Workers' Compensation

The Death of Doctor-Patient Confidentiality

Workers' Compensation

As far back as we can remember patients have had the comfort of knowing that what they said to their doctors was going to be kept confidential. Sure, there were medical releases, and occasions when medical records were produced. And in workers’ compensation cases the insurance companies could send rehabilitation nurses (most of whom are upright, but more than a few see themselves as detectives for the adjusters) to the medical appointments. But even in those cases there has been a longstanding rule that the employer or the adjuster cannot simply call up the doctor behind your back and grill them or fill the doctor’s head with misinformation and distortions.

Any sense of decency and privacy came to an end with the new workers’ compensation law passed in June. And – most importantly – this part of the law is in immediate effect. That means even if the rest of your case is governed by the old law you have lost any meaningful sense of privacy thanks to the new legislature.

What can the adjuster or employer do?

1. Get any medical records that they (in their own opinion) is relevant – even in denied claims. Unfortunately the Industrial Commission routinely permits these records to include gynecology, mental health and marriage counseling matters.

2. Withhold copies of the records received for up to thirty days. There is no stated penalty for withholding them for a longer period of time.

3. Write to the doctor and ask questions about your diagnosis, treatment, work restrictions, causation, and permanent disability.

4. If, in the opinion of the adjuster or the employer, they wouldn’t be able to get an answer in writing they may call the doctor and chat him up. But they have to give you a summary of what the doctor said – within two weeks.

5. Mail the doctor additional “evidence” that they adjuster or the employer thinks would be “helpful.” This would include affidavits from company nurses or co-workers or private investigators saying that you didn’t really hurt yourself at work, or that they have seen you doing all sorts of things when you are supposed to be hurt.

Is this the end of the world? No, but it can cause a lot of headaches and embarrassment for injured workers. There are ways to fight back. In an effort to make this horrible law appear “fair” the legislature has put in some feeble safeguards. But the problem is they are so complicated that the average worker would have no idea how to protect themselves. Additionally, the section of the Industrial Commission which rules on most of these issues has a history of simply not seeing the big picture. Therefore it requires an aggressive and vigilant attorney to protect you from these invasions of your privacy.

As always we are here to talk about your case and how we might be able to help you. There is never a cost or obligation for doing this.

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