Workers’ Comp Conspiracy Battle Revived

DENVER (CN) - The 10th Circuit breathed new life into a records battle waged by former government workers trying to nail down a workers' compensation conspiracy.

As summarized in the court's Aug. 29 ruling, the plaintiffs in the case suspect that the Office of Workers Compensation has a habit of bending the policy in place to ensure impartiality.

The office, or OWC, is supposed to tap impartial "referee" physicians whenever there is a difference of thinking between a worker's physician and the physician that the government hires for second opinion before granting workers' comp benefits.

OWC official policy requires that it rotate referees, using software that generates a list of physicians who practice within 25 miles of the injured worker's zip code.

The scheduling program is supposed to expand its geographic-search radius whenever nearby physicians prove unwilling or unable to accept the appointment.

But the plaintiffs here, led by Blake Brown, question why it is then that the OWC keeps hiring the same referee physicians.

They note that the OWC has tapped one orthopedic physician in particular to repeatedly referee disputes in distant zip codes, despite the presence of closer physicians of the same specialty.

If referees have a financial incentive to stay in the OWC's good graces, that could be informing their supposedly unbiased medical opinions.

Brown and seven other workers sued the Labor Department and OWC under the Freedom of Information Act to learn more. They sought the last 10 years of statistics for orthopedic physicians in Colorado appointed as referees in workers' comp battles.

Though the agencies had turned over various reports, redactions in these records have blacked out the names of the physicians, among other data.

A federal judge sided with the agencies at summary judgment, but the 10th Circuit reversed Monday.

"Although the federal courts have held that ... names and addresses qualify as potentially protectable 'similar files' under Exemption 6, the release of a list of names and other identifying information does not inherently and always constitute a 'clearly unwarranted' invasion of personal privacy," U.S. Circuit Judge David Ebel wrote for a three-person panel.

The 22-page opinion notes that business addresses are at issue here.

"It is not intuitive to us that the referee physicians possess a cognizable privacy interest in their business addresses — after all, it is in their economic interests to make their office locations generally available to the public, so that patients can visit for evaluation and treatment," Ebel wrote. "But the agency has not provided any testimony from physicians — or any other evidence — to support its assertion that treating physicians have a privacy interest in their business addresses. Of course, the agency is not entitled to such an inference in its favor."

Finding the material facts under dispute here, the 10th Circuit remanded the case for further proceedings.

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