It can be easy to take the privacy of your personal medical information and private life for granted when no one is actively snooping around in them. But if you get injured at work, you may find your privacy invaded by workcover insurance companies ravenous for any evidence that can be used to deny your workers’ compensation claim.
Workers compensation insurers and their snooping
Medical records & Papers, please
Workcover insurers have a legitimate need and legal right to obtain medical information that pertains to a workers’ compnsation claim. In some cases this right may cover medical records that go back several years.
For example, the AMA states that “It is clear from reports to the AMA that legal advisers and insurance companies often request or ‘fish’ for patients’ entire health records from their treating doctor, using the method as a way of obtaining information for medico-legal or insurance purposes. Medical practitioners continue to report their concerns over the disclosure of their medical records to patients and lawyers through the use of subpoenas rather than seeking a medical report…”
Medical records are protected under the Health Records Act which includes the HPP. The rule basically requires that the records be “limited to the minimum necessary to accomplish the workers’ compensation purpose,” but this leaves ample room for insurance defense to argue about what the “minimum necessary” includes.
I spy with my little eye
As you may be well aware by now, injured workers’ privacy concerns don’t start nor end with their medical records. Workcover insurers can and will often also employ private investigators to find evidence that an injured worker is “fit enough” for work or, God forbid, is earning income (committing fraud) while collecting workcover benefits.
We have been told of cases where some thick workcover case managers and/or defense lawyers have even asked for the passwords of their injured workers’ private Facebook accounts!
In some cases, even though you may refuse to give access to your private social network accounts (i.e. Facebook), a particular nasty workcover insurer may try to subpoena your password to your site(s) – how sick! A court (judge) may grant the insurer access to your Facebook or MySpace pages if they deem it “relevant”.
In an American case, for example, the New York Supreme Court granted access to the injured worker’s private Facebook and MySpace pages. Kathleen Romano’s employer wanted access to her holiday pictures. The court found that because Romano’s public profile picture “shows her smiling happily in a photograph outside the confines of her home despite her claim that she has sustained permanent injuries and is largely confined to her house and bed” it was likely she might have posted other photos that disproved her claim of “loss of enjoyment of life.”
Needless to repeat that we believe that you – the injured worker – need to be extremely vigilant should you post on Facebook or MySpace, or Twitter. Ensure you keep the settings to the “private” mode at all times and be very careful on what you write, how you write and what kind of pictures you display, if any. Most injury lawyers highly advise any injured worker eligible for a common law damages claim to suspend their Facebook and other Social media accounts until settlement has been achieved.
Motive for requesting excessive medical information
The most obvious aim of workocover insurers requesting excessive medical information or investigating injured workers is obviously to discover grounds for denying workcover claims, but these can also be effective pressure tactics.
The desire to preserve medical privacy or escape surveillance can sometimes be enough to convince an injured worker to drop a claim altogether. Sheer intimidation tactics at work again!
When workcover insurance comapnies start demanding all of this information, injured workers often get scared. Don’t be, but if you feel uncomfortable with the amount or type of information being requested by your employer or their workcover insurer, contact your lawyer!
To what lengths workcover insurers will go to get that “information”
According to our anonymous “insider”, “there is no way to tell or know of the past medical injury of a newly injured worker”. “Most case managers do not believe an injured worker’s statement, especially not if they have an injury to their back ,knee or shoulder”, s/he says.
“Therefore being able to trace prior medical records for the current injury in question is very important as it can affect the overall compensability of the workcover claim. Usually, when there is a delay in accepting (or denying) a workcover claim it has to do with the case manager trying to locate the past medical records.”
“If a search is done and it shows the injured worker had a prior injury or workcover claim, the case manager will also contact the (previous) insurance carrier for information on the details claim. However most insurance carriers will not volunteer this information without a signed release – same with doctors , most providers will not send this information without a signed release.”
“So these days it is standard that when a new injury occurs a request fr a medical release is sent to the injured worker – usually it is on the injury form. However, the employer cannot force the injured worker to sign, but non-compliance is not going to help in the long run and may only increase suspicion that there is something to hide.”
“If the case manager can’t find past medical records relating to the injury, the the injured worker is sent to an IME to make the decision whether there is a causal relationship between the injury and the employment.”
When completing this IME request report, case managers have to ensure to have as many of the past medical records as possible, along with the facts of ANY past prior injury. This will make sure, s/he says, that the decision the IME doctor makes is the “correct one” when it comes to the compensability of the workcover claim.
Another thing they are told is that they have to be sure to “choose the correct physician” and specialty for making this decision. They also have to write a comprehensive cover letter, and give the IME doctor direct questions to answer about how this current injury can relate to the work, and not to anything prior.
If they are still unable to locate past medical records and are at a dead end as it were, our insider tells us that many insurance companies will consider using “outsiders” to do “sweeps for medical records”. For example, a “pharmacy sweep” may show which doctor prescribed certain medication. If the injured worker was prescribed an opiate drug in the past, consider that a red flag for a decently serious injury.
They can do the same with MRIs for example and do an “MRI sweep”. If an injured worker has had past MRIs on the back or neck or shoulder (or knees), “they must have sustained a serious injury for needing that type of test” . Hospital “sweeps” can also be done, to see if the worker had any treatment in an emergency department due to an injury.
So, according to our insider, workcover insurers often believe that there is a “hidden key” in an injured worker’s past medical records, to DENY a genuine workcover claim! How often have we not heard about an injured worker who has catastrophically injured their back at work, or shoulder, only to be DENIED their legit workcover claim because the insurer had found that “the worker had some arthritis or degenerative changes yonks ago”? The fact is virtually everybody has “degenerative changes”, that’s part of ageing!