State ex rel. Kerns v. CainState ex rel. Kerns v. Cain
Lead Opinion
Robert W. Kerns filed a claim with the Missouri Division of Workers Compensation on March 4, 1996, claiming he sustained job-related injuries to his back, hips, head, brain, inner ear, left hand and to his body as a whole. Kerns’ emplоyer, Midwest Conveyor Co. (Midwest), has denied all allegations made by Kerns, including any need for medical care or treatment. Kerns is also claiming psychological problems due to the injuries he sustained at work. Because of these claims, Kerns was examined and evaluated by a psychiatrist and neuropsychologist of his choosing.
During the pre-hearing stage of the case, Midwest deposed the psychiatrist and neuropsychologist that had examined Kerns and then filed a motion to compel Kerns to undergo an examination by a psychiatrist chosen by Midwest. The psychiatrist chosen by Midwest referred Kerns to a neuropsychologist to have psychological tests conducted. This exam was intended to be used for litigation purposes only; to compile evidence Midwest could use in defending against the worker’s compensation claim. Kerns refused to submit to an evaluation by the neuropsychologist recommended by his employer and a motion to compеl compliance was filed by Midwest. The Honorable Kenneth Cain, an Administrative Law Judge (ALJ), conducted a hearing on the motion and ultimately issued an order on April 6, 1999, requiring Kerns to “submit to an examination by a nеuropsychologist chosen by the Employer” in preparation for the trial of the case.
On April 15, 1999, Kerns applied to the circuit court for a writ of prohibition. The application was denied and on August 5, 1999, Kerns filed a Petition for Writ of
A writ of prohibition is not issued as a matter of right, but instead, whether a writ is issued is a question left to the sound discretion of the court in which a petition has been filed. State ex rel. J.E. Dunn Construction Co. v. Fairness in Const. Bd.,
The workers’ compensation statute is an exclusive remedy and it replaces all common law rights of injured employees to bring suit. § 287.120.1;
Section 287.210.1 of the Workers’ Compensation Law provides, in pertinent part:
After an employee has received an injury he shall from time to time thereаfter during disability submit to reasonable medical examination at the request of the employer, his insurer, the commission, the division or an administrative law judge.... (Emphasis added).
This statute gives an ALJ the authority to order a medical examinаtion be performed on a claimant at the request of an employer. § 287.210.1. In addition, this statute limits the ALJs authority to ordering “medical examinations” only. Lakeman,
In Lakeman, an employee (claimant) filed a workers’ compensation claim alleging work related injuries to his right shoulder, neck and back. Id. at 505. The claimant was seeking compensation from the Second Injury Fund (the Fund) for his disabilities. Id. Claimant obtained an evaluation and report from a vocational expert of his choosing, but refused to submit to an examination by a vocational expert chosen by his employer and the Fund.
The workers’ compensation statute expressly grants certain parties the right to have a physician conduct a medical examination of the claimant. The statute does not, however, аllow for any examination of the claimant by a non-medical person. “[Q]uasi-judieial bodies such as the Division of Workers’ Compensation are confined to the powers specifically granted them by statute.” State ex rel. River Cement Co. v. People,585 S.W.2d 122 , 124 (Mo.App.1979); See also Ringeisen v. Insulation Services, Inc.,539 S.W.2d 621 , 627 (Mo.App.1976) (the referee, as the ALJ was then called, derives power from the legislature and has limited rather than general jurisdiction). Within limitations discussed under point III, the ALJ in a workers’ compensation case has authority to order medical examinations only. These examinations must be by physicians as defined in Chapter 334. The ALJ lacks authority to order claimant to undergo a vоcational rehabilitation evaluation at the request of either the employer or the Fund.
Id. at 506 (footnote omitted).
Lakeman was followed by the Eastern District’s decision in State ex rel. Arnett v. Greer,
The specific issue raised herein is whether an ALJ can compel a claimant to submit to a deposition in which a nónmedical expert, a vocational rehabilitation specialist, is present. While neither the workers’ compensation statutes nor the rules of civil procedure expressly allow or prohibit expert witnesses from being present during a plaintiffs deposition, it is clear that the ALJ’s order compelling claimant to be deposed in the presence of the vocational specialist had the same practiсal effect as compelling an evaluation of claimant by the vocational specialist. The expert would be allowed to observe the claimant’s demeanor, physical аbilities, limitations and responses during the deposition and use this information in her evaluations and findings. Because a vocational rehabilitation expert could not ascertain this type of information from a reading of a deposition transcript alone, we find that the practical result of the expert’s presence at the deposition amounts to an examination of the claimant by a non-physician in direct conflict with the proscription of § 287.210 RSMo 1994.
An ALJ has only the authority granted by statute, and no additional common law rights to discovery exist in workers’ compensation cаses beyond those provided for by statute. Lakeman,872 S.W.2d at 506 . Section 287.560, RSMo 1994, vests the ALJ with the power to cause depositions and compel attendance. This authority to compel discovery, however, is limited by statute. Lakeman,872 S.W.2d at 506 . Employer should not be able to circumvent our statutes, rules or the law as held in Lakeman by compelling an “examination” through the medium of a deposition. Of course, a claimant could consеnt to allow the vocational specialist’s attendance or otherwise voluntarily sub*216 mit to the specialist’s evaluation, but she can not be forced to under the guise of legitimate discovеry. Despite employer’s statement that the attendance of the vocational specialist at the deposition is needed to help it prepare for its defense to the clаim, employer has failed to show why it should be granted greater discovery privileges than those afforded in other types of suit.
Id. at 129-30.
Disposition of the instant matter is governed by Lakeman and Arnett. A neurop-sychologist is not a physician licensed under Chapter 334 “or the state board of registration for the healing arts in the state of Missouri.” § 334.021. Accordingly, the ALJ exceeded his authority and jurisdiction by ordering Kerns to submit to an •evaluation by a non-physician neuropsy-cholоgist.
For the foregoing reasons, our preliminary writ of prohibition is made absolute.
RIEDERER, J., concurs.
LOWENSTEIN, J., concurring opinion attached.
Notes
. All statutory references are to RSMo 1994 unless otherwise indicated.
. A vocational expert evaluates a patient to determine the extent of his employment capabilities.
. Section 334.021 provides:
Where other statutes of this state use the terms “physician”, “surgeon”, “practitioner of medicine”, "practitioner of ostеopathy”, “board of medical examiners” or "board of osteopathic registration and examination” or similar terms, they shall be construed to mean physicians and surgeons licensed under this сhapter or the state board of registration for the healing arts in the state of Missouri.
Concurrence Opinion
concurring.
Section 287.210.1 does not allow an examination by a non-physician. Despite the purpose of the workеrs’ compensation statutes, it seems unfair to allow the claimant to utilize the testimony of a neuropsychologist, but not allow the employer to do the same. It is little consolation to say the employer-insurer may cross-examine the claimant’s witness while denying them the ability to access their own evidence. Until the statute is changed, the courts must adhere to the statute, and there is no alternative but to make the writ absolute.