The retrieval and review of medical records is one of the most critical components of litigating a workers’ compensation claim. O.C.G.A
The retrieval and review of medical records is one of the most critical components of litigating a workers’ compensation claim. O.C.G.A. § 34-9-207 states that:
When an employee has submitted a claim for workers’ compensation benefits or is receiving payment of weekly income benefits or the employer has paid any medical expenses, that employee shall be deemed to have waived any privilege confidentiality concerning any communications related to the claim or history or treatment of injury arising from the incident.
(Emphasis added). However, the word ‘related’ is ambiguous. As such, its definition has recently come up for litigation.
For the vast majority of claims, counsel for the Employer/Insurer will present a blank WC-207 to the Claimant either prior to or at his deposition for his or her signature. No specific medical provider will be listed in the address box. Counsel for the Employer/Insurer can then copy the signed WC-207 and fill out the name and addresses of the medical providers as those providers are learned about. This avoids the need to get a separate WC-207 for each provider.
In some situations, the Claimant’s attorney objects to his client signing a blank WC-207. Even in the vast majority of these situations, however, the opposing attorney merely requires the Claimant to sign individual WC-207’s with the medical provider already filled out. Although this is more time consuming and labor intensive, there is no prohibition in the Claimant doing so under the Georgia Code or the workers’ compensation Rules, and still allows the Employer/Insurer to get the necessary medical records. The Employer/Insurer’s counsel will simply send the Claimant filled-out WC-207’s as needed.
Lately however, various Claimants’ attorneys have been testing the limits of what medical records are defined as ‘related’. A typical Claimant will come to the table with one or more underlying medical conditions, such as diabetes, high blood pressure, or arthritis, for which he or she is seeing doctors other than those he or she is seeing for the work injury. Some Claimants’ attorneys have been objecting to the production of those records not directly related to the injuries themselves by sending letters to that effect to the medical providers. Those providers are then prohibited from producing records until an Administrative Law Judge (“ALJ”) rules on the issue.
The main argument that Claimants bring forth in an attempt to prevent the production of those records is that the inability to limit discovery would allow the Employer/Insurer to have ‘unfettered’ access to Claimant’s complete medical file, without regard to whether the records have any bearing on the workers’ compensation claim. The problem is that without seeing the complete medical records, it is impossible for the Employer/Insurer to know whether the records, and especially the medical conditions described in the records, are in fact relevant to the injuries as alleged in the claim. In addition, the medical records themselves often reference other medical providers and/or other injuries, such as prior auto accidents or workers’ compensation claims. These are often not revealed at the Claimant’s deposition but are directly relevant to the root cause of the work injuries.
The question is then how the Courts are handling these situations. For the Employer/Insurer, the results have generally been good. In a unanimous Appellate Division Order decided in December 2010, the Courts relied on the Georgia Civil Practice Act in allowing the records to be produced. The reasoning is that with few exceptions, the workers’ compensation system uses that Act to conduct discovery. Under O.C.G.A. § 9-11-26(b)(1) and related statutes, a party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action, provided that the information sought appears reasonably calculated to lead to the discovery of admissible evidence. (Emphasis added). The ‘privilege’ requirement in that statute is not at issue here since O.C.G.A. § 34-9-207 specifically states that Claimants waive such privilege by filing a workers’ compensation claim. In addition, the given a liberal construction to the ‘reasonably calculated’ provision in the statute. See Bridges v. 20th Century Travel, Inc., 149 Ga. App. 837, 256 S.E.2d 102 (1979).
However, the Appellate Division in that decision did not provide the Employer/Insurer with complete unfettered access to the records. This same Order required an in camera review by the presiding Administrative Law Judge before the records could be released. In that particular claim, there has not yet been any censoring of the records. The in camera review is far from ideal however. First, it greatly slows down the litigation of the claim. In addition, it puts a big burden on the already-busy ALJ. And substantively, the ALJ does not have full knowledge of all the facts and defenses in the claim, so there is the chance that he or she may censor records that would be in fact pertinent. Although the appellate issues in this claim were not brought before the Superior Court or the Court of Appeals, it would not be in the least bit surprising if those Courts did see this come up in another claim.
Claimants have also tried to limit the production of documents by providing their own ‘HIPAA-compliant’ release for medical records, as opposed to having the Claimant sign the Board’s WC-207. An Administrative Law Judge also found this unacceptable in April 2011, because the HIPAA privacy provisions are more restrictive than those as laid out in O.C.G.A. § 34-9-207. And, even though the Claimant argued that her attorney’s own form was ‘substantially’ the same as WC-207, Board Rule 61(b) prohibits forms from being altered without the express permission of the Board’s Executive Director. As a result, not only was Claimant’s failure to sign a WC-207 improper, it also opened up Claimant to potential civil penalties under O.C.G.A. § 34-9-18 (although no penalties were imposed in this particular situation). This is important because arguably the medical providers would have the ability redact certain information they find not ‘related’ under the HIPAA form, but not the WC-207.
That particular claim was also interesting because the Claimant was seeking catastrophic designation. Subtly referencing the earlier Appellate Division Order discussed above, the ALJ found that since a catastrophic designation relates to the totality of the Claimant’s ability to work, even medical conditions unrelated to the underlying injury had to be considered, and as such all records were required to be released by the Claimant and produced by the medical provider.
So, where does this leave us? Again, there has not yet been a Court of Appeals decision on the definition of ‘related’ in O.C.G.A. § 34-9-207. However, with the zeal in which Claimants’ attorneys have been filing Motions on that issue, it would be no great surprise if it is before the Court of Appeals sooner rather than later. However, thus far the feedback in the form of Orders from ALJs has thus far allowed almost, if not complete, unfettered access to records. It may actually take an Employer/Insurer to test the properness of the in camera review. Unfortunately, this current rash of litigation shows that Claimant is still not prevented from throwing up roadblocks, and as such, it can increase the litigation expense of claims until the issue can be settled once and for all by the Court of Appeals.