Mаrio CASO v. WORKERS’ COMPENSATION APPEAL BOARD (SCHOOL DISTRICT OF PHILADELPHIA)
Supreme Court of Pennsylvania.
Decided Dec. 30, 2003.
839 A.2d 219 | 287
Argued April 9, 2003.
Thomas Paul Howell for Appellant Amicus Curiae.
Amber Marie Kenger, Mechanicsburg, Richard C. Lengler, Harrisburg, for Workers’ Compensation Appeal Board.
Mark R. Schmidt, Media, for Mario Caso.
Before CAPPY, C.J., and CASTILLE, NIGRO, NEWMAN, SAYLOR, EAKIN and LAMB, JJ.
OPINION
Justice EAKIN.
This Court granted review to determine whether a claimant receiving Workers’ Compensation benefits can be compelled to
In 1996, the Workers’ Compensation Act was amended to state, “[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.” See Act of June 24, 1996, P.L. 350, adding,
In accordance with its interpretation of
Here, the WCJ observed the Bureau had not compiled a list of approved vocational experts. He reasoned the intent of
A panel majority of the Commonwealth Court held the WCAB‘s interpretation to be unreasonable on three grounds. First, the language of
Senior Judge Jiuliante dissented, believing nothing in the Workers’ Compensation Act requires that vocational experts be pre-approved by the Department. He contended that pursuant to the Administrative Code of 1929, the Bureau operates under the control of the Department. See
We begin our analysis by considering the plain language of
Next, we consider whether an interviewer can be “approved” by a WCJ. Obviously, a person failing to meet the Department‘s standard is not approved; such persons are incompetent to perform thе interview, and their opinions are not admissible to show the claimant is capable to perform a specific job. See 34 Pa.Code § 123.302 (insurer may demonstrate claimant‘s earning power by expert opinion relative to claimant‘s capacity to work). This approach is consistent with the Department‘s stated purpose of ensuring “the level of expertise and professionalism required to conduct earning power assessment interviews....” 27 Pa. Bull. 3141. As with matters of credibility, issues of competency of experts have long been resolved by the WCJ. See
Claimant argues
Claimant also raises a number of policy reasons for pre-approval of interviewers. He contends insurers and employers will avoid the time and cost of an interview with an unqualified interviewer, claimants will be assured a qualified vocational counselor will interview them, and the Department will not be inundated with challenges to the qualifications of interviewers. However, if an insurer has engaged in bad faith selection of an unqualified interviewer, claimants may seek the imposition of penalties. See
The interprеtation of the Department is not so clearly at odds with
Order reversed; case remanded. Jurisdiction relinquished.
Justice NEWMAN files a concurring opinion.
CONCURRING OPINION
Justice NEWMAN.
While I concur in the result reached by the Majority in this matter, I must disagree with the reasoning employed. The Majority concludes that the Department has set the standard for the approval of vocational experts, which is sufficient to satisfy the requirements of Section 306(b)(2) of the Workers’ Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended,
In this case, Mario Caso (Claimant) sustained a work-related lumbar strain and right wrist contusion on February
The precise issue before us is whether a Motion to Compel an Expert Interview, filed pursuant to Section 314(a) of the Act, requires a claimant to submit to a vocational interview by a counselor “approved by the Department” and, if so, whether the Department must compile a list or otherwise certify individual vocational counselors for purposes of the Act. While the Majority deems the analysis to commence with Section 306(b)(2),
In 1987, this Court decided Kachinski v. Workmen‘s Compensation Appeal Bd. (Vepco Constr. Co.), 516 Pa. 240, 532 A.2d 374 (1987), which outlined the steps necessary for an employer to modify downward the benefits being received by a claimant when that claimant was found capable of gainful employment. The resulting rеturn-to-work scenarios devolved into fact-based challenges as to whether a claimant had received medical clearance; whether a claimant had, in good faith, followed up on the employer‘s referrals; and whether the employer met the technical requirements of a proper referral, such as age, education, training, experience, distance, medical restrictions, etc. In 1996, thе General Assembly enacted Act 57, which made sweeping changes to the Workers’ Compensation Act. Through Act 57, the General Assembly amended Section 314,
(a) At any time after an injury the emрloye, if so requested by his employer, must submit himself at some reasonable time and place for a physical examination or expert interview by an appropriate health care provider or other expert, who shall be selected and paid for by the employer. If the employe shall refuse upon the request of the employer, to submit to the examination or expert interview by the health care provider or other expert selected by the employer, a workers’ compensation judge assigned by the department may, upon petition of the employer, order the employe to submit to such examination or expert interview at a time and place set by the workers’ compensation judge....
Act 57 did, however, amend Section 306(b)(2),
§ 512. Schedule of compensation for disability partial in character
(1) For disability partial in character caused by the compensable injury or disease (except the particular cases mentioned in clause (c)) sixty-six and two-thirds per centum of the difference between the wages of the injured employe, as defined in section 309, and the earning power of the employe thereafter; but such compеnsation shall not be more than the maximum compensation payable. This compensation shall be paid during the period of such partial disability except as provided in clause (e) of this section, but for not more than five hundred weeks. Should total disability be followed by partial disability, the period of five hundred
weeks shall not be reduced by the number of weeks during which compensation was paid for total disability. The term “earning power,” as used in this section, shall in no case be less than the weekly amount which the employe receives after the injury; and in no instance shall an employe receiving compensation under this section receive more in compensation and wages combined than the current wages of a fellow employe in employment similar to that in which the injured employe was engaged at the time of the injury. (2) “Earning power” shall be determined by the work the employe is capable of performing and shall be based upon expert opinion evidence which includes job listings with agencies of the department, private job placement agencies and advertisements in the usual employment area. Disability partial in character shall apply if the employe is able to perform his previous work or can, considering the employe‘s residual productive skill, education, age and work experience, engage in any other kind of substantial gainful employment which exists in the usual employment area in which the employe lives within this Commonwealth. If the employe does not live in this Commonwealth, then the usual employment area where the injury occurred shall apply. If the employer has a specific job vacancy the employe is capable of performing, the employer shall offer such job to the employe. In 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.
(3) If the insurer receives medical evidence that the claimant is able to return to work in any capacity, then the insurer must provide prompt written notice, on a form prescribed by the department, to the claimant, which states all of the following:
(i) The nature of the employe‘s physical condition or change of condition.
(ii) That the employe has an obligation to look for available employment.
(iii) That proof of available employment opportunities may jeopardize the employe‘s right to receipt of ongoing bеnefits. (iv) That the employe has the right to consult with an attorney in order to obtain evidence to challenge the insurer‘s contentions.
Finally, Section 449,
No compromise and release shall be considered for approval unless a vocational evaluation of the claimant is completed and filed with the compromise and release and made a part of the record: Provided, however, That this requirement may be waived by mutual agreement of the parties or by a determination of a workers’ compensation judge as inappropriate or unnecessary. The vocational evaluation shall be completed:
(1) by a qualified vocational expert approved by the department; or
(2) by the department on a fee-for-service basis.
In the instant matter, Employer filed a Petition to Compel Interview pursuant to Section 314. Employer did not seek to suspend, modify, or terminate benefits in any way and, thus, did not affect the substantive rights of either Claimant or the insurer. It is beyond cavil that a vocational interview cannot result in the cessation of any benefits. Sections 306(b) and 449(d) address different determinations involving earnings assessments that are not at issue before this Court. I believe that the appropriate resolution of this matter lies in the close examination of Section 314, its relationship to the rest of the Act 57 amendments, and the present procedural posture. Within this framework, as I have discussed previously, Section 314 dоes not require the use of a vocational counselor that is “approved by the department.”
The General Assembly simultaneously amended all three sections through the provisions of Act 57. The fact that only one of these three sections (dealing with compromise and release), which does not govern a Petition to Compel an Expert Interview, contains the new requirement that vocational counselors bе approved by the department before a Petition may be granted,1 militates against the proposition that the section addressing the failure of a claimant to attend a vocational interview, should be read to contain that language. Had the General Assembly intended that vocational experts be approved before a Section 314 Motion to Compel may be granted, it would have so stated. Because Section 306(b) does not mandate a different result and because Section 449 is not relevant to the matter sub judice, I believe that the legal analysis concludes with the application of Section 314 and we are unable to reach the parameters of the phrase “approved by the department.”