CONFIDENTIALITY & WAIVERS:
Q: Is an injured worker required to provide a waiver in order to make a claim for workers' compensation benefits in Iowa?
A: Yes, Iowa Code §85.27(2) reads as follows:
Any employee, employer or insurance carrier making or defending a claim for benefits agrees to the release of all information to which the employee, employer, or carrier has access concerning the employee's physical or mental condition relative to the claim and further waives any privilege for the release of the information. The information shall be made available to any party or the party's representative upon request. Any institution or person releasing the information to a party or the party's representative shall not be liable criminally or for civil damages by reason of the release of the information. If release of information is refused the party requesting the information may apply to the workers' compensation commissioner for relief. The information requested shall be submitted to the workers' compensation commissioner who shall determine the relevance and materiality of the information to the claim and enter an order accordingly.
Also, written waivers are specifically required to be provided upon request, or filing of any Original Notice and Petition, with the commissioner's office. See, below.
If a claimant fails to comply with this section and the rules of the Workers' Compensation Division, they are subject to sanctions up to and including dismissal of their claim the Commissioner's office has consistently found that the claimant's entire medical history is relevant information and must be disclosed, including the location of all records. (top)
Q: The Commissioner's office must keep certain information filed with the office confidential. What does this cover?
A: The Iowa law reads as follows:
86.45 Confidential information.
1. "Confidential information" , for the purposes of this section, means all information that is filed with the workers' compensation commissioner as a result of an employee's injury or death that would allow the identification of the employee or the employee's dependents. Confidential information includes first reports of injury and subsequent reports of claim activity. Confidential information does not include pleadings, motions, decisions, opinions, or applications for settlement that are filed with the workers' compensation commissioner.
2. The workers' compensation commissioner shall not disclose confidential information except as follows:
a. Pursuant to the terms of a written waiver of confidentiality executed by the employee or the dependents of the employee whose information is filed with the workers' compensation commissioner.
b. To another governmental agency, or to an advisory, rating, or research organization, for the purpose of compiling statistical data, evaluating the state's workers' compensation system, or conducting scientific, medical, or public policy research, where such disclosure will not allow the identification of the employee or the employee's dependents.
c. To the employee or to the agent or attorney of the employee whose information is filed with the workers' compensation commissioner.
d. To the person or to the agent of the person who submitted the information to the workers' compensation commissioner.
e. To an agent, representative, attorney, investigator, consultant, or adjuster of an employer, or insurance carrier or third-party administrator of workers' compensation benefits, who is involved in administering a claim for such benefits related to the injury or death of the employee whose information is filed with the workers' compensation commissioner.
f. To all parties to a contested case proceeding before the workers' compensation commissioner in which the employee or a dependent of the employee, whose information is filed with the workers' compensation commissioner, is a party.
g. In compliance with a subpoena.
h. To an agent, representative, attorney, investigator, consultant, or adjuster of the employee, employer, or insurance carrier or third-party administrator of insurance benefits, who is involved in administering a claim for insurance benefits related to the injury or death of the employee whose information is filed with the workers' compensation commissioner.
i. To another governmental agency that is charged with the duty of enforcing liens or rights of subrogation or indemnity.
3. This section does not create a cause of action for a violation of its provisions against the workers' compensation commissioner or against the state or any governmental subdivision of the state. (top)
Q: Can the waiver provided to a current employer be used to obtain records from an old employer against whom a claim was made years ago?
A: Yes, the Commissioner's Authorization to Release Information Regarding Claimants Seeking Workers' Compensation Benefits is very broad. While it prohibits redisclosure of information obtained through it's use, it, also, specifically, states that it "may be used to obtain information from health care providers, schools, former and current employers, providers of vocational rehabilitation services, the Social Security Administration, and the Iowa Department of Workforce Development."
This broad form waiver is the one referred to in IAC 876-8.9 regarding exchange of records, "Whether or not a contested case has been commenced." It is also the waiver, or a "substantially equivalent form," which, under IAC 876-4.6, is required to be attached to any Original Notice and Petition filed to commence a contested case. It is one of the forms provided by the Iowa division of workers' compensation. And, "is used for the release of information concerning an employee's physical or mental condition relative to a workers' compensation claim." These rules go on to provide that, "The claimant shall provide the patient's waivers in other forms and update the patient's waivers as necessary to permit full disclosure of discoverable information whenever requested by a medical practitioner or institution." and, that , "Claimant shall cooperate with the employer and insurance carrier to provide patients' waivers in other forms and to update patients' waivers where requested by a medical practitioner or institution." IAC 876-4.6 & 8.9. (top)
Q: Can an employer call the Commissioner's office to find out what other claims an injured worker has made in the past?
A: Yes, but only if they fall under one of the exceptions to §86.45(2) listed above. In other words, not just anyone can call and obtain access to an employee's, or prospective employee's information at any time.
Note, that there are two different waivers that may allow access to this information. The first is the Authorization to Release Information Regarding Claimants Seeking Workers' Compensation Benefits, the other is the Waiver for Release of Records, which allows access only to the records of the Commissioner's office, and is used primarily by adjustors investigating a claim, and attorneys considering whether or not to represent an injured worker. (top)
Q: Can disclosure of information which is highly personal or embarrassing, but has no relationship to a claim, be withheld?
A: Maybe, but it must not be relevant to the claim in any way. If the claim is one for injury to the body as a whole, or, industrial disability, then anything that may affect a person's earning capacity must be disclosed.
Also, neither you, nor your attorney, nor your doctor, may make this determination, it can only be made by the workers' compensation commissioner, or a deputy. Practically speaking, you will have to obtain the information and make application to the commissioner for an order sealing the information, directing the source not to honor any waivers directed to it, and relieving you and your attorney from the service requirements of the rules of the Workers' Compensation Division. This will require that your provide the information to the commissioner so this determination may be made. If the ruling is against you, you may be able to appeal to the commissioner, then on to the Courts. (top)
Q: Can an injured worker just give their medical information to their attorney to keep it from being disclosed to the employer and their insurer?
A: No, giving this information to your lawyer will NOT cloak it with the confidentiality of attorney-client communication.
First, take a look at §85.27(2), above.
Second, note the waivers you must provide.
And, finally, once your attorney files an Original Notice and Petition to commence a contested case on your behalf, IAC 876-4.17 Service of records and reports, requires that,
Each party to a contested case shall serve all records received pursuant to a patient's waiver (Form 14&endash;0043&emdash;authorization for release of information regarding claimants seeking workers' compensation benefits) and medical records and reports concerning the injured worker in the possession of the party upon each opposing party not later than 20 days following filing of an answer or, if not then in possession of a party, within 10 days of receipt. Medical records and reports are records of medical practitioners and institutions concerning the injured worker. Medical practitioners and institutions are medical doctors, osteopaths, chiropractors, dentists, nurses, podiatrists, psychiatrists, psychologists, counselors, hospitals, clinics, persons engaged in physical or vocational rehabilitation or evaluation for rehabilitation, all other practitioners of the healing arts or sciences, and all other institutions in which the healing arts or sciences are practiced.
"Possession of a party" includes their agents, representatives and attorneys. (top)
If you have questions regarding what must be disclosed, or what waivers you must sign or are entitled to, we recommend consulting an attorney to review and explain your rights and duties under Iowa's Workers' Compensation Laws and the rights you are giving up as a result of signing any and all waivers. You should also feel free to contact the office of the Iowa Workers' Compensation Commissioner at 515-281-5387, or their Contact and Staff Page. (top)
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