The Benefits Review Board recently resolved a dispute discovery issue by holding that an administrative law judge possesses the authority to order a claimant to sign a medical release. However, the Board also provided rules limiting the scope of those releases.
As the Board explained in Mugerwa v. Aegis Defense Services, BRB No. 17-0407 (4/27/18), lower federal courts are split as to whether judges possess the authority to compel a plaintiff to sign medical releases. These courts generally consider the competing issues concerning the plaintiffs’ privacy and fairness to the defendant. Without much analysis, the Board held that “[w]eighing the competing interests identified in these cases, we hold that administrative law judges have the authority to compel claimants to sign narrowly-tailored medical releases when it is reasonable under the circumstances to do so.” As a predicate to this holding, the Board first determined that medical release forms are a permitted method of discovery, because of the broad range of the discovery methods and the authority of administrative law judges.
Having determined that the ALJ could order the claimant to sign a medical release, the Board nevertheless restricted the scope of those releases, providing rules that no doubt guide the use of releases in the future. The Board stated:
1. The “employer must first establish a reasonable inference of the existence of additional relevant records in light of claimant’s assertion that he has produced all relevant records.” The Board added that “in the face of a denial of the existence of or control over documents, the requesting party must produce specific evidence challenging the assertion.”
2. “If the administrative law judge finds that claimant has acted in good faith by producing his relevant medical records and employer has not shown the likely existence, relevance, and necessity of the additional requested medical information, the medical release forms are unnecessary, and the administrative law judge should deny employer’s motion to compel.”
3. “If, however, the administrative law judge finds that claimant has acted in good faith but employer has shown the relevance and necessity of medical information held by a medical provider, or if employer establishes claimant has not acted in good faith, then the medical releases may be warranted.”
4. “If they are needed, the administrative law judge must greatly narrow their scope or must order the parties to work together to generate mutually-agreeable medical release forms. If claimant refuses to sign the narrowed medical release forms, then the administrative law judge may grant employer’s motion to compel.”
This case arose under the Defense Base Act, and involved a Ugandan citizen injured in Afghanistan. The employer argued that the releases were the only manner it had to secure medical records, because the administrative law judge could not compel a subpoena in a foreign country.
The employer should pay for a medical examination in support of its case, according to the Board. The parties were disputing the extent of disability, and the employer wanted medical and vocational evaluations to develop its case. The claimant lived in Rosarito, Mexico, and the employer scheduled evaluations in San Diego, where the claimant had attended his own evaluations. The ALJ granted the employer’s motion to compel the evaluations in San Diego, and further ordered the clamant to pay his own expenses. The Board agreed with the ALJ’s order requiring the examinations in San Diego, but reversed the order requiring the claimant to pay his own expenses. The ALJ considered these evaluations to be an “aspect of discovery,” and the Board agreed. However, as an aspect of discovery, the Board stated that each party had to bear its own costs, such that, in this case, the Employer had to pay the claimant’s costs in attending the evaluations. The “Employer must bear the cost of obtaining its own evidence.” The Board also held that forcing the claimant to pay his own expenses was not an appropriate sanction for the claimant missing earlier appointments for evaluations. Instead, the appropriate remedy is to suspend the claimant’s compensation or certify the discovery dispute to the district court. Notably, the Board initially dismissed the claimant’s appeal, because the order from the ALJ was interlocutory. However, the Board decided that “its guidance [was] necessary to direct the course of the adjudicatory process” in the case, and granted a motion for reconsideration.
Pensado v. L-3 Communications Corp., BRB No. 14-0116 (4/30/14).
© 2018 Ira J. Rosenzweig