Browne v. Superior Court

California Court of Appeal Nov 15, 1979 No. 46792Published

Before: Racanelli

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Holding. A trial court lacks the authority to compel a personal injury litigant to submit to a physical examination by a vocational rehabilitation expert who is not a licensed physician. Such an order constitutes an abuse of discretion because the governing discovery statute does not affirmatively authorize examinations by nonphysicians.

Issues

Whether a personal injury litigant may be compelled to submit to a physical examination by a vocational rehabilitation expert who is not a licensed physician.

Disposition. remanded

Quotations verified verbatim against the opinion

“we hold that since a vocational rehabilitation counselor is not a licensed physician, no affirmative authority exists under the subject statute, or otherwise, to conduct the proposed physical examination.”

“the order under review constituted an abuse of discretion.”

“Whether such an examination by a qualified vocational rehabilitation counselor should be permitted in the first instance is a matter for the Legislature to determine and not the courts.”

98 Cal.App.3d 610 (1979) 159 Cal. Rptr. 669 JEFF D. BROWNE, Petitioner,

THE SUPERIOR COURT OF SANTA CLARA COUNTY, Respondent; WILMER S. REEVES et al., Real Parties in Interest.

Docket No. 46792. Court of Appeals of California, First District, Division One.

November 15, 1979. [612] COUNSEL

Boccardo, Lull, Niland & Bell, Richard D. Capparella, Stanley A. Ibler, Jr., and Joseph B. Hudson, Jr., for Petitioner.

No appearance for Respondent.

Roper, Majeski, Kohn, Bentley & Wagner, Roper, Majeski, Kohn, Bentley, Wagner & Kane, Michael J. Brady and Mark G. Bonino for Real Parties in Interest.

OPINION

RACANELLI, P.J.

We issued our alternative writ of mandate to examine the single question whether a personal injury litigant may be compelled to submit to a physical examination by a vocational rehabilitation expert who is not a licensed physician. We conclude that neither statutory nor other authority sanctions the examination ordered by the trial court; accordingly, the petition must be granted.

Facts

The facts are undisputed: Petitioner filed a civil damage action against real parties for injuries allegedly sustained as a result of an automobile-motorcycle accident. Petitioner's future wage loss is one of the disputed issues in the pending litigation. Although petitioner voluntarily submitted to a medical examination conducted by a licensed physician selected by real parties, he refused the latter's request "to be examined and tested by Dr. Hal Ulery, a rehabilitation expert" on the grounds that a physical examination by a nonphysician was unauthorized by law.[1] Thereafter real parties filed a written motion for an order pursuant to Code of Civil Procedure section 2032, subdivison (a)[2] compelling [613]

Browne v. Superior Court

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OPINION

RACANELLI, P.J.

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