DocketNumber： No. 140 C.D. 2006
Judges： Friedman, Leadbetter, Meginley
Filed Date： 8/24/2006
Status： Precedential
Modified Date： 10/26/2024
OPINION BY
Marilyn Knechtel (Claimant) petitions for review of the December 22, 2005, order of the Workers’ Compensation Appeal Board (Board), which affirmed the May 18, 2004 decision and order of a Workers’ Compensation Judge (WCJ) granting the petition to compel a physical examination filed by Marriott Corporation (Employer). We affirm.
Claimant receives benefits for a June 21, 1995, knee injury pursuant to a notice of compensation payable, amended to add depression to the description of Claimant’s work injury. In March 2004, Employer requested Claimant to submit to two examinations, one with an orthopedic surgeon and one with a psychiatrist. Claimant did not object to the scheduled appointment with the orthopedist. However, Claimant expressed concern about the psychiatrist selected by Employer. In a March 30, 2004 letter to Employer,
Thereafter, Claimant advised Employer that she was willing to submit to the psychiatric evaluation. Claimant further informed Employer that she wished to have a health care provider of her choice participate in the examination, pursuant to Section 314(b) of the Workers’ Compensation Act (Act), which provides in part as follows:
In the case of a physical examination, the employe shall be entitled to have a health care provider of his own selection, to be paid by him, participate in such examination requested by his employer or ordered by the workers’ compensation judge.
77 P.S. § 651(b) (emphasis added).
On May 18, 2004, the WCJ issued a decision and order granting Employer’s petition to compel as well as Claimant’s request to have her health care provider participate in the examination. However, the WCJ rejected Claimant’s assertions that “participate” means allowing the health care provider to tape record the evaluation, question the evaluator, make comments or otherwise assist Claimant during the procedure. The WCJ specifically ordered that Claimant’s health care provider would be permitted to take notes and request brief recesses during the course of the evaluation to confer with Claimant, but he or she would not be permitted to ask questions of Employer’s psychiatrist or comment on the psychiatrist’s questions. (WCJ’s Findings of Fact, No. 2.) At Claimant’s request, the WCJ stayed the directive to submit to the evaluation pending appeal of his order.
Claimant appealed to the Board, arguing that the WCJ erred in restricting the rights afforded her under Section 314(b) of the Act by prohibiting her health care provider from actually “participating” in the examination. Claimant asserted that her health care provider should be permit
The Board first noted that our courts have yet to address the issue raised here, i.e., the extent to which a claimant’s health care provider is permitted to participate in an examination by the employer’s medical expert. The Board then concluded that our decision in Wolfe v. Workmen’s Compensation Appeal Board (Edgewater Steel Company), 161 Pa.Cmwlth.361, 636 A.2d 1293, appeal denied, 537 Pa. 669, 644 A.2d 1205 (1994), is instructive. In Wolfe, the claimant argued that he had the right to have an attorney present during a physical examination by the employer’s doctor. Our court rejected this argument, noting that Section 314(b) specifies the type of individual who may be present. We also focused on the purpose of such examinations:
The physician’s examination is a source of information regarding the employee’s disability for the [WCJ] to consider when the [WCJ] makes findings of fact. It is when these facts are presented, and in preparation for the presentation of these facts at deposition and during the hearing, that the adversarial procedure begins. If we were to push the adversarial procedure back to the doctor’s office by involving attorneys for both parties in the medical examinations, we would have attorneys objecting and interrupting, and the equivalent of a hearing or deposition taking place during a physical examination. This is not the atmosphere in which a fair and reasonable medical examination can take place.
Id. at 1296.
The Board concluded that allowing Claimant’s health care provider to take the active role in the examination suggested by Claimant would effectively “turn the examination into an adversarial procedure, with Claimant’s health care provider acting as proxy for Claimant’s counsel, thereby resulting in an atmosphere in which a fair and reasonable medical examination could not take place.” (Board’s op. at 5.) The Board stated that Claimant’s concern regarding the accuracy of her medical history, as recorded by Employer’s psychiatrist, may be alleviated if she provides a written history during the examination. The Board further stated that, if Employer files a petition based on its psychiatrist’s report, Claimant can present rebuttal testimony from her health care provider with respect to what he or she observed during the examination. For these reasons, the Board stated it did “not believe that active participation in the examination by [Claimant’s] health care provider is necessary to protect Claimant’s interests.” (Board op. at 6.) Accordingly, the Board affirmed the WCJ’s decision, and Claimant now appeals to this court.
On appeal, Claimant asserts that, applying the principles of statutory construction to determine the meaning of “participate” as used in Section 314(b) of the Act, her health care provider must be permitted to not only attend the examination but also to take an active role during it. Specifically, Claimant asserts that the WCJ erred in granting Employer’s petition for an independent psychiatric examination while limiting her attending health care provider’s participation to taking notes and to conferences with the Claimant during brief recesses in the examination. Claimant challenges the WCJ’s conclusion that her provider cannot video or audio tape record the examination, question the examiner, comment on the examination process and assist the Claimant during the examination by rephrasing questions and
Neither the Act nor Bureau regulations defines the term “participate.” The common meaning of the word is “to take part in something (as an enterprise or activity) usu. in common with others.” Webster’s Third New International Dictionary 1646 (1993). This dictionary definition provides very little assistance in discerning what the legislature intended in enacting Section 314(b); that is to say, what degree of active involvement qualifies as “taking part in” depends on the enterprise or activity. Insofar as a medical examination essentially involves careful observation of the ex-aminee’s responses to questions and to physical or psychological testing, the opportunity to attend and observe certainly constitutes a significant degree of participation as defined above. Even accepting the premise that the ordinary meaning of the word contemplates a role more active than observation, we cannot conclude that the legislature intended that a claimant’s health care provider participate to such an extent that the examination becomes disrupted by questioning and disagreement of an adversarial nature regarding the examiner’s methods and procedures. Cf Wolfe. An examination disrupted in this manner would likely not yield the information regarding the employee’s disability that it is intended to provide. Id. This is particularly true of a psychiatric exam.
We conclude that, in providing for the participation of a claimant’s health care provider, the legislature intended to afford the opposing expert a first-hand view of the exam process as a foundation for later rebutting in testimony the validity of the exam results. Attendance and observation well serve this purpose. In view of our understanding as to the meaning of the term “participate” and the purpose for allowing participation, we discern neither a violation of the Act nor an abuse of discretion in the limits imposed by the WCJ on the activities of Claimant’s health care provider during the examination in this case.
Accordingly, we affirm.
ORDER
AND NOW, this 24th day of August, 2006, the order of the Workers’ Compensation Appeal Board in the above captioned is hereby AFFIRMED.
. This case was reassigned to the author on June 21, 2006.
. Claimant’s counsel indicated that Claimant was not sophisticated or articulate and would be unable to testify in rebuttal to Employer’s psychiatrist. He asked Employer to voluntarily provide Claimant the protections afforded by Pa. R.C.P. No. 4010, which authorizes an audio recording of an examination but is not applicable to workers’ compensation proceedings.
. Section 314(a) of the Workers' Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 651(a), states as follows:
(a) At any time after an injury the employe, if so requested by his employer, must submit himself at some reasonable time and place for a physical examination or expert interview by an appropriate health care provider or other expert, who shall be selected and paid for by the employer. If the employe shall refuse upon the request of the employer, to submit to the examination or expert interview ... a workers' compensation judge assigned by the department may, upon petition of the employer, order the employe to submit to such examination or expert interview.... The refusal or neglect, without reasonable cause or excuse, of the employe to submit to such examination or expert interview ordered by the workers’ compensation judge, either before or after an agreement or award, shall deprive him of the right to compensation, under this article, during the continuance of such refusal or neglect....
77 P.S. § 651(a).
.Neither party has raised the issue of whether Section 314(b), which specifically applies to "a physical examination,” also applies in the context of a psychiatric examination, and accordingly, we do not decide that issue.