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Fisher v. Waste Management of Missouri1/30/2001
BR>
287.215. Injured employee to be furnished copy of this statement, otherwise inadmissible as evidence
No statement in writing made or given by an injured employee, whether taken and transcribed by a stenographer, signed or unsigned by the injured employee, or any statement which is mechanically or electronically recorded, or taken in writing by another person, or otherwise preserved, shall be admissible in evidence, used or referred to in any manner at any hearing or action to recover benefits under this law unless a copy thereof is given or furnished the employee, or his dependents in case of death, or their attorney, within fifteen days after written request for it by the injured employee, his dependents in case of death, or by their attorney. The request shall be directed to the employer or its insurer by certified mail. A videotape with no audio portion does not constitute a statement under Section 287.215. Erbschloe v. General Motors Corp., 823 S.W.2d 117, 119 (Mo. App. 1992).
Claimant argues that this holding is no longer the law in light of State ex rel. Missouri Pacific R. Co. v. Koehr, 853 S.W.2d 925 (Mo. banc 1993) and State ex rel. McConaha v. Allen, 979 S.W.2d 188, 189 (Mo. banc 1998). Koehr held that surveillance photographs or motion pictures are "statements" of a party discoverable under Rule 56.01(b)(3). That rule provides:
For purposes of this paragraph, a statement previously made is: (a) a written statement signed or otherwise adopted or approved by the person making it, or (b) a stenographic, mechanical, electrical, audio, video, motion picture or other recording, or a transcription thereof, of the party or of a statement made by the party and contemporaneously recorded.
In Koehr, the court distinguished Erbschloe on the grounds that Erbschloe was decided under Section 287.215 and that statute does not contain an internal definition of "statement" whereas Rule 56.01(b)(3) does define "statement." Id. at 927.
McConaha dealt with the production of surveillance videotapes under Section 287.560 of the workers' compensation law, which guarantees certain discovery rights, as follows:
Any party shall be entitled to process to compel the attendance of witnesses and the production of books and papers, and at his own cost to take and use depositions in like manner as in civil cases in the circuit court, except that depositions may be recorded by electronic means.
In McConaha the supreme court held that, because the statute requires that depositions in workers' compensation matters are to be taken in the same manner in civil actions, Section 287.560 authorizes the use of a subpoena duces tecum under Rule 57.09(b). 979 S.W.2d at 189. Because Rule 56.01(b) specifies the general scope of what may be discovered using a deposition under Rule 57, Rule 56.01(b) also controls what may be discovered using a deposition under Section 287.560. Id. Therefore, the Rule 56.01(b)(3) definition of "statement," which includes surveillance videos, applies to subpoena duces tecum issued in connection with a deposition taken pursuant to Section 287.560. Id. The court specifically limited its holding to depositions taken pursuant to Section 287.560 and advised that it was not holding that any other civil rules were applicable to workers' compensation proceedings. Id.
In this case claimant did not attempt to obtain statements pursuant to Rule 56.01(b) or in connection with a deposition taken under Section 287.560. He asserts a right to production of the videotapes only pursuant to his request for statements under Section 287.215. The word "statement" as used in that statute does not include non-audio surveillance videota
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