The Health Insurance Portability and Accountability Act (HIPAA) became law in 1966. The law is designed to protect a patient’s right to privacy regarding their medical data. HIPPA regulates the privacy and security of electronic patient information. According to the Office of Civil Rights for the US Department of Health and Human Services (DHHS):
“The HIPAA Privacy Rule does not apply to entities that are either workers’ compensation insurers, workers’ compensation administrative agencies, or employers, except to the extent they may otherwise be covered entities.”
These entities do need to access the health data of employees who are hurt or work or who have an occupational illness – to judge claims and coordinate the employee’s care. Generally, this health data is obtained from the employee’s doctors and other health care providers. The doctors and providers are generally subject to the DHHS Privacy.
The HIPPA Privacy Rule generally provides an exception for sharing patient health information for workers’ compensation purposes, to the extent the disclosure is required by State (North Carolina or Virginia) law and other workers’ compensation laws, for the purpose of obtaining payment for covered health care. The employees’ health information can also be disclosed if the employee provides his/her written consent to release the medical information.
HIPAA’s Privacy Rule does require that the amount of protected health information (PHI) be the minimum necessary to meet the purposes of the workers’ compensation claim.
The relationship between worker’s compensation and your medical information which may contain information as to pre-existing injuries
Employees should understand that workers’ compensation is essentially a trade-off when it comes to your medical information and history. Employers agree to pay for your medical care. In return, the employer and workers compensation insurance company get essentially unfettered access to your medical history, including the right to know what injuries you have, what treatments you need, the cost of your treatment, and how your injuries or illnesses affect your ability to do your job. This may often include access to your medical history going back several years before your accident. This is because if your injury completely pre-existed the accident, and you were in active treatment for it at the time of the accident, then that injury is not compensable. However, if you were working full time and a pre-existing injury was aggravated by your work accident, that injury is going to be compensable. Your health care providers provides your personal health information to your employer, the insurance company for your employer or their defense attorney, and the North Carolina Industrial Commission and Virginia Workers Compensation Commission – whether you give your doctor authority to release the information or not.
The right of the employer, the employer’s insurance company, and the NC Industrial Commission or VA Workers Compensation Commission to your personal health information is in contrast to general healthcare claims. For example, if you hurt your leg while exercising or become ill due to your age, you see your family doctor, ER doctor, or specialists. These healthcare providers, based on the HIPAA Privacy Law, generally need your written authorization to release any of their exams, tests, test results, treatments, or reports to anyone (unless other exceptions apply) without your permission – including your insurance companies.
But in a worker’s compensation claim, those protections are, by statute, essentially waived or given away when you assert a claim for a work injury. This is even the case if the employer is denying your claim for your work injury. This is because the employer and insurance company are entitled to defend the claim and in order to engage in an effective defense, they will need full access to your medical history. The workers compensation laws give that to them.
Work injury health information versus your other medical records
The insurance company for your employer will often ask you to sign a medical records release form to review your worker’s compensation file. We will likely tell you not to sign it. There is simply no need for it, and we see no reason to give the doctors the impression that anyone affiliated with the insurance company can just call up the doctor and ask them questions about you.
The fact is, however, as noted above, that the worker’s compensation statutes give the defense attorney, as well as their representatives such as the nurse case manager, access to your medical records via the power of subpoena without the need for such forms. The only time you may be required to sign such medical authorization forms is if the medical provider or providers in question are outside of Virginia or North Carolina and thus outside the subpoena power of the Commission. You should ask our office to review the form to ensure that the insurance company is not exceeding what is appropriate insofar as your medical records.
Can my employer see all my patient records if I file for workers’ compensation?
Your employer and your employer’s insurance company have the right to see all your medical records for any medical care you receive for your injuries, as well as any relevant records that preceded your injury. This right is fairly absolute. As noted above, your employer may try to seek all of your medical records if there is a concern that your injuries are due to a pre-existing medical condition. Generally, your healthcare providers must comply with this request. This is usually accomplished by the defense both by discovery requests to your attorney’s office and/or via subpoena of any and all records from all providers you have seen over the last several years.
We do contest efforts by your employer and its insurance company to see everything under the sun – every medical treatment you’ve ever received going back too far before the work accident. We will object to such a request as “overly broad and not likely to lead to the discovery of admissible evidence.” If an agreement cannot be reached about what records can be viewed, a Deputy Commissioner will need to determine which records can be viewed and which cannot be viewed.
If your workplace injury worsened a pre-existing condition, you have the right to seek medical help and that injury is generally compensable, because, for example, a healthy leg that healed after a bone was fractured, was reinjured. You can seek medical help if the injury occurred while you were receiving medical care for your broken leg and the injury made that break worse – or delayed your recovery.
You may have a far more difficult time seeking workers’ compensation medical payments or payment for time off for your prior injury if you were in active medical treatment for that injury at the time of your work injury and you were already severely impacted by that pre-existing injury and on light duty.
Whether an aggravation of a pre-existing injury is compensable really depends on the opinion of your authorized, treating physician. Can he or she say that the injury was aggravated by your work injury and that the aggravation is contributing to your current disability for work and need for additional treatment? If your doctor answers “no,” or is unable give an opinion in that regard, in writing, you may not have a compensable claim. See my VIDEO on the importance of getting appropriate, written opinions from your doctors in a denied claim.
An employer may request an independent medical examination
Your employer or the insurance company for the employer can also request that you undergo an independent medical examination (IME) to determine what injuries you have and review your current medical care. We’ll review if that request for an independent medical examination is legitimate. If the request is justified, we’ll explain how the independent medical examination works.
As a prelude to that exam, it is very likely that the IME doctor will want to review any and all medical records, as well as diagnostic tests such as MRI Films or CT Scans, pertaining to your claim as well as any and all relevant prior medical records.
At Joe Miller Law Ltd., our North Carolina and Virginia workers’ compensation lawyer has been helping injured employees for 30 years. We work with your doctors and your medical team to fully understand what injuries you have and what medical help you need to get better or stabilize your health. Our lawyer understands what information you can keep private and which information your employer can access based on the HIPAA privacy rule, your permission (when granted), and through the state workers’ compensation system.
To assert your right to workers’ compensation in North Carolina or Virginia, call attorney Joe Miller, Esq., at 888-667-8295 or complete my online contact form to schedule a free consultation. We’ll fight for all the benefits you deserve.
Our law firm does have an easy way for you to provide your details of your accident and injuries if you simply want to do that electronically from the comfort and safety of your home at any time of day or night. To utilize this service, simply click here: New Electronic Case Review.
We’ll get back to you, typically within 24 hours to provide our response as to whether your situation is one where we can provide you with legal representation. If we require more information, we’ll contact you and ask for that information in order to make that determination as to whether we are the best folks to assist you. If we ultimately determine that we cannot represent or assist you, we will not leave you high and dry. We’ll do our best to provide you with other resources to assist you.