McRae v. Arby's Restaurant Group, Inc.

BLACKWELL, Judge,

dissenting.

I respectfully dissent. In a workers’ compensation case, a physician who has treated or examined the employee must, upon the request of the employer, disclose “all information and records related to the examination, treatment, testing, or consultation concerning the employee.” OCGA § 34-9-207 (a). The majority concludes today that this duty of disclosure involves only the production of written medical records and other tangible things, and it does not, therefore, authorize a physician to speak with an employer or its counsel. The duty of disclosure is so limited, the majority explains, because “information” does not “mean anything but tangible documentation.” If that were a reasonable interpretation of the statute, I might agree that the statute does not authorize the employer or its counsel to talk with the physician, inasmuch as the production of something tangible does not require any conversation.

But that interpretation of the statute is not a reasonable one. When we consider the meaning of a statute, we must afford the words of the statute their “ordinary signification,”² see OCGA § 1-3-1 (b), we must presume that the General Assembly meant what it said and said what it meant, see Northeast Atlanta Bonding Co. v. State ofGa., 308 Ga. App. 573, 577 (1) (707 SE2d 921) (2011), and we must bear in mind that, “[wjhere the language of a statute is plain and unambiguous, judicial construction is not only unnecessary but forbidden.” Six Flags Over Ga. II v. Kull, 276 Ga. 210, 211 (576 SE2d 880) (2003); see also Opensided MRI of Atlanta v. Chandler, 287 Ga. 406, 407 (696 SE2d 640) (2010). The relevant statute here, OCGA § 34-9-207 (a), unambiguously requires a physician to disclose not just medical records, but also “information . . . related to the examination, treatment, testing, or consultation concerning the employee.”

The word “information” is generally understood to mean knowledge or data that is communicated to another, regardless of whether the knowledge or data has been memorialized in any tangible medium or exists only in the memory and voice of the person communicating it. See The American Heritage Dictionary 927 (3d ed. 1992) (“information” is “[k]nowledge derived from study, experience, or instruction” or “[k]nowledge of a specific event or situation; intelligence”); The Compact Oxford English Dictionary 847 (2d ed. 1991) (“information” is “[kjnowledge communicated concerning some particular fact, subject, or event; that of which one is apprised or told”); The New Shorter Oxford English Dictionary 1364 (Vol. 1 1993) (“information” is “[kjnowledge or facts communicated about a particular subject, event, etc.; intelligence, news”); Webster’s New International Dictionary 1276 (2d ed. 1959) (“information” is “[kjnowledge communicated by others”); Webster’s Third New International Dictionary 1160 (1976) (“information” is “a knowledge communicated by others or obtained from investigation, study, or instruction” or “knowledge of a particular event or situation”). There is nothing odd about defining “information” in this way. See Moreland v. Austin, 284 Ga. 730, 731, n. 1 (670 SE2d 68) (2008) (explaining that HIPAA protects “[h]ealth information,” regardless of “whether it lies within a physician’s memory or a written record”). The more odd definition is that of the majority, which limits “information” to that contained in written documents or other tangible things.³ The majority cites no authority whatsoever for its odd definition of “information.”

Decided December 1, 2011 Reconsideration denied December 15, 2011 Clements & Sweet, Lawrence T. Clements, Bruce P. Johnson, for appellant. Hamilton, Westby, Antonowich & Anderson, Andrew J. Hamilton, James H. Chandler, for appellee. Moore, Ingram, Johnson & Steele, Robert D. Ingram, Ryan G. Prescott, Carly M. Record, Thomas A. Eaton, Todd K. Maziar, amici curiae.

If a physician is required to sometimes disclose to an employer information that exists only in his mind, communicating that information in a conversation with the employer or its counsel is a natural, reasonable, and sensible way to do it. Because OCGA § 34-9-207 (a) requires a physician to disclose such information, I think, the statute implicitly authorizes the physician to speak with the employer or its counsel, and we ought to, therefore, affirm the judgment below. Because we do not, I respectfully dissent.

I am authorized to state that Presiding Judge Miller and Judge Doyle join in this dissent.

2 We do not always attribute to terms of art and terms “connected with a particular trade or subject matter” their ordinary signification, but instead attribute to such terms the “signification attached to them by experts in such trade or with reference to such subject matter.” OCGA § 1-3-1 (b). No one in this case even suggests, however, that “information,” as that term is used in OCGA § 34-9-207 (a), is a term of art or should be attributed anything but its ordinary signification.

3 My understanding of the meaning of “information” finds support in OCGA § 9-11-33, which governs the use of interrogatories in civil cases and requires a party to whom interrogatories are propounded to “furnish such information as is available to the party.” OCGA § 9-11-33 (a) (1). Would anyone seriously contend that the word “information,” as used in OCGA § 9-11-33, means only information found in written documents or upon tangible things, such that information that exists only in the mind of a party need not be furnished in response to an interrogatory? Of course not. There is no reason to think that “information” means something intangible in OCGA § 9-11-33 (a) (1) but means something tangible in OCGA § 34-9-207 (a).