CORRECTIVE REPRINT
A01438
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No.
1387
Session of
2021
INTRODUCED BY E. NELSON, PICKETT, R. MACKENZIE, DAVANZO, KEEFER,
B. MILLER, WHEELAND, RYAN AND SILVIS, MAY 14, 2021
REFERRED TO COMMITTEE ON LABOR AND INDUSTRY, MAY 14, 2021
AN ACT
Amending the act of June 2, 1915 (P.L.736, No.338), entitled "An
act defining the liability of an employer to pay damages for
injuries received by an employe in the course of employment;
establishing an elective schedule of compensation; providing
procedure for the determination of liability and compensation
thereunder; and prescribing penalties," in Uninsured
Employers Guaranty Fund, further providing for claim
petition.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Section 1604 of the act of June 2, 1915 (P.L.736,
No.338), known as the Workers' Compensation Act, is amended to
read:
Section 1604. Claim petition.
(a) Authorization.--If a claim for compensation is filed
under this article and the claim is not voluntarily accepted as
compensable, the employee may file a claim petition naming both
the employer and the fund as defendants. Failure of the
uninsured employer to answer a claim petition shall not serve as
an admission or otherwise bind the fund under section 416.
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(b) Amount of wages.--In a proceeding under this article,
the fund shall not be liable for wage loss payments unless the
amount of wages the employee earned at the time of injury is
established by one of the following:
(1) A check, check stub or payroll record.
(2) A tax return. This paragraph includes IRS form W-2
and form 1099, and successors to those forms.
(3) Unemployment compensation records, including form
UC-2A.
(4) Bank statements or records showing regular and
recurring deposits.
(5) Written documentation created contemporaneously with
the payment of wages.
(6) Testimony of the uninsured employer presented under
oath at a hearing or deposition.
(7) Testimony of the claimant, if found credible by the
judge, which is provided in addition to one or more of the
items listed in paragraphs (1), (2), (3), (4), (5) and (6).
[(c) Limitation on wage loss payments.--If a judge accepts
testimony and finds it to be credible under subsection (b)(7) as
the sole basis for determining wage loss payments, without
supporting evidence established in subsection (b)(1), (2), (3),
(4), (5) or (6), the wage loss payment rate shall be 66.6% of
the average weekly wage for the claimant's occupation. The judge
may reduce the average weekly wage loss payment upon the
submission of evidence indicating a lesser wage amount or based
on the claimant's length of employment with the employer. For
the purposes of this subsection, the term "average weekly wage"
is the average weekly wage for the claimant's occupation by
metropolitan statistical area, as determined by the United
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States Department of Labor for the calendar year prior to the
year in which the claimant's injury occurred, and shall be based
on the metropolitan statistical area in which the claimant's
injury occurred.]
(7) Testimony of the claimant, if found credible by the
judge[.], which is provided in addition to one or more of the
items listed in paragraphs (1), (2), (3), (4), (5) and (6).
(8) Testimony of the claimant, if found credible by the
judge, which is provided in addition to an affidavit from the
claimant swearing to all of the following:
(i) The claimant worked for the uninsured employer
for fewer than 30 days.
( ii) The claimant's occupation, amount of wages and
hours worked for the uninsured employer.
(iii) The reasons that the claimant cannot provide
any additional evidence of the amount of the claimant's
wages.
(iv) Information about the uninsured employer,
including the name of the employer and the names of any
individuals known to the claimant who supervised or
managed the claimant's work, along with any other
identifying information for those individuals of which
the claimant is aware.
(c) Limitation on wage loss payments.--If a judge accepts
testimony and finds it to be credible under subsection [(b)(7)]
(b)(8) as the sole basis for determining wage loss payments,
without supporting evidence established in subsection (b)(1),
(2), (3), (4), (5) or (6), the wage loss payment rate shall be
66.6% of the average weekly wage for the claimant's occupation.
The judge may reduce the average weekly wage loss payment upon
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the submission of evidence indicating a lesser wage amount or
based on the claimant's length of employment with the employer.
For the purposes of this subsection, the term "average weekly
wage" is the average weekly wage for the claimant's occupation
by metropolitan statistical area, as determined by the United
States Department of Labor for the calendar year prior to the
year in which the claimant's injury occurred, and shall be based
on the metropolitan statistical area in which the claimant's
injury occurred.
(d) Reports.--
(1) I f the department has reasonable cause to suspect
that a claimant or uninsured employer has not reported, has
underreported or is delinquent in the payment of any Federal
or State tax, the department shall make a report within 30
days to the United States Internal Revenue Service, the
Department of Revenue or any other applicable Federal or
State agency. The department shall cooperate with an
investigation initiated as the result of a report made under
this subsection.
(2) If the department has reasonable cause to suspect
that an uninsured construction industry employer has
misclassified a claimant in violation of the act of October
13, 2010 (P.L.506, No.72), known as the Construction
Workplace Misclassification Act, the department shall make a
report to the Bureau of Labor Law Compliance for an
investigation into the potential misclassification of the
claimant.
(3) The department shall investigate the information
provided in an affidavit provided under subsection (b)(8).
The following shall apply:
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(i) If the department finds evidence of material
misstatements by the claimant, the department shall
submit the evidence to the workers' compensation judge
and make a report to the appropriate district attorney.
(ii) In addition to any reports required under
paragraphs (1) and (2), if the department has reasonable
cause to suspect that the uninsured employer has violated
any other Federal or State law, the department shall make
a report with the applicable Federal or State agency.
Section 2. This act shall take effect in 60 days.
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