gavel.gif (3462 bytes) WCJ cannot force employee to submit to interview with vocational counselor

By Thomas P. Brown, Esq.

On January 11, 2002, in the matter of Mario Caso v. WCAB (School District of Philadelphia), No, 1416 C.D. 2001 (Pa. Cmwlth. 2002), Commonwealth Court held that only experts pre-approved by the Department of Labor and Industry may conduct Act 57 Earning Power Assessments pursuant to Section 306(b)(2) of the Workers� Compensation Act, 77 P.S. � 512(2). The decision favors injured workers, clarifying an area of workers� compensation that has been in question since Act 57 took effect.

Section 306(b)(2), which applies to injuries on or after June 24, 1996, states in part:

"Earning power" shall be determined by the work the employee is capable of performing and shall be based upon expert opinion evidence.... In order to accurately assess the earning power of the employee, the insurer may require the employee to submit to an interview by an expert approved by the department and selected by the insurer.

[Empasis added].

In Caso, the Employer petitioned a workers� compensation judge (WCJ) to compel Claimant to submit for an expert interview. After a hearing, the WCJ concluded that the Bureau had not compiled a list of approved experts in accordance with the Act, that Claimant did not have to attend the interview, and that WCJs lack jurisdiction to approve experts. The WCAB reversed. Claimant appealed.

A three-judge panel held that the WCJ was correct, and that only experts pre-approved by the Department are competent to assess earning power under Act 57. The court reasoned: (1) The language of 306(b)(2) "clearly mandates that the vocational experts be approved by the Department prior to the time when the insurer requires the employee to submit to an interview by the expert" (2) To require a judge to certify an expert would divest insurers of rights by requiring them to petition for approval before requesting the interview; and (3) That "the Bureau and WCJs are not synonymous with the Department. Caso, slip opinion at pp. 4-5.

The court�s holding in Caso is contrary to the position that had been taken on this issue by the Bueau Legal Division. Many WCJs have posted at their hearing offices a copy of the letter of Mrch 11, 1999 by former Director Richard Himler. Mr. Himler wrote, in pertinent part:

It has come to my attention that there is confusion surrounding the issue of whether the Department is required to establish a list of "approved" vocational experts under Act 57. Please be advised that it is the opinion of the Legal Division that that such a list is not required. ****

Ultimately, it is the decision of the [WCJ] to accept or reject an individual as an "expert" qualified to conduct an earning power assessment....

As the court�s holding in this writer�s opinion invalidates all pending Act 57 earning power cases, insofar as there is no list of approved experts, it is anticipated that the insurance industry shall seek en back reconsideration, and thereafter, allocatur by the Supreme Court. For now, however, the issue has been resolved in favor of claimants.


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