Saturday, September 6, 2014

Unauthorized Workers' Compensation Disclosure Violates The ADA

By Anthony V. Cortese

First, welcome back from summer breaks and vacations. This year we have appellate cases pending before the Florida Supreme Court that we will be watching that will dramatically affect everyone in the workers’ compensation arena. Our seminars will follow these cases, as well as other important developments in the field. An important federal court decision regarding application of ADA confidentiality provisions to workers’ compensation information was announced on June 23, with implications for all claimants, adjusters, and employers as will be addressed below.
In Shoun v. Best Formed Plastics, 2014 WL2815483 (N.D. Ind. June 23, 2014), the claimant in a workers’ compensation case filed suit against his employer because the employer’s workers’ compensation processing person posted information on her Facebook page about his workers’ compensation and medical conditions that he asserted was injurious. The quote was: “Isn’t (it) amazing how Jimmy experienced a 5 way heart bypass just one month ago and is back to work, especially when you consider George Shoun’s shoulder injury kept him away from work for 11 months and now he is trying to sue us.”

Shoun contended that by putting this on her Facebook page, the processing person violated his ADA right to confidentiality, and the court implied in the decision that this contention was clear. The employer argued that by filing an employment-related lawsuit in state court before this Facebook post was made, he voluntarily publicized his medical condition and could not pursue a suit. The District Court in Indiana did not agree and held the suit for violation of confidentiality provisions could proceed in a separate action in federal court.

The employer then argued that there was no proof of damages due to this Facebook post, and one requirement for such a suit is a tangible injury as a result of the disclosure. The court again did not agree, noting: “Mr. Shoun has alleged that as a result of Ms. Stewart’s actions,‘prospective employers refused to hire him, and he suffered emotional injury,’ both of which have been recognized as tangible injuries under the Act.” Id. (citing Green v. Joy Cone Co., 278 F. Supp. 2d 526, 537 (W.D. Pa. 2003) (explaining “[i]njury-in-fact encompasses both actual damages in the form of emotional, pecuniary, compensative, or otherwise, as well as the presence of a continuing illegal practice”)).

This means that not only the employer but also the carrier and its employees, agents, and representatives have a duty of confidentiality with regard to workers’ compensation information that is actionable if it is violated, in addition to and separate from the underlying workers’ compensation claim and any state employment law claim. It is an important decision for injured workers, employers, carriers, and their attorneys to be aware of with respect to these situations. We will update you on other important decisions as they are announced.