Thursday, February 27, 2014

corporate designee depositions

The Commission in a recent case indirectly addressed the issues whether the employer had to disclose witnesses and produce a corporate designee.    Lawrence v New Bloomfield R-3 School District, 2014 Mo WCLR Lexis 22 (Feb. 20, 2014); affirmed without opinion, 2015 MO App. Lexis 25. 

In the case claimant deposed 7 employees who provided unfavorable testimony.  The claimant sought to depose a corporate designee.  The ALJ twice quashed claimant's request for a corporate designee deposition and over-ruled claimant's objection when the employer produced an "undisclosed" witness who further impeached claimant regarding the extent of pre-existing symptoms

 The Commission concludes any error regarding both issues was not prejudicial and ultimately affirmed the holding.  The Commission indicated the ALJ has discretion regarding the scope of discovery, but it did not make unequivocal findings whether it considered there was an abuse of discretion that after 7 depositions enough was enough.  In the case the Commission expresses "concern" about not allowing more discovery and that claimant could have been "potentially" prejudiced because "at minimum, employee should have been given an opportunity prior to hearing to discover employer's  intended witnesses, verify the general nature of their anticipated testimony, and/or obtain copies of recorded statements."  The Commission does not discuss why the goals could not have been achieved in 7 prior depositions and only through a corporate designee deposition under 57.03(b)(4).

Rule 57.03(b)(4) provides "A party may in the notice and in a subpoena name as the deponent a public or private corporation or a partnership or association or governmental agency and describe with reasonable particularity the matters on which examination is requested. In that event, the organization so named shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf and may set forth, for each person designated, the matters on which the person will testify. A subpoena shall advise a nonparty organization of its duty to make such a designation. The persons so designated shall testify as to matters known or reasonably available to the organization.

Claimant arguably sought information regarding anyone with knowledge about the claim.   The need for such inquiries under Rule 57.03(b)(4) are probably unnecessary if the Commission allowed discovery  through Rule 57(a) interrogatories.   The ruling from the ALJ potentially could have been more favorable  for the employee if that had been the 1st deposition rather than the 8th.   The simple takeaway of the opinion  is there was no abuse of discretion and the rulings were proper.  The dicta is more ominous that  employers better get ready to be sworn in and get their witness lists prepared sooner than later. 

ALJ Ruth

Wednesday, February 19, 2014

Appeals court reverses denial of SIF PTD on post-accident worsening defense

A claimant in a 2001 accident established he was totally disabled after a second round with the court of appeals in Abt v Mississippi Lime Co., ED 99779 (Mo. App. 2-18-2014);

The injured worker sustained multiple injuries from a collision between a locomotive and a truck, but  returned to work for about 4 years after his accident until he states worsening symptoms prevented him from gainful employment.  The ALJ found claimant unemployable due to post-accident worsening but awarded partial benefits against the employer and the SIF, and did not adopt the finding's of claimant's expert that claimant was a SIF total due to a combination. 

The court concluded that no party disputed whether claimant was PTD but only the cause of the condition as post-accident worsening or from a SIF combination.   In the original appeal the court remanded the case and found the Commission erred by disregarding Dr. Poetz' opinion that claimant was totally disabled due to a combination and misread the record that Dr. Poetz' opinion was based on an incomplete medical history.   The determination that claimant's disability flowed from post-accident worsening was not supported by substantial evidence because none of the medical experts supported that conclusion.

The opinion distinguishes between the amount of disability and the cause of disability.  Both parties conceded that claimant was totally disabled but the SIF disputed the cause.  The defense of post-accident worsening in this type of case required expert testimony and the Fund failed to introduce such evidence to support its defense in the primary case or on remand.  As no party disputed that claimant was unemployable, the only issue was the cause the disability. 

The Commission later affirmed a finding of PTD, 2014 MO WCLR Lexis 63 (May 7, 2014).