Can a claimant restrict the Employer’s ability to speak to the treating physician?
WORKERS COMP UPDATE – MISSOURI AND ILLINOIS
Can a claimant restrict the Employer’s ability to speak to the treating physician or obtain information from the treating physician?
Short Answer: In Missouri – No. In Illinois – Yes.
Recently, claimants’ attorneys have been sending me directives stating that the Employer’s Nurse Case Manager is prohibited from speaking to the treating physician. However, there is no controlling legal authority that prevents the Employer/Insurer in Missouri from having a nurse case manager speak to a treating physician, with or without the consent of the claimant.
In most circumstances, the HIPAA Privacy Rule prevents such communications. However, as you can see from this directive from The Department of Health and Human Services (click HERE ):
“Individuals do not have a right under the Privacy Rule at 45 CFR 164.522(a) to request that a covered entity restrict a disclosure of protected health information about them for workers’ compensation purposes when that disclosure is required by law or authorized by, and necessary to comply with, a workers’ compensation or similar law. See 45 CFR 164.522(a) and 164.512(a) and (l).” (Emphasis added)
The Department of Health and Human Services also specifies that the HIPAA Privacy Rule does not apply to entities that are either workers’ compensation insurers, workers’ compensation administrative agencies, or employers. (Click HERE for the entire memorandum from HHS)
I have not identified any case, statute, regulation, or any other controlling legal authority that places any limitation on the ability of an Employer/Insurer to communicate with doctor within the context of a Missouri workers compensation claim – – despite statements from claimants attorneys to the contrary.
Despite the fact that HIPAA does not apply to any employer or insurance carrier in the context of a workers compensation claim, Illinois has addressed this issue from a common law perspective.
In Petrillo v. Syntex Laboratories, Inc., 148 Ill.App. 3d 581 (1st Dist. 1986), the Illinois Court of Appeals held that defendants in a civil case were prohibited from any contact with a treating physician under the common law doctor-patient privilege. As such, defendants in civil cases can only obtain information from treating physicians through litigation discovery – – not direct communication.
In Hydraulics, Inc. v. Industrial Comm’n, 329 Ill. App. 3d 166 (2d Dist. 2002), the appellate court was asked to consider whether ex-parte conferences between an injured worker’s healthcare provider and the employer or its legal representatives are prohibited by the Petrillo Doctrine. The appellate court determined that the Petrillo doctrine DOES apply to workers’ compensation proceedings, and all such communications between the Employer and the claimant’s health care provider are prohibited.
In Illinois, please have the claimant execute an authorization (or use THIS form) which will allow the Employer or the Insurance Adjuster to communicate directly with the treating physician or medical provider.
If you have any questions about how the HIPAA Privacy Rule is or is not applicable to any Missouri or Illinois Workers Compensation claim, please let me know.