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First DCA finds that ex parte conferences with treating physicians do not violate right to privacy.

October 1, 2019
Varricchio v. St. Lucie County Clerks of Courts and Ascension Insurance, No. 1D17-3229 (1st DCA Fla, Apr. 29, 2019)

The claimant appealed an order denying her claim for temporary disability benefits. The court affirmed the Judge of Compensation Claims but wrote to address the claimant’s assertion that section 440.13(4)(c), Florida Statutes (2013), allowing ex parte conferences, violates the privacy clause of the Florida Constitution.

The employer’s attorney had a conference with the treating physician shortly before the doctor completed a questionnaire specifying a retroactive date for maximum medical improvement (which was relevant to the claim for temporary disability). The First DCA held that the claimant had no legitimate expectation of privacy and that it is well established that this section does not violate the right to privacy. The court noted that workers’ compensation is substantially different from a medical malpractice action (where conferences are a violation of privacy) and that the only medical professional to be interviewed was explicitly hired for the purpose of workers’ compensation, to evaluate the causal connection between the work performed and the injury. The claimant argued that section 440.13(4)(c) was substantially amended in 2003 and these amendments expand the scope of the law to permit employers to obtain records from, and secretly meet with, all physicians, not just those authorized to treat workplace injuries. The court disagreed.


Case Law Alerts, 4th Quarter, October 2019

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