October 8, 2007

Changes in
Rules and Regulations
Regarding
Vocational Experts

The Department of Labor and Industry recently amended 34 Pa. Code Chapter 123 regarding the qualifications for vocational experts who will conduct earning power assessment interviews, and implemented the Act 53 requirements of regarding compliance with the Code of Professional Ethics for Rehabilitation Counselors pertaining to the conduct of expert witnesses and disclosure of financial interest.

Qualifications for Vocational Experts

Section 123.202 provides that vocational experts previously qualified under Act 57 of 1996 continue to meet the minimum qualifications established under Section 306 (b) if they are certified by one of the nationally recognized professional organizations, including the following:

In addition, they must have one year of experience in analyzing labor market information, with primary duties involving providing actual vocational rehabilitation services, which include job seeking skills, job development, job analysis, career exploration, placement of individuals with disabilities and vocational testing and assessment.

In the alternative, they can also be certified by one of the nationally recognized professional organizations enumerated above and be under the direct supervision of an individual with the appropriate certification and at least one year of experience as described above.

Or, the individual can have a Bachelor’s degree or 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 who is certified by a nationally recognized professional organization as enumerated above and has one year of experience as described above.

Finally, an individual can posses at least five years of experience, primarily in the workers’ compensation field, as a vocational evaluator with experience in analyzing labor market information and conditions including the criteria enumerated above.

For individuals qualified as vocational experts under Act 53 of 2003, Section 123.202 (a) requires that the individual must be certified by one of the nationally recognized professional organizations including:

In addition, they must have a Bachelor’s degree or post-graduate degree in rehabilitation counseling or a related counseling field.

According to Section 123.203, workers’ compensation judges will now resolve disputes regarding whether a vocational expert meets the minimum qualifications established above.

Conduct of Vocational Experts

Section 123.204 sets forth the conduct of vocational experts. Before conducting an earning power assessment interview, the vocational expert must disclose to the employee, in writing, the role and limits of a vocational expert’s relationship with the employee. In addition, the vocational expert who conducts an earning power assessment interview shall generate an initial written report detailing the expert’s involvement in the litigation and conclusions from the interview. The initial report does not need to contain the results or conclusions of any surveys or tests, but this initial report must be served on the employee and their counsel, if known, within 30 days of the date of the interview.

In addition, if the vocational expert authors any additional reports, including earning power assessments or labor market surveys, they must simultaneously serve copies of these reports upon the employee and their counsel, if known, when the expert provides the expert reports to the insured or its counsel.

Finally, the workers’ compensation judge may not consider the results of an earning power assessment interview if the judge finds the vocational expert has not complied with the disclosure requirements and has not provided the reports to employee and his counsel, if known, as described above. Finally, if an insurer refers an employee to an earning power assessment interview, they must disclose to the employee, in writing, any financial interest they have with the person or entity conducting the earning power assessment interview. If the workers’ compensation judge finds that they failed to do so, they may not consider the results of any earning power assessment interview.

Conclusion

It appears that the Department is attempting to create more reasonable criteria to qualify vocational experts who provide vocational services in the workers’ compensation field. No longer do they have to be approved by the Department but instead must now meet minimum qualifications established through these regulations.

In addition, the vocational expert is to provide the employee with the results of the vocational interview and subsequent labor market survey in a timely fashion. They must also disclose their role to the employee, prior to the interview, and the insurer must disclose any financial interest they have in the vocational expert or the entity conducting the earning power assessment interview. Basically, this process ensures that the employee has full knowledge of the vocational efforts being undertaken by the vocational expert, and is clear of the role that the vocational expert has in locating vocational opportunities.

In addition, the employee would be advised of vocational opportunities which the vocational expert has located theoretically allowing the employee to follow up on these types of job opportunities if they are so inclined. The changes primarily effect the conduct of vocational experts but it certainly behooves insurers, third-party administrators and self-insureds to make sure that vocational experts meet these requirements before placing a matter in litigation.

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