DISCOVERY IN GEORGIA WORKERS COMPENSATION CLAIMS

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1 DISCOVERY IN GEORGIA WORKERS COMPENSATION CLAIMS by Daniel C. Kniffen Drew Eckl & Farnham, LLP Atlanta/Brunswick, Georgia In Georgia Workers Compensation claims, there are discovery mechanisms which apply before and after a request for hearing has been made to initiate litigation. The rules of the Georgia State Board of Workers Compensation allow for discovery of certain categories of evidence after a claim is filed, even if no issues are actually in dispute, and no litigation is pending. I. DISCOVERY WITHOUT LITIGATION A. Mandatory Production of Documents Rule 102(f)(1) provides that prior or subsequent to a request for hearing the parties shall be entitled to receive from each other without cost the documents specified in Form WC-102. Thse documents include Board forms, wage records, medical reports and job descriptions. Parties must respond to a request for documents within thirty (30) days or be subject to potential penalties and attorneys fees. B. Independent Medical Examinations An employer may compel a claimant seeking workers compensation benefits to attend a medical examination at reasonable times and places at any time during the pendency of the claim. The employer must pay all costs associated with the examination, including mileage expense, which msut be prepaid. Under Board Rule 200(c), the employer must provide at least ten (10) days notice of the examination, and the statute allows for the claimant to have present at the examination any duly qualified physician or surgeon provided and paid by him. O.C.g.A (b). 1

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3 This Code Section also allows for the claimant, at the employer/insurer s expense, to have one examination with a physician within fifty miles of his or her residence. O.C.G.A (e). The employee must notify the employer in writing in advance of the appointment, which must occur within 120 days of receipt of any income benefits. C. Mediation Although not a formal discovery device, parties to a workers compensation claim in Georgia may request mediation through the Board s Alternate Dispute Resolution Unit. The Board also has authority to order the parties to mediation on its own initiative, though this is rarely done. O.C.G.A (b); Board Rule 100. In Georgia, the mediation process is informal and non-binding, and all communications within the context of a mediation conference are confidential and may not be disclosed at a subsequent hearing. Board Rule 100(c). As a practical matter, however, parties inevitably disclose a variety of information and documents in the mediation process, and agree to voluntary discovery prior to the mediation. D. Mandatory Medical Authorization Form O.C.G.A provides that when an employee has submitted a claim for compensation, the employee shall be deemed to have waived any privilege or confidentiality concerning any communications related to the claim... This waiver includes communications with any treating physician, including psychiatrists and psychologists. O.C.G.A provides that any medical provider seeking payment for services under workers compensation must provide medical reports or other documents required by the Board before payment can be made. With these two statutes, the claimant s medical records related to the claimed injury are fully discoverable from the outset of the claim. O.C.G.A also requires that during the pendency of a claim the employee shall provide the employer with a signed release for medical records and information related to the claim. The release specifically applies to information related to treatment for any mental condition or drug or alcohol abuse. Refusal to provide such authorization requires suspension of any weekly benefits while refusal to provide the authorization continues. The State Board of Workers Compensation has promulgated a medical authorization form (WC0297, attached) which satisfies the requirements of the statute, and the requirements of HIPPA as well. II. DISCOVERY FOLLOWING REQUEST FOR HEARING A. Discovery Governed By Civil Practice Act O.C.G.A (d) mandates that discovery procedures in Georgia workers compensation claims are governed by the Georgia Civil Practice Act, O.C.G.A et. seq., which models the Federal Rules of Civil Procedure in many respects. Board Rule 102(F)(2) provides that Discovery filed pursuant to the Civil Practice Act shall only be permitted after a 3

4 hearing has been requested in the clai. Discovery documents are not filed with the Board unless and until offered as evidence. B. Mandatory Exchange of Medical and Wage Information -2- Under Board Rule 102(E)(3), All medical evidence regarding the treatment, testing or evaluation of the claimant for the accident which is the subject of the hearing should be exchanged between the parties as soon as practicable, but no later than ten (10) days prior to the hearing. Similarly, if the amount of the claimant s average weekly wage is in dispute, the parties must exchange their written contentions on this issue at least ten (10) days before the hearing. C. Surveillance While not specifically addressed in either statutes or rules from the State Board, most judges with the State Board of Workers Compensation will require the production of surveillance video or photographs over assertions that such information is protected by a work product privilege. The judges will ordinarily allow for the claimant to be deposed, however, before the surveillance evidence must be produced

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6 DISCOVERY IN GEORGIA WORKERS COMPENSATION CLAIMS by Daniel C. Kniffen Drew Eckl & Farnham, LLP 880 West Peachtree Street, N.W. P. O. Box 7600 Atlanta, GA (404)

7 GEORGIA STATE BOARD OF WORKERS' COMPENSATION AUTHORIZATION AND CONSENT TO RELEASE INFORMATION TO: RE: Employee/Patient Social Security No. Date of Injury Date of Birth This document authorizes the release of only those medical records related to the injury which is the subject of this claim for workers' compensation benefits and may be required at any time during the pendancy of the claim. The above-stated entity, facility or medical practitioner is authorized to release information to Drew, Eckl & Farnham, LLP in accordance with applicable State and Federal laws. The information covered by this Authorization and Consent to Release is that authorized by O.C.G.A which reads as follows: "When an employee has submitted a claim for workers' compensation benefits or is receiving payment of weekly income benefits or the employer has paid any medical expenses, that employee shall be 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 psychologist. Notwithstanding any other provisions of law to the contrary, when requested by the employer any physician who has examined, treated, or tested the employee or consulted about the employee shall provide within a reasonable time and for a reasonable charge all information and records related to an examination, treatment, testing, or consultation concerning the employee." "When an employee has submitted a claim for workers' compensation benefits or is receiving payment of weekly income benefits or the employer has paid any medical expenses, the employee shall provide the employer with a signed release for medical records and information related to the claim or history or treatment of injury arising from the incident, including information related to the treatment for any mental condition or drug or alcohol abuse. Said release shall designate the provider and shall state that it will expire on the date of the hearing. If the employee refuses to provide a signed release for medical information as required by this 7

8 subsection, any weekly income benefits being received by the employee shall be suspended and no hearing shall be scheduled at the request of the employee until such signed release is provided." The patient completely releases the entity, facility, or medical practitioner from any and all liability which may result or could result from the release of such information. This release is in compliance with Federal regulations (42 CFR Part 2), and the Health Insurance Portability and Accountability Act of 1996 (HIPAA). 45 CFR (1) which reads as follows: The covered entity may disclose protected health information as authorized by and to the extent necessary to comply with laws relating to workers compensation or other similar programs, established by law, that provide benefits for work-related illnesses or injury without regard to fault. Anyone who receives information under this document receives the same under all protection of Federal and State law inuring to the patient. This release shall expire in 90 days or upon written notice of revocation by the patient, whichever is later. If a hearing is pending, this release shall remain in effect until and shall expire on the date the hearing is held. Date: Employee/Patient Signature 8

9 GEORGIA STATE BOARD OF WORKERS' COMPENSATION REQUEST FOR DOCUMENTS TO PARTIES Instructions: Prior to a request for hearing being filed in a claim, the parties shall be entitled to receive from each other the documents specified in this form. These documents shall be provided without cost as requested within 30 days of the date of the certificate of service. Neither the request nor response should be filed with the Board. FAILURE OF THE PARTIES TO PROMPTLY EXCHANGE THESE DOCUMENTS MAY RESULT IN THE ASSESSMENT OF PENALTIES AND ATTORNEYS FEES. A. IDENTIFYING INFORMATION Employee Name Address Employer Name Address Social Security Number Date of Injury County of Injury Attorney for the Employee Insurer Name Attorney for the Daniel C. Kniffen Address Employer Post Office Box 7600 Atlanta, Georgia B. PRODUCTION OF DOCUMENTS 1. The employee hereby requests production of the following documents in the possession of the employer/insurer: Form WC-1 Form WC R-1, 2, and 3 and all rehabilitation supplier reports Form WC-2 Form WC-104 with supporting documents Form WC-2a Form WC-200a Form WC-200b Form WC-3 Form WC-205 Form WC-4 Form WC-240 with supporting documents Form WC-6 Form WC-243 Form WC-20(a) Reports prepared pursuant to Rule 200.1(f) Form WC P-1, 2 or 3 Medical records pursuant to Board Rule 200 (c)(3) utilized by the employer Actual wage records of employee: on the date of accident employee, from / / to / /. similarly situated employee, from / / to / /. Copy of job description/analysis submitted to authorized treating physician 2. The employer/insurer hereby requests production of the following documents in the possession of the employee/claimant: Wage records applicable to calculation of TPD benefits (from / / to / / ) Medical records pursuant to Board Rule 200 (c)(3) C. CERTIFICATION 9

10 I hereby certify that I have this day mailed a copy of this document to the above-named parties, this day of /. Daniel C. Kniffen Print Name Signature 10