Opinion
CIVIL ACTION NO: 03-0152, SECTION: "I"(1)
September 26, 2003
MINUTE ENTRY
HEARING ON MOTION
APPEARANCES: Submitted on briefs
MOTION: DEFENDANT'S MOTION TO COMPEL VOCATIONAL REHABILITATION EVALUATION (Rec. doc. 17)
GRANTED
Before the undersigned is the motion of the defendants, EPIC Marine, LLC, EPIC Oil Field Services, LLC, EPIC Divers, Inc., Seahorse Services, Inc. and Clarendon America Insurance Company (collectively referred to as "Epic"), for an order requiring the plaintiff, Gary Wilks ("Wilks"), to appear and undergo a vocational rehabilitation evaluation by Epic's expert, Thomas Meunier. Wilks filed a complaint for damages under the Jones Act, 46 U.S.C. § 688, and the General Maritime Law alleging that he was injured aboard Epic's vessel and his injuries include disability. Rec. doc. 1. On August 22, 2003, Elizabeth Bauer and Ashley Bryars, both licensed rehabilitation counselors, conducted a vocational evaluation of Wilks at the request of his counsel. They reviewed medical records, Wilks' deposition and personnel records from EPIC. They interviewed Wilks and obtained information on his background, work history and medical history. Presumably most of the information gained can be found in the records reviewed by Bauer and Bryars, but not all. Bauer and Bryars also administered the Woodcock-Johnson in Tests of Achievement and plaintiff completed a Self-Directed Search — Form E. The final element was a vocational analysis. This analysis relied on many statements made by Wilks during the interview, for example he felt that his predominant occupation was that of a deckhand/engineer. Rec. doc. 17, exhibit B at p. 7. These may have been available from Wilks' deposition, but Bauer and Bryars chose to use a personal interview to complete the analysis. It was their conclusion that Wilks will experience a loss in his wage earning capacity. Rec. doc. 17, exhibit B. Upon receipt of the report, Epic sought to have Wilks undergo a vocational rehabilitation evaluation by Thomas J, Meunier, also a licensed rehabilitation counselor. Rec. doc. 17, exhibits F and G.
Wilks contends that under Fed.R.Civ.P. 35(a) and In re: Falcon Workover Company, Inc., 186 F.R.D. 352 (E.D.La. 1999), he is not required to submit to the examination. Prior to 1991, Rule 35(a) did not permit such an examination. See Warner v. Gulf Coast Forms, Inc., 1998 WL 123384 (E.D.La.) (Heebe, C. J.). In 1991 the rule was amended and extended "to include other certified or licensed professionals, such as dentists or occupational therapists, who are not physicians or clinical psychologists, but who maybe well-qualified to give valuable testimony about the physical or mental condition that is the subject of dispute." Fed. Rule Civ. P. 35(a) Advisory Committee's Note, 1991 amendment.
In Acosta v. Tenneco Oil Co., 913 F.2d 205 (5th Cir. 1990), a pre-Rule 35(a) amendment decision, the Fifth Circuit reversed the district court's order striking the plaintiffs vocational rehabilitation expert unless the plaintiff submitted to an examination by the defendant's vocational rehabilitation expert. The Fifth Circuit's reasoning was that: (1) the plaintiffs allegation of age discrimination did not place his mental condition at issue; (2) a vocational rehabilitation expert is not a physician or psychologist; and (3) the defendant did not demonstrate good cause for the examination. The plaintiff retained a vocational rehabilitation expert to respond to the defendant's affirmative defense that plaintiff did not mitigate his damages by exercising reasonable diligence in seeking comparable employment. The defendant was given a copy of the report by the plaintiffs expert and deposed the expert and the plaintiff. The Fifth Circuit found that the defendant possessed all of the information it needed in order to pursue its mitigation defense without a repetitive examination. Id. at 209.
The Fifth Circuit did not address whether the defendant's vocational expert could prepare a report without the benefit of an interview.
The circumstance presented by Epic's request for an examination are distinguishable from those found in Acosta. The issue of good cause in Acosta was tied to the failure to mitigate defense. With Wilks, the issue is whether he has experienced a loss in earning capacity. Rule 3 5(a) now permits an examination by a licensed professional.
In Falcon Workover, Judge Barbier found that the defendant did not demonstrate good cause for an examination by a vocational expert where the defendant was "allowed access to all of the claimant's medical records, [had] the opportunity to depose the claimant, and [was] provided with the results of tests performed by claimant's vocational expert." 186 F.R.D. 352, 353 (E.D.La. 1999).
Wilks contends that his situation is precisely the same as that found in Falcon Workover. Wilks, however, ignores the fact that his vocational rehabilitation experts included in their report observations made by them during the interview and testing. It must be assumed that these personal observations were factors in their analysis and were part of the basis of their conclusions. While Wilks' experts administered the Woodcock-Johnson III Test of Achievement and the results are available to Epic's expert, he did not observe Wilks take the test. There are circumstances where observations of the person taking the test are pertinent to the reliability of the test results. Finally, the jury may discount the report of Epic's expert because Wilks was not present for the examination. This would be less of a factor in a case tried to a judge. For the foregoing reason, the undersigned finds that Epic has demonstrated good cause for Wilks to submit to an examination by Epic's vocational rehabilitation expert.
IT IS ORDERED that Epic's motion for an order requiring Wilks to appear for and undergo a vocational rehabilitation evaluation (Rec. doc. 17) is GRANTED. IT IS FURTHER ORDERED that the parties shall schedule an appointment for Wilks to submit to an examination by Epic's expert, Thomas Meunier, within five (5) working days of the entry of this order.