Authority of Department of Labor and Industries to prohibit recording of medical examinations

INDUSTRIAL INSURANCE-WORKERS COMPENSATION-PHYSICIAN AND PATIENT-RECORDING OFFICIAL PROCEEDINGS-Authority of Department of Labor and Industries to prohibit recording of medical examinations

The Department of Labor and Industries has authority in prescribing the conduct of medical examinations conducted pursuant to the state's industrial insurance program (RCW 51.32.110) to prohibit the patient and third parties from recording such examinations, and such action is not inconsistent with RCW 9.73.030 or other Washington law.

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                                                                October 19, 1994

HonorableLinda Smith
State Senator, District 18
205 Institutions Building, MS 40418
Olympia, WA  98504-0418                                                    

                                                                                                Cite as:AGO 1994 No. 18

Dear Senator Smith:

            By letter previously acknowledged, you have requested our opinion on a question we have paraphrased as follows:

            May the state Department of Labor and Industries lawfully instruct physicians not to permit the recording of examinations conducted by the physicians of workers' compensation claimants pursuant to RCW 51.32.110?

            We answer your question in the affirmative as explained further in the analysis below.

            The general subject of your question is the industrial insurance program established by the Legislature, codified in Title 51 RCW, and administered by the state Department of Labor and Industries.  As one element of this rather complicated industrial insurance scheme, RCW 51.32.110 provides that workers claiming benefits "shall, if requested by the department or self-insurer, submit himself or herself for medical examination, at a time and from time to time, at a place reasonably convenient for the worker and as may be provided by the rules of the department".  RCW 51.32.112(1) authorizes the Department of Labor and Industries to "develop standards for the conduct of special medical examinations to determine permanent disabilities".

            Pursuant to these statutes, the Department of Labor and Industries has published a medical examiners' handbook (Medical Examiners' Handbook, dated December 1993, published by the Washington State Department of Labor and Industries).  The handbook covers a number of subjects from guidelines for conduct during medical examinations, to instructions on completing paperwork and billing codes.  On page 5 of the handbook, in a section entitled "Accompaniment during examinations", the following sentence appears:  "The use of electronic recording equipment by the injured worker or accompanying person is not allowed."

            Apparently referring to this language, your opinion request suggests that the provision "may be overly restrictive and unfair to workers making claims to L&I", and you have asked us to review the Department's legal authority to include the cited language in its manual.[1]

            To facilitate our analysis, we have broken it into the following questions:

            1.         Does L&I have sufficient statutory authority to include the cited language in its handbook?

            2.         Is the cited language consistent with RCW 9.73.030?

            3.         Is it unreasonable, arbitrary, or capricious for the Department to prohibit electronic recording of medical examinations?

We will discuss these three questions in the order indicated.

1.         Does L&I have sufficient statutory authority to include the cited language in its handbook?

            Like any other agency of state government, the authority of the Department is determined by statute and the agency has only those powers granted by the Legislature or necessarily implied from the statutory grants of power.  See, e.g., State ex rel. Eastvold v. Maybury, 49 Wn.2d 533, 304 P.2d 663 (1956).  The authority of a state agency, however, is not limited to those powers expressly granted by the Legislature in so many words (indeed, the Legislature would have a very heavy burden if it had to spell out explicitly each and every detail of the authority to be exercised by every agency), but may also be fairly inferred from those powers expressly granted by the Legislature.

           In this case, there is no statute specifically authorizing L&I to prohibit or allow electronic recordings of medical examinations, nor is this specific subject discussed in the statutes.  However, the Legislature has granted L&I ample authority to develop standards and regulate the conduct of the examinations.  RCW 51.32.112(1) authorizes the Department to "develop standards for the conduct of special medical examinations to determine permanent disabilities".  RCW 51.32.114 authorizes the Department to "monitor the quality and objectivity of examinations and reports for the department and self-insured claimants".  RCW 51.04.020, detailing the functions of the Director of L&I, authorizes, among other things, the rules governing the administration of Title 51 RCW, regulations concerning the proof of an accident and the extent thereof, and supervision of the medical, surgical, and hospital treatment of industrial insurance claimants.  Still, more generally, RCW 43.22.030(1) provides that the Director of L&I, through the division of industrial insurance shall "[e]xercise all the powers and perform all the duties prescribed by law with respect to the administration of workers' compensation and medical aid in this state".  Those statutes amount to a broad legislative delegation to the Department in deciding how to implement the details of the industrial insurance project.

            The statutes cited above, and particularly RCW 51.32.112, delegate to L&I the responsibility to develop standards for the conduct of medical examinations.  Since recording a medical examination is indisputably an element of the conduct of an examination, we think the Legislature granted the Department authority to make reasonable regulations on this subject, just as it can prescribe the contents of the examination, instruct the physician to be courteous and professional while conducting the examination, regulate the attendance of third parties during the examination, and prescribe the reports to be filled out by the examiner after the examination.  Since the examination is a proceeding conducted for the Department in carrying out its legal functions, and since the proper conduct of the examination will affect the legal rights and responsibilities of the claimant, the employer, the Department, and possibly other parties, we conclude that the Department has general supervisory authority over the conduct of the examination and can regulate, among other things, whether and how the examination can be recorded, and by whom.

            While the Washington courts have not often had occasion to determine the extent of an agency's implied powers, two Washington Supreme Court cases show that the courts give agencies rather wide latitude in determining how to perform the functions assigned by the Legislature.  InState ex rel. McQuesten v. Hinkle, 130 Wash. 525, 228 P. 299 (1924), the Supreme Court held that, in the absence of a statute specifically regulating office hours, the Secretary of State had authority to adopt reasonable office hours at his own discretion, including the authority to close his office at 12 p.m. on Saturday (which was not then and is not now an official state holiday).  And much later, inBrown v. McPherson's, 86 Wn.2d 293, 545 P.2d 13 (1975), a majority of the court held that the state Department of Licensing's authority to regulate the sale of real estate authorized (and perhaps even obligated) the Department of Licensing to communicate with the public concerning knowledge it had obtained in the course of business about possible dangerous conditions on certain real estate being offered for sale.  In neither of these cases was the statutory authority of the agency nearly so explicit as that granted to L&I with respect to the conduct of medical examinations.  Accordingly, we conclude that the subject of electronic recording is an appropriate subject for the standards developed by the Department pursuant to RCW 51.32.112.

2.         Is the cited language consistent with RCW 9.73.030?

            RCW 9.73.030 is a criminal statute generally prohibiting the recording of private conversations without permission of all parties.[2]  The statute consists of subsections, and section 1 is subdivided into two parts.  RCW 9.73.030(1)(a) relates primarily to the recording of telephone conversations and is not relevant to our discussion here.  RCW 9.73.030(1)(b) generally makes it unlawful for any "individual, partnership, corporation, association, or the state of Washington, its agencies, and political subdivisions to intercept, or record any . . . [p]rivate conversation . . . without first obtaining the consent of all the persons engaged in the conversation".  RCW 9.73.030(2) relates to certain communications of an emergency nature and are beyond the scope of our discussion.  RCW 9.73.030(3) defines "consent" to include the situation where other parties fail to object after one party announces that he or she is about to record the conversation.  Finally, RCW 9.73.030(4) excuses certain members of the press from getting specific permission to record a conversation if their recording or transmitting device is readily apparent or obvious to the speakers.

            There is nothing inconsistent between RCW 9.73.030 and the L&I handbook instructing contract physicians not to permit recording of contract medical examinations.  To determine if RCW 9.73.030 is even relevant to the situation, one must first determine that the medical examination conducted pursuant to RCW 51.32.110 is a "private" conversation for purposes of RCW 9.73.030.  Although the term "private conversation" is not defined in statute, case law indicates that the conversation that occurs between a physician and a patient during a medical examination conducted for industrial insurance purposes would be considered "private" by the parties to most such conversations, and thus would be considered "private" by the courts.

            All of the appellate cases interpreting RCW 9.73.030 have arisen in the context of a criminal prosecution, and most of them are not cases involving prosecutions for violating RCW 9.73.030 itself, but rather cases concerning the admissibility of evidence obtained by law enforcement officers under various circumstances.  None of the cases involve a fact situation even remotely similar to the one presented by your question.  We do note, however, that the courts have established a general principal of interpreting the phrase "private conversation" to mean "private" in the sense of a conversation in which the participants would not ordinarily expect that they will be overheard or that the details of their conversation will be broadcast to the general public.  This principle was perhaps most explicitly stated in State v. Slemmer, 48 Wn. App. 48, 738 P.2d 281 (1987), in which certain members of an investment partnership recorded partnership meetings without obtaining consent of all parties.  The court of appeals held that the members of such a partnership would ordinarily expect the contents of their conversation to be revealed to others, and therefore permitted the taped conversation to be introduced into evidence in the fraud prosecution of one of the partners.  Similar analyses may be found in State v. Flora, 68 Wn. App. 802, 845 P.2d 1355 (1992), and in State v. Bonilla, 23 Wn. App. 869, 598 P.2d 783 (1979).  The Washington Supreme Court has been less explicit, but appears to have adopted much the same analysis inState v. Smith, 85 Wn.2d 840, 540 P.2d 424 (1975).  See alsoState v. Wanrow, 88 Wn.2d 221, 559 P.2d 548 (1977) (in which the Supreme Court affirmed the court of appeals in holding that certain emergency calls to the police may be deemed "private" for purposes of the statute).  When the courts find that the participants to a conversation reasonably would expect the content to remain confidential, they interpret the conversation to be "private" for purposes of the criminal law.  When the courts find that there is no legitimate expectation that the conversation will be kept confidential, they interpret the conversation as not being "private", at least in the context of admissibility of evidence in criminal prosecutions.

            We think the courts would likely hold that a conversation between a physician and an industrial insurance claimant would be "private" for purposes of RCW 9.73.030.  For the most part, people consider their medical conditions to be a private matter, and there is a common law tradition of confidentiality between physician and patient amounting in some circumstances to a privileged communication.  The statutory and common law privilege has been repealed by the Legislature as to actions or proceedings before L&I or the Board of Industrial Insurance Appeals (see RCW 51.04.050), but the Legislature has also protected the claim file and records by making them generally confidential.  See RCW 51.28.070.  Thus, while an industrial insurance claimant would ordinarily understand that the report of an examination conducted pursuant to RCW 51.32.110 would be made available to third parties on a limited basis, the report would be used by the Department and the courts to determine eligibility.  The claimant and the physician would also understand that the records will not be available to the general public and will not be publicized any further than necessary to evaluate and adjudicate the validity of the claim.

            Thus, we conclude that conversations between physicians and industrial insurance claimants in the course of examinations conducted pursuant to the cited statutes are "private" conversations, in which case, even aside from the handbook published by L&I, it would be a crime for any party present to record the conversation without obtaining consent of all parties in the manner indicated in the statute.  The language in the L&I manual amounts to an instruction by the Department to its agent (the physician conducting the examination) not to grant consent to recording.  Since, as we have noted earlier, the Department has ample authority to develop standards for the conduct of such examinations, there is nothing inconsistent with RCW 9.73.030 to hold that the Department has authority to withhold its consent to the recording.[3]

            Even if an examination conducted pursuant to RCW 51.32.110 were ruled "not private" for purposes of the criminal statute, it does not follow that the Department would be without power to instruct the physician not to permit recording.  RCW 9.73.030 defines circumstances under which it is a crime to record conversations.  Neither that statute nor any other statutory or constitutional provision we are aware of affirmatively grants any person the right to record conversations ("private" or not) without obtaining permission from the parties.  Even where a proceeding is "public" in the broad sense that the public may attend, it does not automatically follow that members of the public have a right to record the proceeding.[4]  Although the Washington courts have not had occasion to directly consider this issue, the courts of other states have generally upheld the right of public agencies to prohibit recording, except where manifestly unreasonable or inconsistent with the applicable open public meetings statute.  See, e.g.,Dean v. Guste, 414 So. 2d 862 (La. App. 1982); Berry v. Peoples Broadcasting Corp., 547 N.E.2d 231 (Ind. 1989);Mitchell v. Board of Educ., 113 A.D.2d 924, 493 N.Y.S.2d 826 (1985);Davidson v. Common Council of White Plains, 40 Misc.2d 1053, 244 N.Y.S.2d 385 (1963).

            While we think the better argument is that a medical examination conducted pursuant to RCW 51.32.110 would be a "private" conversation, even if the courts held otherwise, we think it is likely that the courts would permit L&I to regulate the recording of such a proceeding.  A medical examination is in no sense a "public meeting" as defined in this state's Open Public Meetings Act (see generally RCW 42.30), and we are aware of no other statutory or constitutional provision which would preempt or prevent reasonable regulation.

3.         Is it unreasonable, arbitrary, or capricious for the Department to prohibit electronic recording of medical examinations?

            Having determined that L&I has sufficient statutory authority to adopt the handbook provision which is the subject of your question, and that it is not inconsistent with RCW 9.73.030 on the policies represented by that statute, we reach our third point of inquiry:  Could the prohibition against recording of medical examinations withstand a claim that it is arbitrary, capricious, or without legitimate basis?

            In this inquiry, it is not necessary to find that the Department made the best and wisest policy choice, but merely to test whether it is the result of discretion honestly exercised and is consistent with the policies underlying the act being enforced.  SeeWhatcom Cy. v. Langlie, 40 Wn.2d 855, 246 P.2d 836 (1952).  While we do not know the Department's actual reasons for including the questioned provision in the handbook, we can certainly imagine some legitimate reasons for including a provision of this type.  The two most obvious are:  (1) to protect the integrity of the examination by assuring that both the physician and the patient can exchange information and views without being worried that unauthorized third parties will learn the contents of the conversation; and (2) to avoid confusing the status of the official reports prepared as a result of the examination by preventing the creation of "unofficial" records of the examination which could confuse the proceedings.  We can imagine other legitimate purposes for the provision as well.  Thus, we conclude that the handbook provision is within the authority of the Department and answer your question in the affirmative.

            We trust this opinion will be of assistance to you.

                                                                        Very truly yours,

                                                                        CHRISTINE O. GREGOIRE
                                                                        Attorney General

                                                                        JAMES K. PHARRIS
                                                                        Senior Assistant Attorney General

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Enclosure                                          APPENDIX

            9.73.030.  Intercepting, recording or divulging private communication—Consent required—Exceptions

            (1)        Except as otherwise provided in this chapter, it shall be unlawful for any individual, partnership, corporation, association, or the state of Washington, its agencies, and political subdivisions to intercept, or record any:

            (a)        Private communication transmitted by telephone, telegraph, radio, or other device between two or more individuals between points within or without the state by any device electronic or otherwise designed to record and/or transmit said communication regardless how such device is powered or actuated, without first obtaining the consent of all the participants in the communication;

            (b)        Private conversation, by any device electronic or otherwise designed to record or transmit such conversation regardless how the device is powered or actuated without first obtaining the consent of all the persons engaged in the conversation.

            (2)        Notwithstanding subsection (1) of this section, wire communications or conversations (a) of an emergency nature, such as the reporting of a fire, medical emergency, crime, or disaster, or (b) which convey threats of extortion, blackmail, bodily harm, or other unlawful requests or demands, or (c) which occur anonymously or repeatedly or at an extremely inconvenient hour, or (d) which relate to communications by a hostage holder or barricaded person as defined in RCW 70.85.100, whether or not conversation ensues, may be recorded with the consent of one party to the conversation.

            (3)        Where consent by all parties is needed pursuant to this chapter, consent shall be considered obtained whenever one party has announced to all other parties engaged in the communication or conversation, in any reasonably effective manner, that such communication or conversation is about to be recorded or transmitted:  Provided, That if the conversation is to be recorded that said announcement shall also be recorded.

            (4)        An employee of any regularly published newspaper, magazine, wire service, radio station, or television station acting in the course of bona fide news gathering duties on a full time or contractual or part time basis, shall be deemed to have consent to record and divulge communications or conversations otherwise prohibited by this chapter if the consent is expressly given or if the recording or transmitting device is readily apparent or obvious to the speakers.  Withdrawal of the consent after the communication has been made shall not prohibit any such employee of a newspaper, magazine, wire service, or radio or television station from divulging the communication or conversation.