ALJ can compel a claimant to sign a medical release

by Matthew H. Ammerman on September 7th, 2018

Medical records are essential to handling LHWCA claims. But they are not always easy to get. In Mugerwa v. Aegis Defense Servs., 52 BRBS 11 (April 27, 2018), the Benefits Review Board holds administrative law judges (ALJs) have the authority to compel claimants to sign narrowly-tailored medical releases when it is reasonable under the circumstances to do so.

A claimant puts his or her medical condition at issue when a LHWCA claim is filed.[1] The Act gives an ALJ broad powers to inquire fully into the matters at issue.[2] And the scope of discovery before the ALJ includes “any nonprivileged matter that is relevant to any party's claim or defense….”[3] Therefore, the employer and its carrier have a right to medical records relevant to the claim that is made.

In Mugerwa, the carrier’s need for a signed medical release was compelling. It did not have subpoena power over the claimant’s medical records in Uganda. It needed the release to get those records. The Board held that the ALJ had the power to make the claimant a medical release. But, the releases at issue were overbroad. The Board remanded the case. On remand, the ALJ must first determine if the records at issue were relevant. If so, the releases had to be narrowly tailored to the claimants’ medical records that bear on his claim and exclude information regarding non-medical providers or the records of the claimant’s beneficiaries. If the claimant refused to agree upon a tailored release, the ALJ could compel him to sign a one.

That is helpful if a case is referred up to the U.S. Office of Administrative Law Judges (OALJ). But what if the case is before the District Director? A carrier has no way to compel a claimant sign a medical release. Instead, the carrier’s counsel can order a subpoena from the OALJ in Washington, D.C., for relevant records from a specific provider. Alternately, have the case referred up for formal discovery and a hearing with an ALJ if warranted by the seriousness of the claim. Be warned, however, that you need to be ready to try the case as well.

[1] See, e.g., McKnight v. Blanchard, 667 F.2d 477, 482 (5th Cir. 1982) (discussing discoverability of medical records in injury claim).
[2] 33 U.S.C. § 927(a); 20 C.F.R. § 702.338.
[3] 29 CFR § 18.51.

Posted in Discovery    Tagged with LHWCA discovery, ALJ



follow on