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decided: September 16, 1988.


Appeal from the Order of the Insurance Commissioner in the case of In Re: Pennsylvania Compensation Rating Bureau; 1987 Workers' Compensation Rate Revision; Proposal C-322, No. R87-7-11.


John P. Krill, Jr., Kirkpatrick & Lockhart, for petitioners.

Victoria A. Reider, Assistant Counsel, with her, Terrance J. Fitzpatrick, Chief of Litigation, and Linda J. Wells, Chief Counsel, for respondents.

Robert L. Pratter, with him, Joseph A. Fillip, Jr., Duane, Morris & Heckscher, for intervenor, Pennsylvania Compensation Rating Bureau.

John M. Elliott, with him, Stephen C. Braverman, and M. Hannah Leavitt, Baskin, Flaherty, Elliott, Mannino & Beren, P.C., for Pennsylvania Coal Association, as Amicus Curiae.

President Judge Crumlish, Jr., Judge Doyle, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 119 Pa. Commw. Page 497]

The Pennsylvania Association of Home Health Agencies (Association) appeals the November 4, 1987 order of the Insurance Commissioner, Constance B. Foster (Commissioner), denying the Association's petition for review. The Association's petition challenged the Commissioner's approval, subject to her modifications, of the 1987 workers' compensation rate revision (1987 rate revision). We vacate the portion of the Commissioner's order which denied the Association any review of the approved 1987 rate revision, and remand this matter back to the Commissioner to review the Association's petition subject to the directives of this opinion.

The Association is a statewide organization which represents Medicare-certified, state-licensed, home health agencies. As employers in this Commonwealth, the Association and its members are statutorily required to purchase workers' compensation insurance coverage to provide benefits for their employees. The rates charged for the workers' compensation insurance are subject to regulation by the Pennsylvania Insurance Department (Department). However, it is the Pennsylvania Compensation Rating Bureau (Rating Bureau), a

[ 119 Pa. Commw. Page 498]

    non-governmental organization of private insurers, and the State Workmen's Insurance Fund, which are charged with formulating workers' compensation insurance rate proposals for all Pennsylvania employers, other than employers of coal miners. According to Section 654(b) of the Insurance Company Law of 1921*fn1 (Law), no workers' compensation insurance policy may be issued except in accordance with the rates proposed by the Rating Bureau, as modified or amended or approved by the Commissioner.

The matter before us began with the Rating Bureau's submission to the Commissioner of its proposed rate revision for 1987 (rate proposal). Shortly thereafter, the Department published notice of the filing of the rate proposal in the Pennsylvania Bulletin. The notice stated that formal adjudicatory hearings on the proposed rate revision would commence on July 16, 1987.

On July 8, 1987, the Association filed a motion requesting allowance to participate in the administrative hearing on the rate proposal. In this motion, the Association sought the opportunity to present testimony and in addition, requested that the Commissioner grant it a thirty-day extension from the date of the scheduled hearing to allow it to file a motion to intervene and to prepare and submit objections to the rate proposal. The Commissioner, however, opted to treat the Association's motion to participate as a motion to intervene, and, by order of July 14, 1987, she granted the Association intervenor status for the rate proposal hearings to begin on July 16, 1987. Further, having interpreted the Association's motion as a motion to intervene, the Commissioner denied the Association's request for an extension. The Commissioner also granted intervenor status

[ 119 Pa. Commw. Page 499]

    to the Pennsylvania AFL-CIO and the Employers' Committee on Insurance Rating.

Hearings on the rate proposal commenced, as scheduled, on July 16, 1987, and the Association participated in the first day of hearings by presenting the unsworn statement of one of its officers. Conversely, by letter to the hearing officer dated July 17, 1987, counsel explained that since the Association "formally declined" intervenor status; counsel explained that since the Association did not have sufficient time to prepare a contest to the rate proposal, it was withdrawing all participation in the rate proposal hearings.*fn2

Following four days of hearings, the hearing examiner ordered all parties to submit briefs on or before August 10, 1987. The Association, however, submitted its brief, entitled "amicus brief," and an accompanying actuarial report, on September 1, 1987. Both the Rating Bureau and the Department objected to the "amicus brief" on the grounds that it was untimely and that it was an improper attempt to offer evidence on the rate proposal without affording the Rating Bureau and the intervenor groups the opportunity for ...

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