Posted:
March 13, 2008
By Jean K. Hyams
Complaints
of physician bias against injured workers are on the rise. Since the overhaul
of the state’s workers compensation law in 2004, workers have been required to
seek consultation and treatment from a pool of employer-designated doctors. The
change in the law has emboldened some employers to find company-friendly
doctors to help them deny workers’ compensation claims, reasonable
accommodations, and return to work.
Examples
of employers misusing these “company doctors” include employers that insist
their employees sign forms permitting unrestricted access to private medical
records; supervisors who accompany employees during visits to the company
doctor; and company managers who communicate directly with physicians without
the worker being present.
If
you know your rights, you can protect yourself from these and other abusive
practices.
The
most important thing to remember is that your medical information and records
are private. There are extremely few
circumstances in which your employer is entitled to know anything about your
medical condition or history. Privacy
is so important that it is addressed in Article I, Section 1 of California’s
constitution.
It is
up to you to decide who should see your medical records or talk to your
doctors. Treating doctors are duty
bound to keep your medical information confidential. Breach of doctor-patient
privilege is a serious violation of medical ethics. And your treating doctor
owes a duty of loyalty to you, not
your employer. If you can prove disclosure
of your medical information without consent, you can sue a doctor for breach of
your right to privacy and violation of the Confidentiality of Medical
Information Act (CMIA). You can also report your doctor to the Medical Board of
California if your right to privacy has been violated.
Employers
are also liable for accessing your medical records without consent. Under the CMIA,
employers are required to maintain your medical records separately from your personnel
file and to restrict access to safeguard your privacy. Workers compensation insurance administrators
also have a duty not to disclose medical records to employers.
Another
kind of employer abuse is the use of “fitness-for-duty” examinations to dig up
reasons to terminate employees with injuries or disabilities. Your employer must have a valid reason for
sending you to a fitness-for-duty exam.
For example, if you are coming back from a medical leave, your employer can
probably ask you to undergo a fitness-for-duty exam to see whether you can
still perform your job. However, the
scope of the examination is limited to that inquiry and you do not have to
answer unrelated medical questions or provide unrelated medical
information. Employers can also send
you for an exam if they have reason to believe that you pose a significant risk
of imminent harm to yourself or others.
But employers should not send you to an exam when they are merely
concerned about your medical condition or assume it might have an impact on
health or safety.
If you belief
your rights have been violated, contact our office or another attorney
immediately.
Jean K. Hyams
is a law partner at Boxer & Gerson, LLP, where she exclusively represents workers
in employment lawsuits.