Church's Fried Chicken No. 1040 v. Hanson

BLACK, Judge

(dissenting).

I believe this case should be disposed of within the confines of the workers' compensation context in which it arose. By analyzing this question against the backdrop of policy considerations relevant to tort cases the majority reaches a result from which I must respectfully dissent.

The majority spends substantial time considering the public policy enunciated by the Supreme Court in Smith v. Ashby. Initially, I would note that I do not read Smith as necessarily prohibiting a physician from meeting with opposing counsel on a voluntary basis. See Charles W. Adams & Bruce Hall, New Mexico Discovery Practice Manual 71 (1992). More importantly, I do not think the “public policy” enunciated in Smith was intended to be controlling in the workers’ compensation context.1

I believe the majority fails to give proper consideration to the public policy underlying the Workers’ Compensation Act (the Act). The purpose of the Act is to provide a workers’ benefit system “interpreted to assure the quick and efficient delivery of indemnity and medical benefits to injured and disabled workers at a reasonable cost to the employers who are subject to the provisions of the Workers’ Compensation Act.” NMSA 1978, § 52-5-1 (Repl.Pamp.1987). The goal of providing the quick and efficient delivery of benefits at a reasonable cost is, therefore, preeminent under the workers’ compensation law. Cf. Gallegos v. Yeargin W. Constructors, 104 N.M. 623, 623, 725 P.2d 599, 599 (Ct.App.1986) (case, in which judgment was entered seven months after filing, a “model for how a worker’s compensation claim should be expedited”). The objective of the Act is, then, different from that of the tort system out of which Smith v. Ashby arose. Gonzales v. Chino Copper Co., 29 N.M. 228, 222 P. 903 (1924). See generally 1 Arthur Larson, The Law of Workmen’s Compensation § 2.70 (1992). Moreover, since he is usually the only witness in a workers’ compensation suit, the treating physician occupies a unique role. He testifies as to what he saw when the worker arrived at the hospital (e.g., protruding femur), as well as giving his expert opinion regarding the percentage of medical disability that injury is likely to cause. The fact that he may testify as an expert on some subjects does not prevent treating him as a fact witness in other areas. Moses v. McWilliams, 379 Pa.Super. 150, 549 A.2d 950 (1988), cert. denied, 521 Pa. 630, 631, 558 A.2d 532 (1989). Even under the tort system this would open up discovery. Frantz v. Golebiewski, 407 So.2d 283 (Fla. Dist.Ct.App.1981).

The differences in tort litigation and workers’ compensation are, however, perhaps most significant when considering the proper scope of discovery. Discovery in tort litigation is, of course, governed by the rules of civil procedure which allow a wide variety of discovery devices to be employed almost without limit. See SCRA 1986, 1-026 to -036 (Repl.1992); United Nuclear Corp. v. General Atomic Co., 96 N.M. 155, 169-70, 629 P.2d 231, 245-46 (1980), cert. denied, 451 U.S. 901, 101 S.Ct. 1966, 68 L.Ed.2d 289 (1981). This pattern has been rejected as inappropriate for workers’ compensation cases. Soliz v. Bright Star Enters., 104 N.M. 202, 718 P.2d 1350 (Ct.App.), cert. denied, 104 N.M. 191, 718 P.2d 701 (1986); N.M. Workers’ Compensation Admin., Miscellaneous Proceedings and Preliminary Questions of Fact, Rule WCA 91-1, V(A) (May 1991). Rather than giving the parties great latitude in pursuing a vast array of discovery options, the workers’ compensation scheme has always required close supervision and tightly defined limits on discovery so as to facilitate the quick and efficient delivery of benefits. NMSA 1978, § 52-5-7(F) (Cum.Supp.1986); Soliz v. Bright Star Enters.; Miscellaneous Proceedings, supra, Rule WCA 91-1, V(G). This difference in philosophy also dictates a different approach to allocating the costs of discovery. See NMSA 1978, § 52-3-47(D) (Repl.Pamp.1991) (effective Jan. 1, 1991); Maschio v. Kaiser Steel Corp., 100 N.M. 455, 460-61, 672 P.2d 284, 289-90 (Ct.App.) (Bivins, J., concurring in part, dissenting in part), cert. denied, 100 N.M. 439, 671 P.2d 1150 (1983). There is little doubt that informal discovery such as conferences with a treating physician is easier and less costly than depositions. Doe v. Eli Lilly & Co., 99 F.R.D. 126, 128 (D.D.C.1983); Green v. Bloodsworth, 501 A.2d 1257, 1258 (Del.Super.Ct.1985).

The majority finds NMSA 1978, Section 52-10-1 (Repl.Pamp.1991), is applicable but not controlling. The majority paraphrases Section 52-10-l(A) as allowing an employer or insurer “to obtain, without restriction, copies of a worker’s medical records, bills for services, and other documents.” (Emphasis added.) I believe this is a misreading of both the explicit language of Section 52-10-l(A) and the implicit legislative intent behind it. That section actually reads:

A health care provider shall immediately release to a worker, that worker’s employer, that employer’s insurer, the appropriate peer review organization or the health care selection board all medical records, medical bills and other information concerning any health care or health care service provided to the worker, upon either party’s written request to the health care provider for that information. Except for those records that are directly related to any injuries or disabilities claimed by a worker for which that worker is receiving benefits from his employer, the request shall be accompanied by a signed authorization for that request by the worker. [Emphasis added.]

There is nothing on the face of this statute which indicates “other information” must be in writing. Can “other information concerning any health care or health care service provided to the worker” include oral opinions about the necessity of past or future health care or health care service? I believe so. The qualifying phrase used by the legislature, “other information,” certainly suggests no requirement that all such information be in writing. The words of a statute must be given their ordinary, everyday meaning, and in the absence of a clear and expressed legislative intention to the contrary, the language of the statute is conclusive. State ex rel. Reynolds v. Aamodt, 111 N.M. 4, 800 P.2d 1061 (1990). The ordinary, everyday meaning of “information” is “the communication or reception of knowledge or intelligence.” Webster’s New Collegiate Dictionary 592 (1977).

I believe the majority’s reading of Section 52-10-l(A) as though it read “other written information concerning any health care or health care service provided to the worker” is also contrary to legislative intent. The legislature has indicated a public policy to encourage inexpensive, informal, and quick discovery of medical evidence in the workers’ compensation setting in several other recent provisions of the Act. In workers’ compensation, for example, workers have an obligation to submit themselves for physical examination to a physician chosen by the employer. NMSA 1978, §§ 52-1-55, -3-48 (Repl.Pamp.1987). The legislature has also expressed a policy of allowing free access to medical examination both at the time of injury and when, while receiving compensation, the worker undergoes a change in medical condition. See NMSA 1978, §§ 52-1-51, -56 (Repl.Pamp.1987). It also seems obvious that the legislature did not contemplate routinely taking depositions of treating physicians when it established a $12,500 limit on attorneys’ fees in workers’ compensation cases. See NMSA 1978, § 52-1-54(G) (Repl.Pamp.1987).

Even before the adoption of Section 52-10-1, the legislature recognized the physician-patient privilege was an unnecessary limitation in the workers’ compensation context. At one time the legislature specifically prohibited ex parte contact with a treating physician without the worker’s consent, except where the physician was paid by the employer with the consent of the worker. The statute then governing privileged communications, NMSA 1958, Repl.Vol. 4 (1970), § 20-1-12, contained subparagraph (d) which provided, inter alia:

[N]or shall any doctor or nurse employed by a workmen’s compensation claimant be examined relating to a workmen’s compensation claim without the consent of his patient as to any communication made by his patient with reference to any physical or supposed physical disease or injury or any knowledge obtained by personal examination of such patient except in instances where the doctor has examined or treated the patient at the expense of the employer, and such payment is consented to by the patient.

Pursuant to the dictates of this statute, the Supreme Court prohibited a district judge from requiring a worker to execute a medical authorization so the employer could receive medical information directly from a physician employed by the worker. State ex rel. Miller v. Tackett, 68 N.M. 318, 361 P.2d 724 (1961).

This codification of the physician-patient privilege into the law of workers’ compensation was strongly criticized. Patrick W. Hurley, Comment, 7 Nat. Resources J. 442 (1967). In 1973 the New Mexico legislature deleted the statute making the worker’s communication to “his doctor” privileged. 1973 N.M. Laws, ch. 223, § 1. The legislature also abolished any such privilege for physicians hired by the employer, and expressed the public policy of New Mexico that “[cjommunications made by the claimant upon such examination to such physician or physicians shall not be considered privileged.” NMSA 1978, § 52-1-51 (Cum. Supp.1986); Escobedo v. Agriculture Prods. Co., 86 N.M. 466, 525 P.2d 393 (Ct.App.1974). Where the legislature has amended a statute to omit certain previous language, it is presumed to have intended to change the law. State v. Cotton, 109 N.M. 769, 790 P.2d 1050 (Ct.App.), cert. denied, 109 N.M. 751, 790 P.2d 1032 (1990). Even before the enactment of Section 52-10-1, then, it may be fairly inferred that the legislature had expressed a public policy in favor of allowing the informal transmission of medical information to a claimant’s employer.

I would submit that the administrative body charged with administering the Act, the Workers' Compensation Division of the Department of Labor, has also adopted regulations under the Act to facilitate informal discovery and resolution of disputes without the necessity of involving attorneys. See, e.g., N.M. Workers’ Compensation Admin., Workers’ Compensation Administration Mediation Rules, Rule WCA 92-2 (Feb. 1992); Miscellaneous Proceedings, supra, Rule WCA 91-1 amend. 1, XVII (Feb. 1992) (Ombudsman Rules). The mediation rules in particular appear to contemplate that parties might meet informally with witnesses. Rule WCA 92-2, IV, governs mandatory production and requires an exchange of “[a]ll statements, written or otherwise recorded by any party, unless otherwise privileged.” Id. IV(F). This provision seems to contemplate the possibility of such informal conferences and impliedly suggests they may be ex parte.

Other jurisdictions have recognized that, because of the unique statutory nature of recovery in workers’ compensation claims, discovery must be considered differently than in other litigation. See Dickerson v. Taylor, 424 So.2d 291 (La.Ct.App.1982), cert. denied, 429 So.2d 156 (La.1983). But see Linton v. City of Great Falls, 230 Mont. 122, 749 P.2d 55, 62-63 (1988).2 Especially in workers’ compensation cases, “[discovery is intended to be a mechanism for the ascertainment of truth. It is not a tactical game to be used to obstruct the opposing litigant.” Cook v. Optimum/Ideal Managers, Inc., 130 Ill.App.3d 180, 84 Ill.Dec. 933, 940, 473 N.E.2d 334, 341 (1985); cf. Hurley, supra, 7 Nat. Resources J. at 450-51.

The Iowa Supreme Court recently considered this issue in Morrison v. Century Engineering, 434 N.W.2d 874 (Iowa 1989). In Morrison, the Iowa Supreme Court granted further review “to consider the claimant’s assertion that her attorney must be allowed to be present when the employer’s counsel interviewed the claimant’s treating physician.” Id. at 875. The Iowa Supreme Court recognized its prior holding “that a plaintiff in a personal injury action could not be compelled to waive the physician-patient privilege so as to allow defendant’s counsel to communicate privately with plaintiff’s treating physician.” Id. at 876 (citing Roosevelt Hotel Ltd. Partnership v. Sweeney, 394 N.W.2d 353, 355 (Iowa 1986)). The Iowa court also recognized its continuing concern in the tort context that the physician might disclose “confidential material beyond the scope of the claim being litigated.” Id. That court pointed out, however, that in workers’ compensation proceedings the Iowa legislature had created a statutory waiver (not unlike Section 52-1-51) of any privilege concerning the employee’s physical or mental condition relative to the compensation claim. The court then pinpointed why, although it remained convinced that informal contact with a treating physician was not appropriate in the tort context, such a limitation on informal discovery was not consistent with the philosophy of workers’ compensation:

This enlarged waiver is a part of a pattern to foster and encourage a ready access to the information necessary to speedily process workers’ compensation claims. Informality is in everyone’s interest because in workers’ compensation cases, unlike ordinary cases, liability is almost never an issue. The only question is the condition of the injured worker. Because of the narrow scope of inquiry the possibility of revealing extraneous evidence is lower in workers’ compensation cases than in ordinary ones.
The system is designed to be essentially nonadversarial. Whatever its faults, real or imagined, the system presupposes that all workers will benefit more if claims are processed routinely and paid quickly. Most of them are. It would be inimical to this system for the courts to force on the commissioner the rule which Darlene urges.

434 N.W.2d at 877.

The New Mexico legislature has repeatedly expressed the public policy of this state in favor of the quick and efficient administration of workers’ compensation claims. I believe the holding of the majority is contrary to this policy, and must therefore respectfully dissent.

. On a subject such as workers' compensation, which is totally a creature of statute, "public policy” is generally enunciated by the legislature. Williams v. Amax Chem. Corp., 104 N.M. 293, 720 P.2d 1234 (1986); Bottijliso v. Hutchison Fruit Co., 96 N.M. 789, 635 P.2d 992 (Ct.App.1981).

. The majority cites T-inton as a case expressing concern that conversations with counsel may improperly influence a plaintiffs physician. If that legal premise is correct, it would seem the fundamental premise of SCRA 1986, 13-207 (Repl.1991), is incorrect. Moreover, the workers' compensation rules expressly prohibit communicating with a health care provider in violation of Section 52-10-1 "with the intent of coercing or improperly influencing any health care provider.” Miscellaneous Proceedings, supra, Rule WCA 91-1, XI(B)(5).