On November 5, 2012, the Supreme Court of Georgia reversed the Court of Appeals holding in Arby’s Restaurant Group, Inc. et al. v. McRae.

At the trial level, McRae had been directly ordered by the State Board to sign a medical release “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.  However, a majority of the Court of Appeals reversed, holding that O.C.G.A. § 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.

On appeal, the Supreme Court of Georgia reviewed whether O.C.G.A. §34-9-207 requires an employee who files a claim under the Georgia Workers’ Compensation Act to authorize her treating physician to engage in ex parte communications with her employer or an employer representative in exchange for receiving benefits from a compensable injury.  In no uncertain terms, the Supreme Court of Georgia found that the Court of Appeals erred when it held that §34-9-207’s waiver of confidentiality did not encompass ex parte communications with physicians.

The Supreme Court of Georgia found the Court of Appeals analysis of the term “information”, as being limited to tangible documentation, was erroneous.  Per the Supreme Court, “information”, as used in § 34-9-207 (a), includes oral communications between a treating physician and an employer.  Furthermore, with regards to HIPAA rights, the Supreme Court of Georgia restated that an employee waives these rights under § 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. Furthermore, the Supreme Court noted that §34-9-207 does not comment on the method or manner by which physicians may disclose records or information.

However, the Court held that treating physicians cannot be compelled to agree to be interviewed ex parte, physicians may still request that the Claimant be present, and may share any information from ex parte communications with the Claimant or his or her representatives. The Court’s decision now affirms the intent and purpose of the General Assembly when they adopted the Workers’ Compensation Act.  Significantly, the decision ensures that full disclosure and equal access to relevant information will continue, which includes ex parte communications between the Claimant’s treating physicians and his or her employer and their representatives.

 By: Ashik Jahan, Esq. & David Dix, Esq.