Defense Digest

Pennsylvania Supreme Court RUles For Vocational Interviews
By Maureen Herron, Esq.*

On December 30, 2003, the Supreme Court of Pennsylvania ruled in Caso v. Workers' Compensation Appeal Board (School District of Philadelphia), 839 A.2d 219 (Pa. 2003) that a recipient of workers' compensation benefits can be compelled to attend a vocational interview with a counselor who has not been pre-approved by the Department of Labor and Industry as a vocational expert.   The Court's decision resolved any remaining confusion regarding the qualifications required for an individual to perform earning power assessment interviews. 

The Pennsylvania Workers' Compensation Act was amended in 1996 to allow an employer/carrier to assess the earning capacity of workers' compensation claimant.  Further, according to 77 P.S. § 512(2), "[i]n order to accurately assess the earning power of the employe, the insurer may require the employe to submit to an interview by an expert approved by the department and selected by the insurer."   Thereafter, the Bureau of Workers' Compensation published a notice of its intent to promulgate regulations concerning the implementation of earning power assessments, including a list of approved vocational experts for use in determining earnings.  However, the proposed list was never published.  Rather, the Bureau issued subsequent regulations that focused on the reference in § 512 (2) to the term "expert." Specifically, the Bureau set forth the criteria required for a person "to be an expert approved by the Department …" 34 Pa. Code §§ 123.201-202.  Also, the Bureau advised that a Workers' Compensation Judge was the ultimate assessor of a vocational expert's credibility and the Judge could accept or reject a vocational witness' testimony after evaluating his qualifications. 

In Caso , the Workers' Compensation Judge dismissed a petition to compel an interview with a vocational expert.  The Judge ruled that because the Bureau had not published a list of pre-approved vocational experts, he did not have the authority to decide that a vocational expert was qualified.  The Workers' Compensation Appeal Board reversed the Judge's decision and stated that § 512 (2) did not require the Bureau to compile a list of pre-approved vocational experts.

The Commonwealth Court reversed, as the panel disagreed with the Appeal Board's analysis of § 512.  The Supreme Court of Pennsylvania, in turn, reversed the Commonwealth Court's decision and ruled that nothing in the language of § 512 requires pre-approval of vocational interviewers.

In reaching this conclusion, the Supreme Court considered the plain language of § 512, as well as the subsequent corresponding Bureau regulations.  Section 512 does not require a vocational expert to be pre-approved, certified, or sanctioned by the Department.  The Statute dictates only that the vocational interviewer be "approved."  The Supreme Court further noted that the minimum requirements for a vocational expert to be "approved by the Department" were outlined in 34 Pa. Code § 123.202.  If the vocational expert met the requirements established by the Bureau's regulations, he is considered an interviewer approved by the Department pursuant to § 512.

Additionally, the Supreme Court logically concluded that if a vocational counselor is not "approved," i.e. his qualifications fail to meet Department standards, the vocational counselor is incompetent to interview a claimant or to present testimony concerning the claimant's capability to perform a job.  Finally, the Court concluded that the Workers' Compensation Judge has the authority to weigh the qualifications of a vocational expert in light of the Bureau's regulations.  

Thus, carriers, once again, are entitled to request that a claimant submit to an interview with a vocational counselor who meets the minimum qualifications set forth in § 123.202.  Such an interview aids the carrier in accurately assessing the earning power of a claimant and ultimately establishing that a claimant's benefits should be suspended or modified based on his earning capacity.                          

* Maureen, a shareholder in our Scranton, PA office, can be reached at (570) 496-4660 or mherron@mdwcg.com .