Lutes v. Schaefer

• Decision Date: 20 May 2014
• Docket Number: No. ED 100381.,ED 100381.
• Citation: 431 S.W.3d 550
• Court: Missouri Court of Appeals
• Parties: James LUTES, Respondent, v. Honorable Lee B. SCHAEFER, Appellant.

431 S.W.3d 550

James LUTES, Respondent,

v.Honorable Lee B. SCHAEFER, Appellant.

No. ED 100381.

Missouri Court of Appeals,

Eastern District,

Division One.

May 20, 2014.

Susan K. Roach, W. Edwin Roussin, Clayton, MO, for Respondent.

Chris Koster, Jeremiah J. Morgan, Jefferson City, MO, Adam T. Sandberg, St. Louis, MO, for Appellant.

ROY L. RICHTER, Presiding Judge.

This is an appeal from the entry of a writ of prohibition, by the City of St. Louis Circuit Court (“circuit court”), ordering the Division of Workers' Compensation Administrative Law Judge, Lee B. Schaefer(“Judge Schaefer”), to quash the Missouri Second Injury Fund's (“SIF”) notice of deposition related to vocational rehabilitation expert Stephan Dolan (“Dolan”). We reverse and remand.

I. BACKGROUND

The facts of this case are simple and not in dispute. James Lutes (“Claimant”) filed a claim for compensation, before the Division of Workers' Compensation, against the Treasurer of Missouri as Custodian of the Second Injury Fund for injuries alleged to have occurred in the course and scope of Claimant's employment. In an attempt to defend this underlying cause of action, the SIF hired (without the consent or authorization of Claimant) vocational rehabilitation expert, Dolan, to review the documents in the SIF's legal file in order to determine whether Claimant was totally disabled and Claimant's employability. Dolan composed a vocational expert's report by undertaking a “records review”—Dolan never personally interviewed, physically evaluated, or physically examined Claimant. Subsequently, the SIF sent a copy of Dolan's report to Claimant with a notice to depose Dolan. After receiving the SIF's notice to depose Dolan, Claimant filed a motion to quash the deposition of Dolan. Administrative Law Judge (“ALJ”), Judge Schaefer, denied Claimant's motion to quash, and entered an order permitting the SIF to depose Dolan.

On March 28, 2013, Claimant filed a writ of prohibition or mandamus, pursuant to Rule 97, in the circuit court, requesting that Judge Schaefer be prohibited from denying Claimant's motion to quash the deposition of Dolan. On October 16, 2013, the circuit court granted Claimant's petition and ordered Judge Schaefer to quash the SIF's notice of deposition of Dolan.

This appeal now follows.

II. DISCUSSION

The Second Injury Fund contends, in two separate points on appeal, that the circuit court erred in granting Claimant's Petition for Writ of Prohibition, thereby quashing the deposition of vocational expert Dolan. As indicated by each point, the determinative issue on appeal is whether an ALJ has the authority to grant the SIF's request to depose a vocational rehabilitation expert who merely conducted a “records review.”

Standard of Review

“Prohibition is an original remedial writ brought to confine a lower court to the proper exercise of its jurisdiction.” State ex rel. White Family P'ship v. Roldan, 271 S.W.3d 569, 572 (Mo. banc 2008). A writ of prohibition does not issue as a matter of right, but is discretionary in nature and will issue “only to prevent ‘an abuse of judicial discretion, to avoid irreparable harm to a party, or to prevent exercise of extra-jurisdictional power.’ ” State ex rel. Rosenberg v. Jarrett, 233 S.W.3d 757, 760 (Mo.App.W.D.2007) (quoting in part State ex rel. Linthicum v. Calvin, 57 S.W.3d 855, 857 (Mo. banc 2001)). This discretionary authority shall be exercised only when the facts and circumstances of a particular case “demonstrate unequivocally that an extreme necessity for preventative action exists.” State ex rel. AG Processing Inc. v. Thompson, 100 S.W.3d 915, 919 (Mo.App.W.D.2003); see also State ex rel. Premier Mktg., Inc. v. Kramer, 2 S.W.3d 118, 120 (Mo.App.W.D.1999) (“A writ of prohibition is an extraordinary remedy and it should be used with great caution, forbearance, and only in cases of extreme necessity.”) (internal quotation marks and citations omitted).

Analysis

For almost ninety years, Missouri's Workers' Compensation Law, Sections 287.010, et seq., has been the exclusive remedy for employees injured in the course of their employment. State ex rel. Kerns v. Cain, 8 S.W.3d 212, 214 (Mo.App. W.D.1999) (citing Section 287.120.1); see also De May v. Liberty Foundry Co., 327 Mo. 495, 37 S.W.2d 640, 645 (1931). From its inception, the primary purpose of the Workers' Compensation Law has been “to provide a simple and nontechnical method of compensation for injuries sustained by employees through accident arising out of and in the course of employment and to place the burden of such losses on industry.” Herschel v. Nixon, 332 S.W.3d 129, 133 (Mo.App.W.D.2010) (quoting Bethel v. Sunlight Janitor Serv., 551 S.W.2d 616, 618 (Mo. banc 1977)); see also Wengler v. Druggists Mut. Ins. Co., 583 S.W.2d 162, 164 (Mo. banc 1979) (reversed on other grounds) (“Its primary purpose is to ameliorate, in the interest of working people and the public welfare, losses sustained from accidental injuries received by the working person in the course of employment[.]”); Stone v. Blackmer & Post Pipe Co., 224 Mo.App. 319, 27 S.W.2d 459, 460 (1930) (“The purpose of all such acts was to place, as an expense of operation of a business, the loss of efficiency in the usefulness of its employees occasioned by accidents arising as an incident to the conduct of such business just as other costs of operation are chargeable[.]”). To effectuate this purpose, the Workers' Compensation Law conceives, constructs, and provides a method by which employers and employees (or their dependents) may make an application to the Division of Workers' Compensation for a determination regarding the compensation for injuries alleged to have been sustained in the workplace. Herschel, 332 S.W.3d at 133 (citing Section 287.450). Such a determination is performed by administrative law judges, a statutorily-created employee. See Section 287.610; see also Herschel, 332 S.W.3d at 133 (“Created by statute and not the [Missouri] Constitution, ALJs are state employees with certain due process rights....”).

Being creatures of statute, ALJs and the Division of Workers' Compensation only have the authority granted by statute. State ex rel. Lakeman v. Siedlik, 872 S.W.2d 503, 505 (Mo.App.W.D.1994); see also Soars v. Soars–Lovelace, Inc., 346 Mo. 710, 142 S.W.2d 866, 871 (1940) (“Like other administrative tribunals, it is a creature of the Legislature and does not have any jurisdiction or authority except that which the Legislature has conferred upon it.”). For example, and most pertinently, common law rights to discovery in workers' compensation cases have been, in some instances, abridged or expanded, but, nevertheless, prescribed by statute, including an ALJ's scope of authority to permit or prohibit certain forms of discovery. Kerns, 8 S.W.3d at 214. “An ALJ has only the authority granted by statute, and no additional common law rights to discovery exist in workers' compensation cases beyond those provided by statute.” State ex rel. Arnett v. Greer, 921 S.W.2d 128, 129 (Mo.App.E.D.1996). This is so, because the workers' compensation proceedings were devised to be “ ‘simple, informal and summary[,]’ ” and if the SIF were permitted to exercise full common law discovery procedures “ ‘in defending,’ the workers' compensation case would be as complex, costly and time consuming as a litigated personal injury case.” Lakeman, 872 S.W.2d at 506 (quoting in part Section 287.550).

At the crux of this appeal lies the question of an ALJ's authority to permit the SIF to depose a vocational expert who merely conducted a “records review.” The litigants wrangle over whether a “records review” deposition is, in fact (or the equivalent of), an “examination” by a vocational rehabilitation expert. The litigants clash over the applicable section or sections of the Workers' Compensation Law, and the litigants spar over which case or cases are instructive. To complicate matters, the Missouri Legislature enacted numerous revisions to the Workers' Compensation Law in 2005, thereby calling into question many of the antecedent interpretations of the purported applicable statutes and the holdings of the cases cited by the litigants in support of their arguments. However, after wading through the litigants' arguments and authority, the dispositive issue on appeal can be summarized as follows: does a “records review” by a non-physician expert equate to an “examination” of a claimant.

Before addressing this dispositive issue, we review the litigants' arguments, cases, and sections of the Workers' Compensation Law that have purportedly led to this quagmire.

Claimant's Arguments

Prior to the comprehensive overhaul and amendments to the Workers' Compensation Law in 2005, Section 287.143 read as follows:

As a guide to the interpretation and application of Section 287.144 to 287.149, sections 287.144 to 287.149 shall not be construed to require the employer to provide vocational rehabilitation to a severely injured employee.

Section 287.143, RSMo Cum.Supp.1994. Pursuant to this section and the sections so referenced, the Missouri Court of Appeals, Western District, held that an ALJ lacked the authority to order a claimant to submit to an examination by a non-physician vocational expert. Lakeman, 872 S.W.2d 503, 506 (finding that, while the Workers' Compensation Law permitted certain parties the option to have a claimant undergo a medical examination by a physician, the Workers' Compensation Law prohibited any examination by a nonmedical person without the consent of the claimant); see, e.g., Kerns, 8 S.W.3d at 214–16 (an ALJ was prohibited from ordering a claimant to undergo an evaluation by a neuropsychologist, a non-physician).

Similarly, in relying, in part, upon Lakeman, this Court determined that an ALJ lacked the authority to order a claimant to submit to a deposition in which a non-physician vocational rehabilitation expert was present, as this would amount to the “practical result” of...