Atlanta Workers Compensation – Attorney Ex Parte Communications with Doctors

Can benefits be withheld from a worker's compensation claimant who refuses to let her employer's attorneys talk to her physician out of the presence of herself or her attorney? The Court of Appeals says no in McRae v. Arby's Restaurant Group, Inc., A11A1021, (Ct. App. 2011). The claimant was injured when she mistook a cup of lye for her coffee at work. The Superior Court and Appellate Division had affirmed the ALJ's order which removed her claim for benefits from the hearing calendar until she provided an authorization permitting the ex parte contact. The Court of Appeals held that the Worker's Compensation Act does not compel an employee to authorize her treating physician to speak to her employer's attorney ex parte in exchange for receiving benefits. The court also said that an employee who files a worker's compensation claim does not give up her right to medical privacy with respect to matters unrelated to her claim. "Giving the employer's counsel unbridled access to ex parte communications with an employee's treating physicians would create numerous potential dangers [including] the potential to influence the physician's testimony, to probe into irrelevant but highly prejudicial matters, and the disclosure of information never disclosed to the patient," said the court, citing Baker v. Wellstar Health Sys, 288 Ga. 336 (2010).

The Court of Appeals also expressly disagreed with the Superior Court's view that the medical privacy constraints of HIPAA are not applicable in worker's compensation proceedings. HIPAA permits disclosure of information in accordance with worker's compensation laws, but in Georgia, a claimant only waives her right to privacy with respect to related communications she has had with any physician. She must disclose all information and records related to the treatment for the injury at issue and related medical history, but the court refused to construe "information" to include future ex parte communications. To do so would lead to "absurd, impractical, or contradictory results." However, three justices dissented, and the Supreme Court is currently considering a cert petition. It is likely that a further appeal would focus on the definition of "information" in both HIPAA and the Worker's Compensation Act

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