Marilyn Knechtel, v. WCAB (Marriott Corp.) (Concurring Statement)
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[J-71-2007] IN THE SUPREME COURT OF PENNSYLVANIA WESTERN DISTRICT MARILYN KNECHTEL, : : : Appellant : : v. : : WORKERS COMPENSATION APPEAL : BOARD (MARRIOTT CORPORATION), : : : Appellees : No. 3 WAP 2007 Appeal from the Order of the Commonwealth Court entered August 24, 2006 at No. 140 CD 2006, affirming the Order of the Workers' Compensation Appeal Board entered December 22, 2005 at No. A04-1410. ARGUED: September 10, 2007 CONCURRING STATEMENT MR. JUSTICE BAER FILED: NOVEMBER 20, 2007 Today the Court affirms by per curiam order the Commonwealth Court s construction regarding the legislature s enactment of 77 P.S. § 651(b),1 allowing a claimant s healthcare provider to participate in the examination conducted by an employer s physician. In so doing, we affirm the court s holding that the legislature intended to afford the opposing expert a first-hand view of the examination process, through attendance and observation, 1 This section provides, in relevant part: 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). but did not intend to permit such expert to engage in any active conduct which might disturb the examining physician. I write to express my opinion that nothing in our affirmance of the Commonwealth Court s opinion, limiting a healthcare provider to attending and observing an employer s physician s examination, should be seen as precluding such a provider from engaging in other passive, non-disruptive activity during the exam. Specifically, I believe that a workers compensation judge retains the discretion to grant a claimant s reasonable request to take notes and/or audio or videotape the examination, so long as such activity will not interfere with an employer s physician s ability to conduct an examination. Madame Justice Baldwin joins this concurring statement. [J-71-2007] - 2
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