Georgia: Claimant Required to Consent to Ex Parte Communications Between Treating Physician and Employer or Employer’s Representative

Reversing the state’s Court of Appeals, the Supreme Court of Georgia has ruled that an employee who filed a claim under the state’s Workers’ Compensation Act, must authorize her treating physician to engage in ex parte communications with her employer, or an employer representative, in exchange for receiving benefits for a compensable injury. The high court concluded that the employer could seek relevant protected health information informally by communicating orally with the employee’s treating physician; it was not limited to tangible documents within the medical file [Arby’s Restaurant Group, Inc. v. McRae, 2012 Ga. Lexis 865 (Nov. 5, 2012)]. The supreme court reasoned that under O.C.G.A. § 34–9–207, “information” included oral communications. The supreme court further noted that it was permissible for a physician to condition the physician’s consent to be interviewed on the presence of the physician’s own counsel, or the presence of the employee or the employee’s counsel. Moreover, the physician could require the interview be audio or video recorded, and that the substance of the interview be shared with the employee and his or her counsel.