November 01, 2011 BY Dean Dellinger
Mcrae V. Arby's: What It Does And Does Not Mean
On December 1, 2011, the Court of Appeals issued an opinion in McRae v. Arby’s Restaurant Group thatis causing a lot of frenzy in the world of workers’ compensation. This 4-3 majority opinion (with two vigorous dissents) has stirred the age-old debate of whether attorneys in workers’ compensation cases can communicate “ex parte” with the claimant’s treating doctors. Does McRae mark the end of attorney-doctor ex parte communications or of the poor man’s deposition? Not so fast. The holding is limited in scope and stands for only one thing - an employer cannot force a claimant to sign an authorization expressly allowing a doctor to communicate privately with a defense attorney. In reality, employers, insurers, and attorneys have never been very successful in forcing an ex parte meeting or conversation with a doctor. Therefore, unless the Court of Appeals clarifies this, or unless the Supreme Court chimes in, the opinion in McRae will not really change anything. Ultimately, McRae may become better known for what it did not say rather than for what it did say. The holding does not expressly forbid ex parte communications between defense attorneys and doctors in workers compensation cases.
In McRae, the claimant sustained a work-related injury in February 2006 for which she received income benefits. As required by O.C.G.A. § 34-9-207(b), the claimant executed a release for medical records and information. A few years later, counsel for the employer tried to schedule a private consultation with the claimant’s treating doctor without the claimant being present. The doctor refused to do so absent “express” permission from the claimant. Counsel for the employer filed a motion seeking an Order from the State Board compelling the claimant to sign an authorization expressly authorizing a doctor to meet with the employer’s attorney privately. The ALJ granted the motion. Moreover, the ALJ removed the claimant’s request for hearing until she provided the signed authorization. The Appellate Division and the Superior Court affirmed the decision. On appeal, the Court of Appeals reversed the ruling in a close 4-3 majority opinion.
The question is whether this opinion specifically forbids ex parte communications between defense attorneys and treating doctors. The claimant in this case signed a WC-207 medical release, drafted in accordance with O.C.G.A. § 34-9-207; however, the Court interprets this release of “medical records and information” as referring to only tangible documents. In so doing, the Court of Appeals concludes that the Workers’ Compensation Act does not require a doctor to converse ex parte with opposing counsel, and, more specifically, the Act “does not require an employee to authorize her treating physician to communicate ex parte with the employer’s lawyers in order to continue receiving benefits.” However, the McRae holding fails to state that there is nothing in the Workers’ Compensation Act specifically forbidding such communications from taking place. Moreover, the Court of Appeals ultimately recognized the unequivocal principle that the HIPAA Privacy Rule "expressly permits the disclosure of information 'as authorized by and to the extent necessary to comply' with the requirements of workers' compensation laws. See 45 CFR § 164.512 (1)."
In addition, noticeably absent from this opinion is any discussion or mention of Board Rule 200.1(a)(1(iii). The McRae decision does not specifically abolish, overrule, limit, or otherwise invalidate Board Rule 200.1(a)(1)(iii) which allows case managers, and direct employees of insurers, employers, third party administrators, “to communicate with…the authorized treating physician to assess, plan, implement, coordinate, monitor, and evaluate options and services relative an injured employee’s condition and/or vocational needs.” If the Court of Appeals were going to issue a broadly scoped decision overruling something as significant as all ex parte communications with treating doctors, surely the Court would have discussed, addressed, or otherwise mentioned Board Rule 200.1. The fact that the Court did not discuss or even mention Board Rule 200.1(a)(1)(iii) when they had an opportunity to do so is very telling. It is evidence of McRae’s limited scope. The decision does not apply to rehab suppliers, case managers, employers, insurers, and their direct employees. Therefore, nothing has changed with their ability to communicate, even ex parte, with doctors in a manner consistent with the provisions and requirements of Board Rule 200.1. They should continue to conduct business as usual.
The majority opinion contains a lot of dicta, the effect of which makes it seem as if this decision is broader than it really is. However, McRae is not very broad. All it stands for is that the State Board cannot compel a claimant to expressly authorize an ex parte communication between a treating doctor and counsel for the employer. Since as a practical matter defense attorneys have rarely ever been able to force an ex parte doctor communication, McRae really changes nothing at all, and all the frenzy may be much ado about nothing.
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