By Jane Salem staff, attorney, Nashville

Is a nurse case manager the employer’s “eyes and ears,” so that discussions between the nurse case manager and the employer’s attorney are privileged? Is summary judgment appropriate in an occupational disease claim when the injured worker hasn’t missed work and has no restrictions?

The Appeals Board will answer these questions after holding oral arguments in two cases earlier this week.

Medical case managers

In Lynnese Philalom v. State Farm, the trial judge permitted an employee to discover a medical case manager’s notes. State Farm argued any communications between its attorney and the medical case manager working for its carrier’s third-party administrator are protected from discovery under attorney-client privilege and/or the work-product doctrine.

Attorney Allen Grant, representing State Farm, said that a nurse case manager shares a common interest in developing a joint defense and is, for all practical purposes, part of the defense team.

Judge David Hensley challenged Grant’s characterization that a nurse case manager is the employer’s “eyes and ears.” He pointed to administrative rules that say a nurse case manager can’t assist with either party’s investigation of claims, negotiation, or other non-rehabilitative activity.

Grant responded that what happens during the medical appointments is often the most critical aspect of a claim. “The nurse case manager is the one who’s there. The nurse case manager can report that back. The employee has their own self there. The employer has no one there.”

Rule 0800-02-07-.04 is a list of “dos and don’ts,” said Presiding Judge Tim Conner, and he asked if the rules intend a nurse case manager to be a neutral among the employee, physician and employer.

Grant said it’s not a nurse case manager’s “predominant role” to be an agent of the employer, but “one can be an agent and also have other duties.”

Grant posited that, although a nurse case manager can’t create panels of physicians under that rule, for example, if the nurse is privy to conversations between an adjuster and an attorney about the makeup of a panel, that discussion is work product. The nurse case manager in that instance is “an observer,” and the rules don’t prohibit that.

Judge Pele Godkin asked Philalom’s attorney, Carmen Ware, for her thoughts on the situation Grant described. Ware said any privilege is waived, even when the nurse is just copied on an email.

Ware noted she had requested a privilege log, but the judge didn’t require one.

She said that, without a privilege log, “I couldn’t even say if it’s a work-product issue. And work product does not mean that it’s automatically excluded. If we have need of that information and can’t get it through any other means, and if we could somehow exclude Mr. Grant’s thoughts and opinions from those communications, I do believe there is support for that information to be disclosed.”

A nurse case manager is supposed to be neutral, Ware stressed. The third-party administrator in this case isn’t a party and has no liability; therefore the nurse case manager isn’t a client, and no attorney-client privilege exists.

Section 50-6-102(13) defines “employer” and includes an “insurer” but doesn’t include third-party administrators, Ware added.

Section 50-6-204(a)(2)(A) provides in relevant part that no implied covenant of confidentiality exists for the treating physician’s records, including all “written memoranda or visual or recorded materials, e-mails and any written materials provided to the employee’s authorized treating physician, by case managers, employers, insurance companies, or their attorneys or received from the employee’s authorized treating physician.”

Ware said that provision didn’t include only treatment notes. “So that’s a large scope of information that is included within the term of health records.” She urged the Board to read the statute broadly to require disclosure of any information obtained through case management.

Occupational diseases

In Dan Cody v. G.UB.MK Constructors, the employee alleged an injury from exposure to coal ash. The trial court found issues of material fact and denied the employer’s motion for summary judgment.

On appeal, G.UB.MK argued there was no “injury” because Cody continues to work for it as a full-time truckdriver. Because the statute states that a “partial or total incapacity for work” is deemed to be the occurrence of an injury by accident for occupational disease claims, there has been no injury that can form the basis of the employee’s claim.

Tyler Chastain, for G.UB.MK, stated that pertinent facts support summary judgment. Specifically, Cody was diagnosed with coronary artery disease and hypertension before his employment began with G.UB.MK; no restrictions have been placed; and in June 2020, he passed a DOT physical.

Judge Conner asked if Ingram v. Aetna Cas. & Ins. Co. applies. In that case, an employee was diagnosed with asbestosis, and a doctor said it was work-related, but the worker hadn’t missed work yet. The Supreme Court said he was entitled to medical treatment even if his claim for disability benefits had not accrued.

Chastain countered that Ingram, a 1994 opinion, doesn’t apply under the Reform Act. The definition of an occupational injury now requires greater “specificity” in terms of the date of injury, he said, and in that an injury must now arise out of employment, “more than fifty percent as to all causes, and also the preexisting issues.” Moreover, Ingram can be distinguished because the parties there stipulated to certain facts, including that the employee had been exposed to asbestos and was entitled to benefits. This case has no similar stipulations.

Judge Hensley asked if the Reform Act evidenced an intent that employees alleging occupational diseases, who haven’t yet been diagnosed or become incapacitated, are not entitled to medical care. To some extent, yes, Chastain said, because the injury must be more than 50 percent related, considering all causes, and “you have to have more than just an allegation of a claim.”

John Dupree, Cody’s attorney, disagreed. “It’s getting harder and harder for employees to jump through the hoops of the Workers’ Compensation Statutes, and this is just another hurdle that the employer wants to put up for employees to get just basic medical treatment.”

Dupree noted that Cody never got a panel, treatment, or an evaluation. He said, “It sounds like the employer wants for employees with occupational diseases in Tennessee to not be able to do their jobs at all or to be totally disabled, in order to have a claim for an occupational disease. And I don’t think that’s what the statute anticipated.”

Dupree added, for example, that a truckdriver might wheeze, cough, and have difficulty breathing, evidencing a partial disability, but still might be able to perform the job.

Both appeals are interlocutory, so the Board must issue opinions within 20 business days after oral argument.