We all know the routine. Claimant’s counsel sends a letter to the claims administrator introducing himself/herself and to advise that all prior authorizations signed by the claimant are null and void. Thus, putting an end to the investigative process concerning medical. Later, when the case is in litigation, the claimant testifies that he or she was in “perfect” health prior to the incident at work. The claimant denies any prior treatment or issues. The Defense attorney requests a subpoena and obtains records from the primary care physician and the records paint a different picture. This is the ideal situation. But we know the timeframe is extremely limited. The attorney letters come early, and we often see providers who will not release records despite a subpoena without an authorization signed by the Claimant. The authorizations are sent to Claimant’s counsel and disappear.
The process often feels like a treasure hunt. We need to find the X on the map. Maybe when we dig we find buried treasure, or perhaps an empty vault. Time is of the essence when cases are in litigation. What can we do to ensure we obtain medical documents that could prove beneficial to defend a Claim Petition? First, continue obtaining the authorizations, consider conducting a recorded statement of the claimant to determine prior treatment and providers. Request a claim search to unveil prior injuries, motor vehicle accidents or personal injury claims. Utilize the yet to be rescinded authorization to obtain the prior records. Even if time prohibits obtaining the information early on knowledge of other treating doctors provides the framework for your defense attorney to carry the investigation on through the subpoena process.
Even when in litigation, we encounter roadblocks. The providers sometimes will refuse to comply with a subpoena or maintain the requirement for an authorization. If a Claimant fails to return the signed authorization, I would file an objection to the scheduling of medical testimony on the case until such time the authorization is returned. In most instances, the authorization is quickly provided. In addition, the Rules of Practice and Procedure before Worker’s Compensation Judge provide that the judge, upon request of a party, can communicate to the witness/deponent advising of the requirements of the Act and advising the person to comply and advise of the enforcement provisions of Section 436 of the Act. Again, this often leads to the desired result, the release of the records. But in some instances, we need to take the next step.
A couple years ago, I followed all the procedures required. The deponent was an out of state hospital, who although willing to comply, required an authorization. I requested the execution of the authorization, but counsel refused. Claimant’s counsel informed the Workers’ Compensation Judge that it was not his practice to require his clients to sign authorizations. The Judge indicated he would not force the claimant to sign the authorization but granted the time necessary to enforce the subpoena. The process involved filing the subpoena in the Court of Common Pleas where the original subpoena was signed. The next step was to transfer the Order from the Court of Common Pleas to the jurisdiction in New Jersey where the hospital was located. Once that occurred the hospital complied and released the records. In that case, the records obtained were a bonanza of prior treatment and resulted in the denial of the Claim Petition.
The investigative process both prior to and during litigation can be difficult but rewarding. However, staying the course and utilizing these tools at our disposal often lead to that buried treasure.