Larson’s Spotlight on Recent Workers’ Comp Cases: Put a Lid on It! Court Clamps Down on Employer’s Ex Parte Communications With Treating Physician

Larson's Spotlight on Ex Parte Communication, Subsequent Injury, Utilization Review, and Attendant Care. Larson's surveys the latest case developments that you need to know about. Thomas A. Robinson, the staff writer for Larson's Workers' Compensation Law, has compiled the list below.

GA: Waiver of Medical Privilege Related to Workers' Compensation Claim Does Not Require Consent to Ex Parte Conference Between Employer's Counsel and Treating Physician

The Court of Appeals of Georgia recently held that while a litigant waives her right to medical privacy to the extent that she places her medical condition at issue, as set forth in O.C.G.A. § 24-9-40(a), that waiver is limited to information related to the injury at issue in the litigation and any related medical history.  Accordingly, an injured worker who filed a workers' compensation claim was not required to expressly authorize her physician to speak with the employer's counsel and sanctions entered against her for failure to agree to the ex parte examination of her physician were improperly entered, indicated the appellate court.

The employee swallowed lye that had been left in a cup in the break room at her place of employment. Her treating gastroenterologist concluded that, despite exhaustive therapy, the employee had reached MMI and had sustained a sixty-five percent permanent body impairment. Her employer's attorneys sought to schedule an ex parte consultation with the treating physician, but the physician declined to meet with them-absent express authorization from the employee-and the employee refused to give her permission for such a consultation. An administrative law judge ordered the employee to expressly authorize her physician to speak with counsel for her employer and sanctioned her when she did not do so. The Appellate Division affirmed, and the trial court affirmed the decision of the Appellate Division. The employee appealed.

The court held that the "information" to which an employer was entitled in O.C.G.A. § 34-9-207 did not include entitlement to such ex parte communications, and that the Privacy Rule of the Health Insurance Portability and Accountability Act (HIPAA), 45 C.F.R. § 164.500 et seq., applied.  The court reasoned that under Baker v. Wellstar Health Sys., 288 Ga. 336, 703 SE2d 601 (2010), ex parte communications between a litigant's treating physician and opposing counsel should be limited, that an employee injured on the job had no real choice in whether to participate in the workers' compensation process, that if she did not participate, under the Act's exclusive remedy provision, the injured worker had no recourse to compensation, and that because participation was compulsory, the court should be cautious in extending the employee's waiver of her right to medical privacy.  While the court acknowledged that the Workers' Compensation Act provided that a claimant waived her right to privacy regarding related "communications . . . that the employee has had with any physician," and directed an authorized treating physician to disclose to the employer "all information and records" related to the employee's treatment for the injury at issue, as well as any related medical history [OCGA § 34-9-207 (a)], the Act did not require an employee to authorize her treating physician to communicate ex parte with the employer's lawyers in order to continue receiving benefits.  The court stressed that giving the employer's counsel "unbridled access to ex parte communications with an employee's treating physicians would create numerous potential dangers."

TN: Additional Shoulder Injury Caused by Employee's Dog May Also Be Compensable

Within the workers' compensation context, it is axiomatic that the employer is responsible not only for the initial accidental injury arising out of and in the course of the employment, but for complications that directly flow from the injury.  It is sometimes difficult to determine, however, if the subsequent deterioration in condition or exacerbation of the injury is causally connected to the original injury or if a new distinct cause has intervened.  This recent case illustrates the difficulty in determining causation, where a worker who had injured his shoulder and who was recovering from shoulder surgery, suffered an additional shoulder injury when he attempted to control his unruly dog.

PA: Utilization Review Finding That Pain Treatment Was No Longer Reasonable or Necessary Did Not Serve As Bar to Daughter's Death Claim for Accidental Overdose

This case illustrates the important distinction between the issue of causation and those related to the reasonableness and necessity of medical treatment.  The injured worker died of an accidental overdose of medication that he took to deal with the pain associated with a compensable low back injury.  Following a utilization review request, it was determined, however, that after a certain date, such treatment was not reasonable or necessary.  The court held that the utilization review determination did not bar the death claim filed by the deceased employee's daughter.

NC: Compensation For Attendant Care by Family Member Must Be Approved Before Liability Will Attach to Employer or Carrier

Important attendant care is often furnished to a permanently disabled worker by one or more members of the family.  The "value" can be difficult to compute.  It can also amount to large sums if provided over a long period of time.  Must such care be pre-approved before liability attaches to the employer or carrier?  The North Carolina Supreme Court held in the affirmative, citing a 1954 decision by the state's high court.  Short-term care in an emergency might be an exception, indicated the court.

Source: Larson's Workers' Compensation Law, the nation's leading authority on workers' compensation law

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