Defense Base Act litigation often features a slew of experts, including vocational experts. The issue presented in this post is whether the 30-day notice period applicable to medical expert examinations also applies to vocational expert examination. I believe it does–both legally and logistically.
What is a Vocational Examination?
Briefly, a vocational examination involves a trained expert asking questions to an injured worker about their educational, employment, and medical background. Following the examination, the vocational expert must prepare a report and a labor market survey. The purpose of the survey is to identify “suitable alternative employment.”
Different circuits have different requirements for what constitutes suitable alternative employment. Typically, suitable alternative employment must identify jobs available in the community that the worker is capable of performing given the worker’s age, background, and medical restrictions. The economic security offered by suitable alternative employment must be “long-term.” Newport News Shipbuilding and Dry Dock Co. v. Director, OWCP, 315 F.3d 286, 295 (4th Cir. 2002). The existence of suitable alternative employment affects the injured worker’s disability classification, changing the worker’s disability from total to partial. Louisiana Ins. Guaranty Ass’n v. Abbott, 40 F.3d 122, 126-27 (5th Cir. 1994).
The OALJ Rules Address Experts:
Defense Base Act hearings are litigated in accordance with the Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges. Rule 18.62 addresses “physical and mental examinations.” That rule states:
(a) Examination by notice–
(1) In general. A party may serve upon another party whose mental or physical condition is in controversy a notice to attend and submit to an examination by a suitably licensed or certified examiner.
(2) Contents of the notice. The notice must specify:
(i) The legal basis for the examination;
(ii) The time, place, manner, conditions, and scope of the examination, as well as the person or persons who will perform it; and
(iii) How the reasonable transportation expenses were calculated.
(3) Service of notice. Unless otherwise agreed by the parties, the notice must be served no fewer than 30 days before the examination date.
(4) Objection. The person to be examined must serve any objection to the notice no later than 14 days after the notice is served. The objection must be stated with particularity.
(b) Examination by motion. Upon objection by the person to be examined the requesting party may file a motion to compel a physical or mental examination. The motion must include the elements required by paragraph (a)(2) of this section.
(c) Examiner’s report–
(1) Delivery of the report. The party who initiated the examination must deliver a complete copy of the examination report to the party examined no later than seven days after it receives the report, together with like reports of all earlier examinations of the same condition.
(2) Contents. The examiner’s report must be in writing and must set out in detail the examiner’s findings, including diagnoses, conclusions, and the results of any tests.
So, if the expert examination is conducted in accordance with Rule 18.62, then the examination requires “no fewer than 30 days” notice. But why 30 days?
OALJ Previously Addressed the Notice Period for Expert Examinations:
The most recent amendment to Rule 18.62 occurred in 2015. Since the rule is a regulation–29 C.F.R. 18.62–OALJ accepted and responded to public comments prior to enacting Rule 18.62. The Office of the Secretary’s comments are available on OALJ’s website and in the Federal Register. The pertinent comments addressing the notice time period state:
Two commenters argued that the final rule should retain the 30-day notice requirement found in previous [Rule] 18.19(4)(d). One commenter stated that the new 14-day notice requirement would unreasonably burden the claimant. Specifically, the shorter notice period would make it harder for the claimant to arrange for time off from work, travel plans, and other matters. The commenters also asserted that [Rule] 18.62(a)(4) would not give sufficient time to object to the examination notice with particularity. The person to be examined may have to consult with others (such as experts or a treating physician) to frame and serve a specific objection.
The Department agrees with he commenters suggestions. Therefore [Rule] 18.62(a)(3) is amended to provide a notice period of 30 days in advance of an examination when the parties do not agree to a shorter notice in their proposed discovery plan, by stipulation, or through informal discussion. [Rule] 18.62(a)(4) is amended to extend the time to serve an objection from 7 days to 14 days.
Based on this language, OALJ already considered whether expert evaluations should receive a 14-day or 30-day notice period. After consideration, OALJ adopted a 30-day notice period. Absent agreement, 30 days are required for expert examinations.
Does Rule 18.62 Apply to Vocational Examinations?
Rule 18.62 likely applies to vocational examinations in addition to physical and mental examinations. Lately, though, some of our defense colleagues have disagreed, stating that the 30-day notice period does not apply at all to vocational examinations, only physical and mental expert examinations. Some have claimed that vocational examinations can be scheduled with absolutely no notice since Rule 18.62 does not expressly address vocational examinations.
Is that really the argument that employers and carriers want to make? I don’t think so. My take is that either all of Rule 18.62 applies to vocational examinations or none of Rule 18.62 applies. If all of Rule 18.62 applies, then employers and carriers may use Rule 18.62 to compel vocational evaluations, but employers and carriers must provide 30-days notice. On the other hand, if none of Rule 18.62 applies, then employers and carriers do not have to worry about a 30-day notice period since the examination is not authorized by any other OALJ rule.
Resort could be made to the inherent power of the administrative law judge to direct the course of discovery. That could be a way to bypass Rule 18.62. But there would still be a time delay that equals or exceeds Rule 18.62’s 30-day notice period.
From a logistical standpoint, a 30-day notice period makes good sense. It takes more than 30 days to request the vocational examination, receive claimant’s objections to the examination, participate in a Rule 18.33 conference, draft a motion to compel, allow 14 days for opposing counsel to respond, and then wait for the court’s order. The faster (and cheaper) option is to simply provide 30 or more days’ notice before the scheduled vocational examination.
In conclusion, my position is that Carriers must give 30 days’ notice for expert examinations, including vocational expert examinations. Without a doubt, Carriers must give more notice than the 7 days we have received lately.