by Michael E. Memberg, Esq.

The Georgia Supreme Court has now overturned the Georgia Court of Appeals decision from December 2011. The new Arby’s Restaurant Group v. McRae decision was issued on November 5, 2012, and you can read the full decision here. Last year, the Court of Appeals held that the Georgia Workers’ Compensation Act did not entitle employers to meet ex parte with doctors ocompel a claimant to sign a release allowing the employer to meet with the doctor. In reversing the lower court, the Supreme Court has now ruled that employees’ waiver of privacy under O.C.G.A. § 34-9-207 extends to oral communications with doctors, and not just written records. However, the Court also reiterated that doctors can still refuse to meet with employers ex parte and suggested that the State Board might need to take steps to clarify the rules on how privacy is protected.

The decision falls in line with the prevailing view in Georgia that workers’ compensation cases are different than medical malpractice and personal injury litigation. The Court acknowledged that the goal of the workers’ compensation system is to quickly and efficiently get employees the benefits they are entitled to under the Act, which is facilitated by the free exchange of medical information between employers and treating physicians. The immediate effect of the decision is that employers and their attorneys can once again:

  1. meet with doctors without involving the claimant’s attorney; and
  2. send written communication to doctors without copying the claimant’s attorney.

Despite the outcome, we do not expect the landscape ever to completely return to how things were before McRae garnered such wide attention. With the decision having just come out, it will be at least a few weeks before ALJs start issuing Awards based on the decision, and it will take time for both the State Board and claimants’ attorneys to solidify their positions. For now, we expect claimants’ attorneys to take steps such as notifying doctors they can refuse to meet with employers ex parte or insisting that pre-existing medical conditions are unrelated and protected by HIPAA. In the longer term, claimants’ attorneys will likely push for more stringent Board Rules about what is protected.

As for the State Board’s response, nothing in the decision specifically requires the Board to make any changes, but we expect they will eventually take some action. One possible response would be a new Board Rule clarifying what is protected by O.C.G.A. § 34-9-207. We do not expect to see an immediate response from the legislature, but that is also a possibility.

The decision underscores the importance of employers maintaining good relationships with doctors and keeping panels current with doctors who understand the goals of the workers’ compensation system. Since claims often turn on the opinion of the authorizing treating physician, a good relationship with doctors can help keep them focused on getting employees back to work, despite outside influences.

If you have any question about the new McRae decision and what it means to you, please contact your Ken David & Associates attorney.