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Workers’ compensation judges do not have the authority to approve a vocational counselor to assess the workplace limitations of an injured worker, a Pennsylvania Commonwealth Court panel has ruled in a case of first impression. Without approval of vocational counselors by the state Department of Labor and Industry through its Bureau of Workers’ Compensation, the court majority ruled in Caso v. WCAB, the judges may not appoint a counselor to serve as an expert in a case. There is neither a list of approved vocational counselors, the majority said, nor a statewide system for departmental approval of such counselors. The decision is significant because it could create a logjam in workers’ compensation dockets by preventing judges from appointing counselors until a departmental approval process is in place. Under bureau regulations devised in 1996, workers’ compensation judges had been exercising the authority to approve and appoint vocational experts. In a March 1999 opinion, the bureau director said that there was no need for a list of approved experts and that it was the judges’ job to accept or reject proposed experts. However, in Caso, the split Commonwealth Court panel, led by Judge Doris A. Smith-Ribner, said no vocational counseling session could be ordered in a case unless the counselor had been approved by the bureau. Judge James R. Kelley joined Smith-Ribner’s majority opinion. Senior Judge Jess S. Jiuliante, in a dissent, argued that in the absence of a state-approved list of experts, workers’ compensation judges have the authority to name vocational counselors to examine injured workers with benefit claims. Jiuliante said bureau regulations empowered the judges to appoint vocational counselors case by case. Mark R. Schmidt of Schmidt Kirifides in Media, Pa., who represented the injured worker in the case, said a legislative or a regulatory change is needed before experts may be appointed in upcoming cases. “I absolutely believe that some corrective action needs to be taken to get vocational counselors approved,” Schmidt said. “But I don’t know how quickly that can happen. [Approval] may require a list. There may be case-by-case approval, or there may be a [new] regulation.” Mario Caso, an employee of the School District of Philadelphia, suffered back strain and wrist injuries while on the job in 1998 and was awarded benefits. The school district filed a petition to modify those benefits and sought to compel Caso to submit to an interview with a certified rehabilitation counselor. Under the 1996 amendments to the Workers’ Compensation Act, vocational experts play a key role in setting the level of benefits available to injured workers. The statute says that a workers’ compensation insurer “may require the employee to submit to an interview by an expert approved by the [Department of Labor and Industry] and selected by the insurer.” The term “approved” was left undefined in the statute. The vocational expert selected by the insurer may offer an opinion on the earning power of the injured worker, which affects the level of benefits the worker may collect. The workers’ compensation judge handling Caso’s case refused to order the worker to submit to an examination performed by a vocational counselor. That judge observed that the Bureau of Workers’ Compensation had failed to compile a list of approved vocational experts. Therefore, the bureau had failed to perform its duty to effectuate the intent of the Legislature to allow only state-approved experts to conduct vocational assessments in workers’ compensation disputes. The Workers’ Compensation Appeal Board then reversed the ruling of the workers’ compensation judge and ordered the examination to go forward, ruling that individual judges may approve experts under � 306(b)(2) of the Workers’ Compensation Act. Nothing in the act mandated the compilation of a list of approved experts, the board said. The board also noted that the bureau’s regulations contemplate that the workers’ compensation judge would certify a particular consultant to serve as an expert. Therefore, the board concluded, workers’ compensation judges are free to appoint vocational experts within their own discretion. But Smith-Ribner rejected the board’s interpretation of the statute. Section 306(b)(2), Smith-Ribner said, “requires prior approval of the vocational expert before the insurer may require a vocational interview.” Allowing workers’ compensation judges to approve experts case by case “overlooks … the fact that approved vocational experts play a significant role in the statutory framework of the act,” Smith-Ribner also said. Jiuliante, in his dissent, argued that the bureau’s regulations “clearly” empower the workers’ compensation judge to approve vocational experts. “Nothing in the act requires that vocational experts be pre-approved by the department,” Jiuliante wrote. Schmidt called the case “one step in the process of challenging the 1996 amendments to the act.” The amendments, which included the assessment of earning power by insurer-selected experts, was designed to reduce workers’ compensation insurance costs by making it easier for employers to seek modification of benefits. But Schmidt said the act remains remedial legislation that must be read liberally to provide relief to injured workers. In light of that, the legislative requirement for approval of experts must be read strictly, he said. “I don’t necessarily believe that there has to be a list,” he said. “But there has to be approval, and it has to come from the Department of Labor and Industry.” Stephanie R. Coleman of the Law Offices of Stephanie R. Coleman, along with Joseph S. Bekelja of Margolis Edelstein, is representing the school district in the case. Bekelja, who Coleman said is preparing an appeal of the Commonwealth Court decision, could not be reached for comment Friday. The school district also has the option of seeking a rehearing of the case before the Commonwealth Court en banc.

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