Over the past eight weeks, for some reason, I have had three different claim petitions filed on behalf in injured workers in which the employer and its insurance carrier failed to file a timely answer.  Kind of odd.  That is more than I have had in the prior two years.  So what happens then?

First, what is a timely answer?  Under the Pennsylvania Workers Compensation Act, an employer and insurance carrier has 20 days to answer a claim petition for the answer to be timely.    The statutory period for the 20 begins from the date of service by the Bureau (Department of Labor & Industry), which is nearly automatic now with the WCAIS (the state’s automated workers compensation adjudication system).  The Bureau notifies the parties via a Notice of Assignment that alters that parties to the Workers Compensation Judge assigned to the case.

So what happens if the employer fails to answer within 20 days?

What should happen is your attorney should make a motion called a “Yellow Freight Motion”.  The motion comes from the case of Yellow Freight Systems v. WCAB (Madara), 423 A. 2d 1125 (Pa. Cmwlth. 1981).  The court addressed this issue specifically.

In applying this Section, we must emphasize that the referee ruled that the employer’s failure to file its answer, within 15 days of being served with the claim petition, constituted an admission of the allegations in the petition. That decision was tantamount to a ruling that the employer had not shown an adequate excuse for not meeting the filing deadline fixed by Section 416, and therefore lost its right to file an answer at all.7 In short, the case was in a posture as if the employer had filed no answer.  Given that posture of the case, it became incumbent upon the referee to follow the procedure set by Section 416 where no answer has been filed: to decide the matter on the basis of the petition and evidence presented.8 The phrase “and evidence presented” must be construed to mean evidence presented by the petitioner. To construe the phrase to include evidence presented by the adverse party would negate the sanction for not filing an answer in accordance with the terms of the Section. That is, unless the phrase “and evidence presented” is restricted to evidence presented by the petitioner, the adverse party could refuse to file an answer and still come to the hearing and offer evidence in rebuttal or as an affirmative defense to the claim petition . . .  It is true that the general rules of pleading and civil procedure do not govern workmen’s compensation proceedings. However, Section 416 of the Workmen’s Compensation Act precludes evidence from an adverse party who has not filed an answer to a claim petition, in accordance with the terms of that Section, absent adequate excuse or dispensation.

So what does that mean?  It means that when an employer fails to file an answer within that statutory period without adequate excuse, every well-pleaded factual allegation in the claim petition is admitted as true and the employer is barred from presenting affirmative defenses and from challenging the factual allegations in the claim petition.   Since the Yellow Freight case, further case law has developed on lack of timely filed answer.    When a Claim Petition is alleging ongoing disability, meaning the injured worker remains out of work, a rebuttable presumption exists.  Essentially, the employer can present rebutting to try an overcome the presumption of ongoing disability. (Chik-Fil-A v. WCAB (Mollick), 792 A.2d 678 (Pa. Cmwlth. 2002).

Moreover, while Employer is barred from asserting affirmative defenses to the allegations contained in Claimant’s claim petition, Claimant is only entitled to a rebuttable presumption that her disability continues after the last date that Employer should have filed an answer. Heraeus. Employer is not barred, therefore, from presenting evidence itself, or attempting to discredit the Claimant’s evidence, to rebut the presumption that Claimant’s disability continues into the indefinite future. Id.

So the fight over ongoing disability could continue.  Certainly make the defense of the claim harder for the employer, the claimant can get paid benefits, but the case is not over.

The fact is, workers compensation law is quite complex.  If you have been injured at work, call Mooney & Associates today for a FREE consultation.  We represent injured workers throughout Pennsylvania and have 16 office scattered throughout Central Pennsylvania from Chambersburg east to Lancaster, and from the Maryland line north to Lebanon.  Call today at 717-200-HELP.