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AMENDMENT TO SECTION 306(b)(2) - VOCATIONAL EXPERTS AND EARNINGS POWER ASSESSMENTS.

Section 306(b)(2) now provides:

In order to accurately assess the earning power of the employe, the insurer may require the employe to submit to an interview by a vocational expert who is selected by the insurer and who meets the minimum qualifications established by the Department through regulation. The vocational expert shall comply with the code of professional ethics for rehabilitation counselors pertaining to the conduct of expert witnesses.

(2.1) If an insurer refers an employe for an earning power assessment and the insurer has a financial interest with the person or in the entity that receives the referral, the insurer shall disclose that financial interest to the employe prior to the referral" 77 P.S. §512

The primary change to Section 306(b)(2) of the Act involves elimination of the requirement that a vocational expert be "approved by the department." Of course, this language has been the point of contention between the parties involved in litigation at both the trial and appellate levels for quite some time. The Caso and Walker Decisions rendered by Commonwealth Court previously addressed these issues and precipitated the amendments due to their harsh interpretation of Act 57.

Act 53's amendment to Section 306(b)(2) continues to allow a vocational expert to be selected by the insurer. However, any question of a "list" to be prepared and maintained by the Bureau of Workers’ Compensation is seemingly eliminated. The proviso for use of a vocational expert is that the individual must have the "minimum qualifications established by the department through regulation." The referenced section of the Bureau regulations covering the qualification of vocational experts is Title 34, Section 123.202.

The Amendment also introduces another factor concerning the qualifications of a vocational expert when testifying. There is now a requirement that a vocational expert comply with the Code of Professional Ethics for Rehabilitation Counselors pertaining to the conduct of expert witnesses. Such a code of ethics does exist for individuals who obtain the title of "Certified Rehabilitation Counselor" (CRC), and is promulgated by the Commission on Rehabilitation Counselor Certification which provides, in pertinent part, as follows:

A.3.CLIENT RIGHTS

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  1. Indirect Service Provision Rehabilitation counselors who are employed by third parties as case consultants or expert witnesses and who engage in communication with the individual with a disability, will fully disclose to the individual with a disability and/or his or her designee their role and limits of their relationship... .
    When serving as case consultants or expert witnesses, rehabilitation counselors will provide unbiased, objective opinions.

Code of Professional Ethics for Rehabilitation Counselors, effective January 1, 2002.

The added language concerning the conduct of vocational expert witnesses being governed by the Code of Professional Ethics is tied in with another amended paragraph, Section 306(b)(2.1), which allows an insurer to make referral for an earning power assessment to a person or entity in which the insurer has a financial interest. The proviso for making such a referral is that the insurer must disclose that financial interest to the employee prior to the referral. The language of the Amendment gives no specificity as to how much information must be disclosed related to that financial interest.

VOCATIONAL EXPERT QUALIFICATIONS

Since the amendments remove the language that an expert must be "approved by the department," particular attention must be paid to the Bureau Regulation in Subchapter C, Section 123.202, which addresses the qualifications of a vocational expert.

The amendments specifically provide that :

"All regulations and parts of regulations which are inconsistent with the amendment of 306(b) of the Act are abrogated."

In this regard, the first sentence of Bureau Regulation 123.202 states:

"To be an expert approved by the Department for the purpose of conducting earning power interviews..." (Emphasis Added).

The Bureau Regulation then lists the various qualifications that an individual must possess in order to perform expert earning power interviews. All the qualifications otherwise outlined for vocational experts will stand. It’s therefore reasonable to proceed with new expert interviews/EPAs following the effective date of the amendments where the vocational expert satisfies the criteria of the current Regulations.

REFERRALS AND DISCLOSURES.

A vocational expert will now be required to adhere to the Code of Professional Ethics for Rehabilitation Counselors which, consistent with Section 306(b)(2.1) of the amendments, requires that full disclosure be made to the employee where the insurance carrier has a financial interest with the person or entity that is receiving the referral and performing the interview/EPA. This raises the question of when the disclosure should be made. We recommend that the disclosure be made prior to the time of the referral for an expert interview or EPA. It is also recommended that disclosure be made in writing.

GOOD SAMARITAN AMENDMENTS.

The Act was also amended at Section 104 pertaining to definitions of the term "employee." A new subsection (10) was added to include, as employees, people who are acting in the course and scope of their employment and suffer injury or death when going to the aid of another person. The injury or death must occur as a direct result of activity falling into two different categories: crimes or emergencies.

The specific activities outlined for the first category are where the employee is attempting to prevent a crime, lawfully apprehend a person reasonably suspected of having committed a crime or aiding the victim of a crime. Activities for the second category are where an employee is rendering emergency care, first aid or rescue at the scene of an emergency.

This particular amendment to the Act would not appear to be a significant change in the trends that have been observed over the years. The scope of employment of an employee has generally expanded rather than contracted based on the vast majority of appellate cases. It is therefore not a major deviation for the amendments to encourage (and compensate) an employee who might otherwise be viewed as deviating from the course and scope of his/her employment to give aid to someone in an emergency situation or take some action to prevent a crime or give aid to a crime victim. Although such conduct is arguably not in furtherance of the employers’ business interests, it will now be codified and recognized by statute to provide compensation if injury or death results.

PRACTICAL CONSIDERATIONS.

Act 53 is effective sixty days from its date of publication. However, whether Act 53 applies to all claims is an issue that will be addressed by the Workers’ Compensation Judges and Courts. Clearly, any case referred for vocational interview or earnings power assessment on or after the new law’s effective date (prospective application) will be governed by the amendments if the injury date is likewise on or after the effective date.

The more difficult issues is whether the amendments apply to cases already pending and to cases where the vocational referral/EPA (earnings power assessment) has already been performed. Anther factor the Court will look at is when the injury occurred.

Generally, newly enacted legislation is applicable to pending litigation (retroactive application) where the legislation affects "procedural" rather than "substantive" rights. Legislative which is curative, remedial or procedural only is applicable to pending litigation. Significantly, in Walker v. WCAB (Temple University Hospital), 792 A.2d 628 (Pa. Comwlth. 2002), the Court did apply Act 57's amendment to Section 306(b)(2) to claims with an injury date prior to the effective date of the amendment.

Thus, we will argue that Act 53 applies to all claims regardless of injury date or when the earning power assessment has been performed. We will argue that the issue of whether a claimant can be compelled to attend an interview is procedural rather than substantive. However, claimants’ counsel may dispute such argument and Judges can differ in their interpretation. Fortunately, given the Supreme Court’s December 30, 2003 decision in Caso v. WCAB (School District of Philadelphia), No. 28 EAP 2002 (Pa. 2003), employers need not rely solely on the amendments in requesting vocational interviews. Accordingly, the issue of retroactivity may be academic.

We recommend that your claims be reviewed on a case by case basis and again all of the attorneys at Fried Kane Walters Zuschlag & Grochmal are available for consultation. Within the last year, there have been many claims where a Petition to Compel Vocational Interview was not filed because of the Caso quagmire. Likewise, in many case, an earning power assessment has been deferred or has been conducted without an interview. The changes to the Workers’ Compensation Act and the Supreme Court’s decision in Caso make clear that the Department need not publish a list before a claimant can be compelled to attend an interview. Accordingly, there are many situations where a Petition should be filed, refiled, or claims referred to a vocational counselor for an earning power assessment.

AMENDMENT TO SECTION 306(b)(2) - VOCATIONAL EXPERTS AND EARNINGS POWER ASSESSMENTS.

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