625 Stanwix Street, Suite 1404
Pittsburgh, Pennsylvania 15222
(412) 261-4774 - fax (412) 261-1225
The legal question of the retrospective application of the Supreme Court decision in CASO was promptly answered by the Commonwealth Court. In the recent decision reported at Altoona Wholesale Distributors v. WCAB (Bell) 2004 Pa Commw Lexis 53 (1/30/04), the Commonwealth Court remanded the WCJ denial of Employer's petition, for consideration of the Modification remedy available pursuant to Section 306(b)(2). The WCJ dismissed Employer's petition based upon the Commonwealth Court decision in CASO, as the vocational expert was not "an expert approved by the department".
Judge Cohn reversed the erroneous conclusion of the WCJ, noting that this ruling was reversed by the Pa. Supreme Court decision in CASO, decided December 30, 2003. See: Caso v. WCAB (School District of Philadelphia) 839 A2d 219 (Pa. 2003). Employee could no longer rely upon this rationale to defeat Employer's modification remedy. Also, the Court adopted Employer's argument that Employee WAIVED any right to contest the qualification of the vocational expert, as Employee voluntarily attended the vocational interview, citing Walker v. WCAB (Temple University Hospital) 792 A2d 628 (Pa. Commw. 2002).