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October 23, 2015

A. Production of Records/Exchange of Medical Records Relative to the Claim (authorizations, subpoenas, court orders, etc.) The Michigan Workers’ Compensation statute provides for the exchange of records.  Once a complaint/application is filed, at the time of the filing, the claimant shall provide the insurance carrier with any medical records relevant to the claim that are in the claimant’s possession. Conversely, the insurance carrier is required to provide the claimant with any medical records of the carrier or employer concerning the employee that are relevant to the claim and in existence at the time of the filing. MCLA § 418.222.

In Michigan, either party to the litigation may issue subpoenas to any provider, including a physician or hospital for production of records pertaining to an employee. The bureau provides forms for the issuance of the subpoena. Many medical providers, including physicians and hospitals, will require an authorization before disclosing health information. They often cite the provisions of HIPAA (Health Insurance Portability and Accountability Act of 1996). Most medical providers are not fully informed on HIPAA and unaware that workers’ compensation programs are exempt as “health plans.”

In situations where a medical provider will not release the records, even with an authorization, either party may file a motion to compel with the Workers’ Compensation Agency, requesting production of the records. The magistrate may refer the parties to file an application with the circuit court, for hearing on contempt.

In Michigan, the Workers’ Compensation statute does not provide any regulations for the medical providers, including physicians, hospitals, and other medical institutions, for the production of records. The production of records are requested through subpoena and/or a letter from the requesting party, with an appropriate authorization. In Michigan, we seldom get into contempt proceedings over records.

A survey of other state regulations pertaining to release of records, find that there are varying regulations. As noted, in Michigan, parties must produce relevant medical at the time of filing. There also is a statute or requirement to provide reports from medical examinations to the opposing party. The failure to comply with the statute may preclude a party from proceeding with the litigation.

In Arizona, hospital and physician records are not considered privileged if requested by a party to the litigation and related to the claim (AR § 23.908D). In California, medical records, hospital records, physician records, vocational expert records, and employer records, must be provided to the opposite party within 20 days before a hearing. Similarly, all medical reports held by the insurance carrier must be filed with the court.

The employee must execute and return releases for medical records within 15 days. (CR § 8.43- 304 (Rule IV, VII and IX)). In Florida, physicians are required to provide medical records related to the injured employee upon reasonable request by the employer, insurance carrier, or attorneys for either side. The physician must detail the medical condition, dates of treatment upon request. Authorization is not required. If a physician refuses, there are penalties. They include fines, barring future treatment and the authorization for future care. (FL § 440.13, §§ 4(c) and §§ 8(d)).

In Illinois, hospitals, physicians, surgeons or other people rendering treatment, must upon written request, furnish full and complete reports, and permit the records to be copied in any proceeding for compensation before the commissi. on (820 ILCS § 305 §§ 8(a)).
In Kentucky, medical records and reports are to be produced by medical providers with a release. If a provider refuses, subpoenas may be procured from an administrative law judge. The employee must complete Form 113 (Physician Designation and Medical Release). (KAR
25:096 § 3).

In Massachusetts, once a claim is filed, any party may serve a request for production of medical records on any other party stating the request must be accompanied by a statement providing the relevance of the information sought. The party whom a request is made must
respond within 5 days. If the provider does not respond, a motion to compel may be filed with the ALJ who can order the records to be produced. Parties routinely subpoena medical records directly from the healthcare provider, and also depose the physicians. (Mass. Gen. L. C152 § 11(b)).

In New York, the production of medical records can be compelled at a workers’ comp hearing through subpoena power vested in the attorneys representing any party. Records can also be obtained through executed authorizations. If the employee refuses or a doctor refuses, either party may request a hearing for the compensation law judge to obtain an order for the production of records. (WCL § 13).

In Texas, parties must exchange all medical records and reports, witness statements, photographs and other pertinent evidence that may be utilized at a benefit review conference, or a contested case hearing, respectively, at least 14 days before the hearing. The parties may
utilize a subpoena. Failure to disclose the information sought or refusal to provide it, may result in denial of the introduction of the evidence at the hearing, unless good cause is shown. (Tex.Lab. Code and § 410.16).

In summary, the states vary regarding the exchange of information. As noted, several states require the medical provider to provide the information if relevant to the proceeding. All of the states seem to have statutory regulations wherein a provider may be compelled to produce the records, if they refuse.

B. Notice Requirements for Production in Exchange of Records Notice requirements for the production of records and exchange of records vary in different states. In Michigan, as outlined, once a claim is filed, both parties have an obligation to provide medical, either in their possession or in existence. Failure to do so can result in denial of party proceeding.

In Michigan, over and above the statute, there are magistrate rules. In Magistrate Rule 418.55, in order to admit medical records at trial, the proposing party must provide a Notice of Intent to the court and all of the parties, 42 days prior to the hearing. The opposing party may object to the proposed admission of the records, but must file a similar response with the court. As indicated, other states provide similar requirements. It seems to be a general proposition that each state will have its own specific regulations regarding the time frame for the exchange of medical between the parties, and the notice to the court of the intent to offer records into evidence at the hearing.

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