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Mario Caso v. WCAB (School District of Philadelphia)
The Supreme Court of Pennsylvania has concluded that a Workers’ Compensation Judge (WCJ) has the authority to compel a claimant to attend an expert interview with a vocational counselor.
The Court explained that the language of Act 57 "does not require an interviewer to be either pre-approved, certified, or sanctioned by the Department - it only required the interviewer to be "approved." The Court noted that the Department through the Bureau promulgated regulations concerning the minimum qualifications necessary to be an expert approved by the Department. Rather than individually qualifying interviewers, the Department set a standard so that if a vocational counselor satisfies the qualification requirements, the counselor is deemed "approved" by the Department. The Court highlighted the fact that there is no language from the general assembly requiring the Department to "pre-approve" the vocational counselors. The interpretation of a statute by those charged with this execution is entitled to great deference and will not be overturned unless such construction is clearly erroneous.
The Court cited the language of Act 57: "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." 77 P.S. §512(2).
The Court specifically rejected the argument of the claimant in Caso that the Act required the Bureau to create a "list" of approved vocational experts. The genesis of such argument was the Bureau’s publication of a notice of its intent to promulgate regulations implementing the legislation, including a list of approved vocational experts for use in determining earning power. Subsequent regulatory iterations did not address the "list" but instead focused on the term "expert". The Bureau promulgated criteria, including certifications, educational requirements, and experience a vocational counselor must possess "to be an expert approved by the Department..." However, the Bureau expressly reserved credibility determinations of vocational experts to the WCJ. The Court correctly noted that it was after such regulations were published that "confusion" arose about whether the Bureau was required to approve a list of vocational experts. The Court then referenced the March 11, 1999 letter of the former Director of the Bureau, Richard A. Himler, which informed the Judges it was ultimately their decision to accept or reject an expert based on the qualifications established by the Bureau so that a rejection based solely on the fact that the person was not on the list was not valid. The Court concluded that this was a correct interpretation of the Act and that a "list" was not mandated.
Caso is now remanded to the WCJ for proper decision. However, the Supreme Court makes clear that the WCJ does have the authority to determine whether a vocational counselor is qualified to perform an expert interview consistent with Bureau regulations.
Thus, the Supreme Court’s holding in Caso has far reaching implications. We recommend a review of all claims to determine whether Petitions should be filed, refiled, or referred to a vocational counselor for an earning power assessment. Specifically, there have been many situations where a Petition to Compel Vocational Interview was not filed because of the Caso quagmire. Likewise, in many cases, an earning power assessment has been deferred or has been conducted without an interview. Caso makes clear that the employer is entitled to a vocational interview despite the fact that there is no "list" published by the Department. We recommend that your claims be reviewed on a case by case basis and all of the attorneys at Fried, Kane, Walters, Zuschlag & Grochmal are available for consultation.