benefits.

The Commonwealth Court analyzed the employer’s right to a credit under Section 204(a). The Court noted that TRA benefits, which were intended to supplement UC benefits, were funded entirely by the federal government, as was the cost of administering the TRA program. 

Shank’s Employer argued that the funding source for Shank’s TRA benefits was irrelevant, as Section 204(a) made no such distinction when mandating a credit for a claimant’s receipt of UC benefits. The Court disagreed, stating that an Employer’s credit against its obligation to pay workers’ compensation stems from its payment of “regular stated amounts, out of its own general funds or from sick or accident benefits,” which do not constitute “wages or salary for work performed, but which are paid in relief of the employee’s incapacity to work.”

The Court further reasoned that TRA benefits were not among the types of payments delineated in Section 204(a) from which an employer could seek a credit towards its workers’ compensation obligation. They recognized that, where certain items are specifically designated in a statute, omissions are understood to be excluded. Having concluded that TRA benefits were “distinct from the type of benefits contemplated” under Section 204(a), the Court affirmed the denial of a credit to the Employer.

In support of its right to a credit for Claimant’s receipt of Federal Pandemic Unemployment Compensation, this Employer essentially resurrects the argument the Court rejected in Shank – that Section 204(a) makes no distinction as to the funding source of a claimant’s UC benefits.

The Court stated – “We are similarly unpersuaded by Employer’s attempts to distinguish this matter from our holding in Shank”. They found it was noteworthy that Pandemic Compensation is available to individuals who are not otherwise eligible to receive “regular” UC benefits, and the CARES Act provides for federal reimbursement of the amounts paid by a state for Pandemic Compensation. Furthermore, Pandemic Compensation is referenced separately from “regular compensation” throughout the relevant provisions of the CARES Act.

The Court concluded that these distinctions render Pandemic Compensation sufficiently “distinct from the type of benefits contemplated” under Section 204(a) of the Act.

It was acknowledged that Section 204(a), which was last amended in 1996, did not contemplate the benefits at issue here. However, it is clear that the General Assembly has not seen fit to amend Section 204(a) in the two decades following the decision in Shank, so as to specify that the credit provisions of Section 204(a) encompass the types of federally funded benefits at issue in Shank and the instant matter.

Ultimately, the legislative intent behind Section 204(a) is to prevent an employer from having to pay “duplicate benefits for the same loss of earnings.” (emphasis added). Allegheny Ludlum Corp. v. Workers’ Comp. Appeal Bd. (Bascovsky), (Pa. Cmwlth. 2009). Disallowing a credit for Pandemic Compensation that is wholly paid for by another entity does no disservice to the overall purpose of Section 204(a), nor does it place Employer in the position of “paying duplicate benefits for the same loss of earnings.”