Employers are expected to provide safe working conditions, and are responsible for injuries resulting from unsafe working conditions. This means that you, as an employer, are required by law to cover the medical costs resulting from unsafe working conditions. Georgia law requires you to go through the complicated Workers’ Compensation system to resolve such instances. And with complexity comes costs to you and your business, so it’s important to understand how to navigate the medical privacy laws that affect the Workers’ Compensation system—that is, whether the employer is entitled to access the injured employee’s medical records in order to assess liability.

The common narrative is that, in the event of a workplace injury, the employer should be held liable. There are even commercial campaigns reinforcing this narrative, unfairly prejudicing employers. Being presumed guilty only increases the costs of an already uphill battle of reaching a fair settlement through the Workers’ Compensation system.

Here is what employers need to know in order to counter this costly prejudice: In Georgia, an employer is entitled to the medical records of an injured employee, and can even communicate directly with the employee’s treating physician—in legal jargon, “ex parte” communications.

This is important for three reasons. (1) The medical costs are calculated by the extent of the injury; (2) the injury must have been caused by the unsafe workplace conditions; and (3) medical records can reveal that the extent of the injury—think preexisting conditions—is beyond the employer’s responsibility. Combining these three reasons, means that even assuming the injury was the employer’s fault, medical records can offer information to reduce an employer’s liability, i.e., your business costs.

Again, the issue is access to medical records. But employer access to employee medical records is complicated because of a federal law, the Health Insurance Portability and Accountability Act (“HIPAA”). HIPAA protects a patient’s medical records from being disclosed; however, the federal law provides an exception in the case of some state workers’ compensation proceedings.

So how does HIPAA apply to Georgia’s Workers’ Compensation proceedings? Relevant here is O.C.G.A. § 34-9-207, a Georgia statute permitting employees to give access to their medical records to their employers, in addition to allowing employers to communicate with the employee’s doctor directly. This was litigated all the way up to the Georgia Supreme Court in 2011 in McRae v. Arby’s Rest. Group, which essentially held that Georgia’s State Board of Workers’ Compensation may order an employee to sign a patient authorization allowing his/her employer’s attorney to engage in “ex parte” communications with his/her authorized treating physician.

To simplify, HIPAA does not apply to Georgia’s Workers’ Compensation system, and Georgia employers may both access the physical medical records of an employee, and may communicate directly with the doctors who treated the employee and created the medical records.

For further information or advice on Workers Compensation law in Georgia, contact The RAD Firm.