Lutes v. Schaefer, 2014 Mo. App. LEXIS 564

Claimant filed a workers’ compensation claim against the Second Injury Fund (SIF) for injuries sustained in employment.
SIF hired vocational rehabilitation expert Dolan to review the SIF file to determine claimant’s total disability and employability without claimant’s consent.
Dolan conducted a records review rather than personal interviews or examination of claimant.
SIF served a deposition notice on Dolan; claimant moved to quash, and ALJ denied, allowing the deposition to proceed.
Claimant sought writ of prohibition to stop the deposition; circuit court granted the writ and ordered quashing.
Court reverses, holding the ALJ could permit deposition of a records-review vocational expert, and the writ should be quashed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Is a records review an examination under the WC law?	Claimant argues records review is an examination, restricting deposition.	SIF contends no, records review is not an examination, allowing deposition.	Records review is not an examination.
Does ALJ have authority to permit deposition of a records-review expert under 287.560?	Claimant contends ALJ lacks authority to depose.	SIF argues ALJ has authority to depose under 287.560.	ALJ may grant the SIF's deposition of a records-review vocational expert.

Kerns v. Cain, 8 S.W.3d 212 (Mo.App.W.D.1999) (WC discovery constrained by statute; records-based testimony allowed within statutory framework)
Lakeman v. Siedlik, 872 S.W.2d 503 (Mo.App.W.D.1994) (ALJ authority limited; non-physician examinations require consent)
Arnett v. Greer, 921 S.W.2d 128 (Mo.App.E.D.1996) (no common-law discovery rights beyond statute in WC cases)
Carter v. City of Independence, 272 S.W.3d 371 (Mo.App.W.D.2008) (overruled Lakeman partial to permit employer/vocational evaluation; statutory interpretation)
McConaha v. Allen, 979 S.W.2d 188 (Mo.banc 1998) (Section 287.560 permits subpoenas and discovery in WC)