Bye ByeBrown v. Bi-Lo

Presented by Harold J. Willson, Jr.

(864) 527-3270

• The effective date of the new legislation is July 1, 2007.

• The new law applies to claims with a date of accident on or after July 1, 2007.

• Section 42-15-95 (Disclosure of Existing Information) of the South Carolina Code of Laws was changed significantly by the new legislation.

• New title for Section 42-15-95 is: Release of medical records; communication of medical history by healthcare providers

• Subsection (A) is the old Section 42-15-95 with some things added and some removed.

• Subsection (B) did not exist in any form before the new legislation.

• See conference handout for a comparison.

• In 42-15-95 (A), the first sentence is what has been added and is the most significant

change in this section. It states:“Any employee who seeks

treatment for any injury, disease, or condition for which compensation is sought under the provisions of this Title shall be considered to have given his CONSENT for the release of medical records relating to such examination or treatment under any applicable law or regulation.”

• HIPPA concerns

• HIPPA exception for workers’ compensation claims

• HIPPA language is in your materials

• Subsection (A) also adds certified rehabilitation professionals as one of the

groups of people who providers must provide information to.

• Subsection (A) removed the language concerning the cost for copying medicalrecords.

• Fees for copying medical records provided by regulations

Communication with Physicians

• Subsection (B) - Eliminates Brown v. Bi-Lo impediment

• Consent of Employee no longer needed to communicate with medical providers

• 3 new Requirements to meet

• Subsection (B) provides that a healthcare provider “may discuss or communicate an employee’s medical history, diagnosis, causation, course of treatment, prognosis, work restrictions, and impairments with the insurance carrier, employer, their respective attorneys, or certified rehabilitation professionals, or the Commission without the employees consent.”

First Requirement:

The employee must be notified by the employer, carrier, or it’s representative requesting the discussion or communication with the healthcare provider in a timely fashion, in writing or orally, of the discussion or communication and may attend and participate.

• This notification must occur prior to the actual discussion or communication.

• Written notification would probably be the best method.

Second Requirement:

• The employee must be advised by the employer, carrier, or its representative of the nature of the discussion or communication they intend to have prior to the discussion or communication.

Examples:

1) Whether a particular problem is causally- related to the injury

2) What work restrictions the claimant has

3) Why a particular procedure or test is necessary

4) MMI or impairment rating

Third Requirement (use of questionnaires):• If written questions will be used, the

employee must be provided with a copy of the written questions at the same time

the questions are submitted to the

healthcare provider.

• The employee must also be provided with a copy of the response by the healthcare provider.

• “At the same time” - by the same method

• Example: If you are faxing the questions to the

doctor, they must be faxed to the claimant or the claimant’s

attorney.

• Discussion or communication must not conflict with or

interfere with the employee’s examination or treatment.

Section 42-15-95 Subsection (C)

• Any discussion, communications, medical reports or opinions obtained in violation of this Section must be excluded from any proceeding under the provisions of this Title.

• “Must be excluded”

Form 14B

• The Commission has created the Form 14B (Physician’s

Statement) which is to be used in gathering certain information from the medical providers.

• This Form must now be completed and obtained from a physician before an informal conference will be set.

• The 14B provides a place for a physician to indicate:

1) impairment rating; 2) work restrictions; 3) whether future medical care will be needed.

Other medical aspects of New Legislation

• Repetitive Trauma defined in 42-1-172 (A) – “An injury which is gradual in onset and caused by the cumulative effects of repetitive traumatic events.”

• Section 42-1-172 (D) states that: “A ‘repetitive trauma injury’ is considered to arise out of employment only if it is established by medical evidence that there is a direct causal relationship between the condition under which the work is performed and the injury.”

• “Medical evidence” in a repetitive trauma cases is defined as: “Expert opinion or testimony stated to a reasonable degree of medical certainty, documents, records, or other material that is offered by a licensed and qualified medical physician. (42-1-172 (C))

Medically Complex Cases• Section 42-1-160 (E) requires that in

medically complex cases that an employee establish by medical evidence that the injury arose in the course of employment.

• “Medically complex cases” are defined as: “Sophisticated cases requiring highly scientific procedures or techniques for diagnosis or treatment EXCLUDING MRI’s, CAT scans, x-rays, or other similar diagnostic techniques.”

Questions???