Summary
In State ex rel.Holman v. Dayton Press, Inc. (1984), 11 Ohio St.3d 66, 11 OBR 256, 463 N.E.2d 1243, the Supreme Court issued a writ of mandamus ordering respondent commission to consider a claim even though the claimant had refused to sign a waiver of the physician-patient relationship as required by commission rule following State ex rel. Galloway v. Indus. Comm. (1938), 134 Ohio St. 496, 13 O.O. 102, 17 N.E.2d 918.
Summary of this case from Talvan v. SiegelOpinion
No. 83-557
Decided May 29, 1984.
Workers' compensation — Physician-patient privilege not required to be waived before claim is considered.
APPEAL from the Court of Appeals for Franklin County.
Appellee, John L. Holman, was allegedly injured in the course of his employment with appellant Dayton Press, Inc. ("Dayton Press"), on January 21, 1981. In his application for benefits, he crossed out the waiver of the physician-patient privilege. Dayton Press, a self-insured employer, was unable to secure his medical records and, therefore, refused to fully certify his claim. The matter was subsequently referred to the Bureau of Workers' Compensation for an allowance hearing. On May 5, 1981, counsel for Dayton Press requested that appellee execute a medical release. Appellee, through his attorney, refused to comply.
On June 16, 1981, Dayton Press filed a motion to take appellee's deposition and that of his treating physician or physicians for the purpose of obtaining his medical records. On June 25, 1981, the Deputy Administrator of the Bureau of Workers' Compensation requested, in a letter to appellee's attorney, that appellee, "* * * comply with our request that you not cross out this paragraph on the applications or we will have no recourse but to not process these altered applications." Appellee's attorney responded by insisting that "the application * * * [was] completed in accordance with Ohio Statutory Law and Supreme Court decisions." On July 6, 1981, the administrator of the bureau retorted suggesting that "* * * you and the Ohio Statutory Law and the Supreme Court can scratch out parts of our application as much as you wish. However, when you do the application will be returned."
Appellant's motion was heard before a district hearing officer who, on October 7, 1981, granted the motion for the requested depositions and subpoena. Appellee appealed this decision to the Dayton Regional Board of Review which, by order dated March 2, 1982, affirmed the decision of the district hearing officer. Appellee took further appeal to the Industrial Commission which refused to hear his appeal by order dated June 16, 1982.
Appellee then filed a mandamus action in the Court of Appeals for Franklin County seeking to compel the appellant commission to consider his claim without requiring him to waive his physician-patient privilege. The court of appeals allowed the writ on February 10, 1983.
The cause is now before this court upon an appeal as of right.
Mr. Michael J. Muldoon, for appellee.
Smith Schnacke Co., L.P.A., Ms. Edna Scheuer and Mr. Thomas A. Jackson, for appellant Dayton Press, Inc.
Mr. Anthony J. Celebrezze, Jr., attorney general, and Mr. Robert J. Kent, for appellant Industrial Commission.
R.C. 2317.02 states:
"The following persons shall not testify in certain respects:
"* * *
"(B) A physician concerning a communication made to him by his patient in that relation or his advice to his patient but the physician may testify by express consent of the patient * * * or if the patient voluntarily testifies the physician may be compelled to testify on the same subject * * *."
Appellants concede that appellee's medical records are privileged pursuant to R.C. 2317.02(B). They nevertheless argue that the commission had authority for the actions and the order which are the focus of this controversy.
The order from which appellee appealed permitted Dayton Press to depose appellee and his physicians concerning his condition and allowed a subpoena to issue for the purpose of obtaining appellee's medical records. The question presented by this appeal is whether the scope of that order exceeded that of the commission's authority to issue it. We hold that it did.
R.C. 4123.08 and 4123.09 provide the commission with certain discovery powers:
"* * * the industrial commission * * * may * * * compel * * * the production of * * * records, documents, evidence, and testimony." R.C. 4123.08. "In claims filed before the industrial commission by injured employees * * * the commission may cause depositions * * * to be taken * * *." R.C. 4123.09.
While appellants concede that the medical records in question are privileged, they liken the instant situation to that found in State, ex rel. Floyd, v. Court of Common Pleas (1978), 55 Ohio St.2d 27 [9 O.O.3d 16], where relators sought a writ of prohibition to avoid an order compelling disclosure of certain medical records prior to trial. This court acknowledged the distinction which Civ. R. 16 creates between waiver and disclosure of privileged information. Civ. R. 16 states in pertinent part:
"A court may adopt rules concerning pretrial procedure to accomplish the following objectives:
"* * *
"(6) The exchange of medical reports and hospital records;
"* * *
"The producing by any party of medical reports or hospital records does not constitute a waiver of the privilege granted under Section 2317.02, Revised Code."
Citing Civ. R. 16, this court held that a court may require disclosure of privileged information for limited purposes without requiring waiver of privilege. Appellants argue that this same distinction can be made with regard to a workers' compensation claim. They suggest that a claimant can be required to produce medical records for the limited purpose of enabling the commission to evaluate his claim, without waiving his privilege.
This analogy, however, is not complete. As noted above, Civ. R. 16 does permit disclosure of medical records. However, it also expressly maintains the physician-patient privilege. No such protection is found in the rules pursuant to which the commission claims authority. Moreover, Ohio Adm. Code 4121-9-03(M)(4) states in part: "The claimant shall honor the employer's request for appropriate written authorization to obtain medical reports * * *." This rule clearly does not make a distinction between disclosure and waiver. It, instead, simply requires waiver at the employer's request.
Dayton Press insists, in its brief, that "[a]t no time has the * * * [bureau or the commission] refused to consider * * * [appellee's] Workers' Compensation claim until he signed a waiver of the patient-physician privilege." The record shows that appellant's contentions are not well-founded. Directions from both the deputy administrator and the administrator of the bureau clearly indicated that any application which did not contain a signed physician-patient waiver would be rejected.
In State, ex rel. Galloway, v. Indus. Comm. (1938), 134 Ohio St. 496
[13 O.O. 102], this court was faced with the issue of whether the commission was authorized under its rule-making power to require an applicant, as a condition precedent to a consideration of his claim, to sign and file a waiver. This court held in paragraph two of the syllabus that:
"The provisions of Section 11494, General Code [R.C. 2317.02(B)], protecting as privileged the communications of patient and physician in that relation, confer a substantial right, waiver of which may not be required by the state Industrial Commission as a condition precedent to the consideration of an application for workmen's compensation."
If, as appellants contend, the workers' compensation system could not function properly for lack of the medical evidence, then the commission may order appellee to submit to a medical examination or, if he refuses, suspend consideration of the claim pursuant to R.C. 4123.53. They cannot, however, now avoid their duty to consider appellee's claim for lack of medical evidence.
As noted by the court of appeals, appellee will be required to present proof of his injury as the proceedings progress and may choose to waive the privilege at some future time; however, such a choice belongs to appellee alone. Unless he waives the privilege by consent or testimony the information remains privileged.
The commission is under a clear legal duty to consider appellee's claim without restricting his substantive rights. Where, as here, a claimant must waive the physician-patient privilege as a condition precedent to consideration of his claim, an abuse of discretion has been shown, and a writ of mandamus is appropriate. State, ex rel. Galloway, v. Indus. Comm., supra. The judgment of the court of appeals is therefore affirmed.
Judgment affirmed.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, C. BROWN and J.P. CELEBREZZE, JJ., concur.
HOLMES, J., concurs in judgment only.