Submitted by New Jersey Workers Compensation Lawyer, Jeffrey Hark.
Decided February 6, 2016 Appellate Division affirmation of Decision of the Workers Compensation Court decision.
This is a very important case issued by the Supervisory Judge of the Camden Vicinage of New Jersey’s Workers Compensation Court. The issue addresses an employer’s entitlement to obtain any and all prior medical history records of a petitioner unrelated to the petitioner’s current claim and specifically pled injury. The procedural background for the purpose of this blog starts with the answer to the claim petition and then the employer’s attorney’s letter to the petitioner’s attorney requesting the execution of numerous releases. The employer’s answer to the claim petition requested “all records of medical treatment, examination and diagnostic studies.” Thereafter, the employer sent the following letter:
“In order for us to determine whether our client may be entitled to a credit under N.J.S.A. 34:15-12(d)(for the exacerbation of a pre-existing condition) kindly provide us with the following:
- The name and address of [Todaro’s] primary care physician for the previous ten years;
- The name and address of any chiropractor that [Todaro] treated with in the previous ten years;
- The name and address of any and all physicians who have treated [Todaro] for the conditions alleged in the above- captioned claim for the past [ten] years;
- The name and address of any allergist/pulmonary physician whom your client has treated with in the past [ten] years.
Medical authorizations which were enclosed and requested to be executed by the petitioner included this language: “Pursuant to my privacy rights under the Health Insurance Portability and Accountability Act (HIPAA), by affixing my signature below I understand and voluntarily consent to the following[.]” The “following” was an authorization to release to respondent’s counsel Todaro’s medical records, including office notes, charts, diagrams, pathology reports, operative reports, physical and lab tests, x-ray and imaging reports, prescription notes, treatment plans, and discharge summaries “from the inception of your records to the present.”
Judge Cox explicitly found:
- “the authorizations potentially requested more than ten years of medical information,
- although the employer/respondent makes reference to the statutory entitlement to investigate prior medical conditions related to the petitioner’s current claim, the enclosed releases and letter do not limit the requested materials to the body part identified in the claim petition,
- respondent’s counsel made no attempt to restrict the request “to the body, head, a member or an organ” for which Todaro had filed his claim petition. See N.J.S.A. 34:15-12
- In other words, respondent’s counsel made no effort to restrict the scope of the discovery request to the very statute counsel purportedly relied upon as authority for such request.”
Petitioner, objecting to the medical releases argued: a) respondent was not entitled to obtain the medical information it sought because the time for taking discovery had expired, b) respondent had “failed to establish even minimal meritorious legal grounds” to support its request, and c) the overly broad and invasive relief respondent sought violated the scope of N.J.S.A. 34:15-12(d) as well as HIPAA’s privacy rules. A discovery motion was entertained by the court and petitioner testified regarding the alleged 10 prior motor vehicle accident’s the employer was seeking medical records of treatment. Judge Cox denied respondent’s motion in a written opinion, concluding respondent’s demand for medical information was unnecessarily intrusive. The judge noted both that Todaro testified credibly he had received no treatment following each motor vehicle accident and respondent had “provided no evidence of any functional loss justifying the comprehensive disclosure [of Todaro’s medical information].”
The key to this case is Judge Cox’s rational based squarely on the long legislative history of the Workers Compensation system and petitioner’s expressed entitlement to expeditious medical treatment and swift resolution of a claim petition. Of greater importance was Judge Cox’s disapproval of respondent’s routine fishing expedition into [this and essentially all] petitioners’ past medical history cloaked in ‘respondent’s guarding against fraud’! (Remember, respondent’s attorney represented to the court this was a routine form letter sent out in all their cases when they represent a respondent. The office only represents respondents!)
The Judge clearly rebuked respondent’s stated objective of guarding against fraud finding “is not the function of a [r]espondent’s counsel” because . . . . . . instances of actual fraud were the exception, not the rule, and “[s]uch exceptions do not justify what appears to be [the attorney’s or respondent’s] routine incursions into [p]etitioners’ private unrelated medical history.” The judge declared, “Using the discovery process to accomplish the task is unacceptable.” Judge Cox also expressed concern such letters would have a possible chilling effect on potential claimants with legitimate claims.
The judge asked, rhetorically: “Why should a [p]etitioner be forced to disclose an abortion or physical abuse by a spouse because she/he injured a knee?” With respect to respondent’s reference to the operative report, which demonstrated Todaro had “subacromial impingement with partial thickness and likely pre-existing bursal-sided rotator cuff tear,” the judge explained that any concern respondent had could have been resolved by taking measures such as “interviewing supervisors, co-workers, and Human Resources personnel to determine whether there was any prior functional loss associated with [Todaro’s] injured parts of the body.”