McDowell v. MODOT

No. 12-042672 (Mo. Lab. & Indust. Rel. Comm’n March 3, 2017)
Full Opinion: [McDowell v. MODOT]

Factual Background:

On August 18, 2014, Claimant’s attorney provided notice to employer sixty days in advance of the hearing of his intent to submit a doctor’s report into evidence. Claimant’s attorney let opposing counsel know that the doctor had poor health, and was going to be closing his practice and offered some dates for opposing counsel to do a deposition. The doctor passed before being deposed by Claimant’s attorney. Employer’s attorney purposely put off the deposition while trying to find his own expert.

ALJ Decision:

The ALJ permitted the admission of the deceased doctor’s report into evidence. The employer-insurer waited to take the deposition. The employer-insurer had over six months to take the deposition after notice from the employee. They chose to delay taking the deposition and unfortunately the doctor died. They had a reasonable opportunity to take the deposition.

Analysis/Holding:

Section 287.210.7 of the Workers’ Compensation Law allows reports of a treating or examining physician into evidence without other foundational evidence, subject to a party’s compliance with specified procedures. These procedures include giving notice to opposing counsel within sixty days of the hearing that they intend to enter the record, thereby giving opposing counsel a “reasonable opportunity” to obtain cross-examination from the treating doctor. The Commission held that employee provided reasonable access and a “reasonable opportunity” for opposing counsel to depose the doctor. Therefore, Employee met the requirements of Section 287.210.7 and the report was allowed into evidence.

The Takeaway:

A party who was informed of opposing counsel’s intent to enter a doctor’s report into evidence, but fails to depose the expert, is not able to get the report struck from evidence.