PRINTER'S NO. 3656
No. 2640 Session of 1990
INTRODUCED BY RYBAK, THOMAS, DeWEESE, FREEMAN, McHALE, RITTER,
PRESSMANN, DURHAM, MAINE, JOSEPHS, RUDY, FARMER, BISHOP,
TELEK, LAUGHLIN, WILSON, E. Z. TAYLOR, WESTON, HARPER,
HAGARTY, COHEN, COWELL, STUBAN, JAMES, STEIGHNER, SEMMEL,
McNALLY, TRICH, HAYDEN, KOSINSKI, KONDRICH, ANGSTADT,
O'BRIEN, ROBINSON, ALLEN, ARGALL, MELIO, KUKOVICH, MORRIS,
SAURMAN, TRELLO, DORR, CARLSON, MERRY, BATTISTO, ITKIN,
MICHLOVIC, PESCI, RICHARDSON, ADOLPH AND BELARDI,
JUNE 6, 1990
REFERRED TO COMMITTEE ON LABOR RELATIONS, JUNE 6, 1990
AN ACT
1 Amending the act of June 2, 1915 (P.L.736, No.338), entitled "An
2 act defining the liability of an employer to pay damages for
3 injuries received by an employe in the course of employment;
4 establishing an elective schedule of compensation; providing
5 procedure for the determination of liability and compensation
6 thereunder; and prescribing penalties," changing references
7 from "workmen's" to "workers'."
8 The General Assembly of the Commonwealth of Pennsylvania
9 hereby enacts as follows:
10 Section 1. Section 101 of the act of June 2, 1915 (P.L.736,
11 No.338), known as The Pennsylvania Workmen's Compensation Act,
12 reenacted and amended June 21, 1939 (P.L.520, No.281) and
13 amended December 5, 1974 (P.L.782, No.263), is amended to read:
14 Section 101. That this act shall be called and cited as The
15 Pennsylvania [Workmen's] Workers' Compensation Act, and shall
16 apply to all injuries occurring within this Commonwealth,
17 irrespective of the place where the contract of hiring was made,
1 renewed, or extended, and extraterritorially as provided by
2 section 305.2.
3 Section 2. Section 107 of the act is amended to read:
4 Section 107. The term "Department," when used in this act,
5 shall mean the Department of Labor and Industry of this
6 Commonwealth.
7 The term "Board," when used in this act shall mean The
8 [Workmen's] Workers' Compensation Board of this Commonwealth.
9 Section 3. Sections 301(c)(2) and 302(c) of the act, amended
10 December 5, 1974 (P.L.782, No.263), are amended to read:
11 Section 301. * * *
12 (c) * * *
13 (2) The terms "injury," "personal injury," and "injury
14 arising in the course of his employment," as used in this act,
15 shall include, unless the context clearly requires otherwise,
16 occupational disease as defined in section 108 of this act:
17 Provided, That whenever occupational disease is the basis for
18 compensation, for disability or death under this act, it shall
19 apply only to disability or death resulting from such disease
20 and occurring within three hundred weeks after the last date of
21 employment in an occupation or industry to which he was exposed
22 to hazards of such disease: And provided further, That if the
23 employe's compensable disability has occurred within such
24 period, his subsequent death as a result of the disease shall
25 likewise be compensable. The provisions of this paragraph (2)
26 shall apply only with respect to the disability or death of an
27 employe which results in whole or in part from the employe's
28 exposure to the hazard of occupational disease after June 30,
29 1973 in employment covered by The Pennsylvania [Workmen's]
30 Workers' Compensation Act. The employer liable for compensation
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1 provided by section 305.1 or section 108, subsections (k), (l),
2 (m), (o), (p) or (q), shall be the employer in whose employment
3 the employe was last exposed for a period of not less than one
4 year to the hazard of the occupational disease claimed. In the
5 event the employe did not work in an exposure at least one year
6 for any employer during the three hundred week period prior to
7 disability or death, the employer liable for the compensation
8 shall be that employer giving the longest period of employment
9 in which the employe was exposed to the hazards of the disease
10 claimed.
11 * * *
12 Section 302. * * *
13 (c) Any employer employing persons in agricultural labor
14 shall be required to provide [workmen's] workers' compensation
15 coverage for such employes according to the provisions of this
16 act, if such employer is otherwise covered by the provisions of
17 this act or if during the calendar year such employer pays wages
18 to one employe for agricultural labor totalling one hundred
19 fifty dollars ($150) or more or furnishes employment to one
20 employe in agricultural labor on twenty or more days in any of
21 which events the employer shall be required to provide coverage
22 for all employes.
23 Section 4. Section 305 of the act, amended December 5, 1974
24 (P.L.782, No.263) and repealed in part April 28, 1978 (P.L.202,
25 No.53), is amended to read:
26 Section 305. Every employer liable under this act to pay
27 compensation shall insure the payment of compensation in the
28 State [Workmen's] Workers' Insurance Fund, or in any insurance
29 company, or mutual association or company, authorized to insure
30 such liability in this Commonwealth, unless such employer shall
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1 be exempted by the department from such insurance. Such insurer
2 shall assume the employer's liability hereunder and shall be
3 entitled to all of the employer's immunities and protection
4 hereunder except, that whenever any employer shall have
5 purchased insurance to provide benefits under this act to
6 persons engaged in domestic service, neither the employer nor
7 the insurer may invoke the provisions of section 321 as a
8 defense. An employer desiring to be exempt from insuring the
9 whole or any part of his liability for compensation shall make
10 application to the department, showing his financial ability to
11 pay such compensation, whereupon the department, if satisfied of
12 the applicant's financial ability, shall, upon the payment of a
13 fee of one hundred dollars ($100.00), issue to the applicant a
14 permit authorizing such exemption. The department shall
15 establish a period of twelve (12) calendar months, to begin and
16 end at such times as the department shall prescribe, which shall
17 be known as the annual exemption period. Unless previously
18 revoked, all permits issued under this section shall expire and
19 terminate on the last day of the annual exemption period for
20 which they were issued. Permits issued under this act shall be
21 renewed upon the filing of an application, and the payment of a
22 renewal fee of one hundred dollars ($100.00). The department
23 may, from time to time, require further statements of the
24 financial ability of such employer, and, if at any time such
25 employer appear no longer able to pay compensation, shall revoke
26 its permit granting exemption, in which case the employer shall
27 immediately subscribe to the State [Workmen's] Workers'
28 Insurance Fund, or insure his liability in any insurance company
29 or mutual association or company, as aforesaid.
30 Any employer who fails to comply with the provisions of this
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1 section for every such failure, shall, upon summary conviction
2 before any official of competent jurisdiction, be sentenced to
3 pay a fine of not less than five hundred dollars ($500) nor more
4 than two thousand dollars ($2,000), and costs of prosecution, or
5 imprisonment for a period of not more than one (1) year, or
6 both. Every day's violation shall constitute a separate offense.
7 It shall be the duty of the department to enforce the provisions
8 of this section; and it shall investigate all violations that
9 are brought to its notice and shall institute prosecutions for
10 violations thereof. All fines recovered under the provisions of
11 this section shall be paid to the department, and by it paid
12 into the State Treasury.
13 In any proceeding against an employer under this section, a
14 certificate of non-insurance issued by the official [Workmen's]
15 Workers' Compensation Rating and Inspection Bureau and a
16 certificate of the department showing that the defendant has not
17 been exempted from obtaining insurance under this section, shall
18 be prima facie evidence of the facts therein stated.
19 When any employer fails to secure the payment of compensation
20 under this act as provided in sections 305 and 305.2, the
21 injured employe or his dependents may proceed either under this
22 act or in a suit for damages at law as provided by article II.
23 Section 5. Section 305.2 of the act, added December 5, 1974
24 (P.L.782, No.263), is amended to read:
25 Section 305.2. (a) If an employe, while working outside the
26 territorial limits of this State, suffers an injury on account
27 of which he, or in the event of his death, his dependents, would
28 have been entitled to the benefits provided by this act had such
29 injury occurred within this State, such employe, or in the event
30 of his death resulting from such injury, his dependents, shall
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1 be entitled to the benefits provided by this act, provided that
2 at the time of such injury:
3 (1) His employment is principally localized in this State,
4 or
5 (2) He is working under a contract of hire made in this
6 State in employment not principally localized in any state, or
7 (3) He is working under a contract of hire made in this
8 State in employment principally localized in another state whose
9 [workmen's] workers' compensation law is not applicable to his
10 employer, or
11 (4) He is working under a contract of hire made in this
12 State for employment outside the United States and Canada.
13 (b) The payment or award of benefits under the [workmen's]
14 workers' compensation law of another state, territory, province
15 or foreign nation to an employe or his dependents otherwise
16 entitled on account of such injury or death to the benefits of
17 this act shall not be a bar to a claim for benefits under this
18 act; provided that claim under this act is filed within three
19 years after such injury or death. If compensation is paid or
20 awarded under this act:
21 (1) The medical and related benefits furnished or paid for
22 by the employer under such other [workmen's] workers'
23 compensation law on account of such injury or death shall be
24 credited against the medical and related benefits to which the
25 employe would have been entitled under this act had claim been
26 made solely under this act.
27 (2) The total amount of all income benefits paid or awarded
28 the employe under such other [workmen's] workers' compensation
29 law shall be credited against the total amount of income
30 benefits which would have been due the employe under this act,
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1 had claim been made solely under this act.
2 (3) The total amount of death benefits paid or awarded under
3 such other [workmen's] workers' compensation law shall be
4 credited against the total amount of death benefits due under
5 this act.
6 Nothing in this act shall be construed to mean that coverage
7 under this act excludes coverage under another law or that an
8 employe's election to claim compensation under this act is
9 exclusive of coverage under another state act or is binding on
10 the employe or dependent, except, perhaps to the extent of an
11 agreement between the employe and the employer or where
12 employment is localized to the extent that an employe's duties
13 require him to travel regularly in this State and another state
14 or states.
15 (c) If an employe is entitled to the benefits of this act by
16 reason of an injury sustained in this State in employment by an
17 employer who is domiciled in another state and who has not
18 secured the payment of compensation as required by this act, the
19 employer or his carrier may file with the director a
20 certificate, issued by the commission or agency of such other
21 state having jurisdiction over [workmen's] workers' compensation
22 claims, certifying that such employer has secured the payment of
23 compensation under the [workmen's] workers' compensation law of
24 such other state and that with respect to said injury such
25 employe is entitled to the benefits provided under such law.
26 In such event:
27 (1) The filing of such certificate shall constitute an
28 appointment by such employer or his carrier of the Secretary of
29 Labor and Industry as his agent for acceptance of the service of
30 process in any proceeding brought by such employe or his
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1 dependents to enforce his or their rights under this act on
2 account of such injury;
3 (2) The secretary shall send to such employer or carrier, by
4 registered or certified mail to the address shown on such
5 certificate, a true copy of any notice of claim or other process
6 served on the secretary by the employe or his dependents in any
7 proceeding brought to enforce his or their rights under this
8 act;
9 (3) (i) If such employer is a qualified self-insurer under
10 the [workmen's] workers' compensation law of such other state,
11 such employer shall, upon submission of evidence, satisfactory
12 to the director, of his ability to meet his liability to such
13 employe under this act, be deemed to be a qualified self-insurer
14 under this act;
15 (ii) If such employer's liability under the [workmen's]
16 workers' compensation law of such other state is insured, such
17 employer's carrier, as to such employe or his dependents only,
18 shall be deemed to be an insurer authorized to write insurance
19 under and be subject to this act: Provided, however, That unless
20 its contract with said employer requires it to pay an amount
21 equivalent to the compensation benefits provided by this act,
22 its liability for income benefits or medical and related
23 benefits shall not exceed the amounts of such benefits for which
24 such insurer would have been liable under the [workmen's]
25 workers' compensation law of such other state;
26 (4) If the total amount for which such employer's insurance
27 is liable under clause (3) above is less than the total of the
28 compensation benefits to which such employe is entitled under
29 this act, the secretary may, if he deems it necessary, require
30 the employer to file security, satisfactory to the secretary, to
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1 secure the payment of benefits due such employe or his
2 dependents under this act; and
3 (5) Upon compliance with the preceding requirements of this
4 subsection (c), such employer, as to such employe only, shall be
5 deemed to have secured the payment of compensation under this
6 act.
7 (d) As used in this section:
8 (1) "United States" includes only the states of the United
9 States and the District of Columbia.
10 (2) "State" includes any state of the United States, the
11 District of Columbia, or any Province of Canada.
12 (3) "Carrier" includes any insurance company licensed to
13 write [workmen's] workers' compensation insurance in any state
14 of the United States or any state or provincial fund which
15 insures employers against their liabilities under a [workmen's]
16 workers' compensation law.
17 (4) A person's employment is principally localized in this
18 or another state when (i) his employer has a place of business
19 in this or such other state and he regularly works at or from
20 such place of business, or (ii) having worked at or from such
21 place of business, his duties have required him to go outside of
22 the State not over one year, or (iii) if clauses (1) and (2)
23 foregoing are not applicable, he is domiciled and spends a
24 substantial part of his working time in the service of his
25 employer in this or such other state.
26 (5) An employe whose duties require him to travel regularly
27 in the service of his employer in this and one or more other
28 states may, by written agreement with his employer, provide that
29 his employment is principally localized in this or another such
30 state, and, unless such other state refuses jurisdiction, such
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1 agreement shall be given effect under this act.
2 (6) ["Workmen's] "Workers' compensation law" includes
3 "occupational disease law."
4 Section 6. Section 315 of the act, amended April 4, 1974
5 (P.L.239, No.56) and December 5, 1974 (P.L.782, No.263), is
6 amended to read:
7 Section 315. In cases of personal injury all claims for
8 compensation shall be forever barred, unless, within three years
9 after the injury, the parties shall have agreed upon the
10 compensation payable under this article; or unless within three
11 years after the injury, one of the parties shall have filed a
12 petition as provided in article four hereof. In cases of death
13 all claims for compensation shall be forever barred, unless
14 within three years after the death, the parties shall have
15 agreed upon the compensation under this article; or unless,
16 within three years after the death, one of the parties shall
17 have filed a petition as provided in article four hereof. Where,
18 however, in the case of any person receiving benefits pursuant
19 to the act of June 28, 1935 (P.L.477, No.193), referred to as
20 the Heart and Lung Act, the two-year period in which parties
21 must agree upon the compensation or file a petition for
22 compensation in cases of personal injury or in death, shall not
23 begin to run until the expiration of the receipt of benefits
24 pursuant to the Heart and Lung Act. Where, however, payments of
25 compensation have been made in any case, said limitations shall
26 not take effect until the expiration of three years from the
27 time of the making of the most recent payment prior to date of
28 filing such petition: Provided, That any payment made under an
29 established plan or policy of insurance for the payment of
30 benefits on account of non-occupational illness or injury and
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1 which payment is identified as not being [workmen's] workers'
2 compensation shall not be considered to be payment in lieu of
3 [workmen's] workers' compensation, and such payment shall not
4 toll the running of the Statute of Limitations. However, in
5 cases of injury resulting from ionizing radiation in which the
6 nature of the injury or its relationship to the employment is
7 not known to the employe, the time for filing a claim shall not
8 begin to run until the employe knows, or by the exercise of
9 reasonable diligence should know, of the existence of the injury
10 and its possible relationship to his employment. The term
11 "injury" in this section means, in cases of occupational
12 disease, disability resulting from occupational disease.
13 Section 7. Section 321 of the act, added March 29, 1972
14 (P.L.159, No.61), is amended to read:
15 Section 321. Nothing contained in this act shall apply to or
16 in any way affect any person who at the time of injury is
17 engaged in domestic service: Provided, however, That in cases
18 where the employer of any such person shall have, prior to such
19 injury, by application to the [Workmen's] Workers' Compensation
20 Board, approved by the board, elected to come within the
21 provisions of the act, such exemption shall not apply.
22 Section 8. Section 401 of the act, amended February 8, 1972
23 (P.L.25, No.12), is amended to read:
24 Section 401. The term "referee," when used in this article,
25 shall mean [Workmen's] Workers' Compensation Referee of the
26 Department of Labor and Industry, appointed by and subject to
27 the general supervision of the Secretary of Labor and Industry
28 for the purpose of conducting departmental hearings under this
29 act. The secretary may establish different classes of referees.
30 The term "board," when used in this article, shall mean the
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1 [Workmen's] Workers' Compensation Appeal Board, a departmental
2 administrative board as provided in sections 202, 207, 503 and
3 2208 of the act of April 9, 1929 (P.L.177), known as "The
4 Administrative Code of 1929," exercising its powers and
5 performing its duties as an appellate board independently of the
6 Secretary of Labor and Industry and any other official of the
7 department.
8 The term "fund," when used in this article, shall mean the
9 State [Workmen's] Workers' Insurance Fund of this Commonwealth,
10 the State-operated insurance carrier from which [workmen's]
11 workers' compensation insurance policies may be purchased by
12 employers to cover all risks of liability under this act
13 including those declined by private carriers.
14 The terms "insurer" and "carrier," when used in this article,
15 shall mean the State [Workmen's] Workers' Insurance Fund or
16 other insurance carrier which has insured the employer's
17 liability under this act, or the employer in cases of self-
18 insurance.
19 The term "employer," when used in this article, shall mean
20 the employer as defined in article one of this act, or his duly
21 authorized agent, or his insurer if such insurer has assumed the
22 employer's liability or the fund if the employer be insured
23 therein.
24 Section 9. Section 413(a) of the act, amended April 4, 1974
25 (P.L.239, No.56) and December 5, 1974 (P.L.782, No.263), is
26 amended to read:
27 Section 413. (a) A referee of the department may, at any
28 time, review and modify or set aside a notice of compensation
29 payable and an original or supplemental agreement or upon
30 petition filed by either party with the department, or in the
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1 course of the proceedings under any petition pending before such
2 referee, if it be proved that such notice of compensation
3 payable or agreement was in any material respect incorrect.
4 A referee designated by the department may, at any time,
5 modify, reinstate, suspend, or terminate a notice of
6 compensation payable, an original or supplemental agreement or
7 an award of the department or its referee, upon petition filed
8 by either party with the department, upon proof that the
9 disability of an injured employe has increased, decreased,
10 recurred, or has temporarily or finally ceased, or that the
11 status of any dependent has changed. Such modification,
12 reinstatement, suspension, or termination shall be made as of
13 the date upon which it is shown that the disability of the
14 injured employe has increased, decreased, recurred, or has
15 temporarily or finally ceased, or upon which it is shown that
16 the status of any dependent has changed: Provided, That, except
17 in the case of eye injuries, no notice of compensation payable,
18 agreement or award shall be reviewed, or modified, or
19 reinstated, unless a petition is filed with the department
20 within three years after the date of the most recent payment of
21 compensation made prior to the filing of such petition. Where,
22 however, a person is receiving benefits pursuant to the act of
23 June 28, 1935 (P.L.477, No.193), referred to as the Heart and
24 Lung Act, the two-year period in which a petition to review,
25 modify, or reinstate a notice of compensation, agreement or
26 award must be filed, shall not begin to run until the expiration
27 of the receipt of benefits pursuant to the Heart and Lung Act:
28 And provided further, That any payment made under an established
29 plan or policy of insurance for the payment of benefits on
30 account of nonoccupational illness or injury and which payment
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1 is identified as not being [workmen's] workers' compensation
2 shall not be considered to be payment in lieu of [workmen's]
3 workers' compensation, and such payment shall not toll the
4 running of the Statute of Limitations: And provided further,
5 That where compensation has been suspended because the employe's
6 earnings are equal to or in excess of his wages prior to the
7 injury that payments under the agreement or award may be resumed
8 at any time during the period for which compensation for partial
9 disability is payable, unless it be shown that the loss in
10 earnings does not result from the disability due to the injury.
11 The referee to whom any such petition has been assigned may
12 subpoena witnesses, hear evidence, make findings of fact, and
13 award or disallow compensation, in the same manner and with the
14 same effect and subject to the same right of appeal, as if such
15 petition were an original claim petition.
16 The filing of a petition to terminate or modify a notice of
17 compensation payable or a compensation agreement or award as
18 provided in this section shall operate as a supersedeas, and
19 shall suspend the payment of compensation fixed in the agreement
20 or by the award, in whole or to such extent as the facts alleged
21 in the petition would, if proved, require only when such
22 petition alleges that the employe has returned to work at his
23 prior or increased earnings or where the petition alleges that
24 the employe has fully recovered and is accompanied by an
25 affidavit of a physician on a form prescribed by the department
26 to that effect which is based upon an examination made within
27 fifteen days of the filing of the petition. In any other case, a
28 petition to terminate or modify a compensation agreement or
29 other payment arrangement or award as provided in this section
30 shall not automatically operate as a supersedeas but may be
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1 designated as a request for a supersedeas, which may then be
2 granted at the discretion of the referee hearing the case. A
3 supersedeas shall serve to suspend the payment of compensation
4 in whole or to such extent as the facts alleged in the petition
5 would, if proved, require. The referee hearing the case shall
6 rule on the request for a supersedeas as soon as possible and
7 may approve the request if proof of a change in medical status,
8 or proof of any other fact which would serve to modify or
9 terminate payment of compensation is submitted with the
10 petition. The referee hearing the case may consider any other
11 fact which he deems to be relevant when making the decision on
12 the supersedeas request and the decision shall not be
13 appealable.
14 * * *
15 Section 10. Sections 441(a), 443 and 445 of the act, amended
16 or added July 30, 1975 (P.L.139, No.70), are amended to read:
17 Section 441. (a) If any insurer licensed to transact the
18 business of [workmen's] workers' compensation insurance within
19 this Commonwealth repeatedly or unreasonably fails to pay
20 promptly compensation for which it is liable or fails or refuses
21 to submit any report or to pay any assessment made under this
22 act, the secretary may recommend to the Insurance Commissioner
23 that the license of the company to transact such business be
24 revoked, or suspended setting forth in detail the reasons for
25 his recommendation. The Insurance Commissioner shall thereupon
26 furnish a copy of the secretary's report to the insurer and
27 shall set a date for public hearing, at which both the insurer
28 and the secretary shall be afforded an opportunity to present
29 evidence. If, after the hearing, the commissioner is satisfied
30 that the insurer has failed to live up to his obligations under
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1 this act, he shall promptly revoke or suspend its license.
2 * * *
3 Section 443. (a) If, in any case in which a supersedeas has
4 been requested and denied under the provisions of section 413 or
5 section 430, payments of compensation are made as a result
6 thereof and upon the final outcome of the proceedings, it is
7 determined that such compensation was not, in fact, payable, the
8 insurer who has made such payments shall be reimbursed therefor.
9 Application for reimbursement shall be made to the department on
10 forms prescribed by the department and furnished by the insurer.
11 Applications may be assigned to a [workmen's] workers'
12 compensation referee for a hearing and determination of
13 eligibility for reimbursement pursuant to this act. An appeal
14 shall lie in the manner and on the grounds provided in section
15 423 of this act, from any allowance or disallowance of
16 reimbursement under this section.
17 (b) There is hereby established a special fund in the State
18 Treasury, separate and apart from all other public moneys or
19 funds of this Commonwealth, to be known as the [Workmen's]
20 Workers' Compensation Supersedeas Fund. The purpose of this fund
21 shall be to provide moneys for payments pursuant to subsection
22 (a), to include reimbursement to the Commonwealth for any such
23 payments made from general revenues. The department shall be
24 charged with the maintenance and conservation of this fund. The
25 fund shall be maintained by annual assessments on insurers and
26 self-insurers under this act, including the State [Workmen's]
27 Workers' Insurance Fund. The department shall make assessments
28 and collect moneys pursuant to this section of the act.
29 Assessments shall be based on the ratio that such insurer's or
30 self-insurer's payments of compensation bear to the total
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1 compensation paid in the year preceding the year of assessment.
2 The total amount to be assessed shall be one hundred percent of
3 the amount reimbursed to insurers and self-insurers in the
4 preceding year pursuant to this section, except that the first
5 annual assessment made under this act shall be in the amount of
6 two hundred fifty thousand dollars ($250,000). The department
7 shall give notice to every insurer and self-insurer under this
8 act, including the State [Workmen's] Workers' Insurance Fund, of
9 the amount assessed against such insurer, self-insurer or the
10 State [Workmen's] Workers' Insurance Fund on or before June 30
11 of the year following the year upon which the assessment is
12 based: Provided, That notice of the first annual assessment
13 under this act shall be given to every insurer and self-insurer
14 under this act, including the State [Workmen's] Workers'
15 Insurance Fund, within ninety days of the effective date of this
16 amending act. Payment of assessments shall be made to the
17 department within thirty days of receipt of notice of the amount
18 assessed, unless the department specifies on the notices sent to
19 all insurers and self-insurers an installment plan of payment,
20 in which case each such insurer shall pay each installment on or
21 before the date specified therefore by the department within
22 fifteen days after the receipt of such notice, the insurer or
23 self-insurer against which such assessment has been made may
24 file with the department objections setting out in detail the
25 grounds upon which the objector regards such assessment to be
26 excessive, erroneous, unlawful, or invalid. The department,
27 after notice to the objector, shall hold a hearing upon such
28 objections. After such hearing, the department shall record its
29 findings on the objections and shall transmit to the objector,
30 by registered or certified mail, notice of the amount, if any,
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1 charged against it in accordance with such findings, which
2 amount or any installment thereof then due, shall be paid by the
3 objector within ten days after receipt of notice of the
4 findings.
5 No suit or proceeding shall be maintained in any court for
6 the purpose of restraining or in anywise delaying the collection
7 or payment of any assessment made under this subsection but
8 every insurer or self-insurer against which an assessment is
9 made shall pay the same as provided in subsection (b) of this
10 section. Any insurer or self-insurer making any such payment
11 may, at any time within two years from the date of payment, sue
12 the Commonwealth in an action at law to recover the amount paid,
13 or any part thereof, upon the ground that the assessment was
14 excessive, erroneous, unlawful, invalid, in whole or in part,
15 provided objections, as hereinbefore provided, were filed with
16 the department, and payment of the assessment was made under
17 protest either as to all or part thereof. In any action for
18 recovery of any payments made under this section, the claimant
19 shall be entitled to raise every relevant issue of law, but the
20 findings of fact made by the department, pursuant to this
21 section, shall be prima facie evidence of the facts therein
22 stated. If it is finally determined in any such action that all
23 or any part of the assessment for which payment was made under
24 protest was excessive, erroneous, unlawful, or invalid, the
25 department shall make a refund to the claimant out of the
26 appropriation specified in subsection (c) as directed by the
27 court.
28 (c) The department shall keep a record of the manner in
29 which it shall have computed the amount assessed against every
30 insurer or self-insurer. Such records shall be open to
19900H2640B3656 - 18 -
1 inspection by all interested parties. The determination of such
2 assessments and the records and data upon which the same are
3 made, shall be considered prima facie correct; and in any
4 proceeding instituted to challenge the reasonableness or
5 correctness of any assessment under this section, the party
6 challenging the same shall have the burden of proof. The fund
7 shall be subject to audit by the Auditor General and a copy of
8 the report of the audit furnished to assessed insurers and self-
9 insurers upon request. The Secretary of Labor and Industry shall
10 be the administrator of the fund and shall have the power to
11 dispense and disburse moneys from the fund for the purpose of
12 payments made pursuant to this section. All moneys in the fund
13 as are required to carry out the purposes of this section are
14 hereby specifically appropriated to the Department of Labor and
15 Industry. The State Treasurer shall be custodian of the fund.
16 Disbursements of moneys pursuant to this section shall be upon
17 final adjudication of requests for payments pursuant thereto.
18 Section 445. Annual reports of compensation paid by
19 insurers, self-insurers and the State [Workmen's] Workers'
20 Insurance Fund shall be made on a calendar year basis to the
21 department not later than April 15 of the following year, except
22 that for the year 1974 reports shall be filed within sixty days
23 of the effective date of this amending act. Nothing in this act
24 shall be construed to preclude insurers from filing its annual
25 report required herein in substantially the same form as its
26 annual report to the Insurance Department.
27 Section 11. Section 446 of the act, added February 2, 1976
28 (P.L.2, No.2), is amended to read:
29 Section 446. (a) There is hereby created a special fund in
30 the State Treasury, separate and apart from all other public
19900H2640B3656 - 19 -
1 moneys or funds of this Commonwealth, to be known as the
2 [Workmen's] Workers' Compensation Administration Fund. The
3 purpose of this fund shall be to finance the operating and
4 administrative expenses of the Department of Labor and Industry,
5 including the [Workmen's] Workers' Compensation Appeal Board and
6 staff, but not the State [Workmen's] Workers' Insurance Fund, in
7 the direct administration of The Pennsylvania [Workmen's]
8 Workers' Compensation Act and The Pennsylvania Occupational
9 Disease Act including:
10 (1) wages and salaries of employes for services performed in
11 the administration of these acts;
12 (2) reasonable travel expenses for employes while engaged in
13 official business; and
14 (3) moneys expended for office rental, equipment rental,
15 supplies, equipment, repairs, services, postage, books, and
16 periodicals.
17 (b) The fund shall be maintained by no more than one (1)
18 annual assessment payable in any calendar year on insurers and
19 self-insurers under this act, including the State [Workmen's]
20 Workers' Insurance Fund. The initial assessment for the period
21 commencing July 1, 1975 through December 31, 1976, shall be
22 seven per centum of the total compensation paid by each insurer,
23 self-insurer and the State [Workmen's] Workers' Insurance Fund
24 in the calendar year 1974. After the initial term, budgeted
25 expenses shall be approved by the General Assembly on a fiscal
26 year basis. Thereafter, the department shall make assessments
27 and collect moneys based on the ratio that such insurer's or
28 self-insurer's payments of compensation bear to the total
29 compensation paid in the preceding calendar year in which the
30 assessment is made. The total amount assessed shall be the
19900H2640B3656 - 20 -
1 approved budget. If on January 31, there exists in the
2 administration fund any money in excess of one hundred fifty per
3 centum of the current budget the following fiscal year's
4 assessment shall be reduced by an amount equal to that excess
5 amount.
6 (c) The department shall give notice to every insurer and
7 self-insurer under this act, including the State [Workmen's]
8 Workers' Insurance Fund, of the amount assessed against such
9 insurer, self-insurer, or the State [Workmen's] Workers'
10 Insurance Fund on or before November 30 of each year. Payment of
11 assessments shall be made to the department on or before January
12 31 of the next year unless the department specifies on the
13 notices sent to all insurers and self-insurers an installment
14 plan of payment, in which case each such insurer shall pay each
15 installment on or before the date specified therefore by the
16 department: Provided, That notice of the initial assessment
17 under this act shall be given to every insurer and self-insurer
18 under this act, including the State [Workmen's] Workers'
19 Insurance Fund, within ninety days of the effective date of this
20 amendatory act. Payment of the initial assessments shall be made
21 within thirty days of the mailing of said assessments.
22 If the General Assembly fails to approve the department's
23 budget for the purposes of this act, by the last day of
24 November, the department shall assess insurers, self-insurers
25 and the State [Workmen's] Workers' Insurance Fund on the basis
26 of that last approved operating budget. At such time as the
27 General Assembly approves the proposed budget the department
28 shall have the authority to make an adjustment in the
29 assessments to reflect the approved budget. If the General
30 Assembly fails to approve the department's budget prior to July
19900H2640B3656 - 21 -
1 1 of any fiscal year, moneys in the fund are hereby appropriated
2 to the department for the purposes of this act.
3 Within fifteen days after the receipt of such notice, the
4 insurer or self-insurer against which such assessment has been
5 made may file with the department objections setting out in
6 detail the grounds upon which the objector regards such
7 assessment to be excessive, erroneous, unlawful, or invalid. The
8 department, after notice to the objector, shall hold a hearing
9 upon such objections. After such hearing, the department shall
10 record its findings on the objections and shall transmit to the
11 objector, by registered or certified mail, notice of the amount,
12 if any, charged against it in accordance with such findings,
13 which amount or any installment thereof then due, shall be paid
14 by the objector within ten days after receipt of notice of the
15 findings. If any payment prescribed by this subsection is not
16 made as aforesaid, the secretary of the department may recommend
17 to the Insurance Commissioner that appropriate action be taken
18 against the insurer or self-insurer, including revocation or
19 suspension of the company's license to transact business in the
20 Commonwealth.
21 No suit or proceeding shall be maintained in any court for
22 the purpose of restraining or in anywise delaying the collection
23 or payment of any assessment made under this subsection but
24 every insurer or self-insurer against which an assessment is
25 made shall pay the same as provided in subsection (c) of this
26 section. Any insurer or self-insurer making any such payment
27 may, at any time within two years from the date of payment, sue
28 the Commonwealth in an action at law to recover the amount paid,
29 or any part thereof, upon the ground that the assessment was
30 excessive, erroneous, unlawful, invalid, in whole or in part,
19900H2640B3656 - 22 -
1 provided objections, as hereinbefore provided, were filed with
2 the department, and payment of the assessment was made under
3 protest either as to all or part thereof. In any action for
4 recovery of any payments made under this section, the claimant
5 shall be entitled to raise every relevant issue of law, but the
6 findings of fact made by the department, pursuant to this
7 section, shall be prima facie evidence of the facts therein
8 stated. If it is finally determined in any such action that all
9 or any part of the assessment for which payment was made under
10 protest was excessive, erroneous, unlawful, or invalid, the
11 department shall make a refund to the claimant out of the fund,
12 as directed by the court.
13 The department shall keep a record of the manner in which it
14 shall have computed the amount assessed against every insurer or
15 self-insurer. Such records shall be open to inspection by all
16 interested parties. The determination of such assessments and
17 the records and data upon which the same are made, shall be
18 considered prima facie correct; and in any proceeding instituted
19 to challenge the reasonableness or correctness of any assessment
20 under this section, the party challenging the same shall have
21 the burden of proof.
22 (d) The Secretary of Labor and Industry shall be the
23 administrator of the fund and shall have power to dispense and
24 disburse moneys from the fund for the above purposes at his
25 discretion. All moneys in the fund as are required to carry out
26 the purposes of this act are hereby specifically appropriated to
27 the Department of Labor and Industry for the use in the
28 administration of this act from July 1, 1975 until June 30,
29 1976. Thereafter, annual appropriations shall be made. Estimates
30 of the amounts to be expended from time to time shall however be
19900H2640B3656 - 23 -
1 submitted by the Secretary of Labor and Industry to the Governor
2 for his approval or disapproval as in the case of other
3 appropriations made to administrative departments, boards, and
4 commissions. The State Treasurer shall be the custodian of the
5 fund. It shall however be unlawful for the State Treasurer to
6 honor any requisition for the expenditure of any moneys from the
7 fund by the Secretary of Labor and Industry in excess of
8 estimates approved by the Governor. The fund shall be audited by
9 the Auditor General annually and a copy of the report of the
10 audit furnished to assessed insurers and self-insurers upon
11 request.
12 (e) Annual reports of the total compensation paid by
13 insurers, self-insurers, and the State [Workmen's] Workers'
14 Insurance Fund shall be made on a calendar year basis to the
15 department not later than April 15 of the following year:
16 Provided, That reports for the calendar year 1974 shall be filed
17 within sixty days of the effective date of this amending act.
18 Nothing in this act shall be construed to preclude insurers from
19 filing its annual report required therein in substantially the
20 same form as its annual report to the Insurance Department.
21 (f) Contributions to the fund created by this act, at the
22 rates specified by this act, shall be allowed in full by the
23 Insurance Commissioner and the insurers shall be permitted to
24 fund on an immediate and prospective basis for these costs.
25 (g) For the purposes of this section the terms
26 "compensation" and "total compensation" shall include wage loss
27 indemnity and payments for medical expenses under this act and
28 under "The Pennsylvania Occupational Disease Act."
29 (h) Until such time as a sufficient cash balance shall exist
30 in the [Workmen's] Workers' Compensation Administration Fund to
19900H2640B3656 - 24 -
1 meet promptly the expenses of the Commonwealth payable from such
2 fund, the State Treasurer is hereby authorized and directed,
3 from time to time, to transfer to the [Workmen's] Workers'
4 Compensation Administration Fund, if the same be deficient, from
5 the General Fund, such sums as the Governor shall direct. Any
6 sums so transferred shall be available for the purposes for
7 which the fund to which they are transferred is appropriated by
8 law. Such transfers shall be made hereunder upon warrant of the
9 State Treasurer upon requisition of the Governor.
10 (i) In order to reimburse the General Fund for such
11 transfers, an amount equal to that transferred from the General
12 Fund during any fiscal period shall be retransferred to the
13 General Fund from the [Workmen's] Workers' Compensation
14 Administration Fund in such amounts and at such times as the
15 Governor shall direct, but in no event later than 30 days after
16 the end of such fiscal period. Such transfers shall be made
17 hereunder upon warrant of the State Treasurer upon requisition
18 of the Governor.
19 (j) The moneys in the General Fund and in the [Workmen's]
20 Workers' Compensation Administration Fund are hereby
21 specifically appropriated for transfer from time to time as
22 provided for in this act.
23 Section 12. Section 447 of the act, added May 20, 1976
24 (P.L.135, No.61), is amended to read:
25 Section 447. (a) There is hereby created an advisory
26 council, to be known as the Pennsylvania [Workmen's] Workers'
27 Compensation Advisory Council, and to be composed of men and
28 women with an equal number of employer, employe, and public
29 representatives who may fairly be representative because of
30 their vocation, employment, or affiliations. The council shall
19900H2640B3656 - 25 -
1 consist of a maximum of seven members including the Secretary of
2 the Department of Labor and Industry, who shall be an ex officio
3 member. The members of such council shall be appointed by the
4 secretary within thirty days of the effective date of this
5 amendatory act and shall serve a term of two years and until
6 their successors have been appointed and qualified. The members
7 of the council shall select one of their number to be chairman.
8 Such council shall consider and advise the department upon all
9 matters related to the administration of The Pennsylvania
10 [Workmen's] Workers' Compensation Act and The Pennsylvania
11 Occupational Disease Act. Such council may recommend to the
12 secretary upon its own initiative such changes in the provisions
13 of these acts and the administration thereof as it deems
14 necessary and shall make periodic reports to the secretary
15 regarding the performance of its duties and functions.
16 (b) In the performance of its duties, the council may hold
17 hearings, receive testimony, solicit and receive comments and
18 information from interested parties and the general public and
19 shall have full access to information relating to the purpose of
20 these acts. The council shall not have access to confidential
21 medical information pertaining to individual claimants, but may
22 develop statistical studies and surveys concerning the incidence
23 of occupational injuries and diseases generally.
24 (c) The members of the advisory council shall serve without
25 compensation, but shall be entitled to be reimbursed for all
26 necessary expenses incurred in the discharge of their duties.
27 The secretary shall appoint an executive secretary and such
28 other personnel as he shall deem necessary to aid the council in
29 the performance of its functions. The compensation of such
30 employes and the amounts allowed them and to members of the
19900H2640B3656 - 26 -
1 council for traveling and other council expenses shall be deemed
2 part of the expenses incurred in connection with the
3 administration of The Pennsylvania [Workmen's] Workers'
4 Compensation and The Pennsylvania Occupational Disease Acts.
5 Section 13. A reference in a statute to The Pennsylvania
6 Workmen's Compensation Act, the Workmen's Compensation Act of
7 1915 or the Workmen's Compensation Act of one thousand nine
8 hundred fifteen shall hereafter be deemed to be a reference to
9 The Pennsylvania Workers' Compensation Act.
10 Section 14. This act shall take effect in 60 days.
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