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PENNSYLVANIA FEDERATION OF INJURED WORKERS Call us toll free 1-888-376-7942
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October 17, 2002
No Rules for Evidence does not equal a "Reasoned Decision" in the Pennsylvania Worker's Compensation Act! Expressed opinion by Michael A. Kerstetter, PFIW Dauphin County The worker's compensation Referees and the Board of Appeals are not bound by any rules of evidence. This means they Referees get to choose which evidence will be considered and what evidence will not be considered. In 1996 when the last reform to the workers compensation act was done, Pennsylvania Legislators voted to reduce the standard of evidence. The standard used to be "clear and convincing evidence" now it is "sufficient competent evidence". The standard for evidence was lowered. This was done so the employer/worker's compensation insurance company could enter unclear evidence into the record for consideration. The way hearings are conducted in PA the more evidence that is submitted the more confused the Referee is when he/she writes up a decision. This has allowed fraudulent information to be entered into evidence. The fraudulent information gets into the record because the Referee chooses the evidence to be considered. Not all evidence entered into the record is considered when a Referee is writing a decision. Most Referees allow all evidence submitted by the employer/worker's compensation insurance company to be entered into evidence even if there is strong objections by the injured workers attorney. This is unfair and unethical! The Referees for the Bureau of Worker's Compensation are picked from a pool of attorneys that practices worker's compensation law. These Referees have prejudices when hired because they are practicing worker's compensation law and it does not matter which side of the fence they were on. The Referees do not leave their prejudices at home as the law instructs them to. If you get in front of a Referee who was pro employer the decision handed down will reflect that prejudice. To allow lawyers selected from this pool of candidates to preside over a worker's compensation claim is a bad for both parties because the knife cuts both ways. If the Referee is pro injured worker then the employer/workers compensation insurance company gets the short end of the stick. Here is what the Pennsylvania Workers Compensation Act says about this subject: Section 422. (a) Neither the board nor any of its members nor any workers' compensation judge shall be bound by the common law or statutory rules of evidence in conducting any hearing or investigation, but all findings of fact shall be based upon sufficient competent evidence to justify same. All parties to an adjudicatory proceeding are entitled to a reasoned decision containing findings of fact and conclusions of law based upon the evidence as a whole, which clearly and concisely states and explains the rationale for the decisions so that all can determine why and how a particular result was reached. The workers' compensation judge shall specify the evidence upon which the workers' compensation judge relies and state the reasons for accepting it in conformity with this section. When faced with conflicting evidence, the workers' compensation judge must adequately explain the reasons for rejecting or discrediting competent evidence. Uncontroverted evidence may not be rejected for no reason or for an irrational reason; the workers' compensation judge must identify that evidence and explain adequately the reasons for its rejection. The adjudication shall provide the basis for meaningful appellate review. How can you receive a reasoned decision when not all of the evidence entered into the record is considered? A reasoned decision is supposed to explain why evidence was considered or omitted. This does not happen in Pennsylvania! The referees omit evidence and give no reason why it was not considered. One source of evidence is found credible and another is not but there is no explanation as to why the evidence was found to be credible of not credible. This means that good evidence submitted by an injured worker can and often is omitted with no explanation. Here is the solution the Director of the Worker's Compensation Bureau offers: I am writing in response to your November 2, 2001 letter requesting information concerning the parameters for a workers' compensation judge to provide a reasoned decision as required by the second sentence of section 422(a) of the Pennsylvania Workers' Compensation Act, 77 P.S. 834, and the procedure where it is alleged that a judge has not met the requirements of this section. As you correctly noted, the second sentence of section 422(a) of the Act, provides that "[a]ll parties to an adjudicatory proceeding are entitled to a reasoned decision containing findings of fact and conclusions of law based upon the evidence as a whole which clearly and concisely states and explains the rationale for the decisions so that all can determine why and how a particular result was reached." However, although you singled out the second sentence, section 422(a) must be examined in its entirety when considering what constitutes a "reasoned decision" required by this section. In addition to the requirement that a decision contain "finding of fact and conclusions of law based on the evidence and a whole" and provide "the rationale for the decisions so that all can determine why and how a particular result was reached" pursuant to the second sentence, a workers' compensation judge, when writing his/her decision, is also required to identify: evidence upon which he/she relied in making the decision and the reasons for accepting the evidence (sentence three); the reasons that he/she rejected or discredited competent evidence when there is conflicting evidence (sentence four); and the reasons why uncontroverted evidence was rejected (sentence five). Additionally, the final decision, or adjudication, should also "provide the basis for meaningful appellate review" (sentence six). Ultimately, what constitutes a "reasoned decision" in a particular case will depend on the facts and needs of that case. A more complex case may require a more detailed decision that a simple case, so that "all can determine why and how a particular result was reached." Section 422(a), 77 P.S. 834. Consequently, there are no black-and-white parameters for what constitutes a decision meeting the requirements of section 422 and it must be determined on a case-by-case basis. If a party to a workers' compensation proceeding believes that a workers' compensation judge has not provided a decision meeting the requirements of section 422(a), the proper procedure is for that party to appeal the decision to the Workers' Compensation Appeal Board (Board) pursuant to section 423(a) of the Act, the matter remanded back to the workers' compensation judge to issue a new decision in conformity with section 422(a) of the Act. I appreciate your interest in this matter and hope this information is helpful to you. Please contact me if you have any further questions or concerns. Of course, if you require specific advice on this matter, I suggest that you contact an attorney experienced in Pennsylvania workers' compensation law to assist you. This attitude towards the decision process has the worker's compensation system in Pennsylvania clogged up with Appeals. Instead of holding the Referees to the standard of section 422(a) the Bureau of Worker's Compensation would have an injured worker spend more money for legal fees to fix an error made by a Referee. On average it takes about 18 months to get an appeal through the Pennsylvania worker's compensation system and the attorney for the injured worker is collecting legal fees the entire time. From the Directors letter, I came to the conclusion that the Bureau of Worker's Compensation is allowing the Appeal Board to do the job of policing the conduct of the Referees and their decisions instead of the Bureau doing it. This adds more litigation to a claim and increases the cost of a worker's compensation claim. The Bureau has no way of disciplining a Referee, which means bad decisions are still being handed out with no consequence to the referee creating the problem. There are worker's compensation Referees in Pennsylvania that attorneys representing injured workers will not appear in front of because they know they have no chance of gaining a favorable decision for their client. There are many injured workers in Pennsylvania who are unable to get legal council for this reason. They go in front of the workers compensation Referee on their own and hope for the best. So, in Pennsylvania not everyone is getting the legal council they are entitled to under the law but no Legislators do anything to help correct this problem. Q: Why does the Pennsylvania Worker's Compensation Bureau engage in this kind of administration of worker's compensation? A: To make it easier for an employer/worker's compensation insurance company to gain a decision that supports their position and reduces their expense instead of helping an injured worker recover from a work related injury. Where is the help for the injured worker?
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