AMENDMENT TO PA WORKERS’ COMPENSATION ACT
HOUSE BILL NO. 88 - VOCATIONAL EXPERTS AND
GOOD SAMARITAN EMPLOYEES

On December 15, 2003, the Pennsylvania Senate passed House Bill No. 88 which amended two sections of the Pennsylvania Workers’ Compensation Act. The most important deals with the use of vocational experts in performing vocational interviews and earnings power assessments as well as their subsequent appearances as expert witnesses. The other Amendment addresses injuries sustained by employees who are acting as "good Samaritans" in coming to the aid of injured persons in emergency situations or taking affirmative action of several different types where there has been commission of a crime.

By law, Governor Edward Rendell has ten days to sign the bill which, by most accounts, appears likely. The Amendments will go into effect sixty days after signing.

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

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 but a final pronouncement has yet to be made by the Supreme Court (more on this below). The new statutory language will, until successfully challenged or amended, apply to at least all new injuries and future cases to be filed after the law goes into effect (more about this below as well).

The new language of 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

***

3. 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.

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.

PRACTICAL CONSIDERATIONS.

A. EFFECTIVE DATE AND APPLICATION.

These amendments will be effective sixty days from the date of signing by the governor. When the amendments are effective does not, however, address the question of whether and when they will be applied. Clearly, any case referred for vocational interview or earnings power assessment on or after 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 questions are whether the amendments will be applied to cases already pending and to cases where the vocational referral/EPA (earnings power assessment) has already been performed, or will be performed, prior to the effective date. If one mixes in the variable of when the injury occurred, the analysis becomes more complicated.

The answers to these questions cannot be known at this time as challenges can be expected by claimants and their counsel that the amendments affect an employee’s substantive rights (prospective application only) as opposed to the defense position that the amendments are only procedural as they involve changes in an already existing remedy (retroactive application possible).

It is also difficult to reliably predict what the Pennsylvania Appellate Courts may ultimately do with this issue. The safer course would therefore seem to be to delay the vocational referral/interview/EPA, if at all possible, until the law becomes effective. If this is not feasible or cost-effective, the analysis and plan should be developed on a case by case basis.

For cases where a substantial amount of work has already been completed, and litigation might otherwise soon commence, it may be wise to delay filing the petition and perhaps make a re-referral of the case for workup after the effective date of the amendments. The EPA would be, more or less, a re-certification of the work already performed prior to the effective date and would allow for compliance with the statutory changes.

For all other matters which have already been filed or are substantially completed in the litigation process, it may be more cost-effective to proceed under the "old standard" as addressed by cases such as Caso and Walker. For those matters which are already pending and at one stage or another of the trial or appellate process, the argument can be advanced that current case law, as it continues to develop up through the effective date of the amendments, would still apply. This is, the Supreme Court Decision in Caso may still be applicable to cases which were tried under the old standard.

In summary, the question to be asked is one of degree. If the case is not so far along that it seems reasonable to wait and therefore increase one’s chances of complying with the new law, that method may be best. Where the case is already substantially completed and significant expense incurred, the reasonable position may be to follow that particular case through to conclusion based upon the old statutory language and applicable case law.

NOTE: The courts have drawn many fine distinctions between the law and regulations to be applied to vocational interviews as opposed to earnings power assessments and provision of expert vocational testimony. Other unique issues arise in determining whether the new Amendments and their application will be retroactive or prospective. These considerations are considerably more involved and cannot receive proper treatment here. Rather, these types of factual scenarios should be reviewed with counsel on an individualized basis.

B. 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. However, one other point must be considered as well.

The amendments also contain a provision which states as follows:

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

The very first sentence of Bureau Regulation 123.202 starts out as follows:

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

The Bureau Regulation then goes on to list the various qualifications that an individual must possess in order to perform expert earning power interviews. The question to be considered is whether only the short phrase "approved by the Department" will be eliminated or the entire Regulation stricken. One would tend to think that the former would be the case and all the qualifications otherwise outlined for vocational experts will stand. It would therefore seem 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.

C. 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. The answer is that the disclosure should be made as soon as possible but definitely prior to the time of the referral for an expert interview or EPA. Perhaps a separate, written notification of subsidiary companies or other business entities with which the insurance carrier deals and has a financial interest could be revealed to an employee and/or counsel at the time the claim is accepted. If a subsequent referral is then made for an interview or EPA, the requirement of disclosure will have already been satisfied.

At the very least, disclosure of such a financial interest should be made to the employee and counsel by separate writing before referral is made.

D. GOOD SAMARITANS.

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

.