Arby's Rest. Grp., Inc. v. McRae, No. S12G0714.

• Court: Supreme Court of Georgia
• Writing for the Court: THOMPSON
• Citation: 292 Ga. 243,734 S.E.2d 55
• Parties: ARBY'S RESTAURANT GROUP, INC. et al. v. McRAE.
• Decision Date: 05 November 2012
• Docket Number: No. S12G0714.

292 Ga. 243
734 S.E.2d 55

ARBY'S RESTAURANT GROUP, INC. et al.
v.
McRAE.

No. S12G0714.

Supreme Court of Georgia.

Nov. 5, 2012.

James Hunter Chandler, Andrew J. Hamilton, Hamilton, Westby, Antonowich & Anderson, LLC, Matthew Dalby Walker, Harold Michael Bagley, Drew Eckl & Farnham, Atlanta, for appellant.

Lawrence Thomas Clements, Bruce P. Johnson, Clements & Sweet, LLP, for appellee.

Clayton E. Robertson, McLain & Merritt, P.C., Joseph Benson Ward, Matthew Dalby Walker, Drew Eckl & Farnham, Atlanta, John D. Blair, Christopher Todd Ross, Ross & Levy LLC, Albany, Alex Brian Wallach, George & Wallach, Forest Park, for amicus appellant.

Laura M. Shamp, Laura M. Shamp, LLC, Todd K. Maziar, Morgan & Morgan, Harold Michael Bagley, Drew Eckl & Farnham, Atlanta, Thomas A. Eaton, University of Georgia School of Law, Athens, for amicus appellee.

[734 S.E.2d 56]

THOMPSON, Presiding Justice.

[292 Ga. 243]We granted certiorari in this appeal to consider whether OCGA § 34–9–207 requires an employee who files a claim under the Georgia Workers' Compensation Act, OCGA § 34–9–1 et seq. (the “Act”), to authorize her treating physician to engage in ex parte communications with her employer or an employer representative in exchange for receiving benefits for a compensable injury. McRae v. Arby's Restaurant Group, 313 Ga.App. 313, 721 S.E.2d 602 (2011). Because the Court of Appeals erroneously held an employee is not required to authorize such communications, we reverse.

The facts in this case are undisputed. Appellee Laura McRae sustained a work injury in February 2006 for which she filed a claim for workers' compensation. Her employer, appellant Arby's Restaurant Group, accepted the claim as compensable and commenced income benefits. As part of her claim for benefits, McRae signed a form authorizing the release of medical information. McRae's treating physician subsequently issued a report concluding McRae had reached maximum medical improvement and had incurred a 65 percent permanent partial disability impairment. After receiving the report, counsel for Arby's attempted to arrange an ex parte conference with her treating physician, but the physician refused to meet without McRae or her counsel present.

Arby's then filed a motion to dismiss McRae's hearing request or in the alternative to request an order authorizing the treating [292 Ga. 244]physician to communicate with an Arby's representative. See OCGA § 34–9–207(a) (authorizing board to withhold benefits or remove hearing from calendar during time that employee unjustifiably refuses to sign required medical release). The board issued an order directing McRae to sign a medical release to her treating physician “expressly authorizing [her treating physician] to meet privately with a representative (or representatives) of the Employer/Insurer and discuss or provide medical information about the Employee's claim.” When McRae refused to sign the board-ordered medical release, her hearing request was removed from the hearing calendar. The appellate division of the State Board of Workers' Compensation and the superior court upheld the board's order. A majority of the Court of Appeals reversed, holding that OCGA § 34–9–207(a) provides no support for the claim that an employer is entitled to engage in ex parte communications with a treating physician.

1. Under Georgia law, an employer in a workers' compensation case is entitled to seek from any physician who has examined, treated, or tested the employee “all information and records related to the examination, treatment, testing, or consultation concerning the employee.” OCGA § 34–9–207(a). The employee is

deemed to have waived any privilege or confidentiality concerning any communications related to the claim or history or treatment of injury arising from the incident that the employee has had with any physician, including, but not limited to, communications with psychiatrists or psychologists. This waiver shall apply to the employee's medical history with respect to any condition or complaint reasonably related to the condition for which such employee claims compensation.

Id. Under the unambiguous language of OCGA § 34–9–207(a), any privilege the employee may have had in protected medical records and information related to a workers' compensation claim is waived once the employee submits a claim for workers' compensation benefits or is receiving weekly income benefits or the employer has paid any medical expenses. The occurrence of any one of these triggering events waives the employee's privilege in confidential health information and the information may be released by a treating physician.

Although OCGA § 34–9–207(a) specifies the category of information for which the privilege is waived, it is silent with regard to the methods by which the requested...