Claimant alleges that he was totally disabled and sought to
prevent an expert hired by the second injury fund to testify by deposition regarding
his opinions based on a records review and effectively cut the second injury fund off at its knees. The chief ALJ refused to quash the deposition. On appeal, the circuit court ordered the Division to
quash the notice of deposition of the expert and take away any expert defense to the claims
that the worker was employable.
Claimant contends the judge exceeded her jurisdiction because
there was no statutory power to order a vocational exam. Claimant contends only an employer and
insurer may obtain a vocational examination based on 287.143 (“testing” or “assessment”)
and there is no statutory authority at the time for the Fund to obtain an exam
or proceed with a deposition based on an exam.
The Fund argues that a records review is not an exam and it has broad rights of discovery based on 287.560. The court relies upon statutory interpretation noting no provision that directly allows or prohibits the practice. It criticizes both sides: "the litigants dodge this step" and "evade the real issue." The court agreed with the Fund that a records
review is not an examination because the use of the term “examination” in other
sections suggests something more than merely reading records. If the legislature intended to prohibit a
long-standing practice of experts testifying regarding a review of records, it
failed to prohibit the practice in 2005 reforms. The court notes that the Fund had its vocational
expert review records without the consent or authorization of the worker. The court makes its finding narrow: the Fund gets its depo, but the Fund may or may not be able to offer its depo into evidence. Rule 56.01 has broad application beyond evidence which is admissible. “Merely because the information is discoverable does not mean that such information is admissible….”
Atty: Roach,
Morgan
Experts: Dolan