RULES AND REGULATIONS
Title 34--LABOR AND INDUSTRY
DEPARTMENT OF LABOR AND INDUSTRY
[34 PA. CODE CH. 123]
Qualifications for Vocational Experts
[37 Pa.B. 2804]
[Saturday, June 23, 2007]The Department of Labor and Industry (Department), Bureau of Workers' Compensation (Bureau), amends Chapter 123 (relating to general provisions--Part II) to read as set forth in Annex A. The final-form rulemaking provides guidance regarding the act of December 23, 2003 (P. L. 371, No. 53) (Act 53), which amended the Workers' Compensation Act (act) (77 P. S. §§ 1--1041.4 and 2501--2626), and implements Act 53. Specifically, Act 53 amended section 306(b) of the act (77 P. S. § 512). This final-form rulemaking also rescinds § 123.201a.
Statutory Authority
This final-form rulemaking is adopted under the authority in sections 401.1 and 435 of the act (77 P. S. §§ 710 and 991). Additionally, section 306(b) of the act specifically authorizes the Department to promulgate regulations establishing the minimum qualifications for vocational experts.
Background
On December 23, 2003, Governor Edward G. Rendell signed Act 53 into law. Act 53 amended section 306(b)(2) of the act. Before its amendment, section 306(b)(2) of the act provided a means for insurers to assess an employee's earning power through an interview ''by an expert approved by the department and selected by the insurer.'' Act 53 eliminated the requirement that the Department approve these experts. Instead, insurers may select experts ''who meet[ ] the minimum qualifications established by the department through regulation.''
Act 53 further amended section 306(b)(2) of the act by providing that vocational experts ''shall comply with the Code of Professional Ethics for Rehabilitation Counselors pertaining to the conduct of expert witnesses.'' Act 53 also added section 306(b)(2.1) of the act, which requires an insurer to disclose to the employee prior to his referral to an earning power assessment interview, any financial interest that the insurer has in the person or entity that will conduct the earning power assessment interview.
Purpose
This final-form rulemaking implements Act 53. It provides guidance to Bureau staff, workers' compensation insurance carriers, self-insured employers, employees, workers' compensation judges, workers' compensation practitioners and other interested parties concerning the qualifications and role of vocational experts in workers' compensation proceedings under section 306(b) of the act and section 449 of the act (77 P. S. § 1000.5). Other than in instances when a workers' compensation judge has determined that a vocational expert or insurer has not met the requirements of § 123.202 or § 123.202a (relating to qualifications for current vocational experts under Act 57 of 1996; and qualifications for vocational experts under Act 53 of 2003), or has failed to comply with §§ 123.204 and 123.205 (relating to conduct of vocational experts; and financial interest disclosure), this final-form rulemaking is not intended to restrict or limit the authority that workers' compensation judges currently possess.
Stakeholder Meeting
On June 11, 2004, the Department held a stakeholder meeting regarding the Act 53 amendments. Testimony was received from Irwin Aronson and David Wildeman, representing the AFL-CIO; and Terry Leslie, representing the Pennsylvania Association of Rehabilitation Professionals. In addition, the Department received written comments from the Pennsylvania Association of Rehabilitative Professionals Administrative Services; the Penn- sylvania Trial Lawyers Association; The Insurance Federation of Pennsylvania Inc. (IFP); CEC Associates, Inc.; and the Honorable Noah Wenger.
Summary of Comments and Responses to Proposed Rulemaking
The Department published the proposed rulemaking at 35 Pa.B. 3820 (July 9, 2005) with a 30-day public comment period. The Department received comments from the Independent Regulatory Review Commission (IRRC) on September 13, 2005, as part of its review of the proposed rulemaking under the Regulatory Review Act (71 P. S. §§ 745.1--745.12). The Department also received public comments from IFP, Galfand Berger LLP (GB) and The Pennsylvania Workers' Compensation Judges' Association (PWCJA). The Department amended the proposed rulemaking in response to many of these comments.
On March 16, 2006, the Department delivered a final-form rulemaking to the IRRC and the Senate Labor and Industry Committee and the House Labor Relations Committee. IRRC scheduled a public meeting, scheduled for April 20, 2006, to consider the regulations. In response to the final-form rulemaking submitted to IRRC, the Department received additional comments from the Honorable Joseph B. Scarnati, III, then-Chairperson of the Senate Labor and Industry Committee; the Honorable Mike Turzai, Member, House of Representatives; the Pennsylvania Chamber of Business and Industry; Denise Cordes; and the IFP.
To review and consider these comments, the Department withdrew the previous final-form rulemaking on April 18, 2006. The Department then submitted this final-form regulation, which reflects amendments made in light of comments to the March 16, 2006, final-form rulemaking.
§ 123.201b. Definitions.
IFP commented that the definition of ''financial interest'' was broad and ambiguous. IFP contends that the definition arguably requires that any relationship between the insurer and vocational expert constitutes a ''financial interest.'' The Department agreed and amended this section to restrict ''financial interest'' to three specific criteria. The section now provides that a ''financial interest'' exists for the vocational expert or his employer only when the insurer has a present or former ownership interest, or a present or former employment relationship, with the entity or individual conducting the earning power assessment interview, or when a contractual or referral arrangement exists between the insurer and the vocational expert or his employer.
IRRC and IFP commented that in subparagraph (ii) of the definition of ''finance interest'' the divergent use of the term ''employment relationship'' as distinguished from the terms ''employs'' and ''employing'' used elsewhere in the section, was confusing and could be interpreted to permit the application of this provision in circumstances other than those pertaining to employment. The Department agreed and amended this section to remove the terms ''employs'' or ''employing'' to clarify and promote consistent use of the term ''employment relationship'' throughout the section.
IFP commented that the inclusion of a ''former employer relationship'' in subparagraph (ii) of the definition of ''finance interest'' could not constitute a current financial interest. The Department, however, maintains that the existence of a past employment relationship properly constitutes a financial interest for disclosure purposes. For example, a former employee could receive interests such as pension benefits, 401(k) proceeds or severance benefits.
IFP commented that the reference to ''a managerial, fiduciary or controlling interest'' in subparagraph (iii) of the definition of ''finance interest'' is confusing and duplicative of this section's earlier provisions. Also, IFP remarked that this subparagraph creates confusion regarding the financial interest disclosure requirements of § 123.205. The Department agreed that the reference may be confusing and deleted this amendment.
§ 123.202a. Qualifications for vocational experts under Act 53 of 2003.
IRRC commented that in subsection (a)(1), the standard for qualification potentially allowed an individual without adequate earning power assessment knowledge and skills to serve in this capacity. Specifically, IRRC pointed out that a license for a professional counselor issued under the Social Workers, Marriage and Family Therapists and Professional Counselors Act (63 P. S. §§ 1901--1920.2) could include disciplines not relevant to the performance of earning power assessment interviews. Further, Senator Scarnati and IFP expressed concerns that a licensure requirement would unduly limit the number of experts available to conduct earning power assessment interviews, and would not be relevant to the performance of earning power assessment interviews.
The Department agreed with IRRC and IFP that certification by one of the delineated professional organizations sufficiently ensures that vocational experts are competent to conduct earning power assessment interviews under the act. Thus, the Department amended this section to eliminate the requirement that individuals conducting interviews under this section be licensed by the Department of State. However, to better ensure that individuals conducting earning power assessment interviews are competent to do so, the Department included a requirement that approved experts hold at least a bachelor's degree in rehabilitation counseling or a related counseling field.
IRRC noted that subsection (a)(2) permitted an individual to perform as a vocational expert if that person held a bachelor's degree and certification by a professional organization or had 1 year of experience. The Department agreed that this provision created an unnecessarily diminished qualification standard and amended this section to require all vocational experts to hold a certification issued by an appropriate Nationally-recognized professional organization.
§ 123.203. Role of workers' compensation judges.
The PWCJA commented that its members were concerned that subsection (c) was not authorized by statute. This provision prohibits a workers' compensation judge from considering the results of an earning power assessment interview if the vocational expert has not complied with §§ 123.204 and 123.205. The Department maintains that section 435 of the act, which allows the Department to issue rules and regulations to explain and enforce the provisions of the act, properly authorizes the regulation. Further, section 306(b) of the act dictates that vocational experts ''shall comply with the Code of Professional Ethics for Rehabilitation Counselors pertaining to the conduct of expert witnesses'' and that the insurer referring an employee for an earning power assessment interview ''shall disclose [any] financial interest to the employe prior to the referral.''
Further, in response to the PWCJA's comments, the Department clarified § 123.203 to provide that workers' compensation judges will resolve disputes regarding vocational experts' qualifications and retain other authority to make findings and conclusions regarding qualifications, as well as experts' potential bias or objectivity. Finally, the Department amended this section to clarify that workers' compensation judges retain the ability to determine whether vocational experts or insurers have failed to comply with § 123.204 or § 123.205.
§ 123.204. Conduct of expert witnesses.
IFP commented that the title of this section should be changed to ''conduct of vocational experts.'' The Department agreed and amended the final-form rulemaking to reflect this change.
IFP commented that subsection (a) is ''broad and vague'' and creates confusion regarding the definition of ''financial interest'' in § 123.201b (relating to definitions). The Department amended this section to remove reference to the insurer. This provision now clearly requires that the vocational expert make appropriate disclosures to the employee.
The PWCJA and IRRC commented that subsection (a), which requires that the vocational expert disclose the ''role and limits'' of their relationship with the employee, should reference a specific time frame for disclosure to occur. IRRC further requested that disclosure be made in writing. The Department agreed and amended this section to clarify that a vocational expert shall disclose the role and limits of his relationship with the employee, in writing, before the earning power assessment interview.
The PWCJA, IRRC and GB commented that the requirement in subsection (b) that a vocational expert generate written documentation of his involvement in the litigation and results of the earning power assessment interview should be amended to specifically require that a copy of the vocational expert's report be served on the employee within a prescribed period of time. The Department agreed and amended this section to state that the vocational expert shall serve a copy of the initial report to the employee, and counsel if known, within 30 days of the date of the earning power assessment interview.
IFP and IRRC commented that § 123.204 should include reference to the Code of Professional Ethics for Rehabilitation Counselors (Code) to provide a standard for compliance with the Code in the regulations. The Department agreed and amended this section to add subsection (c), which clarifies that vocational experts who satisfied the requirements of subsections (a) and (b) are in compliance with the Code pertaining to the conduct of expert witnesses. This substantive amendment establishes requirements for vocational experts' conduct under the regulation. This amendment is not intended to alter workers' compensation judges' obligations to ensure that decisions are based upon competent evidence of record, nor is it intended to permit expert testimony by witnesses who are otherwise not qualified to testify as experts.
Commentators further noted that this section could be read as requiring experts to provide the results of a labor market survey within 30 days of an earning power assessment interview, and urged that the section be clarified. IFP also suggested that the Department ''require that a vocational expert send the earning power assessment report to the injured worker at the same time he sends it to the employer.'' The Department agreed and amended this section to clarify that the initial report need not contain the results or conclusions of surveys or tests, and to require that the vocational expert shall serve copies of additional written reports (including earning power assessments or labor market surveys) to the employee when provided to the insurer.
§ 123.205. Financial interest disclosure.
IFP commented that the ''breadth and vagueness'' of proposed subparagraphs (iii) and (iv) of the definition of ''financial interest'' makes disclosure under § 123.205 unclear. The Department agreed and amended § 123.201b to clearly describe what constitutes a ''financial interest'' for purposes of disclosure under this section.
Affected Persons
The persons affected by this final-form rulemaking are employees, self-insured employers, workers' compensation insurance carriers, workers' compensation judges, workers' compensation practitioners and individuals who wish to serve as vocational experts under the act.
Fiscal Impact
There is no significant fiscal impact associated with this final-form rulemaking.
Reporting, Recordkeeping and Paperwork Requirements
The Department does not anticipate changes in existing reporting, recordkeeping or other paperwork requirements.
Sunset Date
A sunset date is not appropriate for these regulations. However, the Department will continue to monitor the impact and effectiveness of the regulation.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on June 27, 2005, the Department submitted a copy of the notice of proposed rulemaking, published at 35 Pa.B. 3820, to IRRC and the Chairpersons of the House and Senate Committees for review and comment.
Under section 5(c) of the Regulatory Review Act, IRRC and the Committees were provided with copies of the comments received during the public comment period, as well as other documents when requested. In preparing the final-form rulemaking, the Department has considered all comments from IRRC, the House and Senate Committees and the public.
Under section 5.1(j.2) of the Regulatory Review Act (71 P. S. § 745.5a(j.2)), on May 2, 2007, the final-form rulemaking was deemed approved by the House and Senate Committees. Under section 5.1(e) of the Regulatory Review Act, IRRC met on May 3, 2007, and approved the final-form rulemaking.
Contact Person
Persons who require additional information about this final-form rulemaking may submit inquiries to John T. Kupchinsky, Director, Bureau of Workers' Compensation, 1171 South Cameron Street, Harrisburg, PA 17104, (717) 783-5421, jkupchinsk@state.pa.us.
Findings
(1) Public notice of proposed rulemaking was given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No 240) (45 P. S. §§ 1201 and 1202) and the regulations thereunder, 1 Pa. Code §§ 7.1 and 7.2.
(2) A public comment period was provided as required by law and all comments were considered.
(3) The final-form rulemaking is necessary and appropriate for the administration of Act 53 and the act.
Order
The Department, acting under the authorizing statutes, orders that:
(a) The regulations of the Department, 34 Pa. Code Chapter 123, are amended by adding §§ 123.201b, 123.202a, 123.204 and 123.205, by amending §§ 123.201, 123.202 and 123.203 and by deleting § 123.201a to read as set forth in Annex A.
(b) The Secretary of the Department shall submit this order and Annex A to the Office of General Counsel and to the Office of Attorney General for review and approval as to legality and form as required by law.
(c) The Secretary of the Department shall submit this order and Annex A to IRRC and the House and Senate Committees as required by law.
(d) The Secretary of the Department shall certify this order and Annex A and deposit them with the Legislative Reference Bureau as required by law.
(e) This order shall take effect upon publication in the Pennsylvania Bulletin.
STEPHEN M. SCHMERIN,
Secretary(Editor's Note: For the text of the order of the Independent Regulatory Review Commission, relating to this document, see 37 Pa.B. 2355 (May 19, 2007).)
Fiscal Note: Fiscal Note 12-68 remains valid for the final adoption of the subject regulations.
Annex A
TITLE 34. LABOR AND INDUSTRY
PART VIII. BUREAU OF WORKERS' COMPENSATION
CHAPTER 123. GENERAL PROVISIONS--PART II
Subchapter C. QUALIFICATIONS FOR VOCATIONAL EXPERTS § 123.201. Purpose.
This subchapter implements and interprets provisions of the act which permit the Department to establish qualifications for vocational experts who will conduct earning power assessment interviews under sections 306(b) and 449 of the act (77 P. S. §§ 512 and 1000.5). This subchapter also implements the act's requirements for compliance with the Code of Professional Ethics for Rehabilitation Counselors pertaining to the conduct of expert witnesses and disclosure of financial interest.
§ 123.201a. (Reserved).
§ 123.201b. Definitions.
The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise:
Financial interest--An interest equated with money or its equivalent, and includes any of the following:
(i) A present or former ownership interest in or with the entity or individual conducting the earning power assessment interview.
(ii) A present or former employment relationship with the entity or individual conducting the earning power assessment interview.
(iii) A contractual or referral arrangement that would require or allow the insurer to provide compensation or other consideration based upon the vocational expert's opinion or the outcome of the vocational expert's earning power assessment interview.
Insurer--An insurer is any of the following:
(i) A workers' compensation insurance carrier.
(ii) The State Workers' Insurance Fund of the Department.
(iii) An employer authorized by the Department to self-insure its workers' compensation liability under section 305 of the act (77 P. S. § 501).
(iv) A group of employers authorized by the Department to act as a self-insurance fund under section 802 of the act (77 P. S. § 1036.2).
§ 123.202. Qualifications for current vocational experts under Act 57 of 1996.
(a) This section applies to individuals who, before June 23, 2007, conducted earning power assessment interviews under section 306(b) of the act (77 P. S. § 512(2)). These individuals continue to meet the minimum qualifications established under section 306(b) if they possess one of the following:
(1) Both of the following:
(i) Certification by one of the following Nationally recognized professional organizations:
(A) The American Board of Vocational Experts.
(B) The Commission on Rehabilitation Counselor Certification.
(C) The Commission on Disability Management Specialists Certification.
(D) The National Board of Certified Counselors.
(E) Other Nationally recognized professional organizations, published by the Department in the Pennsylvania Bulletin.
(ii) One year experience in analyzing labor market information and conditions, industrial and occupational trends, with primary duties providing actual vocational rehabilitation services, which include the following:
(A) Job seeking skills.
(B) Job development.
(C) Job analysis.
(D) Career exploration.
(E) Placement of individuals with disabilities.
(F) Vocational testing and assessment.
(2) Certification by a Nationally recognized professional organization specified in paragraph (1)(i) under the direct supervision of an individual possessing the criteria in paragraph (1).
(3) Possession of a Bachelor's degree or a valid license issued by the Department of State's Bureau of Professional and Occupational Affairs, as long as the individual is under the direct supervision of an individual possessing the criteria in paragraph (1).
(4) At least 5 years experience primarily in the workers' compensation field prior to August 23, 1996, as a vocational evaluator, with experience in analyzing labor market information and conditions, industrial and occupational trends, with primary duties providing actual vocational rehabilitation services, which include, but are not limited to, the following:
(i) Job seeking skills.
(ii) Job development.
(iii) Job analysis.
(iv) Career exploration.
(v) Placement of individuals with disabilities.
(b) Individuals meeting the minimum qualifications under subsection (a) are approved to conduct earning power assessment interviews under section 449 of the act (77 P. S. § 1000.5).
§ 123.202a. Qualifications for vocational experts under Act 53 of 2003.
(a) This section applies to individuals who, before June 23, 2007, have not conducted earning power assessment interviews under section 306(b) of the act (77 P. S. § 512(2)). These individuals meet the minimum qualifications established under section 306(b) if they possess both:
(1) Certification by one of the following Nationally recognized professional organizations:
(i) The American Board of Vocational Experts.
(ii) The Commission on Rehabilitation Counselor Certification.
(iii) The Commission on Disability Management Specialists Certification.
(iv) Other Nationally recognized professional organizations, published by the Department in the Pennsylvania Bulletin.
(2) A bachelor's or postgraduate degree in rehabilitation counseling or a related counseling field.
(b) Individuals meeting the minimum qualifications under subsection (a) are approved to conduct earning power assessment interviews under section 449 of the act (77 P. S. § 1000.5).
§ 123.203. Role of workers' compensation judges.
(a) A workers' compensation judge will resolve disputes regarding whether a vocational expert meets the minimum qualifications established in §§ 123.202 and 123.202a (relating to qualifications for current vocational experts under Act 57 of 1996; and qualifications for vocational experts under Act 53 of 2003).
(b) Except as set forth in subsection (c), this subchapter does not limit a workers' compensation judge's authority to determine a vocational expert's qualifications under §§ 123.202 and 123.202a or a vocational expert's bias or objectivity.
(c) A workers' compensation judge may not consider the results of an earning power assessment interview if the workers compensation judge finds that the vocational expert has not complied with § 123.204 (relating to conduct of vocational experts) or that the insurer has not complied with § 123.205 (relating to financial interest disclosure).
§ 123.204. Conduct of vocational experts.
(a) Before conducting an earning power assessment interview, the vocational expert shall disclose to the employee, in writing, the role and limits of the vocational expert's relationship with the employee.
(b) A vocational expert who conducts an earning power assessment interview shall generate a written initial report detailing the expert's involvement in the litigation and conclusions from the interview. The initial report need not contain the results or conclusions of any surveys or tests. The vocational expert shall serve a copy of the initial report on the employee and counsel, if known, within 30 days of the date of the interview.
(c) A vocational expert who authors additional written reports, including earning power assessments or labor market surveys, shall simultaneously serve copies of these written reports upon the employee and counsel, if known, when the expert provides the written reports to the insurer or its counsel.
(d) A vocational expert who satisfies the requirements of this section complies with the Code of Professional Ethics for Rehabilitation Counselors pertaining to the conduct of expert witnesses for purposes of section 306(b)(2) of the act (77 P. S. § 512(2)).
§ 123.205. Financial interest disclosure.
(a) For the purposes of this section, a third-party administrator or another entity that performs services on behalf of an insurer, as specified in section 441(c) of the act (77 P. S. § 997(c)), is an insurer.
(b) Before an insurer refers an employee for an earning power assessment interview, the insurer shall disclose to the employee, in writing, any financial interest the insurer has with the person or entity conducting the earning power assessment interview.
[Pa.B. Doc. No. 07-1081. Filed for public inspection June 22, 2007, 9:00 a.m.]
No part of the information on this site may be reproduced for profit or sold for profit.This material has been drawn directly from the official Pennsylvania Bulletin full text database. Due to the limitations of HTML or differences in display capabilities of different browsers, this version may differ slightly from the official printed version.
