BEST PRACTICES: Obtaining Medical Records to Defend Your Claim

It is common for claimant’s attorneys to assert that employers, carriers and third-party administrators–or their attorneys–may not contact “their”doctors. This is completely improper and misleading. Claimant’s treatment providers qualify as non-party witnesses. Claimant’s attorneys do not and should not represent the doctors who are treating their claimants. The providers are supposed to be independent and impartial. If they claim they do represent the providers, demand a copy of the Retainer Agreement or other written proof of this alleged relationship. You may need it to support a claim for “improper influence” of the providers. “[T]he improper influencing or attempt by any person improperly to influence the medical opinion of any physician who has treated or examined an injured employee, shall be a misdemeanor.” See WCL Sec. 13-a(6).

In an idiotic move, the N.Y. Civil Practice Law and Rules (“CPLR”) were amended to require these defendants to include a signed HIPAA-1 authorization for release of the claimant’s medical records, but this does not mean claimants–or their attorneys–can deny that authorization. I recommend that all claims representatives send the HIPAA-1 request immediately to the claimant (if unrepresented) or his attorneys (if represented) at the outset of the claim. The request should include a time limit (e.g., 10 days) for a response and a demand for a list of all physicians, facilities and providers that have treated, tested or evaluated the claimant in relationship to this accident. If they do not respond within the time period, request a hearing on the issue by filing Form RFA-2. In at least one reported case and several unreported ones, the claimant’s refusal to sign an unrestricted medical release resulted in closure of the claim. See In re North Colone Central School, 2003 NY Work Comp LEXIS 83331 (WCB No. 50120005, 06/12/03).

As I have often said, attorneys often get in the way of resolution. Be aggressive in asserting your rights. Once claimants place their health at issue by filing a claim, they waive the physician-patient privilege and other privacy protections. See 45 CFR Parts 160, 164 (HIPAA), NY Publ Health Law Sec 18(1), (6). You may have to jump through a few hoops, but you can and must enforce your rights to investigate claims and maintain the integrity of the system.

Nance L. Schick, Esq. is a mediator, and conflict resolution coach based in New York City, where she works with creative professionals, entrepreneurs, human resources professionals, labor managers, risk managers, and executives to generate results beyond the boundaries of their imaginations. She is committed to creating a unified human race by empowering people to have lives they forgot were possible.