The time has come to move to the 'next normal' in workers' comp

Now that the two weeks to slow the spread seems to have come to an end, it is time to cast aside some of the habits acquired during the “new normal” and retain some as we slowly consider a possible return to the “old normal.”

Without question, the practice of workers’ compensation has made it, intact, to the other end of the pandemic in one piece. Certainly, COVID-19 forced a significant paradigm shift in the way cases are handled. The question now becomes, what worked and what is worth preserving?

At the beginning, it seemed that the practice might come to a halt, entirely. In addition to the obvious lack of need for a workers’ compensation system stemming from a frozen labor market, the Workers’ Compensation Office of Adjudication (Pennslyvania) was understandably not prepared to take a statewide practice remote on a moment’s notice. With fits and starts, including dabbling in Zoom, Skype for Business, GoToMeeting, WebEx, Ma Bell and finally, Microsoft Teams, the practice of workers’ compensation eventually resumed some sense of normalcy — albeit individualized to each judge with few universally mandated norms. All hearings, mediations, depositions and other interactions became virtual.

While this way of litigating cases was more convenient in many ways, it also detracted significantly from various key aspects of the practice. Gone was the ability of workers’ compensation judges to assess the credibility of a witness or a claimant. Even preparing a witness or streamlining issues with opposing counsel became strained.

Some of this began to change when as of June 28, 2021, the universal mask mandate was lifted. Shortly thereafter, Aug. 16, 2021, workers’ compensation courts in Pennsylvania were permitted to reopen at the discretion of the individual judges for live hearings. However, almost all hearings and mediation remained virtual.

Then, on Feb. 28, the mask mandate for all commonwealth employees and contracted vendors was lifted. The Office of Adjudication conferred authority on all WCJs to exercise their discretion as to whether mediations should be held virtually or in-person. Regarding the hearings themselves, WCJs are encouraged to continue to schedule virtually, through Microsoft Teams, any hearings which do not require testimony, while providing an option for counsel to request an in-person hearing for such matters via WCAIS request. Even for hearings where a witness is expected to testify, each WCJ has the “adjudicatory discretion” to either bring the parties in live or hold a hearing remotely.  In these instances as well, the parties are permitted to file a request through WCAIS seeking to change the nature of the hearing.

As we slowly emerge from our COVID-induced haze, we must evaluate what we have learned from the all-virtual practice and decide what to retain. One decided benefit to the necessities created by the pandemic is the permanent suspension of the need for a compromise and release agreement to be either witnessed or notarized. Pennslyvania Gov. Tom Wolf’s original disaster declaration provided for the temporary suspension of the requirement of attestation or notarization.

On Dec. 22, 2021, Wolf signed into law Act 95 of 2021, permanently removing that requirement under Section 449(c) of the act, as long as the claimant appears before a WCJ and provides a sworn oral statement that he understands the full legal significance of the agreement. Of course, since the first question of any direct testimony in a compromise and release proceeding is: “Ma’am, is that your signature,” the need for the witnesses was always superfluous. Sometimes it takes extraordinary circumstances to reveal common sense.

Regarding whether hearings should return to fully in-person, we must consider that COVID-19 has not been eradicated. The traditional Philadelphia “call of the list” does not lend itself to social distancing, to put it mildly. More often than not, attorneys and parties would stand shoulder-to-shoulder, pouring into the hallway. Certainly, many of the hearings which do not require testimony can still be held virtually. While a live hearing is preferable to a virtual hearing in most cases for a plethora of reasons, there are still countless hearings that can be disposed of without the need for an in-person meeting. These matters should be discussed by the parties before any listing for hopeful agreement on the nature of the hearing. The adjudicating WCJ, in turn, can be as deferential as possible to the parties’ requests, especially if they are agreed-upon. Even a small reduction in live hearings will create a much more hospitable and healthy environment in the courtroom.

One of the more significant casualties of the pandemic is many carriers’ reluctance to pay for travel time and court time, spent waiting in a call of the list. These lost billable hours can be made up, however, through additional preparation, client interaction and heightened dialogue with opposing counsel. Even writing a brief in stages, in real time after a particular piece of evidence is presented can be a positive, even if necessary residual from the time gained from less travel. This renewed focus on brief writing has also made its way to the appeal board, where COVID-19 set in motion the most substantial regulatory changes since the 1972 Amendments which established the appeal board. The newly established “hot bench” requires the submission of both the Petitioner and Respondent’s briefs prior to oral argument — which will continue to be almost all virtual.

Perhaps one of the more unfortunate casualties of the pandemic from a workers’ compensation perspective is the loss or reduction of personal interaction with clients. Renewing contacts with each of your clients, or meeting them in person for the first time(!) is important both for the success of the case and for mental well-being of the client. Perhaps now is the time to bring some clients back in or return to in-person initial meetings, if your firm has not already. While retaining clients, litigating cases and settling them without ever meeting the client in person may have been a necessity during the height of COVID, it is no longer required and can be dispensed with only a modicum of safety precautions.

Finally, the pandemic may have finally convinced even the state legislature to come to terms with common sense. Some workers who have contracted COVID-19 in the course and scope of their employment could finally be entitled to a presumption of relatedness, workers’ compensation benefits. While other states extended presumptions of relatedness to front-line workers from the beginning of the pandemic, Pennsylvania did not. Earlier this month, a bill was introduced to list COVID-19 as an occupational disease of occupational exposure for paid and volunteer emergency responders, police, corrections workers and others who deal with inmates. A second bill provides the same protection in-person caregivers. These bills have bipartisan support.

We are in the early stages of the “latest normal.” We should use this time to focus on what has worked during the pandemic and not be quick to discard it, while also dispensing with the unfortunate necessities that have run their course. The “next normal” should be the final normal.

Christian Petrucci, of the Law Offices of Christian Petrucci, concentrates his practice in the areas of workers’ compensation and Social Security disability. He also counsels injured workers in matters involving employment discrimination and unemployment compensation benefits.

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