September 05, 2009 BY Taylor Poncz
The Scope Of Discovery Pursuant To The Statutory Amendment To O.C.G.A. § 34-9-207.
There is no dispute that every individual is entitled to a certain degree of privacy in his medical history and medical records. However, often times, one’s medical history is a crucial factor in assessing the compensability of a workers’ compensation claim and a free exchange of information was certainly facilitate that. Therefore, it seems reasonable that a fixed rule limiting discovery into one’s medical history would not be appropriate in workers’ compensation. However, parties often go to battle just to obtain medical records of a claimant who essentially puts their medical condition at issue by filing a workers’ compensation claim.
Recent legislation that amended the statutory language in O.C.G.A. § 34-9-207 to broaden the scope of the discoverability of these records seems to suggest a gradual shift in the pendulum in favor of more discovery. However, whether or not the Administrative Law Judges will actually rule in favor of more discovery is yet to be seen.
O.C.G.A. § 34-9-207 was designed to facilitate the collection of medical data without the necessity of litigation and applies it when either (1) the employee has submitted a claim or is receiving indemnity benefits, or (2) the employer has paid any medical expenses. In either event, the former statute provided that the employee was deemed to have waived any privilege or confidentiality concerning any communications with the physician related to the claim or history or treatment arising from the incident. O.C.G.A. § 34-9-207(a). Further, O.C.G.A. § 34-9-207(b) required the claimant to provide a signed release for medical records and information related to the claim or history of treatment of the injury arising from the incident. Nonetheless, the position of some ALJs has been to narrowly construe the operative phrase, “arising from the incident.” In other words, in defining the scope of what records the claimant’s release applies to, some ALJs will err on the side of the claimant’s right to privacy in his medical records, as opposed to allowing an employer/insurer to discover this information, which means that that the employer/insurer are essentially restricted from obtaining any records from physicians that the employer/insurer is not aware of as having treated the claimant for the particular work-related injury.
This limitation, in certain cases, impairs the employer/insurer from properly defending the claim by not having the opportunity to review all potentially relevant medical records to determine whether they in fact relate to the injury that arose from the incident. The impact of this construction is far reaching and is of great concern to employer/insurers in some cases, especially those involving claimants with significant medical histories. A claimant with an unrelated, pre-existing condition, like diabetes or heart disease, could have a difficult time healing after his work injury because of his pre-existing condition. In some cases, the pre-existing diabetes or heart disease may even be a supervening cause of disability. But without reviewing the records related to the pre-existing condition, then the employer/insurer is without the benefit of crucial information that may have some impact on getting the claimant back to work. Requesting those records – albeit, unrelated to the part injured in the work injury – certainly is no “fishing expedition,” as claimant’s counsels like to refer to it as. It is just good lawyering.
The impact of a narrow statutory construction would also be of great concern in cases involving claimants who have proven themselves not to be accurate or truthful historians. Any defense attorney knows that claimants do not always truthfully disclose their medical history in a deposition setting. However, those individuals tend to be more truthful with their personal physicians than they are with workers’ compensation physicians or defense attorneys, so the personal physicians’ records may reveal significant medical concerns that were not disclosed to in litigation. Additionally, all a claimant has to do is lie about his medical history and he can essentially prevent the employer/insurer from conducting additional discovery. For example, consider a claimant who previously treated for a condition that may reasonably impact his current work injury, but who does not truthfully disclose the scope of his treatment with that particular provider at his deposition or in his discovery responses. In that case, the employer/insurer would not be entitled to obtain those records simply because the claimant untruthfully denied that the treatment he obtained with that provider related to the work injury. But how can the employer/insurer even prove if the information in the desired records is related to the work injury or not without being given the opportunity to examine the records? The Board’s position – that only those records identified as being related to the part injured in the work accident – shows how the Board views the claimant’s right to privacy in his medical information as outweighing the employer/insurer’s right to examine this information in defense of the claim. Claimant’s counsels’ reference to an employer/insurer’s request for medical records from other physicians as a fishing expedition suggests that the employer/insurer is aimlessly casting the widest net possible, requesting any and all medical records related to any and all medical treatment. While this may be true in certain instances, shouldn’t there be times when an employer/insurer is warranted in casting its discovery net a bit wider than just records related to the injured part?
Perhaps signaling a shift in the balancing test between the employee’s privacy and confidentiality in his medical records and the discovery of this evidence, legislation just passed in April 2009 amends the language regarding the requirement that the records be “related” to the work incident. House Bill 330 – unopposed in the House and Senate – became effective July 1, 2009, and entitles an employer/insurer to obtain records and information “reasonably related” to the injury. The amendment to the bill broadens O.C.G.A. § 34-9-207(a) and (b), such that the employee now waives any privilege or confidentiality concerning any communications related to the employee’s medical history with respect to any condition or complaint “reasonably related” to the work injury. Perhaps the legislation signals a movement to allow for broader discovery with the use of a WC207, but with a test as broad and subjective as “reasonably related,” it is yet to be seen if the Board will actually tip the balancing test in favor of the free exchange of information.
Consider a recent case in which the employer/insurer had an overwhelming amount of impeachment evidence supporting its contention that the claimant misrepresented several material issues in her deposition. In fact, the claimant allegedly misrepresented the very mechanism of her foot injury, contending that she had fallen at work, while several coworkers testified that the claimant had told them that she had actually tripped over her dog at home the night before. The claimant’s non-panel physician found that she may have regional pain syndrome and that she needed to seek immediate attention with a neurologist. The record also showed that the claimant had treated with two neurologists several years prior, but the claimant represented that the treatment was not related to her foot.
The employer/insurer requested that the neurologists produce their records related to the treatment of the claimant, noting that she had a potential regional pain syndrome diagnosis, she had treated with theneurologists in the past, and that her current treating physician recommend the claimant seek neurological treatment for her current work injury. Claimant’s counsel objected to the request, arguing that the request was tantamount to a “fishing expedition,” and was not related to the work injury as provided for under O.C.G.A. § 34-9-207. The employer/insurer filed a Motion to Compel, contending that its entire defense was based upon its controvert of this injury as not having occurred in the course of employment. Impeachment evidence was an integral part of its defense, as the claimant had repeatedly shown a lack of veracity throughout the duration of the claim. Thus, the employer/insurer argued to simply rely upon the claimant’s own statement that these medical records were not relevant to her current condition because she had treated with the neurologists several years ago for an unrelated condition would essentially be malpractice. Additionally, the employer/insurer argued that a prior, unrelated neurological condition may have been contained in those records that could have relevance to a regional pain syndrome diagnosis, but it could not ascertain whether the records were relevant to the foot injury without having the opportunity to review the symptoms, diagnoses, treatment or any permanent impairment in the first place. However, despite the employer/insurer’s argument that under the new legislation the neurologists’ records were “reasonably related” to the condition at issue, the ALJ denied the motion, finding that the statute affected the claimant’s substantive rights.
The ALJ held that the limited waiver concerning medical records only allowed the employer/insurer to obtain records for earlier examination or treatment for injuries or parts injured in the work accident, reasoning that these records were likely necessary to determine the extent of injury in the work accident. The ALJ ignored the employer/insurer’s argument that the claimant was not trustworthy and had allegedly misrepresented several material issues during the duration of the claim. In fact, the ALJ made no mention of the claimant’s truthfulness at all. Instead, the ALJ chose to rely on the finding that the employer/insurer’s motion did not sufficiently identify what treatment the claimant received or which records were being sought from the neurologist. But this inability to identify which records were related to the work injury was the very essence of why the employer/insurer filed the motion in the first place – without the benefit of reviewing the records to determine what treatment was provided and whether there was any neurological condition that may be related to the current regional pain syndrome diagnosis, how could the employer/insurer be expected to identify what records it sought? The employer/insurer were simply confined to the claimant’s representation that she only sought neurological treatment for an unrelated condition. The ALJ’s ruling in that case did not signify a tip in the balancing test in favor of the employer/insurer’s right to a claimant’s medical history in order to fully assess the compensability of a claim.
Therefore, what implications are foreseeable with this new legislation? Given the broadness of the term “reasonably related,” it is likely that each ruling will require a case by case analysis. Will the new statutory amendment be just another law with no bite? Will the Board continue to rule in favor of a claimant’s right to privacy? Or will the Board start to reconsider its position and allow a broader net to be cast as more and more defense counsel rely on the new statutory amendment to request additional medical records?
The Journal is a publication for the clients of Drew Eckl & Farnham, LLP. It is written in a general format and is not intended to be legal advice to any specific circumstance. Legal Opinions may vary when based upon subtle factual differences. All rights reserved.
H. Michael Bagley