"Ex Parte" Communications With Doctors In Workers' Compensation Cases: The Supreme Court Of Georgia Stops The Madness In Arby's V. Mcrae
In 2011, the Georgia Court of Appeals issued its opinion in McRae v. Arby’s Rest. Group, holding that the State Board of Workers’ Compensation lacked authority to order a claimant to sign a patient authorization allowing her employer’s attorney to engage in so-called “ex parte” communications with her authorized treating physician. The impact on workers’ compensation litigation was immediate. Some physicians refused to respond to written questionnaires sent by defense attorneys. Certain claimant’s attorneys created “special” patient authorization forms which prohibited physicians from communicating with anyone other than the claimant or claimant’s representative. Some insurance adjusters feared that even asking a doctor’s office about a claimant’s work status might somehow violate the ruling. But on November 5, 2012, the Supreme Court of Georgia issued a unanimous opinion reversing the decision of the Court of Appeals, thereby clarifying both the scope of O.C.G.A. §34-9-207 and the role of the State Board in administrating workers’ compensation claims.
While the facts of the case were unusual, they were not in dispute. The claimant sustained burns to her esophagus in February 2009 after accidentally drinking lye from a cup left in her employer’s break room. The claim was accepted as compensable and benefits were commenced. After the claimant was placed at MMI by her authorized treating physician, that physician assigned a 65% permanent impairment rating. The claimant’s counsel filed a hearing request seeking, in part, payment of benefits based upon that rating. Counsel for the employer subsequently attempted to schedule a meeting with the physician to discuss the rating, but the doctor required express authorization from the claimant before he would agree to the meeting. Counsel for the employer then filed a motion to compel the claimant to sign such an authorization. Ultimately, the administrative law judge ordered the claimant to sign the authorization, and removed her hearing from the calendar when she failed to do so. The Appellate Division affirmed this ruling, as did the Superior Court.
The Court of Appeals reversed. Recognizing that O.C.G.A. §34-9-207 entitles an employer in a workers’ compensation case to obtain “all information and records related to the examination, treatment, testing, or consultation concerning the employee,” The Court of Appeals construed the word “information” in the statute to mean only “tangible documentation.” From that standpoint, the Court of Appeals found that O.C.G.A. §34-9-207 does not require an employee to authorize her treating physician to engage in ex parte communications with her employer’s lawyer. The Court of Appeals also noted that allowing such ex parte communications would raise privacy concerns, citing both “the substantive right to medical privacy under Georgia law” and the Health Insurance Portability and Accountability Act of 1996 (HIPAA).
On appeal, the Supreme Court first examined the Court of Appeals’ interpretation of the language in O.C.G.A. §34-9-207(a). The Supreme Court noted that when interpreting a statute, words must be afforded their “ordinary signification.” In giving the term its generally accepted meaning, the Supreme Court found that “information” can be both tangible or intangible, and therefore includes oral communications. Thus, the Court held that the plain language of O.C.G.A. §34-9-207(a) entitles an employer to “seek relevant protected health information informally by communicating orally with an employee’s treating physician.”
The Supreme Court also declined to apply Baker v. Wellstar Health Systems, 288 Ga. 336, 703 S.E.2d 601 (2010), a recent Georgia Supreme Court ruling which had created guidelines for ex parte communications between defense attorneys and plaintiffs’ healthcare providers in medical malpractice cases. In refusing to create a similar framework in workers’ compensation cases, the Court recognized that the Georgia legislature designed the workers’ compensation system to favor “full disclosure” of all medical information in order to encourage “an efficient and streamlined” process. With respect to the substantive right to privacy under Georgia law, the Supreme Court found that a workers’ compensation claimant waives this right under O.C.G.A. § 34-9-207 once a claim has been filed, or once medical or indemnity benefits have been paid. While the Court recognized HIPAA’s privacy provisions, the Court also noted that HIPAA specifically exempts disclosures made in accordance with state workers’ compensation laws. Because O.C.G.A. § 34-9-207 allows ex parte communications between the employer and the claimant’s treating physicians, HIPAA does not apply.
Importantly, the Supreme Court noted that there is nothing in O.C.G.A. § 34-9-207 which requires that physicians agree to ex parte interviews with the employer or its representatives. The Court noted that physicians may therefore set conditions on such meetings, including the presence of the claimant or the claimant’s attorney. While the Court also encouraged parties to workers’ compensation cases to “set parameters consistent with privacy protections afforded under state and federal law,” it declined to institute any specific requirements, noting that such authority is vested with the State Board of Workers’ Compensation.
Prior to the Supreme Court’s ruling, employers, insurers and their representatives were rightfully concerned about the scope of the Court of Appeals’ decision, which contained dicta suggesting that the right to privacy trumped the goals of the workers’ compensation system, including the need for the expedient exchange of medical information. With this ruling, the Supreme Court has eliminated any lingering concerns regarding an employer’s ability to communicate with a claimant’s treating physicians. Perhaps more importantly, the Supreme Court reaffirmed the role and authority of the State Board of Workers’ Compensation as gatekeeper and arbiter of issues such as this.
[NOTE: On November 14, 2012, claimant’s counsel filed a Motion for Reconsideration with the Supreme Court. On December 12, 2012, that Motion was denied by the Court.]
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H. Michael Bagley