The Illinois Workers’ Compensation Act provides employers with the right to obtain an injured worker’s medical records in order to assess the injury, the need for treatment, and determine the worker’s right to payment of workers compensation benefits.[1] Within a few days after a work related injury, the employer’s insurance company will normally ask the worker to sign an Authorization allowing the employer to obtain the medical records. However, these Authorizations are frequently overbroad in that they also allow the employer to have ex parte communications (oral communications outside of the worker’s presence) with the treating doctors. The law does not allow them to do so unless the worker expressly consents. See Petrillo v. Syntex Laboratories, Inc. 148 Ill.App.3d 581, 499 N.E.2d 952, 102 Ill.Dec. 172 (1st Dist. 1986); Hydraulics, Inc. v. Indus. Comm’n, 329 Ill. App. 3d 166, 768 N.E.2d 760, 263 Ill. Dec. 679 (2nd Dist. 2002). Workers are not required to consent to ex parte communications and should refuse to do so.
A treating doctor is entrusted with the duty to make appropriate decisions concerning the proper course of care and treatment for their patients. To make these decisions the doctor utilizes their education, training, skill, and experience as well as the information they have concerning the patient’s situation. For the most part, these decisions are supposed to be made without unnecessary intrusion by the employer, insurance carrier, or nurse case “managers.” By consenting to ex parte communications with their treating physician, workers open up their medical treatment, as well as their right to compensation benefits, to the confusion, frustration, and substantial harm that can be caused by an unscrupulous employer abusing the consent or providing false or misleading information to the doctor behind their back.
While the list of problems caused by improper ex parte communications are numerous, the more frequent abuses we see include:
1. An employer providing false or exaggerated information to the doctor’s about the worker’s personal life and activities in an effort to warp the doctor’s opinion about the need for medical care or deceive the doctor about worker’s motivation or credibility;
2. An employer providing bogus information about a “light duty” job that is available in an effort to have the worker released to return to work to a job that simply does not exist. Thereafter, the employer requires the worker to perform job duties that exceed the doctor’s restrictions or inflicts psychological stresses on the worker in an effort to force the worker to quit their job;
3. An employer providing a false job description to a doctor in order to encourage the doctor to give a release to return to work without restrictions. This frequently ends up in the employee immediately being fired or laid off, denied the right to additional temporary total disability benefits, and being denied the proper permanent disability compensation benefits. (For additional insight into the problems that can arise from faulty work releases, see https://www.hmcomplaw.com/blog/injured-workers-be-careful-with-your-release-to-return-to-work/2012/04/ .)
Given the potential for abuse, consenting to allow an employer to have ex parte communications with a treating doctor is a horrible decision.
Keep in mind that the purpose of refusing to allow ex parte communications is not to obstruct the insurance carrier or employer or prevent them from assessing your need for treatment or right to benefits. [2] It is only for the purpose of making sure that a treating doctor makes decisions based on the true facts concerning your situation and that you are aware of the information being used to make those decisions.
Suggestions on Authorizations:
• Do not sign them in blank. They should list the name of the medical provider(s) who the employer will be requesting records from.
• Make sure they are time specific, such as from the date of your accident and into the future for 120 days or so. If the employer has a need to obtain records before your accident for some reason, they can ask you to sign a specific release for specific records.
• Make sure they do not include authorization for oral or ex parte communications with the doctor or their staff. If it contains language allowing ex parte communications, cross it out before signing it.
• If you have already signed an Authorization, keep in mind that you have the right to restrict them at any time. To do so, simply give a note to your doctor restricting the Authorizations you have previously given by stating something along the order of: “I may have previously given Authorization for my employer or their insurance company to communicate with you or your staff without me being present. I hereby revoke that portion of the Authorization and request that any future communication between your office and my employer or insurance carrier concerning my care, treatment, and disability be conducted in my presence or with my knowledge and consent.” Make sure it is signed and dated.
An injured worker is just as entitled to a level playing field as the insurance company, and much more in need of it. It is their right to participate in the medical decisions being made concerning them, and to protect themselves against a devious employer trying to pull the rug out from under them behind their back. Be careful about what the Authorizations allow the employer to do and make sure they do not allow for ex parte communications.
[1] Section 8(a) of the Illinois Workers’ Compensation Act (820 ILCS 305) provides:
Access to Medical Reports
Every hospital, physician, surgeon or other person rendering treatment or services in accordance with the provisions of this Section shall upon written request furnish full and complete reports thereof to, and permit their records to be copied by, the employer, the employee or his dependents, as the case may be, or any other party to any proceeding for compensation before the Commission, or their attorneys.
[2] As was noted in the Petrillo case, modern public policy dictates that a confidential and trusting relationship exist between a patient and their physician. Ex parte communications with a legal adversary endanger the trust, faith, and loyalties a patient is entitled to rely upon with their physician, and are prohibited absent consent of the patient. Parties that are in need of information have various legal means by which they can obtain that information which also provide appropriate protection from abuse.