Archive for December, 2011

Workers’ Compensation Claimant Not Required to Authorize Ex Parte Communications with Treating Physician

The Georgia Court of Appeals recently issued a ruling which appears inconsistent with common practices in the workers’ compensation setting and held that a claimant is not required, as a condition of receiving benefits, to execute a release authorizing a treating physician to engage in ex parte (i.e. outside of the claimant’s or the claimant’s attorney’s presence) communications with the claimant’s employer. In McRae v. Arby’s Restaurant Group, Inc., 2011 WL 6015797 (Ga.App., Dec. 1, 2011), the claimant sustained a compensable injury, began receiving income benefits, and signed a Form WC-207 authorizing the release of her medical information. The employer’s attorneys subsequently tried to schedule an ex parte consultation with the physician, but the physician declined to meet with them unless they obtained express permission from the claimant. The Board subsequently ordered the claimant to sign a release authorizing her physician to speak with the employer’s attorneys, reasoning that the claimant could informally contact her physician and inquire about any communications made with the employer.

On appeal, the Georgia Court of Appeals noted that the Workers’ Compensation Act provides that a claimant waives her right to privacy regarding related “communications…that the employee has had with any physician” and directs a physician to disclose to the employer “all information and records” related to the employee’s treatment for the injury. The Act also requires a claimant to give the employer a release for “medical records and information” related to the claim. See O.C.G.A. § 34-9-207. The court held that nothing in the Act indicates that the word “information” was intended to extend to ex parte communications.

Additionally, the court compared workers’ compensation claims to medical malpractice lawsuits. In doing so, the court noted the dangers associated with ex parte interviews of physicians, including the potential for unwarranted probing into irrelevant matters, unintended disclosure of sensitive information, and improper influence by defense counsel. Furthermore, unlike a patient who sues for medical malpractice, an injured employee has no choice in whether to participate in the workers’ compensation process. Therefore, the court was especially hesitant to compel a workers’ compensation claimant to authorize such ex parte communications.

It should be noted that the court stopped short of deciding whether an employer is otherwise prohibited from ex parte interviews under the terms of a qualified protective order.

For more information, please contact Timothy Buckley III, Esq. at (404) 633-9230.

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