INVESTIGATION REPORT
INVESTIGATION P96-006
An Investigation into the practices
of the
WORKERS COMPENSATION BOARD
OF BRITISH COLUMBIA
with respect to disclosing personal information
about injured workers to employers
March 31, 1996
David H. Flaherty
Information and Privacy Commissioner
of British Columbia
4th Floor, 1675 Douglas Street
Victoria, British Columbia V8V 1X4
tel. (604) 387-5629
fax. (604) 387-1696
Web Site: http://www.cafe.net/gvc/foi
TABLE OF CONTENTS
1. Introduction
3. The Current Disclosure Policies of the WCB
4. The Development of the WCB's Disclosure Policies
5. Discussion
Appendix 1: A survey of other Workers Compensation Boards in Canada
The Office of the Information and Privacy Commissioner has received several
complaints regarding the Workers Compensation Board of British Columbia (WCB)'s
policy of disclosing a worker's claim file to an employer for the purposes of
an appeal. These complaints raise a number of different issues. Several of the
complaints focus on the fact that in appeal circumstances the WCB discloses a
worker's entire claim file to his or her employer. The complainant's concern
is that information about a worker which is not directly relevant to the appeal
may be disclosed to the employer. The complainants also express concern that
sensitive information about third parties may be released with the claim
file.
Other complaints received by the Information and Privacy Commissioner centre
on the worker's assumption that the information in the claim file is
privileged. The workers assume that the medical and personal information that
they had supplied to the WCB and health professionals was confidential and were
surprised to learn that their employers had access to this information.
Several complainants were concerned by the fact that the only notification they
received regarding the disclosure of their claim file came after-the-fact.
These workers complain that they were not informed in advance of the
possibility that the contents of their claim file could be disclosed to their
employers.
Finally, several of the complaints focus on the inappropriate use of
information in a claim file by the employer. The employees complain that the
employer carelessly or deliberately misused the information in the claim file.
This type of complaint raises questions about the safeguards in place to
protect the information in a worker's claim file once it has been disclosed to
an employer.
Over the past two years, as a result of such complaints, the Office of the
Information and Privacy Commissioner has conducted an investigation into WCB's
practice of disclosing the contents of a claim file to an employer when
requested for the purpose of an appeal. Currently, claim files are disclosed
prior to the filing of an appeal, and the WCB regards this practice as falling
outside the parameters of the Freedom of Information and Protection of
Privacy Act (FOIPPA). The WCB has taken the position that once a worker
has filed a claim and an "appealable decision" has been made, a "proceeding" is
taking place and, therefore, those activities fall under section 3(2) of the
Freedom of Information and Protection of Privacy Act. Section 3 states
that "this Act does not limit the information available by law to a party to a
proceeding."
The WCB's position is that natural justice requires full disclosure of a
worker's claim file to an employer, even before an appeal has been initiated.
While I support the WCB's goals of administrative fairness and natural justice,
I do not agree with its broad interpretation of section 3(2) of the Act, and
find that a "proceeding" with respect to this section does not take
place until either the worker or the employer has initiated a formal appeal.
Thus, the WCB must apply the provisions of the Freedom of Information and
Protection of Privacy Act to requests for claim information any time a
request is made prior to the filing of an actual appeal. It should at that
time only disclose information to an employer as required for the adjudication
and administration of a claim on a "need to know" basis.
The WCB should also take steps fully to advise workers from the moment a claim
is commenced, and prior to the collection of any personal information, that any
personal information collected by the WCB may be disclosed to the employer
during an actual appeal of a WCB decision on a specific claim.
The fact that personal information on a claim file may be disclosed in full
during an appeal highlights the importance of the WCB collecting and disclosing
only that personal information which is absolutely necessary for the
adjudication of a claim. The WCB should develop a policy with respect to
sensitive information that it receives, which has not been specifically
requested and which is not relevant to the adjudication of the claim.
Furthermore, the WCB must work with service providers to ensure that personal
information supplied to the WCB does not contain information about the worker,
or other third parties, that is irrelevant to the adjudication of a claim. The
goal must be to minimize intrusiveness in the lives of workers and third
parties.
There are new legislative penalties under section 95 of the Workers
Compensation Act for the misuse of personal information about a worker that
has been disclosed to an employer. The WCB should take seriously all
complaints under section 95 and refer all substantiated complaints to the
appropriate Crown counsel's office for consideration.
David H. Flaherty
Commissioner
Investigation conducted by Mary Carlson
Investigation Report written by Mary Carlson and edited by David Flaherty
with the assistance of Bill Trott, Celia Francis and Kyle Friesen
The Workers Compensation Board of British Columbia was created in 1917
to ensure the safety, protection, and good health of workers in this province.
The WCB operates under the statutory authority of the Workers Compensation
Act. Its foremost priority is preventing workplace accidents and
occupational disease. In the case of an injury or a disease, the WCB furnishes
workers with wage-loss compensation and seeks to restore productivity through
rehabilitation.
The WCB derives its revenues primarily from employer assessments and
investment income. Employers are grouped into classifications. An assessment
rate is then set for each classification based on its compensation costs
arising from workplace injuries and occupational disease. This rate is then
applied to every one-hundred dollars of assessable payroll. The money
collected is gathered into a common fund from which the costs of accidents are
paid.
In 1994 the WCB received 197,911 reported claims. During the same year,
140,785 claims were paid for the first time; more than half were short-term
(temporary) disability claims. Long term disability claims accounted for only
three percent of new claims that the WCB paid in 1994.2
In 1993 the WCB became subject to the Freedom of Information and
Protection of Privacy Act (FOIPPA). It established a Freedom of
Information and Protection of Privacy Office, which has coordinated training
and policy development in this area since 1993.
The purpose of this report is to examine the practices of the WCB with regards
to the disclosure of claim files to employers for the purposes of an appeal of
a decision on a claim and to determine whether the existing practice is
consistent with the Freedom of Information and Protection of Privacy
Act. The authority for this investigation is section 42(1)(a) of the
Freedom of Information and Protection of Privacy Act.
The WCB discloses to employers, upon request within ninety days of a decision
about a worker's injury, the contents of a claim file for the purposes of an
appeal. The WCB makes a distinction between disclosure of information pursuant
to the Freedom of Information and Protection of Privacy Act and
disclosure for the purposes of an appeal. It is the position of the WCB, with
which I agree, that the Freedom of Information and Protection of Privacy Act
does not apply to the latter.
The WCB undertakes a staggering amount of disclosure each year, through
requests under the Freedom of Information and Protection of Privacy Act,
through the normal course of business, and through disclosures for the purpose
of appeals. Virtually every department of the WCB engages in some form of
disclosure. In relation to the thousands of disclosures that take place, the
number of complaints and requests for review submitted to the Office of the
Information and Privacy Commissioner is, on a percentage basis, quite low.
However, since the coming into effect of the Freedom of Information and
Protection of Privacy Act, 12.2 percent of the total number of complaints
received by the Office of the Information and Privacy Commissioner have
pertained to the WCB. Several of the complaints made against the WCB have
arisen from the practice of providing employers with a complete copy of the
claim file for appeal purposes through the Records Management Department. It
is the position of the WCB that the Freedom of Information and Protection of
Privacy Act does not govern this type of disclosure.
I recognize that employers in the workers' compensation system have legitimate
information needs. To presuppose that information in a claim file is not
accessible to an employer at some appropriate point, due to the privacy rights
of the worker, denies a fundamental aspect of a compensation system. Employers
have a legitimate interest in information about the status of a claim, for
example, at any given point in time. They pay the full costs of work-related
injuries. The costs of such an injury and the course of rehabilitation is
charged against the employer's specific classification. Employers are often
involved in the rehabilitation program of the workers through programs such as
graduated return to work or retraining. They must be able to anticipate and
plan for prolonged and perhaps unanticipated absences of workers due to
lingering injuries. The wage rate that is paid to any worker may place upward
pressure on employer assessments. Thus employers have an interest in knowing
how the WCB derives the wage rates that it is paying workers.
The structure of this investigative report is apparent from the detailed Table
of Contents. The emphasis in sections two through five is on a description of
the development and application of the WCB's policies on the disclosure of
personal information about workers' injury claims to employers. These
practices are not discussed from the perspective of the requirements of the
Freedom of Information and Protection of Privacy Act until
section five.
As part of this investigative process, the WCB provided my Office with
initial, reply, and final submissions. My Office would like to thank the staff
at the WCB for their assistance and cooperation throughout this review.
Heather McDonald, FOI Coordinator, deserves special thanks for her cooperation,
advice, and support.
Under section 53 of the Workers Compensation Act, a worker who is
injured or disabled by an occupational disease must report the injury to the
employer as soon as practicable after the occurrence. The report must include
the worker's name, the time and place of the occurrence, and a description of
the nature and cause of the disease or injury. Under section 54, the employer
is required to report this injury to the WCB within three days of the
occurrence of the injury. The obligation of the employer to report under
section 54 is independent of the worker's obligation to provide information
under section 53. In the case of disabling occupational disease, the employer
must report to the WCB within three days of receiving the information from the
worker.
The WCB creates a claim file upon receipt of either the employer's report, the
worker's report, or a physician's first report. Although the file contains
information that pertains almost exclusively to the worker, the file is
considered to be the claim file and not the worker's claim file.
In the event of a work-related injury resulting in time-loss, the WCB requires
the completion and remittance of three standard forms: the Employer's Report
of Injury, the Worker's Report of Injury, and the Doctor's Report of Injury.
Failure to remit an Employer's Report of Injury or a Doctor's Report of Injury
constitutes an offense under the Workers Compensation Act and is subject
to penalty. It is not an offense under the WCB for a worker to fail to provide
sufficient information about an injury; there is no penalty except the
possibility that a claim may be denied for lack of sufficient evidence from any
source.
2.2 Structure of the Claim File
A Claim file is traditionally divided into five sections. The first is the
Claim Section, which contains factual information about the claim, forms,
relevant law, and external correspondence. The second is the Medical
Section, which contains doctor and specialist reports, medical information supplied by
the doctor, and correspondence between the doctor and the WCB. The third
section is Medical Accounts for payment to health care professionals. The
fourth Memorandum Section contains all internal correspondence. There can also
be a Legal Section and a Medical Review Panel Section. There is no separate
section in the claim file related to Appeal Division and other appeal
information apart from the Medical Review Panel
Section.
In filing a claim for compensation, workers are required to sign the following
consent form:
I declare all the information I have given on this report is true and correct
and I elect to claim compensation for the above mentioned injuries or diseases.
This will authorize the Board and Review Board to obtain or view, from any
source whatsoever, including records of physicians, qualified practitioners,
medical insurers or hospitals, a copy of records pertaining to examination,
treatment, history and employment of the undersigned. This will authorize
the Board to disclose information from my claim to the designated advocate of
my union or similar association. [emphasis in original].
This form is being amended expressly to notify the worker at the time that an
application for compensation is made that disclosure to the employer for appeal
purposes will take place. The WCB may also disclose information to others
where permitted under the Freedom of Information and Protection of Privacy
Act.
During protracted claims, the WCB does not update the consent of the worker,
because, as long as the worker continues to receive benefits, it claims that
updated consent is not necessary to permit it to collect and disclose
information relevant to the adjudication of the claim.
2.4 Primary Claims Adjudication
In the first instance, a claims adjudicator seeks information about an
accident or injury which is sufficient to conduct primary adjudication. The
purpose of the process is to determine the rights of the worker to compensation
under the Workers Compensation Act. The adjudicator attempts to answer
two basic questions. Is the claimant a "worker" employed in an industry
covered by the Workers Compensation Act? Did the injury arise out of,
and in the course of, employment?
It is the responsibility of the claims adjudicator to make all decisions
relating to the validity of a claim. WCB Policy #97 states:
The correct approach is to examine the evidence to see whether it is
sufficiently complete and reliable to arrive at a sound conclusion with
confidence. If not, the adjudicator should consider what other evidence might
be obtained, and must take the initiative in seeking further evidence.
In determining whether an injury arose "out of and in the course of
employment," an adjudicator refers to several indicators for guidance. These
include whether an injury occurred on the premises of the employer, whether it
happened as a result of instructions given by the employer, whether it was
caused by another employee, whether it occurred while the worker was being
paid, or whether it took place while the employee was using the employer's
equipment.4
Injuries often have multiple causes and cannot clearly be attributed to the
workplace. This requires further investigation by the adjudicator to determine
whether any "pre-existing" condition rendered the worker vulnerable to an
injury or disease. Further evidence that the adjudicator might seek could
include medical evidence, more statements from the claimant, and statements by
lay witnesses, first aid attendants, family members, employers, and possibly,
informants.
2.5 Requests for Medical Information
Certain medical information is normally required to adjudicate claims where a
worker is seeking compensation for a work-related injury or disease. The WCB
is entitled under the Workers' Compensation Act to request medical
information concerning an injury or disease from the worker's attending
physician. Requests are usually limited to information about the specific
injury at issue in the claim, such as chart notes where the injury is
periodically discussed. The form letter from the WCB to the attending
physician typically states: "We are investigating a claim by X for injury Y
which occurred on [date]. Please send any and all information pertaining to
injury Y."
The WCB does not routinely ask for the entire medical file of the
claimant, since it is generally not needed to adjudicate the claim.
Furthermore, the WCB must pay a physician for all of the information received
and does not wish to pay for information that has not been specifically
requested and is not relevant to the adjudication of the claim. However, in
some circumstances, an adjudicator may request the entire "chart" of a claimant
to determine the extent of treatment relating to pre-existing conditions.
Despite the specificity of the WCB's request, some physicians send the
claimant's entire medical file to the claims adjudicator. In other cases,
information that is not related to the injury is included in the package sent
to the WCB. This information then becomes part of the claim file. Currently,
there are no policies or procedural mechanisms in place at the WCB requiring
the return of information which was not specifically requested, although this
issue is under review.
2.6 The Collection and Disclosure of Third-Party Information
Claim files may contain information about third parties, particularly in those
cases where a claim is ongoing over a long period of time. A third party means
any person, group of persons, or organization other than the person whom the
file is about. For example, the medical history of a worker's family may be
mentioned in medical reports.
The following is an edited example of the type of third-party information that
may be included in a worker's claim file. This particular example comes from a
psychological assessment which was used to confirm whether a worker suffered
from a particular pain disorder. (The references of the third parties are
underlined.)
Born and raised in Vancouver, he is the second of four siblings. His
parents separated and divorced when he was a child (around 6 years of
age) and his mother has always had a problem with alcohol, compounded
more recently with drug abuse (prescription drugs). He has not seen his
father in a long time, and in fact he practically abandoned his children
when he left the house. The claimant does not know about his oldest
brother because he left BC many years ago and has not kept contact with
the family. He sees regularly his younger brother and occasionally his
younger sister. Both of them have a substance abuse problem. When X
was a child he was frequently abused, both physically and emotionally, by his
mother. She was a highly successful salesperson...and had a nice house
in Vancouver...where he grew up with his siblings. At about age 15 he
tried to obtain assistance for the abuse he was suffering, and went to see a
counselor, who then called his home and was convinced by his
mother that there was nothing wrong there. He left home at age 15, and
for the next 15 years he was addicted to street drugs, anything that was
available, with the exception of drugs administered by injection. When he was
30 years of age he decided he needed help, because he became violent at home
and his girl friend of 9 years left him. He realized he was
losing control of himself and that he needed help, so he went to a...centre for
drug abuse, and quit using drugs. He has remained drug-free for the last six
years and two months, and has received extensive counseling for the substance
abuse problem, and for the physical and emotional abuse he suffered during his
childhood. He has had many girl friends in the recent past, and his
present relationship has lasted approximately one year. His current
girl friend has left him twice recently because he does not have
sexual interest and she feels rejected.
The WCB states that information about third parties may be relevant to
adjudication of the claim, and that such information is also the personal
information of the applicant. The WCB states that:
There is an interesting, and I submit, incorrect assumption in
the implied suggestion that the WCB ought to sever medical information
pertaining to the claimant's family from documents on the claim file, before
disclosing the claim file to the employer for appeal purposes. This is the
assumption that such information is not also personal information of the worker
in question and relevant to the adjudication and administration of the workers'
claim by the WCB, as well as relevant in the appeal process. For example,
family medical history, both physical and psychological, is often highly
relevant in assessing and ensuring that a worker's disability or injury arose
in the course of employment. It can also be relevant in ensuring that an
injured worker receives adequate medical treatment through the course of
recovery...
...Clearly, where information, even personal information, is considered to be
relevant to a legal issue (such as a worker's right to compensation under the
WCA and the rights of appeal under the WCB on that issue), it must be disclosed
under the rules of natural justice, whether or not the personal information can
be considered to be directly personal information of one of the parties to the
proceeding.
It is important to note, on an interim basis, that third-party information is
not the personal information of the applicant under the Freedom of
Information and Protection of Privacy Act, even if it may be legitimately
disclosed to an employer once an actual appeal of an adjudicator's decision has
commenced.
2.7 Decisions Routinely Communicated to the Employer
There is currently no system in place whereby the WCB
supplies the employer with regular periodic updates as to the progress of a
claim. However, there are several key decisions that are communicated to the
employer without it having to request disclosure. The rule is that decisions
pertaining to the commencement or ceasing of benefits are copied to the
employer. Once a claim has been accepted or rejected, a copy of the decision
letter is also sent to the employer. If a worker's claim is rejected, the
worker also receives the same Notification of Decision. It contains the
following information:
1. The matter being adjudicated.
2. Description of the investigation carried out, including interviews
conducted.
3. Outline of the evidence considered.
4. Explanation of how the evidence was evaluated (specify its reliability,
analyze conflicting evidence; give reasons for the weight apportioned to the
evidence.)
5. Review of contact with the worker where the relevant issues were discussed
and detail the worker's response.
6. List of the various conclusions possible from the evidence.
7. In support of the conclusion reached, explanation of:
(a) what evidence was considered favorable, with reasons, and
(b) what evidence was considered unfavorable, or discounted, with
reasons.
8. Point out statutory, policy or discretionary factors involved.
9. Discuss the question of balance of probabilities.
10. Summarize the formal decision.
11. Explain what the decision entails regarding non-payment of wage-loss
compensation, health care benefit accounts, other benefits, etc.
12. Include the standard appeal paragraph.
Where a claim is allowed and there has been no protest from the employer, no
reasons are given. Notification of the claim allowance is sent to any advocate
designated by the claimant's designated union or association which is acting on
behalf of the claimant. Information may also be disclosed to any other
advocate, representative, or other person, as authorized in writing by the
claimant.7
If an employer has protested a claim and it has been allowed, the employer is
notified of the decision and provided with reasons. Where possible, this
information is relayed by telephone. If the employer cannot be reached by
telephone, or expresses dissatisfaction with the decision in the course of the
telephone conversation, a letter explaining the decision will be sent. This
letter follows the guidelines set out above. A copy is also sent to the
worker. A copy of the decision letter will be sent to any advocate designated
by the claimant's union or association, which is acting on behalf of the
claimant. If the worker consents, a copy of the decision letter will be sent
to any other advocate. A copy may also be sent to the physician, where the
decision involves medical factors.
Where a decision is adverse to a claimant, the reasons are stated in a letter
to him or her. The content of that letter follows the same guidelines
described above from Policy #99.20.
3. THE CURRENT DISCLOSURE POLICIES OF THE WCB
There are three appellate bodies within the workers' compensation
system: the Workers Compensation Review Board, the Medical Review panels, and
the Appeal Division. The Records Management Department at the WCB handles
disclosures of information for all three appellate bodies. The disclosure
practices are governed by Section #99.00 of the Workers Compensation Board
Rehabilitation Services & Claims Manual.
3.1 The Need for an Appealable Decision
An employer can request full disclosure of a claim file, if an
appealable decision has been made and if the request is made within
ninety days of the decision. Section 90 of the Workers Compensation Act
permits an appeal where "an officer of the Workers Compensation Board makes a
decision under this Act with respect to a worker, or, if deceased, his
dependents or his employer, or a person acting on behalf of the worker, his
dependents or employer" and the appeal is made "not more than 90 days from the
day the decision is communicated to the worker." In essence, virtually any
decision made under the authority of the Workers Compensation Act is an
"appealable decision." Each claim involves a minimum of seven potentially
appealable decisions: Who is the employer? Is the claimant a worker? What is
the claimant's earnings? How long will the WCB pay the claimant benefits?
Will the WCB accept a particular treatment as necessary and, accordingly, pay
for it?
The Request for Disclosure form has two spaces for the employer/worker to fill
in. The first states "I am considering appealing the decision in the letter
dated X;" the second, "I have appealed the decision in the letter dated X."
3.2 Disclosure for the Purposes of an Appeal
Full disclosure of a claim file is granted to an employer where an appealable decision has been communicated on that file and the request is made within the
ninety day time limit for appeal. It is not necessary for an actual appeal to
be taking place or for the employer to have communicated any intention of
filing an appeal. The Records Management Department reviews the request for
disclosure to first determine whether an appealable decision has been made and
whether the request is within the statutory time limits for appeal. For the
purposes of an appeal, an employer will be given full access to the appropriate
claim file, and any other claim file involving the same worker, which
the WCB considers relevant. This may include previous claims for a similar
injury.
The decisions most commonly appealed are, in order of frequency: claim
disallowed; reopening denied; wage-loss benefits terminated; disability award;
and permanent disability award insufficient.
3.3 The Contents of a Disclosure
Where an employer has a right to receive disclosure of a claim file, the
disclosure will consist of the same information which would be granted to the
claimant. Thus the entire file is copied and provided to the employer. The
WCB states that the rules of natural justice require that all evidence which
was before the adjudicator should be disclosed to the employer. It comments:
...the rules of natural justice require that each party to a proceeding have
available all the evidence considered by the initial inquirer or trier of
fact--the adjudicator--for appeal purposes. On the claims file is recorded
information, or evidence, which the adjudicator considers in reaching his or
her initial decision. Some of the evidence which is on the claim file the
adjudicator may reject as irrelevant to the claim. However, the party who
wishes to appeal is nevertheless entitled to argue before the appellate body
that the adjudicator ought to have considered that evidence as relevant. Thus
it is essential that all evidence before the adjudicator be disclosed to each
party to the proceeding, who are entitled to know what evidence was before the
adjudicator who made the initial decision. Further, the appellate bodies under
the WCB are entitled to the entire claim file and have powers to compel its
disclosure to assist them in understanding what evidence was before the
adjudicator.
The WCB regards all of the information on the claim file as
evidence "before the initial trier of fact"--the adjudicator--in making an
appealable decision.
3.4 When Consent is not Necessary
The employer receives full disclosure without the consent of the worker. The
WCB states that consent of the worker is not required, but it is amending its
consent form to advise workers that information from the claim file will be
disclosed to the employer for appeal purposes.
The Records Management Department notifies the worker after the fact that the
employer has been granted full disclosure of the claim file by means of the
following form letter:
We have sent copies of documents on the claim file(s) noted above to either
your employer or their representative. These copies are provided as
confidential documents to be used only for appeal(s) relating to the above
file(s) under the Workers Compensation Act. An employer is entitled to
receive disclosure when they have a right of appeal under the Workers
Compensation Act.
The WCB makes a distinction between disclosure which occurs pursuant to the
WCB disclosure policies and granting requests for access under the Freedom
of Information and Protection of Privacy Act. The WCB states that the
Freedom of Information and Protection of Privacy Act does not apply to
disclosure for the appeal purposes.
Disclosure of a claim file which does not come within the circumstances of
"appeal disclosure" is dealt with by the adjudicator and is only provided to
the claimant, not the employer. The adjudicator (or manager) will vet the
claim file, looking for privacy issues such as those arising under Part 2 of
the Freedom of Information and Protection of Privacy Act. If any
documents are withheld from the claimant pursuant to the FOIPPA legislation,
the claimant will be advised of the withholding and directed to the WCB's
FOIPPA department to request disclosure of the withheld documents.
Requests by employers for disclosure following an appealable decision are made
to the Records Management Department, which reviews the file to determine that
an appealable decision has been made within 90 days. Once this has been
confirmed, the file is photocopied and sent to the employer.
3.6 Penalties for Breach of Secrecy by Employers
Until recently, there were no penalties under the Workers
Compensation Act if the employer used the information for purposes other
than an appeal. Section 95 of the Workers' Compensation Act prohibited
"officers of the board and persons authorized to make inquiries" from divulging
information obtained in connection with those inquiries. The following
amendment came into force on September 1, 1995:
95. (1.1) If information in a claim file, or in any other material
pertaining to the claim of an injured or disabled worker, is disclosed for the
purposes of this Act by an officer or employee of the board to a person other
than the worker, that person shall not disclose the information except
(a) if anyone whom the information is about has identified the information
and consented;
(b) in compliance with an enactment of British Columbia or Canada;
(c) in compliance with a subpoena, warrant or order issued or made by a
court, person or body with jurisdiction to compel the production of
information, or
(d) for the purpose of preparing a submission or argument for a proceeding
under this Part.
(1.2) No court, tribunal or other body may admit into evidence any
information that is disclosed in violation of subsection (1.1).
This amendment prohibits the use of claim file information as evidence in
other proceedings unless the worker has consented, or unless the information
has been subpoenaed by another body which has the power to compel the
production of the information. Furthermore, this amendment now provides
penalties for an employer who uses or discloses the information for purposes
other than those stated. Anyone who violates subsection 1.1 is in violation of
the Workers Compensation Act and is subject to a fine on conviction.
4. THE DEVELOPMENT OF THE WCB'S DISCLOSURE POLICIES
Prior to the decision of Napoli v. Workers Compensation Board
(1981), 27 B.C.L.R. 306 (S.C.), the WCB did not disclose a claim file to either
the worker or the employer, even for appeal purposes. When an appeal was
filed, the WCB prepared a summary of information deemed to be relevant for such
purposes. The appeal body itself had access to the entire claim file, since it
was before the initial trier of fact, the claims adjudicator. When this
practice was challenged in the Napoli case, the Supreme Court of British
Columbia concluded that providing a summary of a worker's claim file was
insufficient to comply with the rules of natural justice. The court
commented:
Fundamental to any system of justice is the requirement that an adjudicating
body reach its decision only on the basis of evidence presented where the
parties have an opportunity of cross-examination and reply. When evidence is
taken in secret, the right to challenge it by cross-examination and rebuttal is
lost. Justice is denied.
4.2 WCB Decision No. 338, August 1981
The WCB responded to Napoli in Decision No. 338, which granted
disclosure to the worker and/or the employer only after either the worker or
the employer had launched an appeal. Workers were entitled to
full disclosure of the claim file, while employers were provided
with copies of the documents that the WCB considered to be relevant to the
issue at appeal. The rationale for the new policy was:
In essence our position represents a compromise between the right of a worker
to have the information on his file kept confidential, and the right of an
employer to disclosure under the rules of natural justice. While the recent
court decisions deal specifically only with a claimant's right to his file, we
feel that the principles which led the Court to order disclosure must also
apply to employers. Employers are given status under the Workers
Compensation Act to pursue and oppose appeals regarding claims and have
interests which can be adversely affected by a decision in favour of a worker.
Therefore, they must also be entitled to see the claim file under the rules of
natural justice. On the other hand, the right of the claimant to privacy means
that the employer's right should not be extended beyond what the rules strictly
require. Therefore, the employers' right is limited to seeing the documents
which are relevant to the issue in dispute.
WCB employees continued to be responsible for identifying the information in
the claim file which was deemed to be relevant to the issues in dispute at
appeal.
4.3 Public Report No. 7, July 1987, Ombudsman of B.C.
In 1987 the Ombudsman of British Columbia published the Compensation System
Study Public Report No. 7, which concerned "fairness to individual workers and
employers affected by the administration of workers' compensation in British
Columbia."
One of the Ombudsman's primary concerns was the fact that workers were not
permitted access to their files until an appealable decision had been made.
The WCB justified this practice on the grounds that "allowing disclosure at any
time would unduly hamper the activities of the Board's departments in their
routine administration." The Ombudsman recommended that workers be given
access to their files at any point in time, stating:
Reasonable access on request would have some important benefits for the W.C.B.
and claimants. Secrecy breeds suspicion and a lack of confidence in the
system. Reasonable access on request would counteract this. There would also
be an increased accountability of the W.C.B. to its claimants and an increased
understanding by claimants; it would provide positive public relations for the
W.C.B. as it would be in the vanguard promoting greater access to information
for individuals; and it would contribute toward improved adjudication...
Administrative difficulty is an inadequate reason for the W.C.B. to restrict
full access to information which concerns an individual's health and income...
The W.C.B. has the discretion under the Act to provide disclosure of claim
files to workers upon request, and there is no adequate reason not to do so.
If disclosure would interfere with or delay a decision on the claim, the worker
could be informed of this and thus have the option of deciding whether
disclosure was worth the inconvenience.14
The WCB did change its policy to permit full claim file disclosure to workers
upon request, whether or not an appealable decision had been made. However, it
also extended the same access to employers, the only restriction being that an
"appealable decision" must have been made prior to disclosure, and the request
must be made within the time limits for appeal. This policy change was
premised partially on efficiency concerns: "Based upon its experiences after
Decision No. 338 was issued, the WCB in Decision No. 410 decided that
entitlement to disclosure at the time an appealable decision had been made
would assist both workers and employers in deciding whether they ought to
initiate an appeal."15
This policy change was consistent with the Ombudsman's recommendation
pertaining to worker access to files but was inconsistent with the
following relevant recommendation:
That the W.C.B. restrict disclosure to an employer of material judged to be
both irrelevant and prejudicial to a worker. Before providing disclosure to an
employer, the W.C.B. shall consider representations from the worker on issues
of possible irrelevance and prejudice.
In making this recommendation, the Ombudsman commented that:
...if the documentation contains a mixture of relevant, irrelevant and
confidential information concerning the worker, the W.C.B. is considering
sending this complete document to the employer ... we are concerned that the
worker would not be aware that this had been done and would not have an
opportunity to comment on a possibly prejudicial and irrelevant statement
before it was sent to the employer.17
4.4 WCB Decision No. 410, 1987
In Decision No. 410, the WCB decided to eliminate the distinction between
claimants and employers with respect to disclosure, stating:
Implicit in [Decision No. 338] is the principle that the rules of natural
justice take precedence over the claimant's right to privacy. If this were not
the case, no disclosure would have been extended to employers at all. The
distinction between claimant and employer disclosure has been maintained for
some years. Based upon its experience during this period, however, it appears
to the Board that the compromise which was discussed in Decision No. 338 does
not comply with the rules of natural justice.
As a result, the WCB expanded its disclosure policy to allow full disclosure of
the claim file to both the claimant and the employer once an
appealable decision had been made and provided that the request for
disclosure was made within ninety days. It was no longer necessary for an
appeal to be initiated in order to grant disclosure of the claim file to either
the worker or the employer. With Decision No. 410, the WCB also abandoned the
practice of providing to the employer only those materials which employees of
the WCB determined to be relevant to the issue at appeal. In essence, WCB
determined that all claim file material was arguably relevant on
appeal.
Under Decision No. 410, disclosure is given not for the purpose of allowing a
party effectively to answer the case against him or her, but rather to give the
party an opportunity to review all available information in order to decide
whether or not to appeal:
...The Board is of the opinion that allowing disclosure where there is an
appealable claims adjudication decision would be a suitable compromise. On the
one hand, disclosure at this point would assist both claimants and employers in
deciding whether or not they should appeal. On the other hand, delays and
complexities in the initial decision-making process would be avoided.
The WCB is now resistant to reinstituting a relevancy test for two reasons.
First, its position is that the Napoli and Brand decisions
support the practice that all of the evidence on a claim file be provided to
both parties to a proceeding so that they may assess the evidence, and, among
other things, argue relevancy and weight of the evidence before the appropriate
appeal tribunal. In that sense, all of the evidence on the claim file is
"relevant" for use in preparation of submissions for appeal tribunals. In the
WCB's view, its employees are not legally entitled to decide issues of
relevancy and the weight of evidence: those issues are within the jurisdiction
of the appellate tribunals. I agree with this position.
Second, the Board maintains that considerable delays would arise from the
application of any relevancy test, since the approximately 7,700 yearly
employer appeal disclosures "would need to be read and vetted if the FIPP
privacy rules were to be applied." They state that "there is a general concern
in the workers' compensation community that appeals be dealt with expeditiously
by the system. The complaints are about delays in appeal, not the WCB's
disclosure policy for appeal purposes."
Furthermore, the WCB states that relevancy tests would produce a "flood of
appeals to the Review Board and Appeal Division on issues of disclosure
relevancy." I agree with this position as well, subject to the possible need
to revisit the issue at a later date.
4.5 The Brand Decision, 1993
The WCB's disclosure policies were upheld in Brand v. WCB
(November 15, 1993, Vancouver Registry No. A932031). In this case, the Supreme
Court of British Columbia examined the tension that occurs within the workers'
compensation system between the worker's interest in privacy and the
confidentiality of his or her personal information and the requirement for full
disclosure of the case against a person in any judicial or quasi-judicial
hearing that affects him or her.
In this case, the WCB notified the three petitioners, employees of MacMillan
Bloedel, that their claim files had been sent to Angus Qually Consultants Ltd.
whom MacMillan Bloedel had hired to review 400 claim files. The petitioners
objected to this disclosure stating that they had a right of privacy in respect
of such records and that they should not be disclosed without their "written
and informed consent." The WCB relied on the rules of natural justice to
defend its policy.
In the decision, the Supreme Court held that:
...the board's guidelines constitute a rational approach to the balancing of
the interests involved and do not sacrifice the interests of the workers
unnecessarily. Although I might have wished that any employer or employer's
agent to whom disclosure is made be required to undertake in writing not to use
the information for any purpose other than `pursuing or opposing an appeal'
made under the Act, that is a policy decision that lies within the Board's
purview and not that of this court. The policy has not been shown to be
patently unreasonable or otherwise erroneous in law.
Because this was a judicial review, the Court was considering only whether the
Board had the jurisdiction to grant disclosure according to its own policy.
While it agreed that the WCB had jurisdiction, it made the following comment at
the conclusion of its reasons for judgment:
Last, I should note for the record that although the Freedom of
Information and Protection of Privacy Act ... was referred to in oral
argument, that statute was not in force at the time of the disclosures ... or
at the time of the filing of the Petition herein. I do not think it
appropriate to comment on its applicability in this situation or to suggest how
the Commissioner appointed thereunder should approach questions such as those
in the case at bar.
Thus, the Brand decision did not address the issue of how the
Freedom of Information and Protection of Privacy Act affects the
disclosure practices of public bodies and, in particular, public bodies which
are also administrative tribunals subject to the rules of natural justice.
4.6 Section 3(2), Freedom of Information and Protection of Privacy Act
The WCB further relies upon section 3(2) of the Freedom of Information and
Protection of Privacy Act to support its disclosure policy. It states:
3.(2) This Act does not limit the information available by law to a party to
a proceeding.
(i) A Proceeding
It is the position of the WCB that a "proceeding" with respect to section 3(2)
is taking place the moment that the first appealable decision is made with
respect to a claim for compensation. It states:
The word `proceeding' is not defined in FOIPPA, nor in the Interpretation
Act. [We] note that Section 3(2) of FOIPPA does not narrow the word
`proceeding' by referring to a `legal proceeding' or `judicial proceeding' or
`proceeding before a court.' This suggests that the legislature intended a
more broad interpretation to be given to the word `proceeding.' Black's Law
Dictionary defines `proceeding' as including `administrative proceedings before
agencies, tribunals, bureaus, or the like' and `an act which is done by the
authority or direction of the court, agency, or tribunal, express or implied;
an act necessary to be done in order to obtain a given end; a prescribed mode
of action for carrying into effect a legal right...'
...With the foregoing in mind, the WCB interprets the word `proceeding'...as
the legal administrative process which commences when an appealable decision is
made and communicated under the WCA with respect to a worker. The `proceeding'
which commences at that point is the ongoing adjudication and management of a
claim in regard to the appealable decision, and the legal avenue of appeal
which arises at that time.
I disagree with the WCB's position on this point.
(ii) Party to a proceeding
The WCB considers the worker and the employer to be a "party to a proceeding"
pursuant to section 3(2). It states:
Both employer and worker have an interest in that `proceeding.' The worker's
interest is obvious, because the proceeding involves his physical and financial
well-being, and his legal rights under the WCA with respect to his compensation
claim and his right to appeal if his claim has been denied. The employer's
interest lies in the fact that ultimately it finances any compensation paid to
or rehabilitation services given to the worker. There is a direct financial
impact to employers in that claims costs are used to determine an employer's
assessment rate under the ERA program. The employer's legal rights also arise
under the WCA with respect to appeal of any decision made by an adjudicator
with respect to a worker. The employer has the legal right to initiate an
appeal of a decision with which it disagrees, and to participate in opposition
to an appeal initiated by one of its workers.20
Again, I do not accept the WCB's position on this point.
(iii) Information available by law
The WCB regards all of the information on a claim file as information
that has been before the adjudicator in making an appealable decision.
Furthermore, the WCB thinks it is "impossible for any person to determine, in
advance of the consideration of the appeal, which information the appellate
decision maker would consider relevant to its disposition." Lastly, the WCB states that disclosing a complete
file to the employer prior to the filing of an appeal assists the employer in
determining whether or not to pursue an appeal. These issues are discussed
further in the following
section.
4.7 Section 33, Freedom of Information and Protection of Privacy Act
Section 33 of the Freedom of Information and Protection of Privacy
Act lists the only circumstances under which public bodies may disclose
personal information. Section 33(c) permits disclosure "for the purpose for
which it was obtained or compiled or for a use consistent with that purpose." Section 33(d) permits disclosure "for the purpose of complying with an
enactment of, or with a treaty, arrangement or agreement made under an
enactment of, British Columbia or Canada."
The WCB relies on sections 33 (c) and (d) to support its current disclosure
policies:
It is considered that the right of appeal given to an employer by the
Workers' Compensation Act makes them a party in the process and as such,
they are entitled to the information. For example, the acceptance of a claim
can affect an employer's obligations under the Workers' Compensation
Act. In order to properly comply with our obligations under the
Workers' Compensation Act, we must release information about the claim
to the employer. On this basis, Section 3(2) and 33(d) of FIPP would justify
the release of such information. We should also consider having the Minister
designate the release of the information as a consistent purpose under section 33(c) and
section 34 of FIPP.
5. DISCUSSION
At the outset, I would like to applaud the WCB for its
work to date in implementing the Freedom of Information and Protection of
Privacy Act. Its Freedom of Information and Protection of Privacy Office
has worked diligently to educate the organization regarding the new access and
privacy obligations and has actively participated in finding resolutions to
disputes arising under the Act. This is shown by the fact that the Office of
the Information and Privacy Commissioner has handled 81 requests for review
involving the WCB and, of these, only two have proceeded to a formal inquiry
before the Commissioner.
However, this report is not about the Freedom of Information and Protection of
Privacy Office or its application of the Freedom of Information and
Protection of Privacy Act to access requests. Rather, the issue relates to
the necessary distinction between the disclosure of claim file information
through requests made under the Freedom of Information and Protection of
Privacy Act and disclosure for the purposes of an appeal by the Records
Management Department.
If a worker requests a copy of his or her claim file in the absence of an
appealable decision, it is generally considered a routine request, and the
record is disclosed through the "normal course of business" by the claim unit
dealing with the worker's claim. The Freedom of Information and Protection
of Privacy Act applies. If the request is from an employer where
there is no appealable decision as yet, the employer's request is refused.
If a worker or employer requests a claim file for appeal purposes, the Records
Management Department processes the disclosure. The current policy of the WCB
permits full disclosure of the file to an employer if the request has been made
after an appealable decision has been rendered and within the time
limits for appeal. Claimants are notified after the fact that the file has
been disclosed to the employer.
As noted earlier, the WCB regards the practice of disclosing an entire
file prior to the filing of an appeal as an effective mechanism to "assist both
claimants and employers in deciding whether they should appeal." While that
may be convenient and cost-effective for certain parties, I do not believe that
this practice is adequate to meet the demands of the Freedom of Information
and Protection of Privacy Act in preventing prejudicial fishing expeditions
and is not an example of information "available by law." Nor, in my view, is
it releasable under sections 33(c) or 33(d).
Although the WCB does not provide employers with periodic claim file status
reports, employers do not operate in an informational vacuum. They are given
copies of letters sent to workers which contain key or benchmark decisions made
with respect to the claim. Employers are provided with a copy of the
Notification of Decision, which is a detailed description of the decision, the
evidence, the findings, and the related law and policy on which the decision
was based. Given this practice, the need to disclose the entire claim file to
assist the employer in determining whether or not to file an appeal is highly
questionable. Furthermore, the vast majority of appeals are filed by
workers.24 In 1994, 93 percent of all appeals filed with the Medical
Review Panel were in this category.
5.1 Legislative History of Section 3(2) of the Freedom of Information and Protection of Privacy Act
The historical record as to the intent of section 3(2) is not
instructive. There is no legislative record of any debate, and the section is
generally not discussed in the public information distributed by the government
before and after the passage of the Act.
5.2 When does a "Proceeding" begin?
This is the crux of the main issue in this report. As noted
above, the Act does not limit the information available by law to a party to
a proceeding. At what point in the compensation process does a
"proceeding" commence? The WCB states that a "proceeding" pursuant to section 3(2) takes place from the moment that the first decision is made on the claim.
The WCB has thus adopted a broad interpretation of a "proceeding" under section 3(2). It states:
The `proceeding' which commences at that point is the ongoing adjudication and
management of a claim file in regard to the appealable decision, and the legal
avenue of appeal which arises at that time. Both the employer and worker have
an interest in that `proceeding.' The worker's interest is obvious, because
the proceeding involves his physical and financial well-being, and his legal
rights under the WCA with respect to his compensation claim and his right to
appeal if his claim has been denied. The employer's interest lies in the fact
that ultimately it finances any compensation paid to or rehabilitation services
given to the worker. There is a direct financial impact to employers in that
claims costs are used to determine an employer's assessment rate under the ERA
program. The employer's legal rights also arise under the WCA with respect to
appeal of any decision made by an adjudicator with respect to a worker. The
employer has the legal right to initiate an appeal of a decision with which it
disagrees, and to participate in opposition to an appeal initiated by one of
its workers.
The interpretation of "proceeding" contained in the Freedom of
Information and Protection of Privacy Act Policy and Procedures
Manual is narrower than that provided by the WCB. There are two
definitions of "proceeding" in the Manual, one pertaining to section 3(2) and another pertaining to
section 27(1)(c)(iii).
With respect to section 3(2), the Manual states:
The Act does not limit the information available by law to a party to a
proceeding. `Proceedings' are activities governed by rules of court or rules
of judicial or quasi-judicial tribunals that can result in a judgment of a
court or rules of judicial or quasi-judicial tribunal. Subsection 3(2) means
that the Act does not limit or prevent people from using legal techniques such
as `interrogatories' and `examinations for discovery' to gather information
about an opposing party in a lawsuit.
The fact that an employer or a worker has rights under the Workers
Compensation Act does not make them a party to a "proceeding" under section 3(2) until an appeal has been filed. Neither does the fact that both parties
have an "interest" in the outcome of the adjudication process. Furthermore,
the fact that an "appealable decision" has been made does not mean that a
proceeding sufficient to invoke
section 3(2) has been launched.
Were I to accept the WCB's argument that both workers and employers are
"parties to a proceeding" from the moment the first decision is made on a
claim, the entire workers' compensation system would be essentially exempt from
the privacy protections set out in Part 3 of the Act. That was clearly not the
intent of the Legislature.
Thus I find that the WCB's interpretation of "proceeding" is too broad to
be consistent with the spirit of the Freedom of Information and Protection
of Privacy Act. If the WCB's reasoning were followed, any
administrative function whereby eligibility for a benefit was adjudicated and
appealable to a quasi-judicial body could be regarded as a "proceeding" under section 3(2) and hence removed from the legislative scheme of the Act. This
could, for example, include processes which determine eligibility for social
assistance benefits and student loans. I find that "proceeding" with
respect to section 3(2) does not take place until a formal appeal has been
launched under the Workers Compensation Act.
RECOMMENDATION 1:
The WCB should amend its disclosure policies to reflect that a
"proceeding" with respect to section 3(2) of the Freedom of Information and
Protection of Privacy Act does not begin until either a worker or an
employer has formally initiated an appeal.
5.3 Natural Justice and the Rules of Full Disclosure
Section 3(2) does not limit information available by law to a
party to a proceeding. The WCB contends that full disclosure of the file is
necessary to meet the standards of natural justice articulated in the
Napoli decision. Following Napoli, the WCB abandoned the
practice of disclosing to employers only those documents which WCB employees
decided were relevant to the appeal in favour of full disclosure. The WCB
states that "the rules of natural justice require that all evidence, including
an individual's personal information, which has been considered by an initial
adjudicator" be disclosed. The WCB regards all information that is contained
on a file as information "considered" by the adjudicator.
I agree with the WCB's goals of administrative fairness and natural justice
after an appeal has started.
My understanding of the adjudicative process prior to an appeal is that no
formal hearing takes place where the parties make submissions and present
evidence. The WCB collects information, and the claims adjudicator makes a
decision based on that information. The rules of administrative fairness
apply, but not all of the rules that apply to "judicial" or
"quasi-judicial" proceedings. Thus the adjudicative process is not a
court-like hearing, and the parties do not have the right to present evidence
and cross-examine witnesses. However, the adjudicator must base his or her
decision on relevant information, and the parties should be advised what
particular information was relied upon. The rationale for this process can be
described in the claims decision. The information in the decision itself
should be sufficient for either party to decide if he or she wishes to appeal.
Before an appeal is filed, section 22 of the Act places significant
restrictions on the disclosure of personal information about a worker to an
employer.
It is my view that the practice of disclosing a worker's entire file to
an employer prior to the launching of an appeal exceeds the requirements of
natural justice and is a breach of the Freedom of Information and Protection
of Privacy Act.
5.4 The Jurisdiction of the WCB over Disclosure
Section 96 of the Workers Compensation Act gives the WCB the
"exclusive jurisdiction to inquire into, hear, and determine all matters and
questions of fact and law arising under Part 1 of the Workers Compensation
Act." The WCB states:
This includes matters such as admissibility of evidence in a proceeding under
the WCA and appropriate disclosure to the parties in such a proceeding. It is
the WCB's position that Section 3(2) of the Freedom of Information and
Protection of Privacy Act is express recognition of the courts and
administrative tribunals to deal with such issues. Were it otherwise, there
could be direct conflicts on the issue of appeals disclosure from the Office of
the Information and Privacy Commissioner and an appellate body, be it a Court
or an administrative tribunal with authority to decide the substantive and
procedural issues ancillary thereto. Section 3(2) of Freedom of Information
and Protection of Privacy Act indicates that it is the Court or
administrative tribunal that decides the disclosure issues ancillary to the
proceeding in question, not the Office of the Information and Privacy
Commissioner.
It is clear that the WCB has the jurisdiction to determine all matters under
Part 1 of the Workers Compensation Act. However, the Workers
Compensation Board, Workers Compensation Review Board, and the Medical Review
Panels are all included in Schedule 2 of the Freedom of Information and
Protection of Privacy Act as "public bodies" covered by the Act and must,
therefore, operate within the constraints of that legislation. Any policies
and procedures created by the WCB must be in compliance with that Act.
Once an appeal has been filed with one of the WCB's appellate bodies,
section 3(2) of the Act applies, and the WCB has the authority to design its
own policy on disclosure, which the courts oversee. Thus, if the WCB
(including Medical Review panels and the Appeal Division) and the Review Board
decide they must disclose an entire file at that point, I have no jurisdiction
to review this decision. If the appellate bodies choose to disclose more
information than the worker believes is necessary, that decision or policy
could be challenged through a judicial review. Before an appeal is filed,
however, I am of the considered opinion that the FOIPPA Act fully applies to
the WCB's disclosure policies.
5.5 The Question of Delay and the Issue of Costs
The WCB is concerned that any changes to its current disclosure policy, such
as restoring a relevancy test, would result in significant delays in the appeal
process. Such concern is not insignificant.
Currently, the waiting time from making a request to actual disclosure is, on
average, twelve weeks.
The WCB is further concerned that any such changes in disclosure
policies would increase its costs of doing business at a time where the
unfunded liability of the WCB has been in excess of 100 million dollars. The
current system is infinitely cheaper to administer. For example, if a
relevancy test were added, staff would be required to review the file and
determine which documents were relevant. Furthermore, this determination
itself would likely be appealable. While the concerns over delays and costs
are legitimate, I find that the current disclosure policies of the WCB are
in contravention of the Freedom of Information and Protection of Privacy
Act and that remedial steps must be taken to bring disclosure practices in
line with the legislation.
5.6 Section 33 of the Freedom of Information and Protection of Privacy Act
No specific provisions in the Workers Compensation Act authorize the
disclosure of a worker's personal information to the employer. However, the
WCB believes that disclosure of the claim file to the employer is consistent
with
section 33(c) of the Freedom of Information and Protection of Privacy
Act, which permits the disclosure of personal information only "for
the purpose for which it was obtained or compiled or for a use consistent with
that purpose."
In this regard, the Freedom of Information and Protection of Privacy Act
Policy and Procedure Manual states that:
Public bodies may disclose personal information if it is necessary to do so in
order to accomplish the purpose for which the personal information was
originally acquired or assembled.
The "purpose" for which personal information was obtained or compiled is
the object to be attained or the thing intended to be done, e.g., the
administration of a program, the provision of a service or other activity.
Personal information may be "obtained" for a variety or reasons, for example,
to decide on a person's eligibility for benefits, to determine if a person is a
suitable candidate for a job with the government, to determine the type of
medical care a person needs or to ascertain the level of the public's
satisfaction with the service provided by a public body...
For a use consistent with that purpose
A consistent use is one which has a direct and reasonable connection to
the original use. A disclosure for a consistent use is therefore permissible
if it is directly connected to the original use or is a logical extension of
the original use.
The WCB collects personal information to assist an adjudicator
to make initial and ongoing determinations with respect to the worker's
eligibility for benefits under the Workers Compensation Act, and an
employer has the statutory right to dispute those decisions. Disclosure of
specific information pertaining to an actual decision for the purposes of an
appeal may well be a disclosure consistent with section 33. However,
disclosure of all of the information collected prior to the filing of an appeal
incorrectly broadens the scope of section 33. During the course of any claim,
the WCB collects large amounts of information, which may include financial
information, work history, medical history and educational history. All of
this information was collected as part of the management of the claim, and to
suggest that it is a "consistent use" to disclose all of it to an employer to
assist it in determining whether or not to appeal a decision is, in my view,
contrary to the privacy protections in the Freedom of Information and
Protection of Privacy Act.
5.7 Information Sharing on a "Need to Know" Basis
While I do not agree with the practice of complete file disclosure prior to
the filing of an appeal, I believe that some information can be shared with an
employer at that stage on a "need to know" basis. What is at issue should have
a bearing on what limited personal information may be made available. It is my
understanding that the WCB has a policy that states that an employer is
entitled to know basic information on a "need to know" basis, if the release of
such information is necessary for the initial adjudication and administration
of a claim. For example, it would not make sense for an employer to inquire as
to when the worker is expected to return to work and be denied this information
on privacy grounds. This type of disclosure is typically in the form of verbal
information from the adjudicator to the employer regarding when the worker is
expected back to work, what the basic injury is, what caused the injury (so the
employer can take remedial action in the workplace), and whether the worker
will need light duties upon return to work. I accept that this limited and
controlled form of information-sharing will continue.
One of the fundamental principles that I am promoting under the Act is that
the right information needs to reach the right persons at the right time for
the right purposes. This includes the disclosure of certain personal
information about workers to employers before an appeal has been filed. The
latter is the "need to know" principle that in my view is also an
essential component of the Act.
RECOMMENDATION 2:
Since the Freedom of Information and Protection of Privacy Act
applies to requests for access to claim file information before an appeal
is initiated, the WCB should release information to an employer during this
time period only on a "need to know" basis as required for the adjudication and
administration of the claim.
5.8 The Issue of Consent
When a worker files a claim for compensation, he or she is required to
sign a consent form authorizing the WCB to collect information,
including personal information, necessary for the adjudication of the claim.
Workers who file for compensation do not specifically consent to the
disclosure of their personal information to their employer, nor are they
advised of the fact that their personal information may be disclosed to their
employer. However, most workers acknowledge that employers have justifiable
information rights with respect to the claim.
Nevertheless, the complaints that this Office has received reveal that
disclosure often comes as an after-the-fact shock when the worker is notified
by mail that his or her entire file has been disclosed, including information
from his or her medical file. These workers feel betrayed in the sense that
they believe that they disclosed information to the WCB about themselves on a
confidential basis.
It is our experience that WCB claimants labour under the mistaken belief that
information they supply to their physicians before and after an injury is
privileged information. They are shocked to discover that their employer has
been given copies of medical information, which they often believe is
irrelevant to the claim.
I am pleased to note that the WCB is producing a new consent form to advise
workers that information from their claim files may be disclosed to the
employer for appeal purposes.
RECOMMENDATION 3:
The WCB should notify workers when they file a claim that all of the
information the WCB collects may be disclosed to the employer after an appeal
has commenced. This notification should occur prior to the collection of any
personal information.
RECOMMENDATION 4:
The WCB should amend the consent form that workers are required to
sign to indicate the purpose for collecting personal information, the legal
authority for collecting it, and the title, business address, and business
telephone number of an officer or employee of the WCB who can answer the
individual's questions about the collection pursuant to section 27 of the
Freedom of Information and Protection of Privacy Act .
5.9 The Disclosure of Third-Party Information
The WCB collects and discloses personal information pertaining to third
parties without the consent, and often without the knowledge, of the third
party. Such third-party information as this Office reviewed was of the most
sensitive type, for example, information about sexual abuse or psychiatric
histories. This information tends to be found in psychological, psychiatric,
or other specialist reports which generally include a section on "family
history." The WCB states that the Workers Compensation Act gives it the
authority to collect such information, when that information is relevant to the
adjudication of a claim. Certainly, if a worker is suffering from a depressive
illness, evidence that this illness is hereditary may have a bearing on whether
or not an illness could be connected to the workplace. However, if a wage rate
decision is appealed, the medical history of a third party is irrelevant to the
decision at appeal and should not be collected or disclosed.
While the Workers Compensation Act provides the WCB with broad
authority to collect personal information, including third-party information,
the Freedom of Information and Protection of Privacy Act elevates the
standards by which personal information is collected, protected, and disclosed.
In the instance of third-party personal information, it is problematic that
sensitive, and often embarrassing, information is routinely collected and
released without the knowledge or consent of the third party.
The WCB appeal system is designed so that workers can argue the relevancy and
merit of any information on their file. However, if medical information is
subsequently found to be irrelevant, or the employer chooses not to proceed
with an appeal, that information has already been disclosed to the employer and
is no longer in the custody and control of the WCB.
Much of the data about the prior injuries of workers collected by the WCB
arrives on forms supplied to employers and physicians, for example, by the WCB.
This minimizes the receipt of extraneous and sensitive personal information.
But, increasingly, the WCB finds it necessary to collect a more expansive range
of information about so-called soft tissue injuries as it attempts to take a
more "holistic" approach to the rehabilitation of an injured worker. It is at
this point that the WCB is more likely to acquire sensitive data that an
adjudicator eventually decides is unnecessary or not relevant to the matter at
hand. Hence recommendation 6, which I intend the WCB to apply prospectively
and not retrospectively.
I am pleased to note that the Freedom of Information and Protection of Privacy
Office of the WCB has been working with various service providers, including
physicians, to educate them about the Freedom of Information and Protection
of Privacy Act in the context of providing reports to the WCB which contain
third-party information. Its liaison committees with such professional groups
as the B.C. Medical Association can also address such matters on an ongoing
basis. The goal must be to minimize intrusiveness in the lives of workers
and third parties.
RECOMMENDATION 5:
The WCB should continue to educate information providers, such as
health care professionals, about the requirements of the Freedom of
Information and Protection of Privacy Act, particularly with respect to the
provision of unnecessary personal information about workers or third parties to
the WCB.
RECOMMENDATION 6:
The WCB should develop a policy for destroying or returning sensitive
personal information, including medical information, that it receives which has
not been specifically requested and which is determined not to be relevant to
the adjudication of a specific claim.
5.10 The Problem of Further Dissemination Following Disclosure
Recent amendments to section 95 of the Workers Compensation Act
are a positive step towards controlling the use of personal information
legitimately disclosed for the purpose of pursuing an appeal. The amendment
prohibits the use of WCB information in other proceedings, unless those
involved in the proceedings have the authority to compel the production of that
information. There is also a provision for sanctions against an employer for
disclosure of such personal information for unauthorized purposes.
The WCB brought this amendment to the attention of the government, because it
recognized a need for greater protection of information disclosed for appeal
purposes. Clearly, the majority of employers in this province appreciate the
confidential and sensitive nature of information in a claim file and take steps
to ensure that the information is correctly handled and securely stored.
However, a common component of some of the complaints that this Office has
handled is that a worker's personal information has been carelessly or
deliberately divulged by an employer. This highlights the importance of public
bodies collecting and disclosing only that information which is absolutely
necessary and ensuring that employers are aware of their obligations regarding
the secure handling of the personal information of workers.
RECOMMENDATION 7
The WCB should investigate all complaints of unauthorized use of personal
information by employers under section 95 of the Workers Compensation
Act and refer all serious substantiated complaints to the appropriate Crown
counsel's office for consideration.
Since the preparation of this investigative report has spanned a
lengthy time period, there has been considerable discussion with the WCB
itself. It is particularly noteworthy that the WCB is already addressing, or
indeed following, a number of the recommendations that I have put forward. I
should note that I am "recommending" rather than ordering the WCB to do various
things out of respect for its complex operations in the compensation field. I
also want to give the WCB time to incorporate my recommendations into its
operating procedures in an orderly way that promotes its ongoing need for
operational efficiency as well as our collective concern for minimizing
intrusiveness into the lives of workers by the promotion of fair information
practices. Thus my colleagues and I will continue to monitor the impact of our
recommendations on the WCB. At the same time, I am confident that it will
comply with them.
RECOMMENDATION 1:
The WCB should amend its disclosure policies to reflect that a
"proceeding" with respect to section 3(2) of the Freedom of Information and
Protection of Privacy Act does not begin until either a worker or an
employer has formally initiated an appeal.
RECOMMENDATION 2:
Since the Freedom of Information and Protection of Privacy Act
applies to requests for access to claim file information before an appeal
is initiated, the WCB should release information to an employer during this
time period only on a "need to know" basis as required for the adjudication and
administration of the claim.
RECOMMENDATION 3:
The WCB should notify workers when they file a claim that all of the
information the WCB collects may be disclosed to the employer after an appeal
has commenced. This notification should occur prior to the collection of any
personal information.
RECOMMENDATION 4:
The WCB should amend the consent form that workers are required to
sign to indicate the purpose for collecting personal information, the legal
authority for collecting it, and the title, business address, and business
telephone number of an officer or employee of the WCB who can answer the
individual's questions about the collection pursuant to section 27 of the
Freedom of Information and Protection of Privacy Act .
RECOMMENDATION 5:
The WCB should continue to educate information providers, such as
health care professionals, about the requirements of the Freedom of
Information and Protection of Privacy Act, particularly with respect to the
provision of unnecessary personal information about workers or third parties to
the WCB.
RECOMMENDATION 6:
The WCB should develop a policy for destroying or returning sensitive
personal information, including medical information, that it receives which has
not been specifically requested and which is determined not to be relevant to
the adjudication of a specific claim.
RECOMMENDATION 7:
The WCB should investigate all complaints of unauthorized use of personal
information by employers under section 95 of the Workers Compensation
Act and refer all serious substantiated complaints to the appropriate Crown
counsel's office for consideration.
APPENDIX 1-- A SURVEY OF OTHER WORKERS COMPENSATION BOARDS IN CANADA
As part of this investigation, my Office reviewed the disclosure practices of
other Workers Compensation Boards across the country. Generally, other boards
apply more restrictive policies to the disclosure of personal information of
injured workers to employers than does the Workers Compensation Board of
British Columbia. The information contained in the following summary was
obtained from Comparison of Workers' Compensation Legislation in Canada,
Association of Workers Compensation Boards of Canada, 1993.
· Manitoba
In Manitoba, the Workers Compensation Board makes an effort to collect only
such information as is necessary for the adjudication of the claim. The board
allows employers to have access to the claim file once an initial adjudication
decision has been made. In making a request for access, however, the employer
must identify a specific issue or issues subject to reconsideration or appeal.
Only information which is relevant to that specific issue is made available to
the employer. Workers are notified of the intent to disclose information from
their file and are provided with an opportunity to object to the disclosure in
writing before the information is released. The WCB considers the worker's
objections before making a final determination.
Third-party privileged information which may be present in the claim file is
not released to either the worker or the employer.
· Yukon
In the Yukon, the WCB will only release information to the employer that is
relevant to the compensable injury. However, employers are automatically
notified of "benchmark" decisions, and may request and receive Progress Reports
at regular intervals. These Progress Reports are designed to meet the
employer's need for information about the progress of a claim without
necessitating access to the complete claim file.
Upon appeal, employers may make a request in writing to view all relevant
information held by the WCB. When such a request is received, workers are
notified and given fourteen days to object in writing to the release of any
information. If a worker objects to disclosure, the President of the WCB makes
the final determination.
Workers are also entitled to request that irrelevant information be removed
from the claim file.
In order to protect the confidentiality of information that has been disclosed
to employers, the unauthorized use of information obtained from the WCB is
subject to a fine of up to $5,000 and/or a six-month jail term.
· Nova Scotia
The Nova Scotia WCB provides a copy of all information on a file to approved
parties upon written request.
· Ontario
In Ontario, an issue must be in dispute before access is granted. The issue
must be an appealable decision which must be communicated in writing for access
to be considered. Employers can access only the records relevant to the
dispute. The Ontario Board must also notify the worker of its intention to
provide medical reports and opinions to the employer and permit the worker to
file written objections before giving the employer access. A further appeal of
the decision to allow access to records is available to the worker or employer
within twenty-one days, which must lapse before access is granted. The worker
is to be advised of any eventual access and of the information given.
· Saskatchewan
Saskatchewan is similar to Ontario. The workers' advocates have access to
claim files to assist a claimant make a claim or, if indicated, to appeal a
finding or decision.
· Quebec
In Quebec, access to medical and physical rehabilitation records is restricted
to a health professional designated by the employer, who may give the employer
a summary of the record and an opinion. Quebec must notify the worker when an
employer or designated health professional has been given access. The
information is to be used only to exercise the employer's rights under the
Act.