(c) 2018 Jon L Gelman, All Rights Reserved.

Monday, February 8, 2016

Defense Firm Prohibited From Seeking Unfettered Medical Discovery

A defense firm, that had a “custom” of seeking unlimited medical discovery in workers’ compensation claims, was barred from utilizing that litigation tactic. The NJ Appellate Division affirmed the trial level decision of The Honorable Emille R. Cox, Supervising Judge of Compensation that prohibited requests for unlimited medical data.

At the trial level, Judge Cox, in a written option held that the conduct of the defense law firm in utilizing a demand for unlimited medical records as a litigation tactic was:
    • “unnecessarily intrusive”, 
    • “delayed” the determination of workers’ compensation claims and that was counter to  the summary remedial administrative proceeding that the legislature intended, 
    • had a potentially “chilling effect” on injured workers’ elected to proceed with a workers’ compensation claim, and 
    • the defense firm's conduct, “under the guise of zealous advocacy boarded on the contempt.”
The defense firm, representing the employer, followed its usual practice of immediately, and concurrently upon filing an Answer, sought unlimited authorization for medical records of the injured worker for a period of the previous 10 years prior to the accident. The proposed authorization further stipulated that the injured workers’ HIPPA rights were waived. The defense firm even sought records from potentially pre-existing medical conditions that would extend that authorization without time limitation.

The employer’s lawyers indicated that it was “their custom” to seek such information universally in every claim they defended. The defense law firm argued that it was to seek information to evaluate pro functional disability and to prevent fraud.

The injured worker’s lawyers argued that the  defense firm had “….’failed to establish even minimal meritorious legal grounds’ to support its request, and the overly broad and invasive relief sought violated the scope of N.J.S.A. 34:15-12(d) as well as HIPPA’s privacy rules.”

The Appellate Court, in affirming Judge Cox’s ruling, stated:

“The motion was resolved after a hearing in which respondent's [Defense/Employer] attorney was permitted to examine Todaro [Injured Worker] about the previous motor vehicle accidents. Judge Cox denied respondent's [Defense/Employer] motion
in a written opinion, concluding respondent's [Defense/Employer] demand for
medical information was unnecessarily intrusive. The judge noted both that Todaro [Injured Worker] testified credibly he had received no treatment following each motor vehicle accident and respondent had "provided no evidence of any functional loss justifying the comprehensive disclosure [of Todaro's [Injured Worker] medical information]. 

“Judge Cox raised several concerns. He noted that respondent's stated objective of guarding against fraud "is not the function of a [r]espondent's counsel [Defense/Employer].” The judge explained that instances of actual fraud were the exception, not the rule,and "[s]uch exceptions do not justify routine incursions into [p]etitioners' [Injured Worker] private unrelated medical history." The judge further noted that employers who were convinced that fraud is rampant in the workers' compensation system are free to utilize the services of investigators to eradicate the problem. Using the discovery process to accomplish the task is unacceptable 

“Next, the judge noted that during argument, respondent's counsel stated her letter demanding medical information was "a standard form letter that was sent out by my office." Judge Cox explained that such letters surpass limited discovery practice contemplated by workers' compensation regulations. The judge also expressed concern that such letters would have a possible chilling effect on potential claimants with legitimate claims. The judge asked, rhetorically: "Why should a [p]etitioner be forced to disclose an abortion or physical abuse by a spouse because she/he injured a knee?" [Emphasis Added]

The Workers’ Compensation Act established an administrative system that was created to provide a direct remedy to injured workers in a summary, remedial fashion. Extensive and overly broad, discovery impedes the legislative intent of the social remedial system and is deleterious to the expeditious remedy intended by the crafters of the social insurance program. As previously discussed, the potential infringement of the rights of injured workers to privacy, i.e.. medical and genetic information, should not be permitted. See, "Whose Business Is It Anyway? The Compelling Need for Privacy of Medical Records in the Workplace", 150 N.J.L.J. 592 (November 16, 1998). Furthermore, the use of trial tactics that merely increase litigation costs and delay claims should be discouraged.

The rights of injured workers need to be protected by courts of compensation. Defense firm litigation tactics that that are excessive, and counter to the legislative intent of the Workers’ Compensation Act, should be discouraged.

Tordaro v Gloucester County Department of Corrections, A-0204-14T2, 215 WL 995827, (N.J. App. Div. 2016) Decided February 4, 2016

Jon L. Gelman of Wayne NJ is the author of NJ Workers’ Compensation Law (West-Thompson-Reuters) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thompson-Reuters). For over 4 decades the Law Offices of Jon L Gelman  1.973.696.7900  have been representing injured workers and their families who have suffered occupational accidents and illnesses.