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The most expansive discussion of confidentiality in workers’ compensation comes ironically from a civil law suit in the matter of Seymoure v. A.O. Smith Water Products Company, et. al., A-3967-14T3 (App. Div. May 11, 2016). The case arose from an asbestos law suit filed by Gwendolyn Seymoure, who sued several defendants, including Union Carbide Corporation (hereinafter UCC) for manufacturing, supplying or distributing asbestos products that led to the death of her husband from mesothelioma. Plaintiff Seymoure alleged that her husband was exposed to asbestos while making deliveries and pick-ups at UCC’s Bound Brook facility.
Seymoure filed a discovery request in 2013 seeking workers’ compensation records of other UCC employees. Eventually the Law Division judge ordered UCC to produce the records. UCC then moved for a protective order to limit disclosure of the files of other workers’ compensation claims to just this particular litigation. That request was denied. The judge required the following: 1) UCC must advise former/current employees of production of documents within seven days; 2) UCC may redact social security numbers only, but not names; and 3) UCC had to produce all documents within 14 days.
UCC appealed and contended that the court’s order violated privacy rights under the New Jersey Workers’ Compensation Act. The company argued that current and former employees have a reasonable expectation of privacy in their records. It relied onN.J.S.A. 34:15-128(a)(1) which prohibits disclosure of workers’ compensation records unless the information is provided in a way that makes it impossible to identify any claimant.
For his part, plaintiff’s counsel argued that he needed to use the records obtained in this law suit in other litigation against Union Carbide. He stated that he fully anticipated using the medical records from other employees in future litigation that he might file. Counsel also argued that N.J.S.A. 34:15-62 provides that all workers’ compensation hearings “shall be open to the public.”
The Appellate Division ruled, “As the judge’s protective order fails to adequately protect the privacy interests of UCC”s former employees, we are remanding this matter for the entry of a more comprehensive protective order. Both N.J.S.A. 34:15-128 and N.J.S.A. 34:15-128.3(a) prohibit disclosure of workers’ compensation records unless all personal identifying information has been removed. Thus, a protective order would require the redaction of all personal identifying information of the employee.”
The Court also observed that requiring hearings to be public is not the same thing as giving third parties not involved in the workers’ compensation case access to medical information of other claimants. The Court concluded, “Finally, the interest that plaintiff’s counsel has in expediting other asbestos litigation against UCC does not outweigh the privacy interests the former employees have in their medical records. Unless the former employees specifically consent to the use of their unredacted medical records beyond this litigation, the use will be limited to this matter.”
This case deals with provisions of the New Jersey Workers’ Compensation Act that seldom, if ever, draw mention from courts. It is noteworthy that hearings in the Division are open to the public by statute. Yet that does not mean that third parties can access medical information of claimants. Only the parties to the case, such as the judge, carrier, third party administrator, treating doctor, experts, and counsel have access to medical information of the claimant. There is no right of access, however, to medical information of other claimants not involved in the litigation. Had the decision in this case gone the other way, there would be no way to protect medical information of claimants in the Division.
John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group. Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at email@example.com.