After you report your work accident, and even before you file a workers compensation claim, an insurance claims adjuster will call you. The adjuster is paid to investigate your accident and gather facts. And to determine if the insurance company will have to pay workers compensation benefits to you.
The adjuster will likely ask you for two things: (1) to give a recorded statement about the accident and (2) to sign a blank Medical Records Release form so that the insurer can review your health care records and reports as part of its investigation into your claim. Your answer to both of these requests should be: No.
The purpose of this article is to explain why workers compensation insurance companies want all of your medical records and what your rights are as an injured employee who has received a Medical Authorization form.
Many of these rules apply to personal injury claims based on another’s negligence and tort law. So if you were in an auto accident on your own time, hurt by a defective product, or injured in a car accident while working, this article will help you protect your rights and maximize the amount of money you recover.
If you have any questions about Virginia workers compensation after reading this article, or are looking for a free consultation with an attorney named one of the Best Lawyers in America for work injury claims, call me: 804-251-1620 or 757-810-5614. Come see why colleagues and past clients have voted me one of the top workers comp lawyers in the state.
A Medical Authorization form, also called a General Medical Records Release or Health Insurance Portability and Accountability Act (HIPAA) Authorization, is a form you sign that allows a third party, such as an employer or insurance company, to access your medical records.
Many insurance companies use generic forms that are broad in scope and grant blanket access to all of your medical records. The Medical Authorization form may even give the claims adjuster or insurance defense attorney permission to speak with your doctors and nurses without you present.
There are several reasons the insurance company wants access to all of your medical records, including those related to treatment before the work accident. And every reason is meant to help the insurance company find a way to deny your claim or to reduce the value of your workers compensation settlement.
First, the insurance company wants to see if you have any pre-existing conditions, such as arthritis or degenerative disease, that will allow it to deny your case or delay payment. If you do, the insurer may argue that (a) your disability is related to the pre-existing condition and not a work injury or (b) you suffered a minor muscle injury at work, such as a lumbar strain, that has resolved and any ongoing disability is unrelated to the work injury.
Second, the insurance company wants to view your medical records to see if you had any prior injuries or accidents, such as a car wreck or another workers comp claim. Like pre-existing conditions, past injuries or motor vehicle accidents can serve as the basis for denial if the insurer is able to get a doctor to relate your current disability to an older problem.
Third, the insurer wants to see if you have any unrelated, chronic medical conditions that keep you from working or that may encourage you to settle your case quickly at a lower amount.
Fourth, the insurance company wants to see if you have a history of mental health problems, such as depression, anxiety, or post-traumatic stress disorder (PTSD). In my experience some claims adjusters believe that a history of mental health conditions correlates with malingering and symptom exaggeration and increases the likelihood of complaints of chronic pain and the diagnosis of complex regional pain syndrome (CRPS).
Fifth, the insurer will view your medical records for information on your home life and finances. If you talk to your doctor about increased stress due to litigation, such as a scheduled workers comp hearing, or lack of money, and your doctor puts that in your medical records, the insurer will use this info to force a lower settlement.
Sixth, the insurance company will review the description of the work accident found in your medical reports. If the description states that you do not know what caused your injuries or that your injury is the result of cumulative or repetitive trauma, the insurer will likely deny your claim.
Seventh, the insurer will review any work restrictions given by your treating physician. If your workers comp doctor does not disable you from all work or limit you to light duty work, then the insurer will not offer an Award Agreement form that provides wage loss payments, such as temporary total disability or temporary partial disability benefits.
No.
There is no legal requirement that you sign a blanket Medical Records Release form to receive workers comp benefits.
The Virginia Workers Compensation Commission will not force you to sign a broad Medical Authorization form. And you should not.
The Workers Compensation Commission may, however, force you to sign a Medical Records Release form that is sufficiently narrow in scope. I discuss what medical records the insurer is entitled to in the next section.
No.
But there are exceptions to this general rule.
The insurance company has the right to obtain relevant medical records in your case as part of the workers compensation discovery process. Usually this is done through interrogatories that ask for information about past and current medical providers and requests for production of documents that ask you to turn over all medical records and reports in your possession. The insurer’s defense counsel may also ask you about medical treatment during your deposition.
The information you have to produce is limited in scope. Usually the Workers Compensation Commission defines relevant medical records as those relating to treatment for the body parts injured in the work accident during the past five to ten years. Anything beyond that is objectionable. And you and your attorney should object to having to produce that information.
If the insurance company sends a blank Medical Records Release form, do not sign it. Instead, demand a specific Medical Authorization form that complies with both HIPAA and workers comp case law. A compliant Medical Records Release form is one that includes:
If the Medical Authorization forms you receive are limited in scope and apply to the appropriate health care providers, I usually advise my clients to sign them.
No.
Many of you are familiar with the HIPAA Privacy Rule. This rule is meant to protect your medical records and other personal health information. And many people think it means your health care records cannot be sent to other people or companies unless you give express permission to your doctor to do so.
But this is not correct.
The HIPAA Privacy Rule allows workers compensation insurance carriers, workers compensation administrative agencies, and employers to access your health information to process or adjudicate claims based on injuries on the job or work-related illnesses.
If the insurance company agrees to limit the scope of the medical records sought, and you and your attorney are comfortable signing the Medical Authorization form, there is one more thing left to do. Make sure the form states you will receive a copy of all medical records and reports received by the insurer for free.
You will need medical evidence to win your case at the workers comp hearing or get a top-dollar settlement. And even though you can get copies of medical records at a low cost if you use my HITECH Act letters and forms, you can avoid the cost altogether by getting free copies of everything the insurer gets.
You should never sign a Medical Records Release form that authorizes the insurance adjuster, your employer, or the attorney for your employer and its insurance carrier to speak with your health care providers directly. There are no exceptions to this rule.
In my experience the Workers Compensation Commission will not make you sign such a medical release and you should never do so. The insurance company and its attorneys have only one reason to speak with your health care providers – to try to get a written report or questionnaire response that will harm your case.
I often send a letter to my clients’ treating physicians that says there is no requirement that they talk with the insurance adjuster or defense attorney. Some doctors mistakenly believe that they have to discuss your case with the nurse case manager or claims adjuster to get paid. But this is not true.
Some of you with pending workers comp cases may get not only a Medical Records Release form but also an Authorization to Disclose Information from the Social Security Administration (SSA) form from the insurance company.
Usually the insurance company wants records from the SSA to see if you are receiving Social Security Disability benefits for an unrelated medical condition. If you are, the insurer will use this information to try to deny your workers comp case.
Do not sign this document. There is no benefit to doing so. And the Workers Compensation Commission does not have the authority to order you to sign a release authorizing your employer or its insurance carrier to obtain information about you from the Social Security Administration. That information is off limits.
But, as with most legal questions, there are exceptions.
It makes sense to sign an Authorization to Release Information from the SSA if you have negotiated a workers comp settlement and are either a current Medicare beneficiary or expect to become eligible for Medicare within the next 30 months. This is common if you are of retirement age or receiving both workers comp and Social Security Disability Insurance (SSDI) benefits. If so, you will want to include a Workers Compensation Medicare Set Aside Agreement (WCMSA) as part of your settlement.
You will also want to release certain information from the Social Security Administration if you are seeking cost of living adjustment (COLA) benefits in your workers comp case. COLA benefits increase the amount that workers comp pays.
Yes. These rules apply to most Medical Authorization form requests in personal injury and car accident cases.
There is no legal requirement that you sign a Medical Records Release form to receive payment under a liability insurance policy covering bodily injury. If the negligent driver’s auto insurance company asks you to release your medical records in the spirit of cooperation, decline the request.
If, however, you are seeking monetary damages under a first-party insurance policy, such as MedPay or Uninsured Motorist Coverage, the policy language may require you to sign a Medical Records Release.
As with workers comp cases, I recommend consulting with an experienced attorney before signing any forms or releases.
After you sign a blank Medical Records Release, you have little control over what happens to your records.
In addition to reviewing them to find a way to deny or limit your claim’s value, the insurance company may send your records to other parties to conduct medical records reviews or to prepare for an Independent Medical Examination (IME) or Functional Capacity Evaluation (FCE) that can then be used to minimize your injuries.
The easiest way to avoid these problems is to talk to an experienced lawyer before signing a Medical Authorization form in your work injury or auto accident case.
For a free consultation, call me: 804-251-1620 or 757-810-5614. I have helped hundreds of accident victims and injured workers throughout Virginia get favorable resolutions in their claims.