Mebust v. Mayco Mfg. Co.

• Decision Date: 20 February 1973
• Docket Number: No. 1819--I,1819--I
• Parties: Christian MEBUST and Evelyn M. Mebust, his wife, Petitioners, v. MAYCO MANUFACTURING COMPANY et al., Respondents.
• Court: Washington Court of Appeals

Page 359

8 Wn.App. 359

506 P.2d 326

Christian MEBUST and Evelyn M. Mebust, his wife, Petitioners, v. MAYCO MANUFACTURING COMPANY et al., Respondents.

No. 1819--I.

Court of Appeals of Washington, Division 1, Panel One.

Feb. 20, 1973.

Schroeter, Jackson, Goldmark, Bender, Anderson, Whelan, Brotman & Leed, P.S., Paul Whelan, Seattle, for petitioners.

Slade Gorton, Atty. Gen., Charles R. Bush, Asst. Atty. Gen., Seattle, amicus curiae.

Rutherford, Kargianis & Austin, Samuel C. Rutherford, Seattle, for respondents.

JAMES, Judge.

By this action Christian Mebust seeks damages for personal injuries sustained in an industrial accident. His time loss and medical expenses are covered by industrial insurance, and this is a 'third-party' action against Mayco Manufacturing Company authorized by RCW 51.24.010.

For discovery purposes, Mayco sought, and over Mebust's objection, obtained an order requiring a representative of the Department of Labor and Industries to attend a deposition hearing and produce Mebust's industrial insurance file in compliance with a subpoena duces tecum. We granted Mebust's petition for a writ of review pursuant to CAROA 57(b)(6) and permitted the Department of Labor and Industries to appear and file a brief as amicus curiae pursuant to CAROA 41(4).

A single question is presented: Does RCW 51.28.070, by making industrial insurance claim files and records 'confidential,' place them beyond the reach of judicial discovery process? Mebust and the department assert that it does.

RCW 51.28.070 provides as follows:

Claim files and records confidential. Information contained in the claim files and records of injured workmen, under the provisions of this title, Shall be deemed confidential and shall not be open to public inspection (other than to public employees in the performance of their official duties), but representatives of a claimant, be it an individual or an organization, may review a claim file or receive specific information therefrom upon the presentation of the signed authorization of the claimant. Employers or their duly authorized representatives may review the files of their own injured workmen.

(Italics ours.)

The question of whether RCW 51.28.070 makes industrial insurance claim files 'absolutely confidential and (beyond the reach of) members of the public whether for judicial purposes or otherwise' was considered, but not decided, in Sherman v. Mobbs, 55 Wash.2d 202, 206, 347 P.2d 189, 191 (1959). The court submitted, however, that in a proper case, such records might be reached because, as pointed out in State ex rel. Haugland v. Smythe, 25 Wash.2d 161, 169 P.2d 706 (1946) statutorily imposed 'confidentiality' is not necessarily the equivalent of testimonial 'privilege.'

It does not necessarily follow from the use of the word 'confidential,' that it was the legislative intention that this word have the same import as the word 'privileged.' . . .

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The intention of the lawmaking body to place the autopsy report in a class which is not subject to judicial inquiry or process cannot be determined by the word 'confidential' as used alone in the cited section of the statute. The legislative intent must be gleaned from an examination of the enactment in its entirety.

State v. Thompson, 54 Wash.2d 100, 104, 338 P.2d 319, 322 (1959).

The effective administration of justice requires strict circumscription of the limits of testimonial privilege.

It is an inherent power of a court of justice, within the sphere of its jurisdiction, to compel witnesses to appear before it and testify concerning any relevant facts within their knowledge, in a case then pending in that court. Without such power, courts would cease to function and causes presented to them could not be conducted.

'It is a general rule of law and necessity of public justice that every person is compellable to bear testimony in the administration of the laws by the duly constituted courts of the country.' 28 R.C.L. 419, Witnesses, § 3.

For several centuries it has been recognized as a fundamental maxim that it is the general duty of every man to give what testimony he is capable of giving. Any exemptions from that positive general rule are distinctly exceptional.

State ex rel. Haugland v. Smythe, Supra at 167 of 25 Wash.2d, at 710 of 169 P.2d.

We would be disposed to rule that the 'confidential' status afforded industrial insurance claim files does not place them beyond the reach of Any judicial process. Mebust and the department assert, however, that the ruling in Folden v. Robinson, 58 Wash.2d 760, 364 P.2d 924 (1961) requires us to hold that they are. In Folden the defendant in a personal injury action 'subpoenaed Duces tecum' an official of the State Department of Employment Security requiring the production of plaintiff's file At trial. The Attorney General was permitted to appear specially with a motion to quash the subpoena. The statute there in question, RCW 50.12.110, has language substantially indistinguishable from that in RCW 51.28.070.

Information obtained from employing unit records under the provisions of this title or obtained from any individual pursuant to the administration of this title Shall be confidential and shall not be published or be open to public inspection . .

(Italics ours.)

After acknowledging its ruling in Sherman v. Mobbs, Supra, the court, without elaboration, stated its conclusion that:

It is clear that, in enacting RCW 50.12.110, the legislature intended to establish a rule of Evidence making the records of the department of employment security confidential.

(Italics ours.) Folden v. Robinson, Supra at 767, at 929 of 364 P.2d.

We are bound, of course, to respect the ruling. And we agree that if RCW 50.12.110 establishes a 'rule of evidence' which makes a personal injury plaintiff's employment security file inadmissible At trial, RCW 51.28.070 likewise establishes a similar rule for a personal injury plaintiff's industrial...