By Jane Salem, staff attorney, Nashville

Earlier this week, the Appeals Board affirmed a trial court order that a nurse case manager’s notes be provided to an injured worker, rejecting the employer’s arguments that the notes are protected by the common interest doctrine, attorney-client privilege, or the work product doctrine.

The opinion also clarified the role of nurse case managers: to remain neutral and provide rehabilitative services to injured workers.

In Philalom v. State Farm Mutual Automobile Ins. Co., the trial court ordered State Farm to respond to Lynnese Philalom’s discovery requests and to provide a copy of the nurse case manager’s records.

State Farm raised three arguments on appeal.           

First, it contended that the “common interest doctrine” protects communications among an employer, its counsel, and a nurse case manager employed by a third-party administrator. That doctrine permits the participants in a joint defense to communicate among themselves and with their attorneys on matters of common legal interest for the purpose of coordinating their joint legal strategy.

The three-judge Appeals Board found the doctrine inapplicable for several reasons.            

First, neither the third-party administrator nor the nurse case manager were parties to the case or potentially liable. Second, State Farm wasn’t seeking to create a “joint legal strategy” between it and the third-party administrator or the nurse case manager because neither were defendants who needed a “joint legal strategy.” Third, the regulations for nurse case managers made clear that their role is to provide case management services for the benefit of the employee while also controlling medical costs.

Next, State Farm argued any communication between it and its counsel that includes the nurse case manager is protected by the attorney-client privilege. State Farm cited the intent of “legislative and administrative bodies” that promulgated the laws and regulations governing the workers’ compensation system and maintained they “had both confidentiality and privilege” in mind at the time of drafting.

The Board disagreed. “[W]e find nothing in the stated legislative intent of statutory and regulatory provisions relating to nurse case management to suggest the legislature intended nurse case managers to act as agents of employers.” In fact, the judges continued, the regulations explicitly prohibit nurse case managers from participating in compensability determinations, medical causation findings, negotiations, investigations, or any other non-rehabilitative activity.

The Board likewise rejected the characterization of a nurse case manager as an employee of an employer so that the privilege applies.

“First, as noted above, nurse case managers have statutory and regulatory duties intended to benefit both employees and employers. Second, unlike employees and agents of the employer, nurse case managers are expressly prohibited from engaging in any ‘non-rehabilitative’ conduct pertinent to the compensability of an employee’s claim for benefits. Third, a nurse case manager is obligated to provide his or her reports to all parties to the claim. Fourth, there is nothing in the statute or regulations that obligates a nurse case manager to keep confidential any communications it has with the attorneys for either party.”

Finally, State Farm asserted that communications between an employer, its counsel, and the nurse case manager are protected from discovery by the work-product doctrine.      Tennessee’s version of the doctrine provides that, in ordering discovery, a trial court must “protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.” In addition, the Tennessee Court of Appeals held that information otherwise protected by the work product doctrine is discoverable if the work product designation has been waived “under very specific and narrow circumstances, namely when …the claim of privilege has been waived or has expired.”

The Board concluded the work product doctrine didn’t apply to communications involving the nurse case manager, reasoning that:

“[A] nurse case manager is not a party to workers’ compensation litigation and does not act solely for the benefit of the employer. A nurse case manager’s role is essentially neutral. The nurse case manager is directed by regulations to assist the injured worker in rehabilitative activities and address return-to-work issues, and the nurse case manager is prohibited from engaging in any activity that places him or her in an adversarial role to either the employee or the employer.”

Further, “[I]f an attorney for either party chooses to discuss matters with the nurse case manager that could be construed to reveal that attorney’s mental impressions or legal theories of the case, that attorney risks waiving any protections afforded by the work product doctrine because any such mental impressions have been shared with a neutral third party.”

The Board noted that, in this case, the record was unclear as to the precise nature of the information State Farm claimed was protected by the work product doctrine. But, if “those communications included the mental impressions or legal theories of the attorney, we conclude that the work product doctrine was waived when those mental impressions or legal theories were communicated to a neutral third party.”

Because the Board’s review was of an interlocutory order, State Farm can’t appeal.