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Mayfield v. Hannifin11/15/2005
btain relevant substantive information to statutorily recognized means. The question before this Court is, therefore, whether defendant's facsimile was a statutorily authorized method of obtaining information.
In N.C. Gen. Stat. § 97-80 (2003), the General Assembly authorized the Commission to adopt rules providing for and limiting the use of interrogatories and other forms of discovery in workers' compensation cases. In accordance with this authorization, the Commission adopted Rules 605 through 607, governing discovery. Workers' Comp. R. of N.C. Indus. Comm'n 605, 606, & 607, 2005 Ann. R. (N.C.) 935-37. Based on Crist, a workers' compensation defendant is limited to obtaining information from a plaintiff's physician by one of the methods recognized in those rules or as provided by other statutes.
Defendants argue that they must be allowed to contact physicians in order to direct medical treatment, to obtain records, or schedule depositions. We note that defendants are entitled by statute to obtain medical records without a plaintiff's consent. N.C. Gen. Stat. § 97-25 (2003) (" n employer paying medical compensation to a provider rendering treatment under this Chapter may obtain records of the treatment without the expressauthorization of the employee."). While the bare need for other communications cannot trump the fundamental principles set out in Crist and Salaam, we need not address precisely what non- substantive communications may be permissible since the facsimile at issue in this case cannot by any measure be considered an attempt to direct medical treatment or a non-substantive communication. It was an attempt to obtain evidence for use in the hearing before the Deputy Commissioner.
We also observe that defendant's arguments should, in any event, be presented to the General Assembly. It is for the General Assembly to weigh the policy considerations and determine what methods of disclosure should be permitted. For example, in its most recent session, the General Assembly added N.C. Gen. Stat. § 97-25.6, entitled "Reasonable access to medical information." 2005 N.C. Sess. Laws 4.8, sec. 6.1.
This new subsection of the Workers' Compensation Act provides that " otwithstanding the provisions of G.S. 8-53, any law relating to the privacy of medical records or information, and the prohibition against ex parte communications at common law," an employer or insurer paying medical compensation to a provider rendering treatment under the Workers' Compensation Act may obtain records of that treatment without the express authorization of the employee and, upon written notice to the employee, may obtain directly from the medical provider medical records relating toevaluation or treatment of the current injury or condition for which the employee is claiming compensation. Id. The new N.C. Gen. Stat. § 97-25.6 further provides:
An employer or insurer paying compensation for an admitted claim or paying without prejudice pursuant to G.S. 97-18(d) may communicate with an employee's medical provider in writing, limited to specific questions promulgated by the Commission, to determine, among other information, the diagnosis for the employee's condition, the reasonable and necessary treatment, the anticipated time that the employee will be out of work, the relationship, if any, of the employee's condition to the employment, the restrictions from the condition, the kind of work for which the employee may be eligible, the anticipated time the employee will be restricted, and the permanent impairment, if any, as a result of the condition. When these questions are used, a copy of the written communication shall be provided to the employee at the same time and by the same
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