M. Wheeler v. WCAB (Reading Hospital, et al.) is a case where the Claimant did not object to either the vocational interview or the vocational expert's testimony. The WCJ credited the testimony demonstrating the Claimant's earning power, but dismissed the Employer's petition because the vocational expert was not approved by the Department. Based on the Claimant's wavier of this issue, the Board ordered modification of benefits. The Commonwealth Court affirmed.
Buried in all the waiver discussion, however, are the answers to some of the questions Caso raised. Is a vocational interview mandatory to assess a Claimant's earning power under Section 306(b)(2) of the Act? No. Must a vocational expert be approved by the Department to render competent testimony to establish a Claimant's earning power under Section 306(b)(2)? No.
Caso stands for the proposition that a Claimant cannot be compelled to attend an interview with an expert who is not approved by the Department. However, to determine that the right of a Claimant to not be evaluated by an unapproved expert could be waived, the Court concluded: "...a vocational interview by an expert approved by the Department is optional, not mandatory, to assess the claimant's earning power." This conclusion was necessary to the result because it follows that the Claimant could have refused the evaluation, and instead he attended and waived his objection to the expert's lack of qualifications.
Accordingly, when Section 306(b)(2) says the Employer may require the Claimant to submit to an interview by a vocational expert approved by the department, Wheeler now says the Claimant can refuse, whereupon the Employer must file a Petition to Compel a Vocational Interview. On this petition, the WCJ must apply Caso which holds the vocational expert must be approved by the Department, and the WCJ may apply the Supersedeas Order in Struble (Tues Jun 17 post), which holds the Department has not yet come up with a suitable approval procedure.
But, the Employer can skip this step. Since the vocational interview is optional, and since Section 306(b)(2) provides that the Claimant's earning power is to be determined based upon expert opinion evidence -- without an indication that the expert has to be approved by the Department -- the Court held: "Under Section 306(b)(2), therefore, the Department's approval of the vocational expert is not a prerequisite to competency of his or her earning capacity assessment." The Employer therefore can offer a vocational witness as an expert without approval by the Department, and even without compliance with 34 Pa. Code Section 123.202. As with a medical witness, the WCJ decides the competency of the witness to testify.
The WCJ can then decide credibility. Although the Employer is at a disadvantage when the Employer vocational expert tries to persuade the WCJ with opinions based on only the facts gleaned from the Claimant's job application to the Employer (assuming the Employer can use this information for this purpose) and the Claimant's vocational expert bases his or her opinions on facts from an interview, Wheeler confirms the WCJ can decide this case on the merits.
In cases with a fact pattern like Wheeler where the Claimant has waived the Caso protection by attending the interview, the Commonwealth Court indicated the vocational expert's testimony is entirely competent. Therefore, to the extent that similar cases are pending, including at various stages of appeal, these cases also can now proceed on the merits.