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DISCOVERY IN GEORGIA WORKERS COMPENSATION CLAIMS

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DISCOVERY IN GEORGIA WORKERS’ COMPENSATION CLAIMS

by

Daniel C. Kniffen Drew Eckl & Farnham, LLP Atlanta/Brunswick, Georgia

In Georgia Workers’ Compensation claims, there are discovery mechanisms which apply before and after a request for hearing has been made to initiate litigation. The rules of the Georgia State Board of Workers’ Compensation allow for discovery of certain categories of evidence after a claim is filed, even if no issues are actually in dispute, and no litigation is pending.

I. DISCOVERY WITHOUT LITIGATION

A. Mandatory Production of Documents

Rule 102(f)(1) provides that prior or subsequent to a request for hearing “the parties shall be entitled to receive from each other without cost the documents specified in Form WC-102.” Thse documents include Board forms, wage records, medical reports and job descriptions. Parties must respond to a request for documents within thirty (30) days or be subject to potential penalties and attorneys fees.

B. Independent Medical Examinations

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This Code Section also allows for the claimant, at the employer/insurer’s expense, to have one examination with a physician within fifty miles of his or her residence. O.C.G.A. § 34-9-101(e). The employee must notify the employer in writing in advance of the appointment, which must occur within 120 days of receipt of any income benefits.

C. Mediation

Although not a formal discovery device, parties to a workers’ compensation claim in Georgia may request mediation through the Board’s Alternate Dispute Resolution Unit. The Board also has authority to order the parties to mediation on its own initiative, though this is rarely done. O.C.G.A. § 34-9-100(b); Board Rule 100.

In Georgia, the mediation process is informal and non-binding, and all communications within the context of a mediation conference are confidential and may not be disclosed at a subsequent hearing. Board Rule 100(c). As a practical matter, however, parties inevitably disclose a variety of information and documents in the mediation process, and agree to voluntary discovery prior to the mediation.

D. Mandatory Medical Authorization Form

O.C.G.A. § 34-9-207 provides that when an employee has submitted a claim for compensation, “the employee shall be deemed to have waived any privilege or confidentiality concerning any communications related to the claim . . .” This waiver includes communications with any treating physician, including psychiatrists and psychologists. O.C.G.A. § 34-9-203 provides that any medical provider seeking payment for services under workers’ compensation must provide medical “reports or other documents required by the Board” before payment can be made. With these two statutes, the claimant’s medical records related to the claimed injury are fully discoverable from the outset of the claim.

O.C.G.A. § 34-9-207 also requires that during the pendency of a claim “the employee shall provide the employer with a signed release for medical records and information related to the claim.” The release specifically applies to information related to treatment for any mental condition or drug or alcohol abuse. Refusal to provide such authorization requires suspension of any weekly benefits while refusal to provide the authorization continues. The State Board of Workers’ Compensation has promulgated a medical authorization form (WC0297, attached) which satisfies the requirements of the statute, and the requirements of HIPPA as well.

II. DISCOVERY FOLLOWING REQUEST FOR HEARING A. Discovery Governed By Civil Practice Act

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hearing has been requested in the clai.” Discovery documents are not filed with the Board unless and until offered as evidence.

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B. Mandatory Exchange of Medical and Wage Information

Under Board Rule 102(E)(3), “All medical evidence regarding the treatment, testing or evaluation of the claimant for the accident which is the subject of the hearing should be exchanged between the parties as soon as practicable, but no later than ten (10) days prior to the hearing.” Similarly, if the amount of the claimant’s average weekly wage is in dispute, the parties must exchange their written contentions on this issue at least ten (10) days before the hearing.

C. Surveillance

While not specifically addressed in either statutes or rules from the State Board, most judges with the State Board of Workers’ Compensation will require the production of surveillance video or photographs over assertions that such information is protected by a work product privilege. The judges will ordinarily allow for the claimant to be deposed, however, before the surveillance evidence must be produced.

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DISCOVERY IN GEORGIA

WORKERS’ COMPENSATION CLAIMS

by

Daniel C. Kniffen

Drew Eckl & Farnham, LLP

880 West Peachtree Street, N.W.

P. O. Box 7600

Atlanta, GA 30357-0600

(404) 885-6411

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GEORGIA STATE BOARD OF WORKERS' COMPENSATION

AUTHORIZATION AND CONSENT TO RELEASE INFORMATION

TO: RE:

Employee/Patient

Social Security No.

Date of Injury

Date of Birth

This document authorizes the release of only those medical records related to the injury which is the subject of this claim for workers' compensation benefits and may be required at any time during the pendancy of the claim. The above-stated entity, facility or medical practitioner is authorized to release information to Drew, Eckl & Farnham, LLP in accordance with applicable State and Federal laws.

The information covered by this Authorization and Consent to Release is that authorized by O.C.G.A. §34-9-207 which reads as follows:

"When an employee has submitted a claim for workers' compensation benefits or is receiving payment of weekly income benefits or the employer has paid any medical expenses, that employee shall be deemed to have waived any privilege or confidentiality concerning any communications related to the claim or history or treatment of injury arising from the incident that the employee has had with any physician, including, but not limited to, communications with psychiatrists or psychologist. Notwithstanding any other provisions of law to the contrary, when requested by the employer any physician who has examined, treated, or tested the employee or consulted about the employee shall provide within a reasonable time and for a reasonable charge all information and records related to an examination, treatment, testing, or consultation concerning the employee."

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subsection, any weekly income benefits being received by the employee shall be suspended and no hearing shall be scheduled at the request of the employee until such signed release is provided."

The patient completely releases the entity, facility, or medical practitioner from any and all liability which may result or could result from the release of such information. This release is in compliance with Federal regulations (42 CFR Part 2), and the Health Insurance Portability and Accountability Act of 1996 (HIPAA). 45 CFR 164.512(1) which reads as follows: The covered entity may disclose protected health information as authorized by and to the extent necessary to comply with laws relating to workers’ compensation or other similar programs, established by law, that provide benefits for work-related illnesses or injury without regard to fault. Anyone who receives information under this document receives the same under all protection of Federal and State law inuring to the patient.

This release shall expire in 90 days or upon written notice of revocation by the patient, whichever is later. If a hearing is pending, this release shall remain in effect until and shall expire on the date the hearing is held.

Date:

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GEORGIA STATE BOARD OF WORKERS' COMPENSATION

REQUEST FOR DOCUMENTS TO PARTIES

Instructions: Prior to a request for hearing being filed in a claim, the parties shall be entitled to receive from each other the documents specified in this form. These documents shall be provided without cost as requested within 30 days of the date of the certificate of service. Neither the request nor response should be filed with the Board. FAILURE OF THE

PARTIES TO PROMPTLY EXCHANGE THESE DOCUMENTS MAY RESULT IN THE ASSESSMENT OF PENALTIES AND ATTORNEYS FEES.

A. IDENTIFYING INFORMATION

Employee Name Social Security Number

Address Date of Injury

County of Injury

Employer Name Attorney for the

Address Employee

Insurer Name Attorney for the Daniel C. Kniffen

Address Employer Post Office Box 7600

Atlanta, Georgia 30357

B. PRODUCTION OF DOCUMENTS

1. The employee hereby requests production of the following documents in the possession of the employer/insurer:

Form WC-1 Form WC R-1, 2, and 3 and all rehabilitation supplier reports

Form WC-2 Form WC-104 with supporting documents

Form WC-2a Form WC-200a

Form WC-3

Form WC-200b Form WC-205

Form WC-4 Form WC-240 with supporting documents

Form WC-6 Form WC-243

Form WC-20(a) Reports prepared pursuant to Rule 200.1(f) Form WC P-1, 2 or 3 Medical records pursuant to Board Rule 200 (c)(3) utilized by the employer Actual wage records of employee:

on the date of accident employee, from / / to / / .

similarly situated employee, from / / to / / . Copy of job description/analysis submitted to authorized treating physician

2. The employer/insurer hereby requests production of the following documents in the possession of the employee/claimant:

Wage records applicable to calculation of TPD benefits (from / / to / / ) Medical records pursuant to Board Rule 200 (c)(3)

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I hereby certify that I have this day mailed a copy of this document to the above-named parties, this _____ day of / .

Daniel C. Kniffen

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