Friday, March 31, 2017
By Dennis R. Kurth, Associate Attorney
Certified Workers' Compensation Specialist
Medical releases can be problematic in Arizona workers’ compensation cases. The Arizona statute says that the medical records of a physician treating an injured worker are not privileged communications that can be withheld from “interested parties” (insurance carriers) who need the information “…for a proper understanding of the case and a determination of the rights involved.” Consequently, a claimant must sign a medical release when requested by the carrier. (A.R.S. §23-908(D)). There is often tension, however, between the carrier’s right to get medical records and the claimant’s right to privacy and to assert their doctor/patient privilege.
There is also a category of medical records unrelated to a claimant’s industrial injury that are considered discoverable by the carriers and their lawyers. Those would be records of treatment for a condition similar to the industrial injury in the past. For example, if a claimant who sustains a low back injury at work had a prior low back surgery and pain management treatment, the carrier would certainly be entitled to those records “…for a proper understanding of the case.”
Problems arise, however, when a claimant, usually one unrepresented and entering into litigation at the Industrial Commission, is presented with a medical release from the carrier or its lawyers, requiring them to give the carrier and lawyer access to any and all medical records from any doctor who ever treated the claimant for anything.
These unlimited medical releases would give the carriers and their lawyers access to sensitive, personal records of mental health, sexual dysfunction or infectious disease treatment without regard to the nature of the claimant’s industrial injury. There is always the potential that such sensitive, personal records might be used by the carrier’s attorney to embarrass the claimant at the hearing.
These open-ended medical releases usually arrive with a packet of discovery paperwork like interrogatories and a deposition notice as well as correspondence from the carrier’s lawyer threatening the claimant that the release cannot be changed or modified according to HIPPA but can only be signed and returned. This, even though HIPPA doesn’t apply to workers’ compensation medical releases.
Clearly, carriers are not entitled to such a broad unlimited, medical release under the law. The workers’ compensation statute also states that medical records pertaining to conditions unrelated to the industrial injury “shall remain privileged.” (A.R.S. §23-908(A)). A claimant who objects to signing an unlimited medical release would be on solid legal ground in doing so.