Legal Question in Workers Comp in Arizona

Re: Workman Compensation Employer Insurance Carrier

Your instincts are right: You should not have to give up all privacy rights just because you file a workers' compensation claim. The people at Gates, and their lawyers, do not care about your privacy. They want to browse through your entire medical history in hopes of finding some obscure record that will help them defend your case. They also probably do not agree that you have the right to keep unrelated medical information from your employer. The lawyer hired by Gates is SRP's lawyer.

Protecting the privacy of medical records is very difficult. Congress passed the HIPPA laws, and all the doctors and hospitals spent millions of dollars implementing new privacy policies. We have to sign fine-printed forms that say we know our rights, but in reality, it is a law with no teeth. If Gates and their attorney reveal your private medical information to SRP, there is no legal recourse. To my knowledge, no doctor, lawyer or insurance company has been successfully prosecuted or even reprimanded for violating HIPPA.

The secret, therefore, is to not let them get the records in the first place. The Arizona statute upon which they rely is ARS 23-908(D), which states,

"D. Notwithstanding section 12-2235, information obtained by any physician or surgeon examining or treating an injured person shall not be considered a privileged communication, if such information is requested by interested parties for a proper understanding of the case and a determination of the rights involved. Hospital records of an employee concerning an industrial claim shall not be considered privileged if requested by an interested party in order to determine the rights involved. Medical information from any source pertaining to conditions unrelated to the pending industrial claim shall remain privileged."

In order to protect my clients' rights, therefore, I place the following language in the release they sign:

"The type and amount of information to be used or disclosed is as follows: records that may be related to or necessary for an understanding of my workers' compensation claim/injury of [Date of Injury]. If the relationship of the records to my workers' compensation claim/injury is not clear, please contact my attorney. I authorize you to accept either verbal or written authorization for release from my attorney, Thomas R. Stillwell, at (###) ###-####. Under the conditions just stated, this release includes substance abuse, mental health and/or other specially privileged records."

Obviously insurance companies and their lawyers complain about this language, and claim that it is not lawful for me to insert it into the release, but I disagree, and I've never had a judge uphold their objections, because this language gives them access but also protects privacy. If you want to use the same language, you would obviously have to remove the references to my law firm.

Good luck.