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Rayford H. Taylor
Of Counsel
Casey Gilson P.C.
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Atlanta, Georgia 30328
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rtaylor@caseygilson.com
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Arby's Rest. Group, Inc. v. McRae, Supreme Court of Georgia (11/05/2012)

Georgia Supreme Court Upholds an Employer's Right to Access a Workers' Compensation Claimant's Medical Records and to Discuss Case with Physician

The employee filed a claim and received workers' compensation benefits. The State Board granted the employer's motion to dismiss the employee's hearing request or for an order authorizing the treating physician to communicate with the employer's representative. The employee refused to sign the authorization and her hearing was cancelled.

The issue before the supreme court was whether O.C.G.A. § 34-9-207 required an employee who filed a claim under the Georgia Workers' Compensation Act, O.C.G.A. § 34-9-1et seq., 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.  The supreme court concluded the trial court erroneously held that an employee was not required to authorize such communications. The employer could seek relevant protected health information informally by communicating orally with the employee's treating physician. 

Section 34-9-207, by its plain language authorized a treating physician to disclose not just tangible documents, but also information related to the examination, treatment, testing, or consultation concerning the employee. The supreme court further concluded that "information" under § 34-9-207 included oral communications. The supreme court also noted that § 34-9-207 did not require the physician agree to be interviewedex parte, but allowed the physician to have his own counsel or the employee or her counsel present.

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. O.C.G.A. § 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 applies to the employee's medical history with respect to any condition or complaint reasonably related to the condition for which such employee claims compensation.

Any privilege the employee may have in protected medical records and information related to a workers' compensation claim is waived once the employee submits a claim for workers' compensation benefits, 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.