TNSIA News

The Division of Workers’ Compensation has received several questions and concerns regarding a recent Tennessee Supreme Court case, Overstreet v. TRW, as it applies to ex parte communications with an injured employee’s treating physician.  The Tennessee Supreme Court held that an injured employee has the benefit of confidentiality with a treating physician.  Accordingly, agents and/or representatives of the employer or insurance carrier cannot communicate with the treating physician without the employee’s and/or representative’s consent or participation, except to request the records authorized by T.C.A. § 50-6-204(a)(1) and (2).  The Division recognizes that an injured employee and/or their representative may sign a waiver or otherwise consent to waiving confidentiality, whereupon the employer or insurance carrier, or their agents and/or representatives, can communicate with a treating physician outside of the presence of the employee and/or their representative.  The Division encourages this level of cooperation. The workers’ compensation statutes require the parties and the employee’s treating physician to cooperate with the employer or insurance carrier, or their agents and/or representatives (See T.C.A. §§ 50-6-122, -123, -124, -204, etc.). 

If the employee and/or their representative refuses to sign a waiver of confidentiality, then the employer or insurance carrier, or their agents and/or representatives, cannot communicate with the treating physician either in person or telephonically unless the employee and/or their representative is present.  A treating physician is statutorily required to produce certain reports and records upon written request of the employer or insurance carrier even without the injured employee’s consent, but note that the physician should not engage in ex parte communications without that consent.  Any written communication complying with T.C.A. § 50-6-204(a)(1) and (2) should be copied to the employee and\or the employee’s representative along with any response received from the health care provider.

Source: http://www.tennessee.gov/labor-wfd/wc_overstreet_memo.pdf