[author: Josh Crank]
It can be easy to take the privacy of your personal medical information and private life for granted when no one is actively nosing around in them. But if you get injured at work, you may find your privacy invaded by insurance companies hungry for any evidence that can be used to deny your workers’ compensation claim.
Insurers, administrative agencies and certain employers have a legitimate need and legal right to obtain medical information that pertains to a workers’ comp claim. In some cases this right may cover medical records that go back several years. But according to Arthur Kravitz, a workers’ compensation attorney with Stark & Stark in Lawrenceville, New Jersey, some insurers treat this process as a fishing expedition for sensitive information.
“What we’re seeing now are requests to rifle through records going back 10 or 20 years that often have no relevance to the claim,” says Kravitz. Stark & Stark’s attorneys ignore these requests as a matter of policy, which forces insurers to argue their relevance to the claim before a judge. If a judge orders the disclosure of health information of questionable relevance, the claimant’s attorney can ask that any information that doesn’t directly apply to the claim be redacted.
Medical records are protected under the federal HIPAA Standards for Privacy of Individually Identifiable Health Information (commonly called the HIPAA Privacy Rule). The rule requires that the records be “limited to the minimum necessary to accomplish the workers’ compensation purpose,” but this leaves ample room for attorneys to argue about what the “minimum necessary” includes.
All Eyes on You
Claimants’ privacy concerns don’t end with their medical records. Insurers can also employ private investigators to find evidence that a claimant is healthy enough for work or is earning income while collecting benefits. But in the age of Facebook and Twitter, some claimants are virtually doing the investigators’ work for them.
“The second major privacy issue with workers’ compensation is the increasing use of social networks to investigate claimants,” says Kravitz. “In some cases, insurers are even asking for the passwords to their claimants’ private Facebook accounts.”
Even if you refuse to surrender access to your social networking accounts, insurance carriers may be able to subpoena your passwords. In a New Jersey case, the plaintiffs sued their health insurer for denying benefits for their children, who had eating disorders. The court granted the insurer access to the children’s MySpace and Facebook pages on the grounds that they were relevant to the underlying causes of their disorders.
In another case, the New York Supreme Court also granted access to the plaintiff’s private Facebook and MySpace pages. Kathleen Romano’s employer wanted access to her vacation photos. The court found that because Romano’s public profile picture “shows her smiling happily in a photograph outside the confines of her home despite her claim that she has sustained permanent injuries and is largely confined to her house and bed” it was likely she might have posted other photos that disproved her claim of “loss of enjoyment of life.”
The most obvious aim of insurers requesting excessive medical information or investigating claimants is to discover grounds for denying claims, but these can also be effective pressure tactics. The desire to preserve medical privacy or escape surveillance can sometimes be enough to convince a worker to drop a claim altogether.
“When you start demanding all of this information, people often get scared,” says Kravitz. “In the case of a self-insured employer, it could even be the claimant’s own employer that accesses private medical information that is irrelevant to the claim.”
If you feel uncomfortable with the amount or type of information being requested by your employer or their insurer, consult an attorney. An experienced employment lawyer can help you determine whether or not you should comply.