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Orr v. City of Springfield9/23/2003
en of Dr. Robinson. According to the record, Employee produced medical records covering five years of treatment from Dr. Robinson on April 16, 2001.
On three occasions during the direct examination of Dr. Robinson at the deposition, Employer objected to a question or Dr. Robinson's response to a question based on the information not having been provided to Employer seven days prior to the deposition. In the first instance, Employer objected to a question of Dr. Robinson as to whether Dr. Parks had performed an MRI. In the second instance, when Dr. Robinson was asked whether he had an opinion as to the cause of Employee's back pain for which Dr. Robinson had treated Employee since 1995, Employer objected on the basis that such an opinion had not been provided seven days prior to the deposition. Employer also objected when Dr. Robinson was asked his opinion on whether the back pain and treatments provided would "stop today or will it continue on." Employer again objected on the basis that such a conclusion was not provided seven days prior to the deposition.
Dr. Robinson's answer to the third question was that he "would be very surprised to find [Employee] improved. He will continue to have back problems and I would imagine that based upon my experience with other patients that later on down the road he would be a candidate for some fusion surgery." Employer "move to strike the reference to surgery on the basis it not couched in terms of reasonable certainty or probability and it past the scope of the doctor's visits."
At the start of the hearing held on April 24, 2001, as the exhibits were being discussed, the ALJ inquired as to whether there were any foundational objections to the exhibits. Employer indicated that it had none, but that with respect to Dr. Robinson's deposition, it had "made various objections in the text of the transcript, and we would ask that those be taken with the case when the Division has that under advisement." The AlJ noted that the objections would be reserved.
Then the following exchange occurred.
[Counsel for Employee]: Judge, I would like the record also to note that the Commission has offered [Employer] an opportunity for continuance, and I discussed that with [counsel] and said I would not oppose that if he wanted to have one, and he said that he would proceed here today.
[Counsel for Employer]: That's with respect to the matter we spoke about, Judge, concerning the scope of the report that Dr. Robinson submitted before his testimony. It was actually records that were produced instead of a report. We did make several objections with respect to future medical treatment on the basis of Section 287.210, otherwise known as the seven-day rule. I think that's how I phrased it during the testimony last night, the seven-day rule. In support of that we would offer Lane v. Schreiber Foods 903 S.W.2d 606 (Mo.App. S.D. 1995).
: In response to your seven-day rule objections to the deposition, as we discussed before we went on the record, if you would request a continuance pursuant to those, I would grant that. Are you going to request a continuance pursuant to that objection?
[Counsel for Employer]: No we're not, your Honor. The Division has graciously requested (sic) that. However, the City believes in light of all the circumstances that we need to proceed today since [Employee] is entitled to a hearing and we would like to have the hearing resolved as well. We would like to go ahead and have resolution or expedition today - -
So while I'm very - - while I appreciate the offer, we would prefer to stand on our - - we feel that we need to stand on our position on the basis of
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