Summary
analyzing vocational experts examination under Rule 35
Summary of this case from Rogers v. Rando Machine Corp.Opinion
CIVIL ACTION NO. 03-781, SECTION: "D" (3)
February 3, 2004
MINUTE ENTRY
The matter of the defendant's Motion to Compel Functional Capacity Examination and follow-up Vocational Rehabilitation Examination (VRE) was heard by the undersigned Magistrate Judge on an expedited basis. Participating were Peter S. Koeppel for the plaintiff, Brian Magee, and Kent B. Ryan for the defendant, Pride Offshore, Inc. For the following reasons, the defendant's Motion to Compel is DENIED.
BACKGROUND
This case involves injuries allegedly sustained by the plaintiff, Brian Magee ("Magee"), while assigned to the rig, PRIDE MISSISSIPPI. The accident allegedly occurred on February 2, 2002, when the plaintiff slipped from a beam, striking his back across the another beam. Magee was airlifted to Lake Charles Memorial Hospital and diagnosed with acute lower back pain/strain. Plaintiff returned to work the next day and continued working for several more months. In May or June 2002, Magee stopped working for Pride and sought employment with Noble Drilling Company in Lafayette, Louisiana.
A pre-employment exam (MRI) showed left lateral herniation with left S1 nerve displacement. As a result, Noble Drilling denied Magee employment. To ascertain post-accident employability, Pride employed Deby Bailey, a vocational rehabilitation expert, who conducted an examination of the plaintiff.
See Plaintiff's Opposition to Motion to Compel at Exhibit "4."
On October 28, 2002 at the request of plaintiff's treating physician (Dr. Susie Folse), Anna Katherine Moore conducted a Physical Work Performance Evaluation to determine the plaintiff's functional capacity. On January 28, 2003, plaintiff began treatment with Dr. Molleston (neurosurgeon), who performed a lumbar laminectomy and interbody fusion at Forrest General Hospital.
CONTENTIONS OF THE PARTIES
In this seaman's personal injury case, defendant seeks to compel plaintiff to submit to a functional capacity examination presently scheduled for Tuesday, January 27, 2004 at 8:00 a.m. with Dr. Richard Bunch. Additionally, the defendant submits that since his surgery the plaintiff has refused appointments with Deby Bailey. The defendant argues that a follow-up VRE with Deby Bailey is necessary to complete the vocational rehabilitation examination of the plaintiff. Pride submits that the plaintiff has placed his physical ability to work at issue and that it is entitled pursuant to Rule 35 to have the plaintiff to submit to both a follow-up VRE and an FCE post-surgery. The defendant notes that, due to the changed circumstances, Ms. Moore's FCE of October, 2002 is no longer valid. Highlighting the fact that an FCE has not been performed by a defense expert, Pride argues that Richard Bunch should be permitted the opportunity to examine the plaintiff In addition, Pride submits that "good cause" exists with respect to a follow-up VRE with Deby Bailey.
Plaintiff does not dispute that Magee underwent a functional capacity examination on October 28, 2002. However, plaintiff notes that the FCE was not performed by a provider of plaintiff's choosing. Instead, plaintiff submits that the FCE was conducted at the behest of Dr. Folse, who was treating the plaintiff for "a significant disc herniation" and had determined that the plaintiff had reached maximum cure. At the time, Magee was not represented by counsel. Plaintiff also registers no disagreement regarding the following facts: (1) On March 14, 2003, Dr. Molleston performed a lumbar laminectomy and decompression of L5 and S1 with micro dissection, interbody fusion with instrumentation and postero-lateral fusion with rods and screws; and (2) On November 19, 2003, Dr. Molleston issued a narrative report, concluding that plaintiff has not reached maximum cure, may require additional disc surgery and, at this time, has 18% permanent partial impairment rating, permanent restrictions of lifting no more than 10 pounds and restrictions from bending at the waist, climbing, crawling, stooping and operating heavy equipment.
Essentially the plaintiff's position is that: (1) because the plaintiff has not reached maximum cure, an FCE is contraindicated at this time; (2) the pre-surgery FCE conducted by Moore is useless; and (3) plaintiff intends to use his treating physician's assessment of his physical restrictions and has not employed a functional capacity expert. Moreover, plaintiff's treating physician, Dr. Molleston, has provided a supplemental report, dated January 28, 2004, stating that putting Magee through the paces of an FCE at this time would be against his medical advice.
As to an updated VRE, plaintiff highlights the fact that Deby Bailey has already conducted VREs and has issued multiple reports resulting from her ongoing contacts with the plaintiff and his treating physicians. According to the plaintiff, Bailey has a complete history and has administered various tests, as reflected in the exhaustive records attached as Exhibit "4" to plaintiff's opposition memorandum. Plaintiff submits that it is clear on the face of the record that Bailey typically relies on medical records provided by treating physicians, can easily update her report based upon the disability rating and physical restrictions assigned by Dr. Molleston and that a repeat VRE is unnecessary.
ANALYSIS
Rule 35 of the Federal Rules of Civil Procedure authorizes the court to order a party to submit to a physical or mental examination when the party's mental or physical well-being is in controversy and good cause is shown. The rule provides in pertinent part:
When the mental or physical condition . . . of a party . . . is in controversy, the court . . . may order the party to submit to a physical or mental examination by a suitably licensed or certified examiner. . . . . The order may be made only on motion for good cause shown . . . and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.
An order for the physical or mental examination of a party is not granted as of right. When the matter is contested, it is addressed to the sound discretion of the trial court. Moreover, the requirements in the rule that the moving party show "good cause" and that the condition to be examined is "in controversy" . . . are plainly expressed limitations on the use of the rule rather than "a mere formality."
Wright Miller, § 2234.1 at 478-79 ( citing Schlenhauf v. Holder, 379 U.S. 104, 117 (1964)).
Plaintiff does not dispute that his physical condition is in controversy. Moreover, it is not disputed that defendant's vocational rehabilitation expert has previously conducted vocational rehabilitation examinations of the plaintiff and issued multiple reports. As such, the sole issue is whether Pride has shown "good cause" for the a follow-up VRE and an FCE post-surgery.
Turning to the issue of the requested follow-up VRE, the defendant has failed to show "good cause" to repeat the experience. Defendant's vocational rehabilitation expert, Deby Bailey, has been apprised of all of the facts surrounding the accident and the nature and extent of the plaintiff's injuries. She has been given the opportunity on more than one occasion to independently test plaintiff and to evaluate his vocational status. The defense expert has been kept abreast of all of the developments regarding the plaintiff's medical condition and has the full complement of medical progress reports necessary to update her vocational rehabilitation assessment.
The Jackson v. Entergy Operations, Inc., 1998 W.L. 28272 (E. D. La.) decision cited by the defendant is inapposite. The issue addressed in Jackson, supra, was whether the plaintiff would be required to submit to a VRE (psychological/behavioral testing) in the first instance. In the case at bar, the issue is whether "good cause" exists to order multiple VRE's. As explained above, good cause has not been demonstrated. Moreover, the Court notes that Pride has failed to specify what particular psychological/behavioral testing is necessary in addition to that which has already been performed by Ms. Bailey.
As to the requested functional capacity examination, the supplemental report provided by Dr. Molleston indicates that a functional capacity exam would not only be counter-intuitive at this time, but would be against his medical advice, i.e., not in the best interest of the patient, who has not reached maximum cure and may require additional surgery.
In the alternative, the Court finds that a functional capacity examination is not warranted under the particular facts of this case. In Fuller v. U.S.A., 2002 WL 287729 (E. D. La.) (Vance, J.), the district judge affirmed the order of United States Magistrate Judge Wilkinson, denying the Government's Motion to Compel an FCE. Id. at * 2. The court specifically noted that such a physical examination was unnecessary, to wit:
[T]he Magistrate Judge noted that the Government already had plaintiff physically examined by its own physician expert who could rebut any evidence presented by plaintiff's expert. Having reviewed the record and the applicable law, the Court holds that Magistrate Judge Wilkinson did not err in ruling that the Government was not entitled to conduct a functional capacity evaluation of the plaintiff. . . .
* * *
In addition, the Court finds that the Magistrate Judge's finding that the defendant will not be prejudiced by not performing a functional capacity evaluation is not clearly erroneous.Fuller, 2002 WL 287729, ** 1, 2 (italicized emphasis added). Magistrate Wilkinson's written reasons supporting his ruling denying the Motion to Compel FCE specifically provided as follows, to wit:
Finally, the evaluation was unnecessary because the plaintiff has no functional capacity evaluation expert to be presented at trial. Instead, the subject evidence will be presented as part of the plaintiff's case by a physician. Defendant has already had the plaintiff examined by its own physician expert, who should already be in a position to rebut any evidence that might be presented by the doctor who will testify as to this issue. . . .
Order dated February 6, 2002, issued in the matter entitled Fuller v. USA, USDC/E.D.La. Dkt. No. 00cv2791 [Rec. Doc. No. 91].
The situation presented in Fuller, supra, is substantially similar, both subjudice and factually; whereas, Jackson v. Entergy Operations, Inc., 1998 W.L. 28272 (E. D. La.), cited by the defendant, is factually inapposite. The motion before the Jackson court was a motion to compel examination of the plaintiff by a psychologist. The focus in that case was mental injury. The defendant's expert psychiatrist had previously examined the plaintiff and had addressed the medical aspects of the plaintiff's mental injury. The plaintiff objected to an examination by a defendant's expert psychologist as well. The Jackson court granted the motion to compel, holding that the testing to be performed by the defendant's vocational rehabilitation expert/psychologist was not duplicitous. As aforestated, the defendant in this case has retained a VRE, who has already had the opportunity and has in fact examined the plaintiff extensively.
Accordingly,
IT IS ORDERED that the defendant's Motion to Compel [Rec. Doc. No. 56] is DENIED.