Bandorf v. Volusia Dept. of Corrections

• Decision Date: 16 October 2006
• Docket Number: No. 1D06-0579.,1D06-0579.
• Parties: John BANDORF, Petitioner, v. VOLUSIA COUNTY DEPARTMENT OF CORRECTIONS and County of Volusia, Respondents.
• Court: Florida District Court of Appeals

939 So.2d 249

John BANDORF, Petitioner, v. VOLUSIA COUNTY DEPARTMENT OF CORRECTIONS and County of Volusia, Respondents.

No. 1D06-0579.

District Court of Appeal of Florida, First District.

October 16, 2006.

Mark L. Zientz and Andrea Cox of Law Offices of Mark L. Zientz, P.A., Miami, for Petitioner.

Nancye R. Jones, Assistant County Attorney, Deland, for Respondents.

ALLEN, J.

In his petition for a writ of certiorari, the claimant in a workers' compensation case seeks review of a discovery order by which the judge of compensation claims directed that copies of the petitioner/claimant's psychiatric records must be provided to the respondents/employer/carrier. Because these records are privileged under clearly established principles of law, and because their production would cause irreparable harm which could not be remedied upon appeal from the final order in this case, we grant the petition and quash the order.

The petitioner filed a petition for workers' compensation benefits, alleging that he was injured as a result of repetitive exposure to mold, toxic substances, and chemicals at his workplace, which he claims is a "sick building." He requested authorization and payment for the evaluation, care, and treatment of hypersensitivity, immune deficiencies, fatigue, and other "neurological symptoms." He also requested neurodiagnostic studies to "determine, better diagnose, and treat the neurological deficits caused by sick building exposure." The respondents controverted the claim and sought to subpoena records from two psychiatrists who had treated the petitioner. The petitioner objected to the requested production of the records, arguing that they were protected from disclosure by the psychotherapist-patient privilege codified in section 90.503, Florida Statutes. Theorizing that some of the symptoms of which the petitioner complained—specifically, "fatigue and neurological symptoms"— might be the product of a mental or emotional condition, or of medicines administered for treatment of a mental or emotional condition, the respondents countered that the privilege did not apply because the petitioner was relying upon his mental or emotional condition as an element of his workers' compensation claim. Agreeing with the respondents that the privilege did not apply, the judge of compensation claims entered the order under review.

Section 90.503(2), Florida Statutes, provides that the patient of a psychotherapist has a privilege to refuse to disclose, and to prevent any other person from disclosing, confidential communications or records made for the purpose of diagnosis or treatment of the patient's mental or emotional condition. Material to the present case, section 90.503(4)(c), provides an exception to this privilege for "communications relevant to an issue of the mental or emotional condition of the patient in any proceeding in which the patient relies upon the condition as an element of his or her claim or defense. . . ."

Although the exception to the privilege applies when a plaintiff or claimant asserts that mental anguish or emotional distress has resulted from the defendant's negligence (in the case of a plaintiff in a negligence action) or from an industrial injury (in the case of a claimant in a workers' compensation case), see, e.g., Nelson v....