Knechtel v. Workers' Compensation Appeal Board

906 A.2d 669, 2006 Pa. Commw. LEXIS 452, 2006 WL 2433931
CourtCommonwealth Court of Pennsylvania
DecidedAugust 24, 2006
DocketNo. 140 C.D. 2006
StatusPublished
Cited by2 cases

This text of 906 A.2d 669 (Knechtel v. Workers' Compensation Appeal Board) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Knechtel v. Workers' Compensation Appeal Board, 906 A.2d 669, 2006 Pa. Commw. LEXIS 452, 2006 WL 2433931 (Pa. Ct. App. 2006).

Opinions

OPINION BY

Judge LEADBETTER.1

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, [670]*670citing complaints by former clients about the accuracy of that psychiatrist’s reports, Claimant’s counsel requested that someone be allowed to accompany Claimant and make an audio recording of the psychiatric evaluation.2 Employer refused this request and subsequently filed a petition to compel Claimant to submit to the psychiatric evaluation.3

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).4

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[671]*671ted to take an active part in the examination, which would include objecting to any questions asked by Employer’s psychiatrist, rephrasing those questions and asking questions of his or her own.

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 [672]*672asking additional questions during the examination.

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.

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Related

In re C.W.
7 A.3d 891 (Commonwealth Court of Pennsylvania, 2010)

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Bluebook (online)
906 A.2d 669, 2006 Pa. Commw. LEXIS 452, 2006 WL 2433931, Counsel Stack Legal Research, https://law.counselstack.com/opinion/knechtel-v-workers-compensation-appeal-board-pacommwct-2006.