But if states enshrine privacy rights in their state constitutions in reaction to probable Roe reversal will it limit the influence of insurance case managers in workers’ compensation claims?

If the United States Supreme Court does in fact overturn Roe v. Wade, as it seems they will based on a draft opinion leaked last week, it would be the most important Supreme Court decision in decades. But does the decision have any impact on the state-based, statutory and administrative world of workers’ compensation?

I think it could when it comes to the use of nurse-case managers and the right to privacy. Case managers will often attend medical appointments with injured workers. Experienced case managers are able to direct medical care in a way advantageous to employers in workers’ compensation cases.  States that have rights to privacy in their state constitutions such as Illinois and Montana, are able to reign in insurance case managers from interfering with the medical care of injured workers in workers’ compensation cases.

But, Justice Alito’s draft opinion in the Dobbs case calls into question the right to privacy under the United States Constitution. In theory, even if a state constitution didn’t expressly contain a guarantee of privacy, an employee could at least at least use a  federal right to privacy to limit the access of a case manager to medical information. But if Roe v. Wade is gone or dead letter law, that option is gone for injured workers.

Red states v. Blue states and the right to privacy

In 2020, I wrote that anti-abortion organizations and elected officials would likely try to block any efforts to impose a state right to privacy in the Nebraska state constitution. I could see that happening in other Republican-dominated red states. But will other “blue” or Democratic-governed states follow Democratic-governed Illinois in guaranteeing a right to privacy in their state constitutions to protect reproductive health and abortion rights? We will see. But if those states did enact right to privacy amendments, they could impact the day-to-day business of workers’ compensation claims in a way that could benefit workers.

Waiving privacy in an injury case?

But even if employees can keep hostile third-parties out of medical appointments in workers’ compensation cases, normally private medical information is usually fair to ask about and disclose in a workers’ compensation case. Nebraska follows the civil discovery rules in workers’ compensation cases which gives employers a lot of leeway to look into medical history and subject injury claimants to medical examinations. Sometimes these inquiries can be demeaning. Employees do have some tools to stop excessive and unreasonable requests for medical information, but if the right to privacy is weakened they have one less tool to protect their dignity in a workers’ compensation claim.