Behind Closed Doors: The Impact of Ex Parte Communications on Workers' Compensation Claims in Georgia

The Arby’s v. McRae Case: Facts and Ruling

In this case, the Supreme Court of Georgia ruled that the Georgia Workers’ compensation act does not prohibit secret meetings between an injured worker’s doctor and the employer’s insurance company. This ruling has significant implications for the privacy rights of injured workers in Georgia, as it allows for ex parte communications between the employer and the treating physician without the employee’s knowledge or consent.

In the McRae case, an employee at an Arby’s restaurant sustained serious injuries at work (she accidentally drank a caustic cleaning chemical that caused third-degree burns to her esophagus). Her employer accepted the workers’ compensation claim and began paying benefits. After extensive treatment, her authorized treating physician eventually declared that she had reached maximum medical improvement (MMI) and assigned a 65% permanent impairment rating to her condition. Because of this significant rating, Ms. McRae’s attorney requested a hearing to obtain additional benefits based on her permanent disability.

However, before the hearing, the employer’s attorney attempted to privately meet with the treating doctor to discuss the injury and the impairment rating. The doctor refused to have a private meeting without Ms. McRae or her attorney present, citing patient confidentiality. In response, the employer asked the Georgia State Board of Workers’ Compensation to intervene. An Administrative Law Judge (ALJ) ordered Ms. McRae to sign a release explicitly allowing her doctor to meet privately with the employer’s representatives and share information about her injury. When Ms. McRae refused to sign this release, the judge removed her case from the hearing calendar – effectively putting her claim on hold until she complied. (The judge noted that Ms. McRae could later ask her doctor what was discussed in the private meeting, indicating there’d be no official record of the conversation.)

Ms. McRae appealed this order through the legal system. Initially, the Georgia Court of Appeals agreed with her, ruling in late 2011 that nothing in the workers’ compensation law forced an employee to authorize her doctor to engage in ex parte (one-sided) talks with the employer’s attorneys. The Court of Appeals interpreted the law’s requirement to provide medical “information” as referring only to tangible records like reports, not informal private discussions. The court also voiced concern that allowing secret doctor-insurer meetings would undermine the patient’s right to medical privacy. This was a hopeful outcome for injured workers’ privacy.

But in November 2012, the Georgia Supreme Court reversed that decision.

The state’s highest court held that under Georgia’s workers’ comp statute (O.C.G.A. § 34-9-207), when you file a claim, you waive your medical privacy rights for that injury and must disclose all relevant medical information – and the Court clarified that “information” includes oral communications, not just written records. In other words, the employer or insurer is entitled to seek relevant health information informally by talking with your treating physician outside your presence. The Supreme Court noted that the workers’ comp system is designed to encourage full and efficient exchange of information, even if that means private meetings between the doctor and the employer’s side. They pointed out that under Georgia law, a worker effectively waives any HIPAA privacy rights regarding the injury once a claim is filed or benefits are accepted. Because state law permits ex parte conversations, such exchanges are not deemed to violate HIPAA in this context.

It’s important to note that the Supreme Court did offer a couple of caveats. First, they acknowledged that a treating physician cannot be forced to have a private meeting – a doctor can insist that the patient (or the patient’s lawyer) be present if the doctor is uncomfortable otherwise. Second, the Court suggested that parties could agree on certain “parameters” to respect privacy, but it declined to set any specific rules or requirements for how these private meetings should occur.

In fact, the Court left it up to the State Board or the doctors themselves to decide any ground rules, and the law does not require any notice, transcript, or record of the conversation. The end result is that in Georgia, after Arby’s v. McRae, an injured worker must allow ex parte communications between the insurance company (or employer) and the authorized treating doctor, or risk suspension of their claim – and these discussions can happen behind closed doors, with no built-in transparency about what is said.

In practice though, doctors are offered very little guidance on how to handle these requests from insurance companies and their lawyers. Many doctors may feel pressured to comply with the insurance company’s request for a private meeting, even if they are uncomfortable doing so.

This can create a conflict of interest for the doctor, who may feel torn between their duty to the patient and their obligation to the insurance company.

The Legacy of McRae: Over a Decade Later and No Progress on Patient Privacy Concerns

Thus, while we hold that Georgia law authorizes an employer to request an informal ex parte interview with a treating physician pursuant to the employee’s waiver of confidentiality, because an employee maintains a right to privacy in any health information not pertaining to the compensable injury, we urge the parties when requesting such communications, and the board when authorizing them, to set parameters consistent with privacy protections afforded under state and federal law. -ARBY RESTAURANT GROUP INC v. McRAE

The Supreme Court’s ruling encouraged the State Board of Workers’ Compensation to create parameters to protect injured workers’ rights and privacy in relation to these ex parte communications.

However, more than a decade later, the Board has not implemented any such rules or guidelines. This lack of action has left many injured workers in Georgia vulnerable to the potential pitfalls of secret meetings between their doctors and the insurance companies.

The absence of regulations means that there are no formal procedures in place to ensure that these private conversations are conducted fairly or transparently. As a result, injured workers may find themselves at a disadvantage, as they have no way of knowing what information is being shared about their medical condition or how it may impact their claims.

Doctor’s who participate in ex parte communications are still subject to the minimum necessary disclosure standard under HIPAA, which means they should only share information that is relevant to the workers’ comp claim. Georgia law only allows a waiver of privacy rights for information that is “reasonably related” to the claim. A doctor who violates this standard could face legal consequences, including tort lawsuits for breach of confidentiality.

Doctors are put in a tough position because it can be difficult to determine what information is “reasonably related” to the claim. For example, if a doctor has a long-standing relationship with a patient and has access to their entire medical history, they may be unsure about what information is relevant to the workers’ comp claim. This uncertainty can lead to over-disclosure of sensitive information, which can have serious consequences for the patient and physician. In practice, the insurance company representative will want to know everything they can about the patient’s medical history, and the doctor may feel pressured to comply with that request.

Under current Georgia caselaw, a physician who is asked to participate in an ex parte communication in a workers’ comp case may “agree to be interviewed only on the condition that their own counsel, or the employee or her counsel, is present, may request that the interview be audio or video recorded, and may share the substance of the interview with the employee and her counsel.” Mcrae v. Arby’s Rest. Grp., Inc., 742 S.E.2d 510, Ga. Ct. App.

However, without clear guidelines or oversight, there is no guarantee that this standard will be upheld in practice. This lack of accountability can lead to situations where sensitive medical information is disclosed without the patient’s knowledge or consent, further eroding the trust between patients and their healthcare providers.

It is also important to note that just because the law allows for ex parte communications does not mean that they are always appropriate or ethical. These types of meetings are permissible but not required. Many doctors may choose to refuse to participate in ex parte communications, especially if they feel that it could compromise their relationship with the patient or their ability to provide unbiased medical care. Any doctor who chooses to participate in an ex parte communication should do so with caution and ensure that they are not violating any ethical or legal obligations.

How Do Secret Meetings Affect the Doctor-Patient Relationship?

Allowing the insurance company to talk to your doctor without your knowledge can have serious implications for the trust and openness between you and your physician. The doctor-patient relationship is built on confidentiality and honesty. When you see a doctor for your injury, you expect that your personal health information will be handled with care and that decisions about your treatment will be made based on medical judgment – not on outside pressure. Ex parte communications introduce a level of secrecy that can undermine these expectations. This is especially true when the doctor does not require any parameters or guidelines for the meeting. Even if the doctor maintins the minimum necessary disclosure standard, undocumented conversations can lead to misunderstandings and mistrust between the patient and the doctor.