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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Allison Leigh v. Alaska Children's Services and Republic Indemnity Company of America (7/10/2020) sp-7464
Notice: This opinion is subject to correction before publication in the P ACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
ALLISON LEIGH, )
) Supreme Court No. S-17247
Petitioner, )
) Alaska Workers' Compensation
v. ) Appeals Commission No. 18-014
)
ALASKA CHILDREN'S SERVICES )
O P I N I O N
and REPUBLIC INDEMNITY )
COMPANY OF AMERICA, ) No. 7464 - July 10, 2020
)
Respondents. )
)
Petition for Review fromthe Alaska Workers' Compensation
Appeals Commission.
Appearances: Patricia Huna, Law Office of Patricia Huna,
Anchorage, for Petitioner. Vicki A. Paddock, Meshke
Paddock & Budzinski, Anchorage, for Respondents.
Before: Bolger, Chief Justice, Winfree, Stowers, Maassen,
and Carney, Justices.
BOLGER, Chief Justice.
I. INTRODUCTION
A worker broke her ankle when she slipped and fell in her employer's icy
parking lot. Following surgery she had a complicated recovery. Her employer began
to controvert benefits related to the ankle about nine months after the injury. Three years
after the injury, her employer requested that she sign a release allowing it to access all
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of her mental health records for the preceding 19 years because of her pain complaints.
The worker asked for a protective order fromthe Alaska Workers' Compensation Board.
The Board's designee granted the protective order, and the employer appealed this
decision to the Board. A Board panel reversed the designee's decision. The employee
petitioned the Alaska Workers' Compensation Appeals Commission for review, but the
Commission declined review. We granted the employee's petition for review. We hold
that the statute permits an employer to access the mental health records of employees
when it is relevant to the claim, even if the employee does not make a claim related to
a mental health condition. We remand this case to the Board for further proceedings to
consider reasonable limits on the release at issue here.
II. FACTS AND PROCEEDINGS
Allison Leigh worked for Alaska Children's Services in February 2015
when she slipped on ice in the parking lot at work and broke her right ankle. She went
to the emergency room and had surgery that day. Her recovery from the fracture has
been complicated; she has had additional ankle surgeries and experiences continuing
pain.
Leigh has several preexisting conditions not directly associated with her
work injury. Her mental health records are at issue here; she has attention deficit
disorder (ADD), anxiety, and amood disorder, and takes medicationfor theseconditions.
Thenursepractitioner who manages Leigh's psychiatricmedications and acts as amental
health counselor submittedfour records to the compensation carrier for payment in 2015.
At that time Alaska Children's Services sent Leigh a request for releases of information
that included disclosure of mental health treatment records, and it controverted the
mental health counselingbills becauseLeigh's orthopedicdoctor said "thatmental health
counseling is not related" to the ankle injury. Leigh said the bills for the mental health
visits had been sent in error and petitioned for a protective order regarding mental health
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records. At a prehearing conference she told the Board designee that she did not think
her mental health counseling was related to the work injury. The Board designee ordered
the employer to remove the language related to mental health from the releases and
ordered Leigh to sign the releases after the changes were made.
In August 2015 Leigh had a second ankle surgery because of "loose bodies
in the ankle joint." Her physical complaints continued following surgery. In
November 2015 Alaska Children's Services controverted continuing temporary total
disability (TTD) on the basis that Leigh was medically stable. The next month it
controverted any disability benefits, stating that Leigh had turned down an offer of
modified work.
In late 2015 and early 2016 Leigh and her employer began to discuss other
medical treatments to resolve her ankle complaints. In January 2016 Leigh saw Dr. Scot
Youngblood, Alaska Children's Services' doctor; he thought she was medically stable
1 He evaluated several treatment options, none of which
and had "disability conviction."
he endorsed. Dr. Youngblood thought Leigh had "multiple psycho-social factors at
play," with subjective complaints that he "deemed in excess of objective findings." In
February 2016 the employer controverted all further workers' compensation except
medical benefits.
In April 2016 Leigh had another ankle surgery, which did not resolve her
pain complaints. The surgeon referred her to Northern Anesthesia & Pain Medicine,
where she saw Dr. Heath McAnally, an anesthesiologist and pain medicine specialist.
1 Disability conviction is "a belief that because of chronic pain, one is unable
to meet occupational, domestic, family, and social responsibilities, and to engage in
avocational and recreational activities." Gerald M. Aronoff & Jeffrey B. Feldman,
Preventing disability from chronic pain: a review and reappraisal, INT 'L REV.
PSYCHIATRY, May 1, 2000, at 158.
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Dr.McAnally diagnosed Leigh with chronicpain, post-traumaticarthritis,neuraligia,and
complex regional pain syndrome type I (CRPS). Dr. McAnally described CRPS as "a
potentially debilitating neuropathicpainstate"thatisdiagnosedusingspecificdiagnostic
criteria, the most accepted of which are "the Budapest criteria."
Dr. McAnally thought Leigh met the Budapest criteria. He continued to
treat her for her pain complaints, and his chart notes show that she continued to see her
psychiatric nurse practitioner and take psychotropic medication. Dr. McAnally said
Leigh's CRPS was "definitely related to her workplace injury." His notes contained
occasional comments indicating a correlation between Leigh's pain levels and stress
from events in her life.
According to Dr. McAnally's October 2016 chart note, he planned a
"biopsychosocial program focusing on the latter two components especially" with the
hope that "significant ground [could] be made here in terms of forgiveness/releasing
negative emotions and catastrophization that will facilitate physical symptom
improvements." He later instructed her in "breathing and relaxation techniques" and
wrote that "while chronic pain in general, and CRPS definitely contains significant
psychosocial components, to declare that her condition is due to pre-existing psychiatric
issues is . . . ridiculous."
In January 2017 Leigh filed a written workers' compensation claim for
several benefits. Alaska Children's Services denied the claim. At a March 2017
Employer's Medical Examination (EME) Dr. Youngblood found "[n]o evidence" of
CRPS and again diagnosed "[d]isability conviction." When asked whether he
recommended "any evaluations by any other medical specialist for any reason," he
answered, "No additional evaluations are indicated, recommended, or necessary.
Multiplepsycho-socialissuescontinue to be present, but psychiatric treatment would not
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be deemed to be related to the industrial injury . . . ." After the 2017 EME report, Alaska
Children's Services controverted medical benefits as well.
The Board ordered a second independent medical evaluation (SIME) with
Dr. Thomas Gritzka, an orthopedic surgeon, who saw Leigh in January 2018. He
thought Leigh had, in addition to the conditions already identified, "a form of benign
ligamentous hyper laxity[,] . . . a collagen disorder in the general family of Ehlers Danlos
syndrome." He thought this syndrome "probably contributes to her disability and
combines with her injury to cause her current disability and need for treatment." He
noted that the injury happened "against a background setting of attention deficit disorder
and depression" as well as the Ehlers Danlos syndrome. Dr. Gritzka did not agree with
all of Dr. Youngblood's opinions, specifically rejecting his opinion that Leigh had no
signs "that are consistent with some form of neurological or autonomic dysfunction."
Dr. Gritzka thought Leigh met some, but not necessarily all of the criteria for CRPS.
Leigh asked for a hearing on her claim after the SIME report, and Alaska
Children's Services opposed the hearing request. In its opposing affidavit, the employer
asked that Leigh attend a psychiatric EME, saying it was "sending psychiatric medical
releases" and needed more time "for discovery related to such." The day after it filed its
affidavit opposing a hearing, it sent Leigh three releases for her mental health records.
The releases authorized disclosure of all mental health records "from 1999 to the date of
expiration of this release." The release cautioned that failure to sign the release or
petition for a protective order "may result in suspension of benefits until the release is
signed."
Leigh again petitioned for a protective order. At the March 13 prehearing
conference, Leigh argued that she was not seeking mental health benefits and as a result
the request for mental health records was "unfair and intrusive and violative of [her]
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rights." Her attorney informed the Board and Alaska Children's Services that her
ongoing counseling was related to childhood trauma.
Alaska Children's Services relied on medical records, including its EME
reports, to argue that "there are psycho-social issues involved"; it also argued that
Leigh's ADD medication interfered with her pain medication, which could impact the
analysis related to disability. Leigh argued that broad disclosure of her records put Leigh
and workers like her "in the situation of either giving up their claim or having [their] past
revealed to the employer and the world," which was "a choice she shouldn't have to
make." The Board designee granted the protective order and told Alaska Children's
Services it could ask the Board to review the decision.
Alaska Children's Services petitioned the Board to overturn the protective
order. While that petition was pending, Leigh had a bone scan that showed
abnormalities. The parties also deposed Dr. Gritzka, who said the results of the bone
scan "fulfill[] . . . the Washington Department of Labor and Industry criteria, for CRPS."
In his opinion it confirmed "that there is still a painful problem in her ankle."
At his deposition Dr. Gritzka said psychological conditions can be a risk
factor in the development of CRPS, but are not a cause of the condition. He thought
psychosocial or psychological factors were an issue because he thought Leigh was not
adapting well to her ankle impairment. He explained that people with psychological
diagnoses can have problems adapting to an impairment. Dr. Gritzka recommended that
Leigh be evaluated at a tertiary clinic where specialists in multiple disciplines could treat
her as a team. He indicated a tertiary center would need access to all of her medical
records, including records related to old injuriesandherpsychological records,including
"all of her records going back to when she was a child basically."
Dr. Gritzka "would defer to the opinion of a psychiatrist or psychologist"
as to the contribution of Leigh's psychosocial issues to her pain; he perceived Leigh as
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"catastrophizing" and said it had been "exceptionally difficult" to get through Leigh's
medical history with her. He testified, "I think she's got a physical problem with her
ankle, no doubt. How she responds to it, that's a psychological or psychosocial issue.
I think her response is a little atypical."
The Board held an oral hearing about the protective order in late July 2018.
Leigh testified briefly at the Board hearing, and the parties had agreed the Board could
2 The hearing was mainly argument, with Alaska
consider Dr. Gritzka's deposition.
Children's Services asserting it had not raised a defense based on Leigh's mental health
because it had been unable "to investigate that part of the claim." Its argument was
based on the Board's liberal provision of discovery; it justified the request for access
because of Leigh's psychiatric medication, her continuing pain complaints, her request
to go to a specific treatment center, and Dr. Gritzka's comments about psychological
issues impacting her adaptation to her impairment.
In response Leigh argued that Alaska Children's Services had known as
early as 2015 that she was getting psychological treatment but had waited years to bring
it up as an issue. She pointed out that the Board designee had granted a protective order
in 2015 and said nothing had changed in her mental health counseling since then. She
maintained she had numerous other medical conditions, and that Dr. Gritzka had
indicated a tertiary clinic would need records related to all conditions, yet Alaska
Children's Services sought only mental health records. Leigh contended that the Board
decisions Alaska Children's Services relied on had all involved mental health claims and
that she had purposely not included mental health claims in order to protect her privacy.
2 Under AS 23.30.108(c) the Board "may not consider any evidence or
argument that was not presented to the board's designee, but shall determine the issue
solely on the basis of the written record." Neither party mentioned the procedural
deviation here, and we do not discuss it further.
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The Board decided that Leigh was required to sign the releases, although
it required them to be "appropriately modified" to conform to its decision. The Board
thought that because multiple doctors indicated that psychosocial issues were involved
in Leigh's pain complaints, Leigh's mental health records were all discoverable even if
they ultimately might turn out to be irrelevant. The Board made a specific finding about
the 2016 EME report and its identification of "disability conviction" and "psychosocial
3 as well as a Board decision in which the
factors." The Board cited In re Mendel
employee had requested benefits for a mental health condition4 to support its decision.
It said the Board designee had abused his discretion because he had not considered "the
medical evidence showing a reasonable nexus between [Leigh's] mental health issues
and her continuing symptoms and disability." The Board thought it was reasonable to
request records going back to 1999 because "it is within a few years of the date [Leigh]
began receiving mental health treatment,"when shewas"approximately"eightyears old.
The Board noted that Alaska Children's Services had not "formally raised a defense
based on mental health issues . . . because it had no release with which to obtain evidence
to develop such a defense."
Leigh petitioned the Commission for review of the Board's decision. The
Commission denied review. TheCommission said Leigh'smental health records "would
seem potentially to have bearing on her ankle injury" because physicians have expressed
"concern about the impact of her mental health on her recovery." Noting our liberal
3 897 P.2d 68 (Alaska 1995) (summarizing standards for relevancy in civil
proceedings and requiring some "nexus between the information sought" and an issue
in the case).
4 Rockstad v. Chugach Eareckson Support Servs., AWCB Dec. No. 08-0038
at 39-40 (Feb. 22, 2008) (requiring employee to sign release for mental health records
when employee included a claim for "an injury related mood disorder").
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interpretation of discovery rules, the Commission thought the request for "past
counseling records"couldlead "to discovery ofadmissibleevidencerelativetoher injury
and to the issues in dispute" because some doctors "indicated that future treatment might
include a mental health component."
Leigh petitioned for review; we granted Leigh's petition and asked the
parties to address two questions:
(a) Can the Alaska Workers' Compensation Board require an
employee to sign a release of information for mental health
records pursuant to AS 23.30.107-.108 when the employee
has not requested compensation related to the employee's
mental health or otherwise directly put her mental health in
issue? If the Board can do so, what limits, if any, can be
imposed on the release?
(b) To what extent, if at all, does Harrold-Jones v. Drury ,
422 P.3d 568 (Alaska 2018) apply to discovery in workers'
compensation proceedings?
III. DISCUSSION
A. The Board Can Require An Employee To Sign A Release For Mental
Health Records Pursuant To AS 23.30.107 - .108 When The Employee
Has Not Requested Compensation RelatedTo The Employee's Mental
Health Or Otherwise Directly Put Her Mental Health In Issue.
Releases of information in Alaska workers' compensation cases are
governed by two statutes, AS 23.30.107 and AS 23.30.108. "We apply our independent
judgment to questions of law that do not involve agency expertise, including issues of
5
statutory interpretation."
Alaska Statute 23.30.107(a) provides in pertinent part: "Upon written
request, an employee shall provide written authority to the employer [or] carrier . . . to
5
Vandenberg v. State, Dep't of Health & Soc. Servs., 371 P.3d 602, 606
(Alaska 2016).
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obtain medical . . . information relative to the employee's injury. . . . This subsection
may not be construed to authorize an employer [or] carrier . . . to request medical or
other information that is not applicable to the employee's injury." Alaska
Statute 23.30.107(b) excludes medical records in the Board's and Commission's files
from disclosure as public records under AS 40.25.100-.295, providing some privacy
protection to injured workers.
Alaska Statute23.30.108 deals with disputes about releases of information,
setting up a summary process with specific deadlines. Subsection .108(a) requires an
employee to either petition for a protective order or sign a requested release within
14 days. Alaska Statute 23.30.108(b) gives the Board's designee authority to resolve
disputes about releases and requires the Board to set a prehearing conference within 21
days. Benefits may be suspended if a worker refuses to sign a release after the designee
6 Subsection .108(c) requires the Board's designee to "direct parties to sign
requires it.
releases . . . if the parties present releases . . . likely to lead to admissible evidence
relative to an employee's injury," allows the Board to impose sanctions for failure to
comply with discovery-related orders, and limits the evidence and argument that may be
made when the Board reviews the designee's decision. Alaska Statute 23.30.108(c)
requires the Board to uphold the designee's decision "except when the . . . designee's
determination is an abuse of discretion."
To further protect workers' privacy, AS 23.30.108(d) allows an employee
to ask the Board to "recover medical . . . information that has been provided but is not
related to the employee's injury." If the Board or its designee grants the request, the
administrative agencies involved in the workers' compensation process as well as the
6
AS 23.30.108(b).
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7
parties must return the records to the employee. Alaska Statute 23.30.108(e) permits the
Board to limit medical information "that may be used by the parties to a claim." When
the Board imposes a limit under AS 23.30.108(e), an employee is required to "provide
or authorize the production of medical or rehabilitation information only to the extent of
the limitations of the order." If information has already been produced that exceeds a
Board-imposed limitation, the Board must "direct the party in possession of the
information to return the information to the employee as soon as practicable." 8
Leigh sought a protective order within the applicable time limit, and the
Board's designee granted her request. After an oral hearing, the Board required her to
sign modified releases. We asked the parties to address whether the Board can require
an employee to produce mental health records when the employee has not requested
compensation for a mental health condition or otherwise directly put her mental health
at issue.
Leighargues that weshouldconstruethestatuteconsistently with discovery
cases in civil suits, contending that in personal injury cases a plaintiff needs to provide
information related solely to medical conditions that a plaintiff puts in issue. She
maintains that because she did not make a claim for mental health treatment, Alaska
Children's Services has no reason to discover her mental health records. She analogizes
her case to Kennedy v. Municipality of Anchorage, where we held that a civil litigant did
not waive psychiatrist-patient privilege when he asserted a "garden-variety" mental
anguish claim.9 Relying on cases discussing the psychotherapist-patient privilege, she
argues that this privilege serves important social purposes so that we should only allow
7 AS 23.30.108(d).
8 AS 23.30.108(e).
9
305 P.3d 1284, 1290-91 (Alaska 2013).
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discovery of employees' mental health records when they themselves elect to put them
10
in issue.
Alaska Children's Services contends that under the new causation standard
of AS 23.30.010(a), the Board needs to look at all possible causes of disability or need
for medical treatment to determine whether work is the substantial cause. It maintains
that we have interpreted relevance broadly in the discovery context and asserts that the
Board has followed suit. It notes that Drs. Gritzka, Youngblood, and McAnally all
indicated that there was some interaction between Leigh's pain complaints and her
mental health condition. Alaska Children's Services argues that the Board can order
release of mental health records when mental health "is playing a role in the benefits the
employee seeks as part of her claim," not just when the employee asks for mental health
benefits, and therefore that the Board correctly applied its prior cases when it required
Leigh to sign the release.
"We interpret a statute 'according to reason, practicality, and common
sense, considering the meaning of the statute's language, its legislative history, and its
10 Leigh did not explain her focus on the patient-psychotherapist privilege.
While the Board has extended the rules of privilege to Board proceedings, see 8 Alaska
Administrative Code (AAC) 45.120(e) (2011) ("The rules of privilege apply to the same
extent as in civil actions."), AS 23.30.095(e) exempts from privilege "[f]acts relative to
the injury or claim communicated to or otherwise learned by a physician or surgeon who
may have attended or examined the employee." Leigh also did not raise in her brief
concerns related to the applicability of counseling-related confidentiality statutes. See
AS 08.29.200 (confidential communications between licensed professional counselors
and clients); AS 08.63.200 (confidential communications between marital and family
therapists and clients); AS 08.86.200 (confidential communications between
psychologists and clients). Nor did she discuss the constitutional right to privacy, which
the Board has considered germane in construing AS 23.30.108. Jackson v. Food Ex
Corp., AWCB Dec. No. 14-0019 at 12, 2014 WL 666940, at *12 (Feb. 18, 2014).
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11
purpose.' " The statutory language in AS 23.30.107(a) requires an employee to
authorizeher employer to obtainmedical information "relativeto theemployee's injury,"
but it also prohibits construing the provision to allow the employer to request medical
information "that is not applicable to the employee's injury."
The statutory language of AS 23.30.107(a) suggests that the legislature
intended to place some limits on access to claimants' medical records, and the legislative
history supports this. A staff representative for Representative Rokeberg testified
before a House committee about the amendment adding to AS 23.30.107(a) the
sentence that "[t]his subsection may not be construed to authorize an employer [or]
carrier . . . to request medical or other information that is not applicable to the
employee's injury."12 She indicated the language would limit what the adjuster
could request "when an employee first files a request for benefits" and was intended
to "put some sidebars" on adjusters sending forms "wanting to know 'everything.'
13
" Representative Rokeberg "said the intent was to prevent a 'fishing expedition'
when an employee bumps a toe and has to give a whole life history."14
Butthemain purposeofthelegislationamending theAct's provisions about
obtaining releases and the Board's review of discovery disputes was to set up "a simple
11 Vandenberg v. State, Dep't of Health & Soc. Servs. , 371 P.3d 602, 606
(Alaska 2016) (quoting Louie v. BP Expl. (Alaska), Inc. , 327 P.3d 204, 206 (Alaska
2014)).
12 Minutes, Hearing on House Bill (H.B.) 419 Before the H. Labor &
Commerce Comm., 21st Leg., 2d Sess. at Tape 00-37, Side A No. 0430 (Mar. 27, 2000)
(testimony of Janet Seitz, staff representative to Rep. Norman Rokeberg).
13 Id.
14 Id. at No. 0526.
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15
summary process for employers to obtain reasonable medical releases." As set out in
the intent section of the bill, the legislature's intent (as relevant to this provision) was that
"claimants provide releases of information that allow employers and insurers and their
agents to obtain promptly information needed to investigate and adjust claims" and
16
"medical information relevant to claims be discoverable and be promptly provided."
We therefore construe the statute in light of this purpose.
The definition of "relative" is "[h]aving pertinence or relevance; connected
17 18
or related" or "RELEVANT, PERTINENT." The Board has construed "relative" in
AS 23.30.107(a) as essentially the same as "relevant" under the Alaska Civil Rules: in
a frequently cited Board case that predated the 2000 amendment, the Board decided "the
definition of 'relevant' for discovery purposes in [Alaska] Civil Rule 26(b)(1) is
persuasive as to the meaning and legislative intent of the phrase[] 'relative to employee's
19
injury' . . . in AS 23.30.107(a)."
We agree with the Board's construction of the statute and observe that
AS 23.30.108(c) instructs the Board "to direct parties to sign releases . . . if the . . .
releases . . . are likely to lead to admissible evidence relative to an employee's injury."
15 Id. at Tape 00-28, Side A No. 2275 (testimony of Paul Grossi, Dir., Div.
of Workers' Comp.).
16 Ch. 105, § 1(7)-(8), SLA 2000.
17 Relative (adjective), THE AMERICAN HERITAGE DICTIONARY,
https://ahdictionary.com/word/search.html?q=relative (last visited May 7, 2020).
18 Relative (adjective), MERRIAM-WEBSTER ONLINE DICTIONARY,
https://www.merriam-webster.com/dictionary/relative (last visited May 7, 2020).
19 Granus v. William P. Fell, D.D.S., AWCB Dec. No. 99-0016 at 10, 1999
WL 806766, at *6 (Jan. 20, 1999).
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This language is similar to that used in Rule 26(b)(1), which permits discovery of
information "reasonably calculated to lead to the discovery of admissible evidence."
As theCommissionand theBoard both noted,wehaveconstrued discovery
rules broadly. In Ayuluk v. Red Oaks Assisted Living, Inc. , for example, we agreed with
the defendants that the plaintiff's entire medical record met "the discovery standard of
relevance" because the plaintiff had put both her cognitive abilities and her emotional
20 And in civil cases as well as workers' compensation claims, pre-
condition at issue.
existing medical conditions can be relevant to a case even if the specific medical
condition is not directly put in issue.21
Thecurrent causation standardin workers' compensation cases requiresthe
Board to consider the relative contribution of different causes to determine whether a
22 An employer has a right to develop defenses and discover
claim is compensable.
information relevant to different possible causal factors in response to a worker's written
claim. Here, even if Leigh did not directly make a claim for medical care or disability
for a mental health condition, the medical records contain numerous references to the
impact of her mental health conditions on treatment and possible disability related to her
pain complaints. Dr. Gritzka testified that her treatment providers would need all of her
medical records, and he deferred "to the opinion of a psychiatrist or psychologist" when
20 201 P.3d 1183, 1204 (Alaska 2009). We recognized that "a reasonable
limitation in terms of the time of medical treatment could have been imposed." Id. n.55.
21 Cf. Liimatta v. Vest, 45 P.3d 310, 313-17 (Alaska 2002) (holding that
plaintiff's pre-accident drug seeking condition was relevant to claim for loss of
enjoyment of life and reversing trial court decision to exclude related evidence).
22 AS 23.30.010; see also Morrison v. Alaska Interstate Constr., Inc., 440
P.3d 224, 238 (Alaska 2019) (describing current causation standard as "flexible" and
"fact-dependent").
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asked whether "any psychosocial condition" was related to Leigh's case, even though
he himself thought there might be a relationship.
Leigh claims that nothing changed in her case between 2015, when she first
sought and received a protective order, and 2018, when Alaska Children's Services
asked the Board to review the second protective order, but this does not accurately
characterize the record. The Board granted Leigh's first protective order only a few
months after her fall, when the doctors evidently agreed that her mental health conditions
were not an issue in her care or disability. Her medical condition changed after the first
protective order was granted: she was first diagnosed with CRPS over a year later, and
her treatment records with Dr. McAnally document emotional concerns as well as
physical complaints in the course of several visits.
Even though Leigh did not directly seek compensation related to mental
health benefits, the record contains multiple references to the impact her mental health
conditions might have on her treatment as well as her pain complaints, which are part of
her claim for both medical treatment and disability. The Board appropriately decided
that Leigh's mental health records were potentially relevant to a defense.
B. The Board Can Impose Reasonable Limits On Releases.
We also asked the parties to address what limits the Board can place on
releases of information related to mental health records when an employee has not
requested compensation related to her mental health. Leigh asserts that the Board should
impose limits on releases when the employee requests it, and she asks us to order in
camera review of her records. Alaska Children's Services contends that the Board
appropriately limits releases in workers' compensation cases to two years before the date
of either the injury or medical treatment "to the relevant body part or condition." It
argues that the Board did not abuse its discretion here because Leigh began to see mental
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health counselors when she was a child, and 1999 was "within a few years of the date
Leigh began receiving mental health treatment."
We decline to delineate an explicit rule for the Board to follow in limiting
medical releases for mental health records. The Board has discretion in ruling on
23 and can, if it chooses, limit an employer's access to information in an
discovery issues
employee's mental health records as it has done in other cases. The Board has required
in camera review in some circumstances,24 and it has also imposed restrictions on access
to give an employee the opportunity to seek a protective order about specific records
before the records are filed with the Board rather than after.25 The Board also has limited
the mental health conditions for which records must be disclosed.26 The types of
conditions and restrictions the Board placed on access to mental health records in other
cases were related to the specific circumstances of the case.
23 See Dougan v. Aurora Elec. Inc., 50 P.3d 789, 793 (Alaska 2002)
("Discovery rulings are generally reviewed for abuse of discretion.").
24 Chapman v. Tom Thumb Montessori Schools, AWCB Dec. No. 09-0209
at 15, 2009 WL 5841452, at *12 (Dec. 30, 2009); Boling v. Municipality of Anchorage,
AWCB Dec. No. 06-0011 at 14, 2006 WL 151544, at *10 (Jan. 13, 2006).
25 Hall v. Alkota Plumbing & Heating, AWCB Dec. No. 15-0057 at 9, 2015
WL 2339760, at *6 (May 13, 2015) (requiring employer's attorney to serve complete set
of records on employee to allow employee to file protective order to exclude portion of
records and prohibiting employer's attorney from giving records to client or filing them
with the Board before the employee could file for a protective order).
26 Zimmerman v. Aurora Well Serv., AWCB Dec. No. 11-0150 at 31, 2011
WL 4795044, at *24 (Oct. 6, 2011) (limiting release to ADHD, depression, cognitive
difficulties, and memory loss). The Board's designee has likewise limited releases to
specific conditions. See Stroup v. Central Peninsula Gen. Hosp., AWCB Dec. No. 12-
0103 at 13, 2012 WL 2244836, at *2, *9 (June 14, 2012) (limiting release to "anxiety,
stress, or panic disorder only").
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It is unclear from the Board's decision here what factors the Board
considered when it ordered Leigh to allow her employer access to years of mental health
27
records. The Board required that the release be "appropriately modified" but did not
provide any details about specific modifications. For example, the Board did not discuss
Leigh's concern that disclosure of her counseling records might impact her coworkers,
nor did the Board indicate why disclosure of counseling records that included notes and
bills from when Leigh was a minor and were related to childhood trauma would be
necessary for evaluation of the compensability of her injury. Even if medical providers
must access records for treatment or evaluation, the proposed release had no restrictions
on re-disclosure and specifically stated the records were no longer subject to federal
privacy protections. Leigh raised specific concerns during the proceedings that the
Board did not address. The Board must on remand carefully scrutinize the information
requested to determine whether it is overly broad, particularly with respect to the time
period covered by the release. The Board should also consider restrictions on re-release
of the information and should make an appropriate record for further appeal if
28
necessary.
27 See S. Anchorage Concerned Coal., Inc. v. Coffey , 862 P.2d 168, 175
(Alaska 1993) (repeating rule that administrative adjudicative decisions "must articulate
the reasons for their decisions" and should facilitate judicial review (citing Kenai
Peninsula Borough v. Ryherd , 628 P.2d 557, 562 (Alaska 1981))).
28 After the briefing was completed in this case, the Commission issued a
decision addressing the applicability of Harrold-Jones v. Drury, 422 P.3d 568 (Alaska
2018), in workers' compensation cases. The Home Depot, Inc. v. Holt, AWCAC
Dec. No. 261 at 14, http://labor.state.ak.us/WCcomm/memos-finals/D_261.pdf. We
therefore dismiss that part of the petition related to Harrold-Jones as improvidently
granted.
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IV. CONCLUSION
WeVACATEtheBoard's interlocutorydecisionand REMANDfor further
proceedings consistent with this opinion.
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