Woodland Hills personal injury attorney Barry P. Goldberg is a strong proponent of vocational rehabilitation for his injured clients that are no longer able to perform their jobs as a result of their injuries. In addition, the vocational rehabilitation expert can become a valuable expert for trial and help to establish substantial loss of earnings. For the past 30 years, it has been an ongoing issue whether the defense is entitled to its own vocational rehabilitation assessment in order to counter plaintiff’s expert.
Haniff v. Superior Court
In the recent case of Haniff v. Superior Court (March 1, 2017) the Court of Appeal for the 6th Appellate District (Santa Clara area) determined that the defense has no right to a vocational rehabilitation assessment of the plaintiff. This ruling flies in the face of the argument advanced by the defense that a defense vocational rehabilitation examination should be an available discovery method as a matter of fundamental fairness where the plaintiff seeks compensatory damages for wage loss and loss of earning capacity. In truth—- in the right case—- it is only fair for the defense expert to be able to conduct a vocational examination as a basis for his or her expert opinion at trial.
The Request for a Vocational Rehabilitation Examination
The request in Haniff was fairly typical : that the exam would consist of the following:
“[A]n interview and administration of written examination, including interest testing and aptitude testing to examine plaintiff with respect to his employment history, prospects and interests. Plaintiff MOHAMMED HANIFF should allow 2 hours for the examination.”
The Objection to a Vocational Rehabilitation Examination
In Haniff, the plaintiff made a fairly typical objection:
“[T]he Code of Civil Procedure did not authorize a defense vocational rehabilitation examination.”
Argument in the Trial Court
The defense argument in the trial court was also pretty typical. Even though there is not a specific discovery provision allowing for a vocational examination, the Court is vested with “broad discovery authority” in the cases it oversees and is part of the “inherent authority of the court to allow a defense vocational rehabilitation examination in order to avoid injustice.” Further, many other districts in California have permitted such discovery.
As a practical matter, these arguments have won time and time again if the injuries and claims justified the additional examination. It was not unusual for the court to impose various conditions on the arguably unauthorized vocational rehabilitation exams.
The counter argument is that such examinations are not authorized by statute and are conducted by “non-doctors.” Often, the defense examinations are used to gather information unrelated to a vocational rehabilitation. Such as repeat physical tests, like bending over and lifting and sitting for periods of time.
Court of Appeal Reverses the Trial Court on a Writ
The Court of Appeal began its analysis by reviewing the discovery statutes:
“[A]fter the adoption of the 1957 statutes dealing with civil discovery, our courts lack the power to order discovery beyond that permitted by the statutes. [Citations.]” (Cruz v. Superior Court (2004) 121 Cal.App.4th 646, 650 (Cruz) [former section 2032, subdivision (a) establishes only three statutory categories of persons who are subject to physical examination]; see also Roe v. Superior Court (2015) 243 Cal.App.4th 138, 144 (Roe) [section 2032.020 establishes only three categories of persons subject to mental examination]; Holm v. Superior Court (1986) 187 Cal.App.3d 1241, 1248 [discovery statutes do not provide for exhumation of human remains]; Volkswagenwerk Aktiengesellschaft v. Superior Court (1981) 123 Cal.App.3d 840, 849 [allowing informal interviews of defendant’s employees would extend the Discovery Act beyond its statutory text]; Bailey v. Superior Court (1977) 19 Cal.3d 970, 974 (Bailey) [former section 2019, subdivision (e) did not provide for videotaping of depositions]; Edmiston v. Superior Court (1978) 22 Cal.3d 699, 702 [former § 2032, subd. (b)(1) did not authorize videotaping a medical examination because only a written report was expressly authorized].)
The Court reasoned that it’s decision in Emerson Electric, supra, 16 Cal.4th 1101 also indicated that civil discovery cannot be expanded beyond the statutory limits. Referring to its prior decision in Bailey, supra, 19 Cal.3d 970, the court stated: “We concluded [in Bailey] that the Code of Civil Procedure did not permit videotaped depositions without the mutual consent of the parties. [Citation.] We emphasized that ‘[w]hether this court believes videotaping is as reliable as, or more advantageous than, the traditional means of recording a deposition is not the issue.’ [Citation.] We explained that it was for the Legislature to determine whether methods of recording and reporting depositions other than stenographic and written transcriptions should be authorized. [Citation.] By amending the discovery statutes to permit videotaped depositions, the Legislature expressly so determined.” (Emerson Electric, supra, at p. 1109.)
Code of Civil Procedure Section 2019.010
Section 2019.010 sets forth six methods of civil discovery:
“Any party may obtain discovery by one or more of the following methods:
(a) Oral and written depositions.
(b) Interrogatories to a party.
(c) Inspections of documents, things, and places.
(d) Physical and mental examinations.
(e) Requests for admissions.
(f) Simultaneous exchanges of expert trial witness information.”
Based on the clear language of the statute, the Court in Haniff determined under the rules of statutory interpretation that section 2019.010 does not authorize a defense vocational rehabilitation examination, since that is not one of the methods of discovery enumerated in the statute. The concluded that the contention that a defense vocational rehabilitation examination should be an available discovery method as a matter of fundamental fairness where the plaintiff seeks compensatory damages for wage loss and loss of earning capacity is better addressed to the Legislature.