When you file a North Carolina personal injury lawsuit against someone, the defendant could request an “independent medical examination.” This is not necessarily “independent,” since the physician or expert would be someone commissioned by the defense, but it will serve as a “second opinion” to the plaintiff’s stance on injury causation and scope. The right of a defendant to request an independent medical exam is well established in North Carolina law.
However, the question of whether a defendant can compel a plaintiff to undergo an independent vocational exam may not be entirely settled. It’s not in California, where an appeals court ruled the issue is best left to the legislature.
A vocational exam is when a person trained and experienced in employment matters holds a personal interview with someone regarding their employment history, education, skills, training, and income. With that information, the vocational expert will issue a report speculating on the person’s income capabilities.
However, these types of examinations are more typical in workers’ compensation cases and family law matters.
Recently, the California Court of Appeal, Sixth Appellate District, in Santa Ana, considered whether defendants in a car accident lawsuit had the right to compel a plaintiff to undergo a vocational exam.
According to court records, the plaintiff was seriously injured while working as a package delivery truck driver on a college campus in 2012. He was involved in a truck accident with another vehicle. He was unloading packages from his parked truck on campus when a previously parked vehicle rolled down a hill and struck him. He sustained multiple fractures, had to undergo several surgeries, and has been unable to return to work since that time.
Presumably, he was able to collect workers’ compensation coverage, since the injury occurred in the course and scope of employment (assuming he was an employee rather than an independent contractor). However, he was still able to pursue a third-party personal injury lawsuit, which he did, against the driver of the other vehicle (the person who parked), the owner of that other vehicle, and the university.
During the course of discovery in that case, two of those defendants – the driver and the vehicle owner – filed a motion to compel the plaintiff to undergo a vocational rehabilitation examination with their vocational expert. The defense argued there was good cause for this because the plaintiff claimed he was unable to work anymore and claimed his lost wages and earning capacity were extensive. The trial court granted the motion.
However, the plaintiff appealed, arguing that such an exam isn’t one of the methods of civil discovery expressly allowed under the state’s Civil Discovery Act. The appeals court sided with the plaintiff and ordered the trial court to vacate its earlier grant of the motion.
In granting the plaintiff’s writ and finding an abuse of discretion by the trial court on this matter, the appellate court noted earlier case law had found that a demand for independent vocational rehabilitation in previous car accident lawsuits exceeded the statutory limits of the law. It was noted in those cases that vocational rehabilitation experts are not doctors, they aren’t licensed, and they can’t conduct physical exams. Whether a plaintiff should nonetheless be compelled to undergo such an examination is a question for the legislature, past courts have determined.
The appellate court in this case once again backed that conclusion.
Contact the Carolina injury lawyers at the Lee Law Offices by calling 800-887-1965.
Haniff v. Superior Court, March 1, 2017, California Court of Appeal, Sixth Appellate District
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Six-Year-Old Boy Dies in Charlotte Car Accident, Driver Charged for Not Properly Securing Him, Feb. 6, 2017, Charlotte Car Accident Lawyer Blog