Does an injured worker or his legal representative have a right to obtain the medical records of the injured worker from the employer?
Yes – There are several statutes which provide an injured worker, or his legal representative, access to company medical records. These statutes are summarized below.
A. Illinois Workers’ Compensation Act- Section 8(a) provides:
“Every hospital, physician, surgeon or other person rendering treatment or services in accordance with the provision of this section shall upon written request furnish full and complete reports thereof to, and permit their records to be copied by, the employer, the employee or his dependents, as the case may be, or any other party to any proceedings for compensation before the commission or their attorneys.”
B. Illinois Workers’ Compensation Act – Section 16:
Under the Workers’ Compensation Act, either party can subpoena witnesses, books, papers, records or documents for the date of the hearing before an arbitrator. However, these records need only be produced on the date of the hearing before the Arbitrator which is usually too late to be very useful.
C. Illinois Code of Civil Procedure – 735 ILCS 5/8-2003 Provides:
Every physician and other healthcare practitioner except as provided in Section 8-2004, shall, upon the request of any patient who has been treated by such physician or practitioner, permit such patient’s physician or authorized attorney or the holder of a Consent pursuant to Section 2-1003 to examine and copy the patient’s records, including but not limited to those relating to the diagnosis, treatment, prognosis, history, charts, pictures and plates, kept in connection with the treatment of such patient. Such request for examining and copying of the records shall be in writing and complied with by the physician or practitioner. Such written request shall be complied with by the physician or practitioner within a reasonable time after receipt by him or her at his or her office or any other place designated by him or her. The physician or practitioner shall be reimbursed by the person requesting such records at the time of such examination or copying, for all reasonable expenses incurred by the physician or practitioner in connection with such examination or copying.
The requirements of this Section shall be satisfied within 60 days of the receipt of a request by a patient or his or her physician or authorized attorney or the holder of a Consent pursuant to Section 2-1003.
Failure to comply with the time limit requirement of this Section shall subject the denying party to expenses and reasonable attorneys’ fees incurred in connection with any court ordered enforcement of the provisions of this Section.
This amendatory Act of 1995 applies to causes of action filed on or after its effective date.
D. Under the Federal Occupational Safety and Health Act (OSHA), an employee has a right to a copy of his or her medical and/or exposure records without charge from the employer.
What if my company refuses to release my medical records?
In a workers’ compensation case, the attorney can issue a subpoena. However, as discussed above, a subpoena can compel production of the records only on the day of the hearing. Often, this is too late or gives inadequate time to review the records properly.
In the alternative, the injured worker or his attorney could rely on the Occupational Safety and Health Act. 29 CFR 1910.20 is the applicable section. Enforcement of this section would have to be through OSHA. This would not apply to employers who are not subject to OSHA, such as public employers.
In the case of Secretary of Labor v. General Motors, 10 OSHC (BNA) 2064 (2/15/91), OSHA levied a citation and penalty against GM for failure to release the company medical records pursuant to Section 1910.20 of the Code of Federal Regulations promulgated by OSHA. GM argued that the employee wanted the records for a Workers’ Compensation case and that the Workers’ Compensation Act does not allow discovery, therefore there is no access to medical records. The Occupational Safety and Health review commission said there was no conflict under the OSHA Federal Regulations, the injured worker is entitled to his or her records.
Katz, Friedman, Eagle, Eisenstein, Johnson & Bareck
77 West Washington Street, 20th Floor
Chicago, Illinois 60602
June 13, 2013