BOARD OF INDUSTRIAL INSURANCE APPEALS ‑- RULE‑MAKING POWER ‑- DEPOSITIONS.

BOARD OF INDUSTRIAL INSURANCE APPEALS ‑- RULE‑MAKING POWER ‑- DEPOSITIONS.

The Board of Industrial Insurance Appeals may promulgate a rule giving it authority to deny or limit the taking of depositions of the medical testimony of a general practitioner who was not the attending physician of the claimant, provided that the application of the rule will not prevent the parties from receiving a fair and impartial trial nor constitute a denial of due process of law.

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                                                                    May 1, 1953 

Board of Industrial Insurance Appeals
Olympia, Washington                                                                                                                Cite as:  AGO 53-55 No. 25

 Attention:  !ttMr. Wilbur J. Lawrence, Chairman
            Mr. Arthur Borcher
            Mr. Adolph W. Engstrom

Gentlemen:

            You have inquired:  (1) Whether the Board of Industrial Insurance Appeals may promulgate a rule pursuant to the authority of RCW 51.52.020 restricting the taking of depositions in a certain class of cases, and (2) if so, what proper legal standard the board may adopt to this end?

            It is our conclusion that it may, and that the court rules of Pleading, Practice and Procedures would appear to provide a suitable standard for the guidance of the board in drafting such a rule.

                                                                      ANALYSIS

             RCW 51.52.020, as derived from section 3, chapter 219, Laws of 1949, as amended, provides for the rule‑making power of the Board of Industrial Insurance Appeals as follows:

             "The board may make rules and regulations concerning its functions and procedure, which shall have the  [[Orig. Op. Page 2]] force and effect of law until altered, repealed, or set aside by the board:  Provided, That the board may not delegate to any other person its duties of interpreting the testimony and making the final decision and order on appeal cases.  All rules and regulations adopted by the board shall be printed and copies thereof shall be readily available to the public."

             Rule 5.6 of the Rules of Procedure of the Board promulgated August 30, 1951, reads in part as follows:

             "The taking of depositions, the making of interrogatories and discovery, and the conduct of physical and mental examinations of any person prior to the hearing must be performed in accordance with the statutes and rules applicable in civil cases in the superior court of this state.  * * *"

             Rule 30 of Rules of Pleading, Practice and Procedure is the court rule concerning depositions upon oral examination.  Section (b) of this rule, which provides for Orders for the Protection of Parties and Deponents, reads in part as follows:

             "After notice is served for taking a deposition by oral examination, upon motion seasonably made by any party or by the person to be examined and upon notice and for good cause shown, the court in which the action is pending may make an order that the deposition shall not be taken, or that it may be taken only at some designated time or place other than that stated in the notice, or that it may be taken only on written interrogatories, * * *"

             In Karlen v. Department of Labor & Industries, 141 Wash. Dec. 281 [[41 Wn. 2d 301]], the court described the functions and jurisdiction of the board in this manner:

             "The board of industrial insurance appeals is a tribunal created by statute supplanting the joint board of the department of labor and industries.  It has been given jurisdiction to hear and determine appeals taken from the action of the supervisor upon industrial insurance claims.  When a workman is injured and makes a claim to the department, it is investigated by the supervisor,  [[Orig. Op. Page 3]] and it is his duty to make a determination thereof, from which an appeal may be taken to the board of industrial insurance appeals.  In order to properly review the action taken by the supervisor, the board has authority to summon and examine witnesses.  Examiners are chosen who are authorized to hold hearings at convenient places and take testimony of witnesses.  The board considers the data gathered, together with other information obtained, and makes findings of fact and an order, from which an appeal to the superior court may be taken.

             "The courts cannot be concerned with the practice or procedure of the board of industrial insurance appeals in the hearing and determination of appeals from orders of the supervisor, unless it should be made to appear that by reason thereof the interested parties could not be given a fair and impartial hearing or were denied due process of law.  * * *"

             You indicate that your particular concern is to curb the prevalent abuse of the right to take depositions of general practitioners whose only contact with the injured workman is one examination taken for the purpose of qualifying as witnesses.  You state that this results in inconvenience and delay in situations where the depositions are taken in cities some distance removed from the residence of the claimant.  Your inquiry is confined to general practitioners who are neither the attending physicians of the injured workman nor specialists.  A related problem is considered by the supreme court in Peterson v. Department of Labor & Industries, 36 Wn. (2d) 266, at 268, in this language:

             "* * * The chief source of our recurring problem, on the question of medical testimony in industrial insurance cases, is found in the fact that one rule applies when the medical testimony is given by a doctor who examines a patient for the purpose of treating him, while a different rule applies when the testimony is given by a doctor who examines an individual for the sole purpose of qualifying himself to be a witness as to a person's physical condition.  This presents a question of the competence of such evidence in each case, because the element ofhearsay always inheres in medical conclusions.  (Emphasis supplied)

              [[Orig. Op. Page 4]]

            "All doctors take the history of their patients, when it is needed to arrive at a correct diagnosis.  Their own skilled observations, aided by the best medical equipment, lead only to objective findings.  They cannot clinically observe a pain or a functional disorder.  Such subjective symptoms must be related to them by the patient, or by someone on his behalf, and are frequently indispensable to a correct diagnosis and course of treatment.

             "The doctor receives the statement of these subjective symptoms informally, and they are not given under oath, nor does he attempt to rebut them.  The self-interest of the patient is a sufficient guarantee of the trustworthiness of such statements, where the examination is made for the purpose of treatment.  Thus, it is the universal rule that, if the doctor who treats a patient later becomes a witness, he may testify as to his medical conclusions, which may be based substantially on subjective symptoms which are in the realm of hearsay.  This is a recognized exception to the hearsay rule of evidence.  Foulkrod v. Standard Accident Ins. Co., 343 Pa. 505, 23 A. (2d) 430; 67 A.L.R. 10.

             "The reason for this exception to the rule disappears instantly, when the examination is not made within the doctor-patient relationship for the purpose of treatment, but is made only for the purpose of qualifying the doctor as a witness.  * * *"

             It is our conclusion that the board may promulgate a rule limiting the right to take depositions in this class of cases.  The only apparent limitations on the procedural rule‑making power of the board are those set out in theKarlen case, supra, and RCW 51.52.020.  The parties must be given a fair and impartial trial and must not be denied due process of law.

             We further conclude that to accomplish this result, the board should promulgate a rule defining in precise language its right to deny or limit the taking of depositions, rather than relying upon the validity of the adoption by reference of the  [[Orig. Op. Page 5]] statutes and rules applicable in civil cases in the superior courts of the state. Court rules of Pleading, Practice and Procedure may prove helpful in the promulgation of such a rule.

 Very truly yours,
DON EASTVOLD
Attorney General

ANDY ENGEBRETSEN
Assistant Attorney General