Arby's Rest. Grp., Inc. v. McRae

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

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.

THOMPSON, Presiding Justice.

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 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 information may be provided. The Court of Appeals construed OCGA § 34–9–207(a) to preclude informal ex parte communications between McRae's treating physician and her employer because, it concluded, the requirement to disclose “all information and records” could not reasonably be interpreted as requiring the disclosure of anything other than tangibledocumentation. McRae, supra, 313 Ga.App. at 316, 721 S.E.2d 602. The Court of Appeals' failure to distinguish between the terms “records” and “information,” however, is not supported by the language of OCGA § 34–9–207(a) or application of generally accepted rules of statutory interpretation.

As recognized by the dissenting judges in McRae, when considering the meaning of a statute courts must “afford the words of the statute their ‘ordinary signification,’ see OCGA § 1–3–1(a), [and] we must presume that the General Assembly meant what it said and said what it meant.” Id. at 319, 721 S.E.2d 602. Further, when interpreting a statute courts must give meaning and intent to all words, bearing in mind that “[w]here the language of a statute is plain and unambiguous, judicial construction is not only unnecessary but forbidden.” Six Flags Over Ga. II v. Kull, 276 Ga. 210, 211, 576 S.E.2d 880 (2003). OCGA § 34–9–207(a) by its plain language requires a treating physician to disclose not just tangible documents, but also “information ... related to the examination, treatment, testing, or consultation concerning the employee.” Giving the term “information” its generally accepted meaning, we agree with the dissent's determination that “information,” as properly interpreted, includes “knowledge or data that is communicated to another, regardless of whether the knowledge or data has been memorialized in any tangible medium or exists only in the memory and voice of the person communicating it.” McRae at 319, 721 S.E.2d 602. See The New Shorter Oxford English Dictionary 1364 (Vol.1, 1993) (“information” is “[k]nowledge or facts communicated about a particular subject, event”); Webster's Third New International Dictionary 1160 (1976) (“information” is “knowledge communicated by others or obtained from investigation, study, or instruction” or “knowledge of a particular event or situation”). We conclude, therefore, that “information” as used in OCGA § 34–9–207(a) includes oral communications and the Court of Appeals erred by interpreting OCGA § 34–9–207(a) to prohibit oral communications between a treating physician and an employer.

Despite the policy arguments set forth by McRae and amici curiae in this appeal, we discern no legal grounds for prohibiting ex parte oral communication between a treating physician and an employer to the extent confidentiality is waived by an employee in a workers' compensation case. Section 34–9–207(a) does not expressly prohibit ex parte communications and HIPAA's privacy provisions do not preempt Georgia law on the subject of ex parte communications because HIPAA exempts from its requirements disclosures made in accordance with state workers' compensation laws.¹ See 45 C.F.R. § 164.512( l ). Nor is our decision in this case controlled by our holding in Baker v. Wellstar Health System, 288 Ga. 336, 703 S.E.2d 601 (2010). Baker was a medical malpractice case, and thus the disclosure in Baker was subject to HIPAA's requirements for disclosure. Id. at 336–337, 703 S.E.2d 601. Moreover, although we acknowledged in that case that “the substantive right to medical privacy under Georgia law endures,” an employee waives this right under OCGA § 34–9–207(a) with respect to a compensable injury once a claim for workers' compensation benefits has been submitted, weekly income benefits have been received, or any medical expenses have been paid by the employer. Id. at 338, 703 S.E.2d 601. Therefore, we...