The opinion
JIULIANTE, Senior Judge,
Dissenting.
I respectfully dissent. I agree with the Board that the Bureau’s regulations at 34 Pa.Code §§ 123.201 — 123.203 clearly contemplate that a WCJ approve vocational experts on behalf of the Department and that nothing in the Act requires that vocational experts be pre-approved by the Department. I also agree with the Board that Section 306(b)(2) was intended to ensure that vocational experts meet a level of expertise required to properly conduct earning power assessment interviews and that a proceeding before a WCJ is the proper forum for parties to resolve issues regarding the vocational expert’s qualifications. 1
Specifically, 34 Pa.Code § 123.202 provides: “To be an expert approved by the Department for the purpose of conducting earning power assessment interviews, the individual shall possess a minimum of one of the following: .... ” (Emphasis added). The Bureau, acting on behalf of the Department, promulgated 34 Pa.Code § 123.202 to establish the qualifications necessary for a vocational counselor to be approved as a vocational expert for purposes of Section 306(b)(2) of the Act. As a result, when a WCJ determines that a vocational counselor meets those requirements, he or she is, in actuality, approved by the Department.
Nevertheless, the Majority believes that the Board’s determination that a WCJ has the authority to determine whether a voea- *1083 tional expert meets the requirements of 34 Pa.Code § 128.202 is erroneous inasmuch as the Bureau has not promulgated a regulation authorizing WCJs to appoint vocational experts on behalf of the Department. I disagree.
Section 212 of The Administrative Code of 1929 (Administrative Code), Act of April 9, 1929, P.L. 177, as amended, 71 P.S. § 72, provides that the heads of the administrative departments shall “establish such bureaus or divisions in their respective departments, boards or commissions, as may be required for the proper conduct of the work of such departments, boards or commissions.” As indicated by the Organizational Chart for the Department of Labor and Industry, attached in the Appendix to 4 Pa.Code § 9.1, the Bureau operates under the observation and control of the Department. In addition, in accordance with Section 202 of the Administrative Code, 71 P.S. § 62, the Board was also placed in and made a part of the Department.
Moreover, pursuant to Sections 401.1 and 435(a) of the Act, 77 P.S. §§ 710 and 991, the Department shall promulgate rules and regulations consistent with the Act. In the area of workers’ compensation, the Department promulgates its rules and regulations through the Bureau. As such, the Bureau is not a separate and distinct entity from the Department. Rather, the Bureau is an arm of the Department responsible for promulgating regulations that explain such provisions of the Act as Section 306(b)(2). Consequently, if a vocational expert meets the requirements established by the Bureau in 34 Pa.Code § 123.202, he or she is an expert approved by the Department.
In addition, the Board’s interpretation of 34 Pa.Code § 123.202 is consistent with the opinion of the Bureau’s Legal Division as reflected by the March 11, 1999 letter from Richard A. Himler, the Bureau’s former Director. That letter stated in pertinent part:
It has come to my attention that there is confusion surrounding the issue of whether the Department is required to establish a list of “approved” vocational experts under Act 57. Please be advised that it is the opinion of the Legal Division that such a list is not required. The regulations set forth minimum qualifications for vocational experts performing interviews to assess the earning power of an employe under the Workers’ Compensation Act. Individuals need only satisfy one of the criteria set forth in at 34 Pa.Code section 123.202 (relating to Qualifications)' in order to be approved by the Department. Ultimately, it is the decision of the Workers’ Compensation Judge to accept or reject an individual as an “expert” qualified to conduct an earning power assessment based on these qualifications. Hence a rejection based solely on the fact that an individual does not appear on a list of “approved” experts is not valid. Further, as specified in 34 Pa.Code section 123.203 (relating to Credibility determinations) the question of credibility remains within the sole province of the Workers’ Compensation Judge.
Employer’s Ex. E-2; R.R. 7a.
As the Board noted, although this letter does not have the legal effect of a regulation, it is nonetheless a viable and workable interpretation of the Act and the Bureau’s regulations. I believe that it is the correct interpretation of the Bureau’s regulations and, therefore, I would affirm the order of the Board.
. As Employer notes, the General Assembly was well aware that it is the function of the WCJ in workers’ compensation proceedings to determine whether witnesses, including medical witnesses, qualify as experts, regardless of the fact that the WCJs are also responsible for determining the credibility of those witnesses. See Workmen’s Compensation Appeal Board v. Jones & Laughlin Steel Corp., 22 Pa.Cmwlth. 469 , 349 A.2d 793 (1975) (it is within the discretion of the WCJ to determine whether an expert witness's knowledge or experience justifies admitting his opinion).