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

• Decision Date: 01 December 2011
• Docket Number: No. A11A1021.,A11A1021.
• Citation: 11 FCDR 4050,721 S.E.2d 602,313 Ga.App. 313
• Parties: McRAE v. ARBY'S RESTAURANT GROUP, INC.
• Court: Georgia Court of Appeals

11 FCDR 4050

313 Ga.App. 313

721 S.E.2d 602

McRAE

v.ARBY'S RESTAURANT GROUP, INC.

No. A11A1021.

Court of Appeals of Georgia.

Dec. 1, 2011.

Clements & Sweet, Lawrence Thomas Clements, Bruce P. Johnson, Atlanta, for appellant.

Hamilton, Westby, Antonowich & Anderson, Andrew J. Hamilton, Atlanta, James Hunter Chandler, for appellee.

Moore, Ingram, Johnson & Steele, Robert D. Ingram, Marietta, Ryan G. Prescott, Carly M. Record, Marietta, Thomas A. Eaton, Athens, Todd K. Maziar, Atlanta, amici curiae.BARNES, Presiding Judge.

Because the Workers' Compensation Act, OCGA § 34–9–1 et seq. (“the Act”), does not compel an employee to authorize her treating physician to talk to her employer's lawyer ex parte in exchange for receiving benefits for a compensable injury, we reverse the superior court's order to the contrary in this case.

In February 2006, Laura McRae suffered third-degree burns to her esophagus at work after mistakenly drinking lye that had been left in the break room in a cup similar to the one she had been using. Her employer, Arby's Restaurant Group, Inc., did not controvert McRae's workers' compensation claim and began paying income benefits in March 2006. McRae signed a Form WC–207, authorizing and consenting to the release of her medical information, which expired in 90 days, until any pending hearing, or until revoked in writing.

In September 2009, McRae's treating gastroenterologist prepared a medical narrative report in which the physician concluded that, despite “exhaustive therapy,” McRae had reached maximum medical improvement and had a 65 percent permanent body impairment. In October 2009 McRae requested a hearing on her claim for temporary total disability and permanent partial disability, which was initially set for October 20, 2009, then reset to December 17, 2009, and again to February 24, 2010.

After receiving the report, Arby's attorneys tried to schedule an ex parte consultation with the treating physician, but the physician declined to meet with them absent express permission from her patient. The attorneys then moved the administrative law judge (ALJ) to remove McRae's hearing from the calendar or issue an order authorizing the treating physician to talk to them outside the presence of McRae or her attorney. The ALJ ordered McRae to expressly authorize her physician to speak with counsel for her employer, and denied McRae's request for a certificate of immediate review by the Appellate Division. In denying the request, the ALJ concluded that McRae could informally contact the treating physician herself and “inquire about any communications made between [the physician] and the Employer/Insurer.”

McRae did not sign a release authorizing her treating physician to communicate with Arby's representatives without her presence, and the ALJ sanctioned her by removing her claim from the active hearing calendar until she did so. The Appellate Division of the Board affirmed, and McRae then sought judicial review in superior court, which likewise upheld the decision of the ALJ. McRae now appeals from the judgment of the superior court and argues, among other things, that the Act does not compel her to authorize her treating physician to communicate ex parte with representatives of her employer, and that her right to medical privacy is protected by both Georgia law and the Privacy Rule of the Health Insurance Portability and Accountability Act (“HIPAA”).¹

“[T]he substantive right to medical privacy under Georgia law endures” and is protected by the Georgia Constitution. Baker v. Wellstar Health System, 288 Ga. 336, 338(2), 703 S.E.2d 601 (2010). While a litigant waives her right to medical privacy to the extent that she places her medical condition at issue, as set forth in OCGA § 24–9–40(a), that waiver is limited to information related to the injury at issue in the litigation and any related medical history. Additionally, “the dangers associated with ex parte interviews of health care providers are numerous.” Id. at 339(3)(a), 703 S.E.2d 601. Those dangers include

(1) the potential for unwarranted probing into matters irrelevant to the litigation yet highly sensitive and possibly prejudicial to the patient-plaintiff; (2) the potential for disclosure of information, such as mental impressions not documented in the medical record, that the health care provider has never actually communicated to the patient-plaintiff; and (3) the potential for defense counsel to influence the health care provider's testimony, unwittingly or otherwise, by encouraging solidarity with or arousing sympathy for a defendant health care provider.

Id. In other words, our Supreme Court has held that ex parte communications between a litigant's treating physician and opposing counsel should be limited.

While Baker involved a medical malpractice action, and this case involves a workers' compensation claim, ex parte communications should be restricted similarly in both types of cases. The same or analogous potential dangers exist in both types of cases. Further, unlike a patient who sues her doctor for medical malpractice, an employee injured on the job has no real choice in whether to participate in the workers' compensation process. If she does not participate, under the Act's exclusive remedy provision an injured worker has no recourse to compensation. Because participation is compulsory, we should be cautious in extending the employee's waiver of her right to medical privacy.

While the superior court held that the medical privacy constraints of HIPAA are “inapplicable” in workers' compensation proceedings, we disagree. There is no wholesale exemption of the requirements of the Privacy Rule in workers' compensation proceedings. To the contrary, the Privacy Rule applies in the context of such proceedings, but it expressly permits the disclosure of information “as authorized by and to the extent necessary to comply” with the requirements of workers' compensation laws. See 45 CFR § 164.512( L ).

But the Act does not require a physician to converse ex parte with opposing counsel to share her mental impressions or the knowledge residing in her mind. Nor is an injured employee required under the Act to authorize her physician to conduct ex parte communications with opposing counsel in exchange for continued benefits.

The Act provides that a claimant waives her right to privacy regarding related “communications ... that the employee has had with any physician,” and directs 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 also requires a claimant to give the employer a release, directed to a particular provider, for “medical records and information” related to the claim, which expires on the hearing date if one is scheduled. OCGA § 34–9–207(b).

A treating physician has in her possession a number of tangible documents that constitute “information” but are not “medical records,” such as billing records or referrals. Nothing in the Act indicates that “information” was intended to mean anything but tangible documentation. To construe “information” to include future ex parte communications would lead to “absurd, impractical, or contradictory results,” which we must avoid when construing a statute. Busch v. State, 271 Ga. 591, 592, 523 S.E.2d 21 (1999). As the amicus curiae brief of the Georgia Legal Foundation put it, to construe “information” in this context to include ex parte communication between doctor and defense lawyer necessarily defines “information” in a bizarre existential manner ... as being matter residing in the mind of treating physicians, and which is ultimately expressed as a consequence of conversations and communications which take place outside the presence of the injured worker.

The legislature did not contemplate ex parte communications when drafting OCGA § 34–9–207. That Code section was added to the Act in 1991 “to facilitate the collection of medical data” and streamline the workers' compensation process. H. Michael Bagley et al., Annual Survey of Georgia Law: Workers' Compensation, 44 Mercer L. Rev. 457, 463 (1992). This new provision gave employers easier access to employees' medical records related to a workplace injury, streamlining “the determination of coverage, and ... reduc [ing] the potential for fraud.” G. Mark Cole, Workers' Compensation: Revise Extensively the Provisions Concerning Benefits and Coverage, Employer Ratings by Insurers, the Award Process, and Other Miscellaneous Aspects of the System, 9 Ga. St. U. L. Rev. 285, 290–291 (1992). Legislators “felt that the person paying the medical bills, in this case the employer, should have access to the records,” and debated “how much access was appropriate.” Id. at 290, n. 40. They compromised between confidentiality and “complete access to all records of any injured employee” by allowing the employer to have access to medical records related to the claimant's injury and any history of similar injuries. Id. The statute as a whole thus provides no support for the claim that the “information” to which an employer is entitled in OCGA § 34–9–207 includes entitlement to ex parte communications.

Therefore, while the Act requires an employee to authorize her treating physician to release relevant “medical records and information,” it does not require an employee to authorize her treating physician to communicate ex parte with the employer's lawyers in order to continue receiving benefits. Giving the employer's counsel unbridled access to ex parte communications with an employee's treating physicians would create numerous potential dangers, as noted in Baker, among them 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. 288 Ga. at 338, 703...