PA Supreme Court’s Decision on Attorney/Client Privilege and How It May Limit Questioning in a Workers’ Compensation Case

On February 23, 2011, the Pennsylvania Supreme Court in Gillard v.AIG Insurance Co., No. 10 EAP 2010, 2011 WL 550552, reviewed 42 Pa.C.S. 5928 to determine the narrowness or breadth of attorney-client privilege in Pennsylvania. The Supreme Court found that the attorney-client privilege “operates in a two-way fashion” which protects both client-to-attorney and attorney-to-client communications. Specifically, the Court held, “in Pennsylvania, the attorney-client privilege operates in a two-way fashion to protect confidential client-to-attorney or attorney-to-client communications made for the purpose of obtaining or providing professional legal advice.”

So, how does this effect a Workers’ Compensation case?

In many instances, an injured worker comes to us with a serious injury, which requires expert care. Often times, this is the first time the individual has ever suffered a severe injury and he/she is looking for advice or guidance on what doctor has the best expertise or care. Or, the client may be treating with an unscrupulous doctor that has the Employer/Insurance Carrier’s, and not the injured worker’s, best interest at heart (usually because the doctor’s pocketbook will be hurt). Until now, most Workers’ Compensation attorneys have been in a precarious situation.

If the attorney recommends a doctor, whether the client inquires or not, the fact that the attorney recommended the doctor may come out during the client’s testimony, when the Employer/Insurance Carrier’s attorney inquires how the injured worker came to treat with the doctor. Although Workers’ Compensation Judges don’t bat an eye when the Employer/Insurance Carrier/Defense Attorney sends an injured worker to a doctor of their own choosing for an Independent Medical Examination (which is anything but independent), there are documented cases of Workers’ Compensation Judges denying Claim Petitions or other Petitions merely because injured worker’s attorney referred the injured worker to a doctor.

Given the decision in Gillard, if the injured worker’s attorney objects on the basis of attorney-client privilege, the Employer/Insurance Carrier’s inquiry should be precluded, as it is a communication between a client and his/her attorney, regardless of whether the attorney offers such suggestion or whether the injured worker inquires of his/her attorney, which is sought for the purpose of obtaining or providing professional legal advice.

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