Lawyers Ask Montana High Court to Protect Privacy of Workers’ Comp Claimants

August 30, 2011

Two Billings attorneys are asking the Montana Supreme Court to stop workers’ compensation investigators from practices that they say violate the privacy rights of workers’ comp claimants.

The Billings Gazette reports that Gene Jarussi and Michael Eiselein, along with 10 other attorneys across the state, filed the petition on Aug. 2, contending that Montana State Fund fraud investigators routinely share surveillance videos and other confidential information with doctors of workers’ comp claimants. The attorneys say the investigators commonly don’t get a court order allowing them to release the info, nor do they tell the claimants that they’re sharing the information.

They’re asking the high court to stop the investigators from sharing confidential criminal justice information until the State Fund shows it’s doing so lawfully.

“This practice unlawfully invades, taints and irreparably harms the confidential and private relationship between physician and patient,” the petition says, and it violates the Montana Rules of Professional Responsibility, the Montana Constitution, the Montana Criminal Justice Information Act and the State Fund’s own written protocols.

Five people with open workers’ compensation claims with the State Fund also signed the petition, but the petition seeks no monetary damages. Instead, the attorneys and claimants are asking the high court to stop the State Fund’s Special Investigative Unit from releasing confidential criminal justice information until it can show it’s doing so legally, and to declare that no one who has already received the confidential information can use it for any purpose.

The attorneys and claimants are also asking the court take supervisory control over 1st District judges in Lewis and Clark County, because they contend the judges are routinely issuing unconstitutional orders allowing the release of confidential information.

The Montana Supreme Court has given the 1st District Court, and the State Fund’s attorneys until mid-September to respond to the petition.

In the petition, the attorneys say that about 14,000 Montana residents are covered by the State Fund every year, and that the fund’s investigative unit conducts video surveillance on between 400 and 500 claimants each year. They also say that State Fund fraud coordinator Tom Disburg has said in dispositions that those videos are shown to claimants’ treating physicians about 100 to 150 times a year.

That means confidential surveillance videos were shown to doctors as many as 825 times since 2006, according to the petition, but a review of court files from Lewis and Clark County show that State Fund attorneys only sought court permission to release the videos 64 times.

“Thus, in the overwhelming majority of those cases, no Application was filed, and no District Court Order of any kind was obtained authorizing the dissemination of confidential criminal justice information to treating physicians or anyone else,” the petition says.

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