by Lindy Z. Kerr, Esq.

Montana Lawyers Claim the Act of Sending Surveillance Videos to Workers’ Compensation Treating Physicians Violates the Privacy Rights of Claimants
In August, two attorneys from Billings, Montana filed a petition with the Montana Supreme Court claiming state fraud investigators “routinely” violate the privacy rights of workers’ compensation claimants by failing to secure a court order permitting them to share surveillance with the treating physician and failing to tell the claimant they will be sharing the information. The petition asks the Court to issue an order prohibiting the Fund from releasing surveillance videos to treating physicians until the Fund demonstrates such action is legal, and prohibit anyone who has received surveillance from using the material. In their response, attorneys for the defense argue the action is legal because claimants waive their privacy rights to the extent that the insurer is authorized to communicate with physicians in the process of adjusting the claims, and surveillance videos are filmed in public where there is no right to privacy.

Some claimant attorneys in Georgia have been known to raise a similar argument, particularly when surveillance may be harmful to their client’s case. To date, Georgia has not enacted any law that would prohibit an employer/insurer from showing a treating physician a surveillance video. However, the State Board has taken the position that surveillance must be turned over to opposing counsel prior to a hearing if the surveillance is going to be used as evidence.

The surveillance issue raises a more general question regarding communications between the defense and treating physicians. Recently, a number of claimants’ attorneys have tried to argue that ex parte communications between defense counsel and treating physicians is prohibited by HIPAA. They contend that ex parte communications would include informal meetings and telephone conferences with the treating physician, as well as sending a letter/questionnaire to the treating physician without copying opposing counsel.

The Appellate Division at the Board has consistently upheld the right of defense attorneys to communicate informally with treating physicians. The issue of whether ex parte communications with physicians is allowed in workers’ compensation claims without first obtaining a protective order or release from the claimant is on appeal at the Georgia Court of Appeals. However, to date, the Board continues to take the position that the WC-207 a claimant signs is a HIPAA compliant release that allows for ex parte communications to take place. Also, HIPAA regulations include an express waiver allowing covered entities to disclose certain protected health information to the extent necessary to comply with state workers’ compensation laws.

Wisconsin Man Who Receives Lifetime Disability Benefits Competes in Iron Man Competition
At the age of 28, Wisconsin firefighter Aaron Marjala applied for and was awarded “duty disability”, for an ulnar nerve injury that his physicians opine render him unable to return to full duty work as a firefighter. Duty disability is a government system in Wisconsin that was set up to protect police officers and firefighters from dangers inherent in their professions. Recipients are eligible for lifetime income benefits. Mr. Marjala applied because he “can’t raise a ladder” at work. The twist is that, although Mr. Marjala is deemed to be disabled from work, he is still able to run several marathons and triathalons. His latest feat is completing in an Iron Man competition, which consists of swimming 2.4 miles, biking 112 miles and running 26 miles.

The story from Wisconsin underscores the importance of trying to stay well informed of a claimant’s activities, no matter the status of his injury. You never know how the claimant may be spending all of the extra time he has once he stops working.

Compensation Rates in Florida May Go Up Again in January 2012
The National Counsel on Compensation Insurance (NCCI) has proposed raising workers’ compensation rates in Florida effective January 1, 2012. The proposal, if passed, would result in an overall rate level increase of 8.9%. The Florida office of Insurance Regulation is expected to schedule a public hearing in October. The state already passed a rate increase last year, meaning if passed, this would be the second rate increase in two years.

There is not currently any pending legislation in Georgia that would increase the rate of compensation in the state.