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authorized and reasonably necessary medical treatment, such lawsuits for the ten-year period of time. as for the purpose of extorting an inadequate settlement from Brunson also requested copies of the personnel files of em- an injured worker, so as to recklessly or intentionally cause ex- ployees who were involved in handling the claim, including re- treme emotional distress to the injured worker, a tort-of-outrage sumes, continuing-education records, licenses, certificates, com- claim will lie. On the other hand, tort-of-outrage claims against plaints and reprimands. The appellate court ruled that “privately workers’ compensation insurance carriers have failed when the employed persons are entitled to at least the same level and expec- evidence showed that the carrier, in denying treatment, was tation of privacy as that afforded to publicly employed persons un- merely insisting upon its legal rights in a permissible way. der the rule-of-reason test addressed in Graham v. Alabama State Employees Association, 991 So. 2d 710 (Ala. Civ. App. 2007) and In the course of discovery, Brunson requested the produc- Stone v. Consolidated Publishing Company, 404 So. 2d 678 (Ala. tion of “all lawsuits filed against this defendant for the last ten years 1981).”6 The court went on to state as follows: to the present alleging tort of outrage, conspiracy to commit the There exists a strong public policy against disclosure of tort of outrage, fraud, breach of contract, or intentional infliction of personnel files. Discovery of such files is permissible “if (1) emotional distress involving any aspect of a workers’ compensation the material sought is clearly relevant, and (2) the need for claim, settlement, or medical treatment for an injured worker.” The discovery is compelling because the information sought is not appellate court noted that in order for the plaintiff to prove a cause otherwise readily obtainable.” General allegations do not suf- of action for outrage, he must show that the carrier did not com- fice to render these records discoverable. Plaintiffs must first ply with the law in denying the surgery; i.e., if it failed to submit make an initial fact-specific showing. the treatment plan to utilization review or if the treatment plan was rejected as medically unnecessary for reasons other than those estab- lished in the administrative regulations. Because other surrounding Applying the rule-of-reason test to Brunson’s request, the states have different standards for determining medical necessity, the court noted that because no Liberty Mutual employees were plaintiff’s request for production of lawsuits from other states would not be reasonably calculated to lead to the discovery of admissible produce information pertaining to similar litigation in Alabama. The COOKING Mutual Liberty that request could plaintiff the however, evidence; BEFORE court went on further to limit the discovery request as follows: substantially similar claims that Liberty Mutual engaged in YOUR alleging lawsuits only include should order discoveryThe ment for work-related injuries recommended by an authorized EYES Hibachi Grill & Sake Bar treat- medical deny to conduct of course or scheme of sort some treating physician on the ground of lack of reasonable medi- Sushi Bar and Seating cal necessity using criteria other than that set out in Alabama’s utilization-review statutes and administrative regulations. Finally, with regard to the other lawsuits, the Alabama Court of Civil Appeals found that although the discovery order should be limited in time, requesting similar lawsuits dating back to ten years before the date of injury was not unreasonable. The court reasoned An exciting & delicious dining experience that because the utilization-review statutes were enacted in 1992 and Open Daily for Lunch and Dinner · Available for Corporate and Event Catering the administrative regulations were made effective in 1996, there was a relatively short period of time during which there could have been any substantially similar suits filed. The court also relied on the fact that the plaintiff’s claim was “fairly novel” and Liberty Mutual did 3501 Grandview Parkway · Just past 459/Hwy 280 interchange not present any evidence that it could not readily identify any such 205-298-0200 | www.eKOBE.com Birmingham Bar Bulletin/ Fall 2012 21


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