Royal Commission on Workers' Compensation in BC

Feb 19 Morning Session

Name: Heather McDonald

Title: Coordinator of the Freedom of Information, Protection of Privacy Department

Affiliation: WCB

Date: February 19, 1998

Commissioner staff: GG, GS, TR, D , JS

Notetaker: Judy Stott

GENERAL COMMENTS

Disclosure and enhancement of protection of privacy of both workers and employers

PRESENTATION

- Focusing on 2 types of disclosure

- Personal information about a worker

- Sensitive business information about an employer

Personal information about a worker

- Highest profile disclosure is claim file disclosure

- There are three kinds of claim file disclosure at the WCB, which are processed by the records department:

1. Appeal disclosure

2. Legal disclosure

3. Ordinary Course of Business (no legal proceedings involved)

- Appeal disclosure

- Worker and worker’s employer, on a claim, are entitled to disclosure of the worker’s claim file if an appeal has been filed by either party or if appeal proceedings are ongoing

- If no appeal has been commenced or the if proceedings are completed then the request for disclosure is not an appeal disclosure

- Appeal disclosure doesn’t come within the provisions of the Freedom of Information and Protection of Privacy Act

- That is because of section 3(2) of that statute, which says that this Act does not limit the information available by law to a party to a proceeding

- That statutory provision recognizes the common law rules of natural justice in which relevancy rather than privacy is a primary disclosure consideration

- In a report, March 31, 1996, the Information and Privacy Commissioner, Dave Flaherty, did a complete investigation of the Board’s disclosure practices and ruled that once an appeal has been commenced both worker and employer in the claim are parties to a proceeding

- Because of that he said that he did not have jurisdiction under the Freedom of Information and Protection of Privacy Act to make a privacy ruling about the disclosure of the claim file to the employer

- In practical terms this means that at the Board both worker and employer receive full copies of the claims file on appeal disclosure

- There are two exceptions to that general rule

1. A misfile where such records aren’t related to the claim

It is a situation where Worker A’s information contains some of Worker B’s information

We train our staff throughout the organization to watch for misfiles and to alert their manager that they are there so that they can be removed and placed on the correct file

2. Sensitive claims are not disclosed by the Records Management Department

They are dealt with in the Special Claims area where special considerations apply

- Legal disclosure

- It also doesn’t come within the provisions of the Freedom of Information and Protection of Privacy Act

- That is due to the statute’s recognition of the different disclosure principles, which apply to legal proceedings

- Legal disclosure usually involves a written request from a law firm with written authorization from the claimant directing that certain specific records on the claim file need to be sent to a law firm that is making the request for purposes of a specified court or tribunal proceedings

- Requests usually refer to a specific court registry number

- The parties making the request may or may not ask for certified copies

- Legal disclosure is the responsibility of the Records Management Section

- They have a legal disclosure clerk who I believe is dedicated to that type of disclosure

- Both appeal and legal disclosure involve a legal proceedings and don’t fall under the provisions of the Freedom of Information and Protection of Privacy Act

- Ordinary course of business disclosure

- That is undertaken by the Records Management Department

- This type of disclosure essentially refers to non-appeal disclosure or disclosure where there are no legal proceedings involved

- If there is no appeal initiated or no appeal ongoing then only the worker is entitled to disclosure of his or her claim file

- The employer is not entitled to disclosure of the claim file under Section 22 of Freedom of Information and Protection of Privacy Act

- That disclosure would be deemed an unreasonable invasion of a worker’s personal privacy

- In his 1996 investigation report Commissioner Flaherty observed that the employer is entitled to receive only very limited information about a claim if there aren’t any legal proceedings extant

- What he said was that only the information the employers "needs to know" for the administration and adjudication of the claim should be provided where there are no legal proceedings

- In training we do Freedom of Information and Protection of Privacy training throughout the Board and we are talking especially to Compensation Services staff

- We tell them about that principle that the commissioner previously emphasized but there are no guidelines provided on what is needed to be known

- The commissioner couldn’t have given guidelines on "need to know" information because it is a judgement call and it has to be the person with the expertise in the claim making the judgement call

- We told staff that they had to be cautious about it

- E.g. an employer may call up wanting to know if a worker can return to work next week because he heard that through the grape vine that the employee would be ready to return

He might say that he knows the worker hurt his back and that the worker’s job involved heavy lifting so he is concerned about the worker re-injuring his back, should he put the worker back to his regular duties or would you recommend light duties?

It is acceptable for the adjudicator to say that it is light duty and that the doctor recommended light duty for 3 weeks and the doctor will say that we will keep you informed but it should be about 3 weeks of light duty

It is not acceptable to take a full copy of the medical report and fax it to the employer

It is a judgement call to give only the limited information that the employer needs to know and essentially to assist the worker as well

- Generally workers will receive full disclosure of their claim file in an ordinary course of business situation

- There is a rare situation because the Freedom of Information and Protection of Privacy Act applies where they might not get the entire claim file

- A common example – this is the most common example but it doesn’t happen a lot - of that not happening is Section 19 of the Freedom of Information and Protection of Privacy Act. It may happen that a worker has been treated by a Board psychologist and if the edit clerk sees that the worker was suicidal then the worker’s mental stability may be at risk. If the edit clerk is worried that the worker’s mental stability may be affected by seeing their file then they will consult with a medical health professional – preferably a Board psychologist – or the professional who treated the worker to get their opinion on whether the file should be disclosed. Usually the answer is yes but sometimes the file may be disclosed to a medical health professional of the worker’s choice or to a registered psychologist of the worker’s choice. This is similar to Section 71 of the Ontario Worker’s Compensation Board’s Act. We don’t have it in our Worker’s Compensation Act here we follow the Freedom of Information and Protection of Privacy Act rules but the Worker’s Compensation Act in Ontario has actually codified that. The Ontario Board gives full disclosure to the worker of their claim file except that they may disclose the records to the worker’s treating professional if there is concern that the worker might cause harm to themselves.

- Dealt with 3 types of claim file disclosures but want to look at statistics to give you an idea of the magnitude of disclosure, which is undertaken by the Board’s Records Management Department

- See slides from submission – February 19, 1998

- 1997 Statistics Records Management Department

- Total number of claim file

- Disclosure requests fulfilled: 20,355

- Appeal disclosures: 18,903

- To workers: 11,400

- To employers: 7,503

- Legal disclosure: 811

- Ordinary course of business disclosure: 641

- The breakdown of appeal disclosures between workers and employers works out to a 60/40 split respectively

- You can see that the annual disclosure of claim files by the Board is a significant undertaking – it is about 3 million pages a year that goes through the Records Management Department

- There can be other information at Board about workers that is not on their claim files

- Sometimes there are records, which contain personal information about the worker and they exist apart from the worker’s claim file

- E.g. where worker has been treated and assessed by a Board psychologist

- The psychologist would prepare a formal report for the claim file, however, there may be raw test scores from that or handwritten notes from the psychologist and those would not go on file

- Those records – raw tests, handwritten notes - are in a separate file in the psychology department

- X-rays are also an example, they stay in the x-ray department

- The diagnostic report interpreting the x-rays would be placed on the worker’s claim files but the actual x-rays remain in the x-ray department

- All evidence used to decide a claim will be on the claims file but there might be other records about a worker available in other areas of the Board

- The information and privacy commissioner did approve of this method because he said it was important not to have all the personal information about a worker in their claim file because of appeal disclosure practices

- If a worker requests his or her claim file they may request copy of all records and information on them – then we let records management deal with the claims portion of disclosure and the Freedom of Information and Protection of Privacy department of the Board will search for any other records that might exist at the Board apart from claims files

- We have a standard search that we do of about 15 departments of the board

- If there is any personal information about a worker it is likely to be in one or more of those 15 departments - psychology, x-ray, possibly the president’s office (private letters), if there has been a medical review the medical review panel might have some notes, if there has been 3rd party action taken the legal services division might have some as well

- The information and privacy commissioner did recommend that steps had to be taken to inform workers that there just might be other repositories of information about them at the Board apart from their claim file

- Last Tuesday, February 10, 1998, the panel of administrators approved an amendment to the rehabilitation services and claims manual, Section 99.30

- That amendment will clarify that while the claim file contains all the evidence that is used to adjudicate the claim nevertheless their might be other records at the Board apart from the claim files, which do contain personal information about the worker

- The Records Management Department, in conjunction with my department, is revising a pamphlet, which we have had around for a long time

- The pamphlet is called Access to Information and Protection and Privacy at the Board and we will be giving that to clients with the claim file disclosures that workers get so that it is as clear as possible that they also have the right to request possible extra information

- We are also making similar amendments to another brochure, which is given out often when the workers apply, make an

- Currently we find that 1 in 5 Freedom of Information and Protection of Privacy requests – requests to my department - are workers wanting disclosure of their personal information apart from the claim file

- Disclosure of employer information

- Assessment and Prevention divisions are the custodians of significant business information about employers

- E.g. payroll and registration collected by the assessment department

- Prevention has firm files, the firms’ safety history, records for investigations, penalties, inspection reports, safety audits and accident reports

- The Freedom of Information and Protection of Privacy Act has strict and, in my view, extensive protections for the personal privacy of individuals but it only provides limited protection for information characterized as business information

- The thrust of the freedom of information legislation is to encourage public bodies like the Board to be open about their practices, their records and the information contained in them

- Disclosure by the Act is presumed unless there are express statutory exceptions to disclosure

- The only exception in the Act to disclosure of business information or employer information is found in the mandatory exceptions specified in Section 21 of the Freedom of Information and Protection of Privacy Act (see handout)

- There have to be 3 conditions present that have to be satisfied before the mandatory exception arises

- The Board can’t, without the consent of the 3rd party involved, disclose any information that would first test, reveal trade secrets, commercial, financial, labour relations, scientific or technical information of a third party. You have to meet that test and the information has to be implied implicitly or explicitly in confidence; and the disclosure could reasonably be expected to harm significantly the competitive position or interfere with the negotiating position of a third party or result in similar information no longer being provided to the Board where it is in the public interest that the Board get it or result in undue financial loss or gain or reveal information supplied to or by labour media or arbitrators

- There is one landmark case that interprets Section 21 of the Freedom of Information and Protection of Privacy Act and it deals with WCB records containing employer information

That is order number 22 of the information and privacy commissioner, September, 1, 1994

In that case a trade union had requested the experience rating assessment rate of a Canada Safeway and Overwaitea for each year of a 5 year period

It also asked for the total assessment charged and collected for each firm for each year of a 5 year period and the total claims cost charge for assessment rating purposes for each of the years in question

In the decision the Board withheld the first two records but it decided to disclose the last record – total claims cost charge for assessment rating purposes

The two employers involved in that case objected and a hearing was held in front of the information and privacy commissioner and the commissioner ordered disclosure of all 3 types of records

He found that the three tests hadn’t been met in all of those cases and if you don’t meet the tests then you have to give it out

He found that the experience rating assessment rate was not financial information of the employers but rather a rate calculated by the Board

He found that experience rating assessment and total claims cost weren’t information supplied by the employers

He also found that the undue harm or loss test hadn’t been proved by the Board or the employers

So the commissioner’s ruling indicated to the Board and other public bodies that Section 21 would be interpreted strictly by the commissioner and the courts – that decision was upheld under judicial review by the Supreme Court of BC

- So we were given full guidance that there would be strict interpretation of Section 21, all three conditions had to be met and you had to have the evidence to make your case before you can withhold the information

- The onus is on the Board as well as the employers to prove that those conditions have been met

- Types of requests generally made to the Board for employer information

- Employers can request information about their own firms for assessment and prevention purposes

- E.g. they might want to know their safety record, they might ask for appeal disclosure for a sanction review hearing

- Also receive a significant number of requests from relatives of workers who have been killed or seriously injured in an accident – often they want all records related to the accident

- This involves at least partial disclosure of an employer’s firm files with respect to the records related to the accident

- Sometimes relatives believe that the company has poor safety history and they want all records related to that firm and of course they want the WCB accident investigation report with engineering and coroner’s reports attached

- Privacy issues arising from request for disclosure of prevention firm files

- It is essential that the Board continue to obtain all relevant information in safety and accident inspections

- Because of that it is important to protect the confidentiality of certain information or sources of information so that employers and individuals feel comfortable in providing full and accurate information to the Board

- Sometimes the Board will collect information about an employer, arguably it doesn’t meet all of Section 21’s conditions although the information appears sensitive in nature and there is a risk that disclosure might cause harm to the employer

- Where we have that kind of concern we engage in 3rd party consultation under the Act with the employer

- It gives the employer an opportunity to have standing in a proceeding before the freedom of information and privacy commissioner

- It is the same situation as individuals who may provide witness statements in an accident investigation – their statements can be very candid – and we won’t disclose their identity

- If next of kin want to know who these people are that witnessed the accident it is understandable but the person may not want to be identified so they are given 3rd party notice as well so that they have some standing before the freedom of information and privacy commissioner

- The mediation efforts of the freedom of information and privacy commissioner are very good and we have been able to mediate all of those in a way where both parties come out feeling satisfied

- Enhancing personal privacy at the Board

- The Board is a public body under the Freedom of Information and Protection of Privacy Act and we are subject to its rules on collection, protection and retention of personal information

- No personal information can be collected about an individual unless it relates directly to and is necessary for an operating program or activity of the Board or is authorized by the statute

- That obligation can be described as an admonition to public body employees do not collect personal information about an individual unless you really need it and it is relevant for the work of your public body organization

- In training we get the message out and we hope it gets out to employees do not collect personal information about a worker unless it is relevant and needed for adjudication of the claim

- We also have an obligation to make every reasonable effort to ensure that personal information collected is accurate and complete

- We have an obligation to protect personal information in our custody and control by making reasonable security arrangements against such risks as unauthorized access, collection, use, disclosure or disposal

- 1997 the Freedom of Information and Protection of Privacy department received 19 complaints, which were privacy related

- That might not seem to be many complaints given that we talked about having over 20,000 claim file disclosures in 1997, however, the ombudsman also received 27 privacy related complaints and many people whose privacy has been violated don’t complain so we don’t know the true picture

- Of reported complaints I believe that the statistic is about .1% or less than .1% of the total disclosures but it is not a true picture

- Our goal is to protect personal privacy even if no complaints are received

- One privacy challenge is dealing with information filed in error

- For the past 2 years we have been emphasizing in training seminars throughout the Board – because it is not just one department’s responsibility – that every employee who notes an error has to take it to his or her manager so that the manager can take the steps to ensure that misfiled documents are immediately removed from the claim file and placed on the correct file

- The message is that privacy is everybody’s issue – if you notice an error then take it to your manager – don’t wait for someone else to catch the error somewhere else down the line

- You have to do this with an organization that has over 2000 employees in various locations

- Another privacy issue we have to deal with is that in the first couple of years after the Freedom of Information and Protection of Privacy legislation was enacted privacy complaints were being made by workers who didn’t understand that disclosure of their claim file would be provided to their employers for appeal purposes

- This has been going on since 1987 and there were so many employees that did not know that their employer would get full disclosure of file during appeal and they felt betrayed when subsequently a year or some months later they found out that their employer had received full disclosure

- Worked with psychology department to produce a handout that would be given to workers early on in the adjudication process – it explained the whole appeal process at the Board and the reasons for appeal disclosure

- As well we amended form 6, the application form that workers can sign to apply for compensation benefits, to alert workers that employers will get full disclosure

- The brochure that is given out with it was also amended to state that employers could get full disclosure on appeal

- That is still not enough – doing it in writing is not enough, some don’t read it and that is understandable so I am open to suggestions

- Another privacy challenge was in 1994 when Jim Dorsey, then president of the Board, recognized the need for a sensitive claims area to deal with those claims where an employer or another person is alleged to have committed a sexual assault on a worker

- Disclosure of that type of claim file to the employer, particularly where the employer is alleged to be the perpetrator of the crime, for appeal purposes it raises very special considerations not the least of which is the safety of the worker

- Location information such as telephone and address information of workers and witnesses is routinely severed from the record before being disclosed to employer particularly if employer is possible perpetrator

- Those files are kept in a lock, secured area and they don’t go through the normal file tracking processes of the Board – they are walked around and only certain people have access to those files

- There were 12 disclosures by the sensitive claims area – 3 to employers and 9 to employees

- Another important privacy issue is the need for the Board is to collect only that information, which is relevant to the claim and only in the detail that is necessary for the adjudication of the claim

- This is very important especially if you are dealing with a collection of medical information

- Only the medical information relevant to the claim should be on the claim file and that is to protect worker privacy on appeal to the employer

- We have amended the rehabilitation services and claims manual – it now provides in Section 99.30 sensitive personal information, which is received that has not been specifically requested and that is not relevant to the adjudication of the claim shall be returned to the centre and will not become part of the claim file

- E.g. you may have a person with a left elbow injury and the adjudicator will write to their doctor requesting all the doctor’s records relating to that left elbow injury and – I don’t know how often it occurs but it does happen – the doctor will send in all of his or her records so you have things that in no way relate to the left elbow injury

- We’ve instructed the adjudicators to take it immediately to the manager if they see that and the manager should be taken everything that is not relevant and sending it back to the doctor

- The use of outside contractors by the Board has raised some interesting privacy issues

- We are working with the information and privacy commissioner to implement safe guards in that area

- We have already trained employees and one outside contractor to ensure that they are aware of their responsibilities in performing work on confidential records

- We have committed to the information and privacy commissioner that in tenders that we have for external contractors we will indicate that preference will be given to those contractors who have adopted Canadian Standards Association Model Codes for the Protection of Personal Information

- We have also committed to him that contracts will contain explicit requirements such as the right of the Board to make spot privacy checks at the contractor’s work place to ensure that that work place meets the Board’s security standards

- And there are other several other explicit contractual requirements that we have committed to doing as well

- Another important privacy enhancement arises from the Board’s move to e-file technology which should be more private than paper claims used previously

- Section 95 of Compensation Act

- Amended in 1996 to restrict secondary disclosure of information from worker’s claim files

- The amendment makes it an offense for the recipient of such information to disclose it further unless under certain circumstances (see handout) – obviously with the consent of the worker – in compliance with the statute, in compliance with a subpoena or order, for the purpose of preparing for a proceeding under the Worker’s Compensation Act

- When the amendment was proclaimed into law the Board took steps to alert advocates in the Worker’s Compensation community about the importance of complying with the amendments and the Freedom of Information and Protection of Privacy department provided its legal interpretation of the amendments as a guide

- Since the amendment came into force over two years ago we have only had a handful of complaints from workers about secondary file disclosure

- That is not to say that it doesn’t occur more often than that, it very well may, but we haven’t received very many complaints

- The Board follows a policy recommended by the information and privacy commissioner of referring all serious complaints to the Crown Counsel for consideration of prosecution proceedings

- The Freedom of Information and Protection of Privacy department will often get those complaints and we will immediately refer it to legal services division lawyers for consideration because there is a 6 month limitation period

- Full compliance with the provisions of the Freedom of Information and Protection of Privacy Act is a long term process

- Freedom of information requests have tripled in three years, privacy challenges take a great deal of time and effort to solve

- The Freedom of Information and Protection of Privacy legislation has always received strong support from every chair that has been with the Board commencing with Jim Dorsey and through to Don Cott

QUESTIONS AND ANSWERS

WINTER:

Q: Sensitive claims area – I don’t understand where the discretion comes in the Board to determine that they are not going to give full disclosure on sensitive claims to an employer once an appeal is filed. My reading of the policy 99.30 is exactly as you said. It says sensitive personal information that has not been received, which has not been specifically requested and which is not relevant to the adjudication of the claim shall be returned to the sender and shall not become part of the claim file. That I can understand. One has to assume that if policy isn’t followed and information is left on the claim file then it is considered sensitive but relevant. Why wouldn’t that be disclosed?

A: What you find is that all the evidence that they have used to adjudicate the claim will be disclosed to the employer. They don’t use the witnesses’ address or telephone information in adjudicating the claim. You are right though they don’t sever that off and give it back to the worker.

Q: Can you show me where in the policy or Freedom of Information and Protection of Privacy Act commissioner or anything there is any element of discretion?

A: No I can’t find that.

Q: It is in breach of policy if I understand it to not give the full file disclosure once an appeal is filed?

A: I don’t know if it is a breach of policy but I can’t find anything in the rehabilitation manual which specifically gives that description that you allude to.

Q: You gave an example of witnesses’ addresses and phone numbers not being given, the name is given then?

A: My understanding is the worker’s name.

Q: No the witnesses’ name?

A: I think that it is a case by case judgement. The witness’s name might not be given out.

Q: The employer is obviously going to know the worker’s phone number and address.

A: No that’s not true and that’s where the safety of the worker becomes very important. If the employer is alleged to have committed sexual assault on the worker, the worker will more often than not have moved.

Q: You are talking about a person who is no longer working for that employer but at the time of the allegations they were employed.

A: That is correct.

Q: So the employer is given some detail on who the person is and all the allegations that the Board has?

A: Oh yes

Q: What about if there are other witnesses that the worker brings forth and there is information on the file from other witnesses that the employer may not know about? Would they get that information?

A: I haven’t done that type of disclosure.

Q: You agree with me that the policy seems to demand to be giving it yet again?

A: The policy says that all relevant information shall be given to employer.

Q: I have difficulty that it is alleged against the employer in one way or another because it happened because of work. E.g. I’ve been involved in sensitive claims and it comes down to it being a credibility case so without having all information on the file I don’t see how justice can be served. It disturbs me that someone sits down and decides what is going to be given and what is not going to be given to the employer.

A: You have made an interesting point. Irrelevancy testing can be difficult and is often in eye of beholder.

Q: I don’t see anywhere in the Board’s policy that relevancy is a factor anymore. My understanding is that the determination of relevancy only applies now in sensitive claims and that is at the beginning and it should not be on the file, it should be sent back. Decision 410 clearly described why relevancy will no longer be a factor that the Board is going to look at

A: I think the assumption in 410 or the presumption, the premise, is that the entire claim file should be disclosed to the employer because everything of substance, which the adjudicator used to adjudicate the claim will be on there. The premise of the substance is that giving the entire claim file is giving everything that is relevant to the claim.

Q: I think that you went a little further again to say that the assumption is giving everything that is relevant. 410 seems to be clear on its face that you give everything. You don’t make the determination if it is relevant or not. The reason they give in 410 is that it is very difficult to determine what will turn out to be relevant. What used to happen in the old days when there was a relevancy test was that the employer would go in and assume that they had all the information and either a new document was brought forward by the worker, someone on the panel refers to a document, or even worse at the end of the day you read a decision and there is something mentioned that you didn’t know about.

A: Relevancy is very difficult. E.g. you get a claim file and let’s say that a worker opens it on disclosure and sees information that isn’t relevant, it shouldn’t be there and that tainted the adjudicator into denying my claim. On appeal, ironically enough, you want the worker to have that information to argue with at the appellate tribunal but it is not relevant and the adjudicator should not have used that evidence. Conversely you may have an employer wanting to argue that a document on the claim is not relevant and it has tainted the adjudicator and that is why the claim was allowed. In 410 the then commissioners said it was impossible for anybody in advance of the appellate tribunal themselves to make a relevancy determination. However, stripping everything aside it seems to me that as a human gesture, if a woman alleges that she has been raped and she is afraid of having her address or telephone number disclosed it would be pretty inhuman if the Board didn’t sever that information out. To be fair to employers I don’t think that they want that information on appeal disclosure. I think what they want is the substance of why the decision was approved if the adjudicator did approve the claim. I should also give a caveat that my specialty is the Freedom of Information and Protection of Privacy Act and the Freedom of Information and Protection of Privacy legislation. I don’t pretend to be an expert on relevancy or appeal disclosure.

Q: I do have copies of Decision 410. I think that we have discussed it enough that if the panel would like a copy I could hand them out. This is Decision 410, it is published policy of the Board and deals with the issue of why the Board no longer deals with relevancy. The key discussion is on the second page, page 66, and it starts under the paragraph "the present guidelines&ldots;" and it is the last two paragraphs on that page.

I want to move on to a different topic now. I want to deal with Section 95. I want to discuss some of the problems that we are facing with Section 95. I think that the concern that is coming up with Section 95 and this is 1.1, the section that was added is that in a broad sense Section 95 (1.1) deals with a work related matter. We are dealing with a work related injury, information on a worker’s WCB claim file relating to an illness or injury that is alleged to have occurred because of work The work relationship extends further, obviously then just the WCB part of it and Section 95(1.1) doesn’t really recognize that. It puts an artificial barrier between the WCB and the rest of the world. Because it is an employment relationship I don’t think that is a reasonable barrier and let me just give you some examples.

E.g. a worker suffers a back injury at work and injury is accepted by WCB. 9 months later it is determined that the worker has returned to pre-injury state and should return to work so the Board terminates wage loss. The worker appeals and both the employer and the worker representative – let’s assume it is unionized – get disclosure. The worker then comes to the employer and applies for sick leave because wage loss has been terminated and they are waiting now to get to the Review Board on reliance of WCB medical evidence and decision on its face denies sick leave. The employer on reliance of the WCB medical evidence and the decision that says that you are able to go back to work denies sick leave and gets a grievance. The difficulty there is that there has been nothing improper at this point. Now it is difficult to get that document back into an arbitrator – possible but tricky. Section 95(1.1) should be revised to make it clear that that extension from the WCB is legitimate. Another e.g. is the same sort of issue but now the employer wants to take that documentation, the employee and the Board want to work with that employer on return to work. We want to work on rehabilitation because they are not going back to their pre-injury job. So the employer has all documentation because they had an appeal decision so they send it to a professional for help. They may have difficulty using that information when it comes to arbitration. The employee may say that I am able to do jobs A and B but not C and D. The employer may come back and say that the information we have is very different and you can’t do A and B but you can do C and D. Usually the reason that you get into that kind of dilemma is difference in pay. Again the employer is stuck now, they have the documentation, they sought help from a third party and when they get to the dispute level to try and resolve the issue they cannot use that in a simple manner. You have to go through the exceptions that the Act builds in on how to get that documentation in. What are your views on that problem?

A: If employers are having difficulty with clarity on Section 95 then I am all for clarity.

Q: When does the WCB influence actually stop? Where should the line be for 95(1.1)? It seems to be too narrow to say for the purposes of that Act only because the issue from that Act is always brought back one way or another into the work place and is brought back into other dispute mechanisms that deal with the exact same issue.

A: I think it is fairly clear that if the claim is ongoing and there is a vocational rehabilitation consultant still involved in claim and the employer is working with the rehabilitation consultant you can certainly use the claim file documents in talking to the rehabilitation consultant.

Q: There is never a problem when everybody is working together. Can you take it from the point when everyone is not working together?

A: I would like to say that the law is clear but it is not always the case. I am aware of this case that you have given to me. The decision of the arbitrator, Collin Taylor, even more so now with that gloss on it, unless and until there is further clarity your client has to be very careful about using claim file documents unless those 4 conditions are met in order to get advice from a professional.

Q: I will come back to that case in a moment. You may be right that it is clear but my point is that the lines in Section 95 (1.1) are too narrow. Section 95 (1.1) has got to be revised to envision that the world is larger than just when we are in the claim file at the Board and that same issue moves back into the work place. It is a continuum. When you take out all the relevant information that both parties have then there is something wrong. Need to make it more responsive, keep it clear but make it more responsive to the reality of the world. Let’s look at the arbitration award that I gave you. Look at page 1 of the arbitration award it ended up being a nonculpable discharge, meaning no fault. The employer determined that the worker could not come back to work and was terminated. The worker hadn’t received any wages since 1993 and no benefits from WCB since 1996. What the employer was trying to do before termination was to find if there was a job available for this person. When you read the 3rd paragraph on page 1 it says prior to the termination of the grievor the employer provided certain documentation and job demands to the doctor, an expert in occupational medicine, and asked the doctor for information on whether or not worker could do the suggested jobs. The report wasn’t helpful to the worker and he was terminated. Did employer breach 95(1.1) by disclosing information to an outside doctor? When you read the case on page 7 the arbitrator describes the difference between an outside professional and inside one – if inside they are still part of employment but as soon as you send it out to outside it is 3rd party and a violation of the Act. The final result was a violation of the Act that could not be fixed. He couldn’t go through it again and get the documents the proper way by subpoena, etc. etc. There were two problems – doing it was unlawful and in any event the information would be inadmissible. I find that surprising and what happened next was that it was taken under Labour Code and could be taken to Court of Appeal. The employer has gotten leave to bring it through court of Appeal and that is where it sits. Mr. Treewright, a partner of mine, sent you a letter of the case, October 29, 1997 – I have given everyone a copy of that letter - and raised concern about the decision not seeming to be consistent with the intent of the Act. In fact, if the premise is right it would apply not only to the medical community, it would apply equally to the legal community unless we could all argue that there is a difference under the nature of the client/solicitor privilege. He asked for thoughts and you provided them in an October 30, 1997 – I have given that out too - letter. You found it surprising and didn’t think it to be the intent of the Act. Your bottom line was, on page 3, that you didn’t agree with conclusion. That is where we start getting back into problems with 95(1.1). We have to do something to revise that. There was nothing improper, if I understand that award and if I understand 95 (1.1) with Alcan, for example, to send it their doctor that is employed by them. Where they may get wrong is now when they went to an arbitration and get that information in front of an arbitrator and not just through the doctor. If you are going to an outside doctor then the second step of giving it to another employee for advice became unlawful. Please confirm again that that seems wrong?

A: Yes it took me by surprise and I wasn’t what my interpretation of Act was.

Q: This is the kind of issue that is going to be dealt with by third parties often. Section 95 (1.1) doesn’t bring it into a consistent area to make these decisions. For example, let’s say they all go to you so we know that we will get consistent, hopefully, decisions. This can go to any arbitrator or any tribunal that may have a related issue – be it human rights or whatever – and they could all make very different decisions. All of a sudden unorganized employers face a whole bunch of inconsistent decisions. Wouldn’t you agree that that is something that seems to be more prone that we should resolve in the Act itself ?

A: Either that or hopefully with a speedy court of appeal decision.

Q: You are right and hopefully that would help. But you find that it causes as many problems as it helps because the draw another line and then we start to interpret those lines.

A: I am not going to start pre-judging the court of appeals. I think that it is important that the law be clear and that everybody know what their obligations are.

Q: The other real disadvantage is if you want to, let’s assume, that you want to rely on the documentation. The problem is that you are going to a third party in advance of having a dispute resolution procedure. Let’s say the employer is looking for alternative job opportunities and they go to a third party. The third party, if Mr. Collin Taylor is right, that would be unlawful if it is not part of the employer. The way that it works is that you have to go out and get a subpoena or the consent of the worker. Let’s just assume that the worker is not going to consent because it is an adversarial process. It seems to be a catch 22 that you are putting the employer in. On the one hand you want to go out and get some information you can rely on to deal with the situation and on the other hand you can’t do it unless you have a subpoena and you need a dispute to do that. On the other hand you don’t have a dispute yet because you are trying to go out and get the information to see if you can resolve it before you have a dispute. How do you get that information to a third party?

A: You could hire a lot of in-house professionals I guess.

Q: That is one way around it, tell all employers to go out and hire your own doctor. I don’t think that is reasonable and I think that Section 95(1.1) needs to be revised. I want to talk to you about a different aspect of 95 (1.1). I have handed a letter to everyone. This was a response to a letter from Anne Dunn, who at that time had been with Macmillan Bloedel and could have been the same case for all I know. The Act sets up certain ways that the documentation can be used outside the WCB proceedings itself. You were asked for some clarification on how this might be done. In fact, you have gone further than this if I understand. You were involved in the CLE – continuing legal education – in 1996 and you reproduced a similar kind of discussion.

A: Yes

Q: Part of your job is to get out and try to educate and work with the community at large to understand how these things work. You gave 5 different options and I wanted to review each of those with you. The first one was request the arbitrator to subpoena a copy of the file from the WCB. That seems to be a sure way of getting it done under the Act because the Act says that if it is under a subpoena then they have to come. But you don’t like that as the best one because it is going to be an inconvenience to the WCB and maybe to the parties concerned. There was a case by Mr. Dorsey, as an arbitrator, and you referred to it in your CLE. What Mr. Dorsey did in that case, which was in 1996, and he had the same issue in front of him. The employer wanted to subpoena themselves for want of a better way. The option was that they said to the arbitrator we are either going to subpoena ourselves, the employer, or we are going to subpoena the Board. Mr. Dorsey, being a recent ex- from the Board, said it is nonsensical to have to subpoena the Board. It is such an administrative burden for them to have to do that and all you do is get the file here legitimately and then you don’t really need the officer there anymore. The employer already has the file so I am just going to issue a summons to the employer to attend and bring all documents with him and that is what they did.

A: He rejected option A and took option E.

Q: That’s right and we all know how busy adjudicators are and the last thing we want to do is have them sitting around for 8 hours at an arbitration simply so that he can bring the documentation. Again, what I am trying to get at is that it looks like Section 95(1.1) has put down very strict parameters and left very technical ways of getting the documentation when there are a lot of easier ways. We will get back to that option because it is E and so let’s look at B.

STEEVES: I object to more argument then questions.

WINTER: My point here is that the Act needs to be amended and I think that Ms. McDonald is in agreement but I can ask her that.

GG: I think that there needs to be some considerable leeway in setting up the issues, informing the commission of what the issues involve and that could mean some element of speech making.

STEEVES: I agree that this is not a court of law but so far this morning I am not sure why this panel is even here. All we are hearing from is the Council for the Employers. In my view we have breached the kind of latitude that should be in these proceedings.

GG: I think I have made my ruling and think that some of the questions that Mr. Winter has asked could do with some more in depth answers. This is a difficult area and I think that has to be recognized as well.

Q: Let’s go straight to point E then where it deals with subpoenaing the employer. Why don’t you explain what your thoughts are on that option?

A: As I just mentioned earlier, Arbitrator Dorsey in the Fording-Coal case, rejected option A, which does not surprise me given that it is inconvenient. Mr. Dorsey was aware of how inconvenient it can be to have to have the Board send an officer with the file. He adopted option E, which is having the employer subpoenaed. As you can see in this letter I thought it was an unusual use of subpoena power and I was doubtful as to whether an arbitrator would issue a subpoena or not on this basis. However, it would be a matter for the discretion of the arbitrator. I didn’t think that an arbitrator would really do that yet that is exactly what he did. The employer already had a copy of the file so there was no point asking for another one and this seemed to be the most expedient way.

Q: I agree with you and I would have also said – this is before Mr. Dorsey’s decision to send this letter – that it seems kind of unusual to allow the employer to get the documentation by simply saying subpoena me and I’ll bring it. What Mr. Dorsey tried to do though is a practical resolution of the issue. Do you agree with that?

A: Yes I agree with that.

Q: What I am trying to do is, maybe we can get the Act to be a little more practical. Let’s go to letter C on the top of that page. It says request the WCB to order rather than subpoena the WCB to provide a copy of the claim file to the employer and the worker for use in the arbitration proceedings. I take it you picked that up because of the words in Section 95(1.1), which say that in C the exception is in compliance with the subpoena, warrant or order issued or made by a court body or jurisdiction. Is that where you picked up order?

A: There is a distinction between a subpoena and an order. You can subpoena documents but that doesn’t mean, necessarily that the documents will be admitted into evidence at the tribunal hearing automatically because there might be a mini hearing, if you like, on whether the documents are even relevant to the hearing. An order usually assumes that the arbitrator has already decided that indeed the documents are relevant and therefore the order is made and the documents are produced and then ipso facto they are in the proceedings

Q: I had two problems with it. I don’t think that an arbitrator would have jurisdiction to order the Board to do anything without a subpoena because the Board is not one of the parties before the arbitrator. This is opposed to the employer, who, once they are there the Board has the power to order the production of documents because they are under their jurisdiction.

A: I understand what you are saying.

Q: So then we get to letter B. This is to request the arbitrator’s subpoena to worker claimant to produce all documents relevant to the proceeding including a copy of the WCB claim file. What are your thoughts on that?

A: Well I think that is probably the more usual process and I am trying to think back to labour board hearings. The worker would probably have a copy of the file in their possession and then they have a chance to argue relevancy at that time.

Q: I saw two potential problems with that one. One is if the worker doesn’t have it, for example, the labour representative has it. Maybe they have the legal issue where the worker can require the labour representative to bring it. The second aspect was that the Act specifically refers to the worker’s consent. I thought this is the same as going to the employer and subpoenaing the employer to bring it themselves when there really wasn’t directive for the employer to be able to do that. If you are going to subpoena the worker to bring the documents you are basically vitiating consent.

A: You are not asking the worker for consent but presumably an arbitrator who issued that subpoena is saying that the documents are potentially relevant to the case. I wouldn’t do it if I were an arbitrator unless I was pretty sure that the worker indeed had those documents. I think that is quite a good option in my view.

Q: The fourth one is D and that was to obtain written consent of the claimant. That would be fine if the claimant would do it but a lot of times it is adversarial so they won’t do it.

A: Right

Q: My practice is to summons the Board and the practical problem is that I sometimes have to summons three or four people if I want them all to explain their opinion. I take it that your preference is to summons the worker if they have the documents.

A: I suppose that is the option that I would pick. There is nothing legally wrong with option A but it is inconvenient because you are taking 3 or 4 Board officers away from their jobs.

STEEVES:

Q: First of all I think that the Board’s position is that privacy of workers and employer information is an important issue.

A: Yes

Q: And there is some history from the workers’ point of view. That is they had to go to court in order to get access to their file and that was the case of Napoli back in the early 80s I think it was and that went to the court of appeal. Have you seen some of the early disclosure on file prior to Napoli?

A: I was articling at the Board at the time but I believe that some short summaries were provided to workers before Napoli.

Q: Another aspect of privacy at the Board is that the practice and anything public, names are deleted. For example, in the report series initials are added and so on. You spent some time at the Labour Relations board and there is a different character of information that is published at the Board versus the Labor Relations Board. Is that correct?

A: Generally speaking yes – it is all injuries, all medical information at the WCB.

Q: One aspect of the character is more concern for privacy and narrower LRB, for example and the courts system disclose everything that is in the judgement whereas the Board does not.

A: That is true.

Q: You indicated that you have three kinds of claim file disclosure. On appeal you said that employers have access to workers’ files when they are party to an appeal and normally filing an appearance, correct?

A: Yes

Q: Does the reverse apply for a worker involved in an employers’ appeal, for example, on Occupational Safety and Health matters? Do they get full disclosure of the file?

A: She has never run into an instance because a worker has never asked.

Q: So you have no information on that at all?

A: As you could see I had to ask if a worker had status to be a party to proceedings so I have no knowledge of that.

Q: You indicated a pamphlet you have. Does that exist now or is it in production?

A: There are a couple of pamphlets that exist now but the revisions haven’t been printed yet.

Q: Does that pamphlet include information about how workers can get information about employers’ appeals?

A: I don’t believe so no. It is dealing specifically with workers’ claims.

Q: You raised the report by the privacy commissioner, Mr. Flaherty and I know that was controversial. It was the result of 5 complaints to Mr. Flaherty, is that your understanding?

A: There were several, there might have been five.

Q: Despite the fact that the report was initiated by the complaints of workers there were no hearings held, there was no notice given to the parties and there was no opportunities for any of the complainants to make submissions to Mr. Flaherty. Are you familiar with that?

A: I believe it was an inquiry process and there was no oral hearing.

Q: There was an objection by labour groups after the report came out – remember that?

A: Believe I heard that yes.

Q: You talked about access to employers in the ordinary course. E.g. employer may call up wanting to know more information on the possible return to work of a previously injured worker and you mentioned that oral information could be appropriate. I wonder if there are other examples where there are former Board employees now working for a different company who have the direct number of an adjudicator. Those former Board employees may put pressure on that adjudicator to provide more than the information that you are talking about and have in fact provided it.

A: I have never heard of that and I don’t believe that a complaint has ever been made to my office. I will accept that if that is true then I would like a complaint made because that shouldn’t be going on.

Q: I wasn’t entirely clear about what you said about personal information on a worker on a file. Were you saying that a worker needs to make a double request in order to get everything on their file?

A: The term file is not clear. If a worker asks for their claim file that is what they will get. If they ask for all information on them then it will come to the Freedom of Information and Protection of Privacy department and the claim file portion of the request will go to Records Management so that they do that portion of the disclosure. The Freedom of Information and Protection of Privacy department will do a search for any and all other information on that client.

Q: Turn to Tab 8 of the BC Federation of Labour documents and there are 2 documents there. One is a note from records and management to my firm dated September 11, 1997 and the second is a document that appeared on that claim file. On the document is off record, do not copy. Do we have any dispute that that is a completely inappropriate use of documents on file?

A: No dispute

Q: Do you know if that happens often?

A: I don’t know how often that happens. I have seen it maybe 5 times since I have been at the Board, which is over 3.5 years. It is wrong.

Q: You talked about privacy issues and protecting sources of information. Are you aware of any protection that is in place for a worker that reports a violation of a health and safety regulation to the Board?

A: I understand that there is a provision under the Worker’s Compensation Act that nobody can interfere, it is an obstruction of justice provision. I don’t know the exact wording or Section number.

Q: Do you know if procedures in the Board in terms of protecting privacy related to that kind of situation exist?

A: That is a little hard to answer. In prevention records a prevention officer has gone out to a work site and spoken to workers – this is a true hypothetical - and a worker mentions that there are serious violations going on and he or she is scared and they are worried about losing their job. In training prevention officers we emphasize that when you make a record of that use discretion of whether or not to write the worker’s name down. If the worker’s name is written down then write confidential beside it. Then if a request for disclosure is made through our department we can see that and sever out the worker’s name. We also warn them that there is appeal disclosure of sanction hearings and there would be no severing. The preferable thing to do is not to put the worker’s name down at all. I am also aware that there is a revision going on to revise the Occupational Safety and Health prevention policy to protect the identity of witnesses. It is going right into the policy.

Q: On the privacy issue are you aware of Sections 87 and 88 of the Act?

A: Yes

Q: The Board interprets them very broadly. From time to time the Board uses those powers to order a doctor to supply, not just relevant documents but their entire medical chart. Is that correct?

A: The entire medical chart can be asked for if the adjudicator deems it relevant, the chart as opposed to all the records relating to the patient. They might want to know all the injuries that were treated but not all the records unless they were deemed to be relevant.

Q: What is the basis of your understanding?

A: No discussion with adjudicators.

Q: That has happened and it has been objected to by workers and doctors who are obviously concerned about the privacy of their patients. Are you aware of complaints by doctors?

A: No I am not.

Q: For example, if we have a case with a man with a back problem the chart is disclosed and it has information about family counseling on it and other private things. Is it your view that that would be an inappropriate exercise of Section 87 and 88?

A: I would say that it could very well be but I would have to know the particulars of the case. The adjudicators know rules and they know the law. I don’t want to get in the stance of defending particulars that aren’t before me but if there is some problem with how a claimant may be dealing with vocational rehabilitation and there is some concern that there is past history that may be impeding recovery they may ask for it. So it is possible that an adjudicator might deem other medical evidence to be relevant, which at first blush may not seem relevant.

Q: The point is that they shouldn’t require the entire chart from 1985 to 1997 , they should apply test of relevancy.

A: Yes they should.

Q: Should that be set out in the letter to the doctor for example?

A: That is a good point because we received a call recently about letters to doctors and whether we would provide some advice in wording. We are undertaking to do that.

Q: Yes because these letters go out and just ask for records for a certain period of time. Relevancy is hard enough for those of us trained in it and although doctors don’t want to be involved in it they are also universally concerned about disclosing information about their patients and rightfully so.

A: Yes

Q: Section 6(3) of the review board regulations says that the review board may require and receive medical information or other evidence on oath, affidavit or otherwise as in its discretion it considers proper to make a fair decision. We have a similar situation where the review board panel is not applying a test of relevancy but simply asking for a copy of a doctor’s chart and when the worker and the doctor raises concerns the Board says that they will decide relevancy once they get it. Do you have authority or influence over what happens at the Review Board?

A: No I do not.

Q: Could you offer an opinion as to whether that kind of direction from the review board would be improper and illegal as previously you said for the Board?

A: I already said that relevancy is in the eye of the beholder. I can’t speak for review board panels. I’ll take a guess at what their stance is. They don’t know what is relevant until they see what is there and I am not defending that.

Q: The problem in both cases of course is that if the chart is requested complete, unedited with no test of relevancy then it goes on the claim file and is distributed to the employer.

A: Are you saying to me that what the review board does is that it will take all the charts even if they find that some things aren’t relevant and put it all in the claim file?

Q: I am saying that they are only applying a temporal test and no test of relevancy. They would apply a relevancy test but there would be no editing of the document made.

A: I can’t speak for the review board. I would assume they felt it was all relevant.

Q: In the matter of outside contractors you raised that point because the Board is doing that more?

A: Yes

Q: Is it your view that Section 95(1.1) applies to outside contractors? That is as it would in same way to the Board?

A: No my view is that outside contractors and their employers are essentially agents of the WCB and deemed employees under the Freedom of Information and Protection of Privacy Act.

Q: Are they employees or agents?

A: Actually the contractor, I suppose, would be an agent. The Freedom of Information and Protection of Privacy Act itself says, I think it is 22 something, that where you use an outside contractor the employees of that contractor are deemed to be employees of the public body.

Q: If I have a contract with the Board to do a disability assessment and I have employees then those employees are bound by Section 95 in the same way that Board employees are?

A: Yes that is my understanding.

Q: And are you communicating that to outside contractors?

A: The employees are being trained.

Q: What ways of control do you have for ensuring that that is taking place?

A: There are a number of points that we go through in making sure that those provisions are met. First of all there is confidentiality agreements that are requested to be signed in terms of establishing the contract.

Q: Is that part of the contract with the agent or is it a separate agreement?

A: It is part of the contract. Within the contract itself it talks about WCB standards. Information given to agents is based on business need. Review of business processes is done. E.g. we had some copying done by an outside contractor for Records Management and in doing that a site visit was conducted. We looked, not only at their business process, but also their facilities – where they were maintaining documents and how they would get in and out of the building. We also talked to them about training and procedures and whether or not they were a BC based contractor so that they fell under the guidelines of the Freedom of Information and Protection of Privacy Act.

Q: The document or part of the agreement with the agent, could you discuss with Mr. Bates first, but then provide us with a copy of that.

A: Yes

Q: Are you the person to talk to about e-file?

A: Yes

Q: E-file is the entire file on some kind of an electronic as opposed to a hard copy?

A: Yes

Q: Thus more than one person can work on the file at the same time?

A: Yes

Q: Can a 100 people work on the file at the same time?

A: A number of people can work on it at the same time.

Q: What if they all want to work in the memo section?

A: There isn’t an issue with that no. Within the system there is a provision that you can see who else is working on the file as well.

Q: Let me raise a potential problem from a worker’s point of view. Let’s say that I am an adjudicator working on a file and I put a memo into e-file that says it is a hard decision or I am new at the job. I get a call from an employer representative who has my direct number and they put pressure on me to do this and that with the file. If I am concerned about that call isn’t there pressure to go in and change the e-file?

A: Are you specifically talking about e-file?

Q: I could do that couldn’t I? I could put a memo in in the morning and then I could go in later this afternoon and change it

A: There is a term that we use called committing the document or committing the information. Once that is done there is a permanent record of that information being on e-file.

Q: How long can I hold off committing?

A: I believe that there, is a provision with memos in particular, where we give the person that is writing the claim that day and then it is automatically committed.

Q: What if the manager says that they wrote something wrong and wanted to change it?

A: The document cannot be changed. There are a number of security layers to go through to actually change it.

Q: Who could change it?

A: A couple of members from Information Services.

Q: Would that involve your department as well. Would they come to you and say that they wanted to change something?

A: It is not a practice that currently exists. In order to do that you would need to go deep, deep through a number of security layers and there would be a trail of someone going to do that.

Q: If Information Services wanted to change that would they go to you?

A Yes Information Services wouldn’t make that decision by themselves.

Q: Are you aware of duty to accommodate?

A: In general terms

Q: Are you aware that if an employee wants to benefit from a duty to accommodate what falls from that duty is to provide information so that everyone – the employer, the union, etc. – can participate in that accommodation. Are you aware of that?

A: I am not aware of that.

Q: If worker wanted to benefit from accommodation they would have to provide that information in any case.

A: I’ll have to take your word on that.

Q: So section 95 doesn’t come into accommodation.

A: I don’t know.

Q: The tone of the employer’s concern is that they can’t use the information on the Board file in the types of situations that Mr. Winter was explaining. They want to refer it out to an outside doctor for example.

A: Not without the consent of the worker.

Q: My point is that it is not possible but rather that it is difficult. Is that correct?

A: Yes

Q: Yes and it is hard for reasons of privacy, correct?

A: Yes and I don’t want to speak for Mr. Winter but I think the tone was next to impossible sometimes.

Q:It would be impossible in situations like the Taylor decision where the employer didn’t go through the steps that they were supposed to go through in the first place.

A: You mean they didn’t ask for the worker’s consent?

Q: Yes

A: Obviously if you are not going to ask for consent you aren’t going to get it.

Q: And it was too late by the time that it was put before Arbitrator Taylor?

A: Yes

Q: It is hard to get information out of the Board into non-compensation forms and that is because it is private information. It shouldn’t be easy.

A: That is right.

Q: Even if the employer went through the steps of obtaining the information then isn’t there an evidentiary problem? If the employer wanted to rely on the opinion of a Board doctor before an arbitrator it would be hearsay without the presence of the Board doctor there. Is that right?

A: I think that is right.

Q: Even if the documents were available to the employer they may not be able to use the documents anyway?

A: I think that is right.

Q: Mr. Dorsey has explained some of problems in using the Board information and that is in the Taylor award. Do you have any views on Mr. Dorsey’s Macmillan Bloedel decision and this is on page 4. There is a quote from Arbitrator Dorsey’s decision in Fording-Cole. See the second paragraph from the bottom. "As time passes and more and more persons are assigned a role with respect to the management or adjudication of a worker’s circumstances each one reviews and often summarizes the information in the file. In doing so they select, restate, characterize and assign value to the original source of the information or someone’s earlier summary." Do you agree with that description of how information develops on Board file?

A: I think it can develop that way and it often does.

Q: At the bottom of page 5 Arbitrator Dorsey says that "The confidentiality of the medical records is a basic right to human dignity. Restoring and supporting dignity and the accompanying personal confidence is a therapeutic part of recovery, rehabilitation and adapting to life with a disability. Breaches of privacy may work against recovery." Do you agree with that?

A: I think that is true.

Q: You disagree with the Taylor award and that is on record. Are you comfortable with the fact that your letter was part of an affidavit provided to the Court of Appeals?

A: It is a fact, I’m not uncomfortable with that.

Q: I would like to talk to you about a position that you take in the correspondence. You say that once information has been disclosed to an employer they can disclose it to their agent such as a doctor and that is not in violation of Section 95.

A: What I said was that was my legal interpretation of it and what I had thought was the intent of Section 95. If they were showing or giving documents to a doctor or agent to provide the employer an expert opinion then in my view – and that is why I was surprised by the Taylor words - I didn’t consider that to be disclosure.

Q: You think it is legal for that disclosure to take place?

A: I had thought that before the Taylor award.

Q: What do you think after the Taylor award.

A: With the Taylor award I certainly have to reconsider my legal opinion.

Q: What is your legal opinion right now?

A: I am still surprised by the Taylor award. I would have thought that if I had been acting for an employer and giving them advice I would have said sure if you need to get assistance in how to interpret these documents and what they mean or could mean for your work force then yes you can show them to your expert and discuss them and get their opinion. I would have said that that was not a disclosure and it is not an unreasonable invasion of privacy. The Taylor award suggested that I am wrong and that is why I hope that we do have clarity from the court because I would like to know what the law is.

Q: If you say that an employer who receives a file should be able to talk to their experts – doctors, counsel presumably I gather that could be outside doctors and not in house doctors or counsel.

A: Yes and specifically retained for a specific purpose. It is easier when you are dealing with a lawyer because you have solicitor-client privilege and you expect that there is true agency relationship. I would have thought that when you hired a doctor that you would have at least implicit, if not explicit, understanding with that professional that everything you say is confidential for the purposes of giving advice and it doesn’t go anywhere else.

Q: Is it just employers you are talking about? Say if it was an employer who was a member of the industrial labour relations department and he wanted to show a colleague outside the employer would that be alright?

A: Now you are saying a colleague of the employer and are they not employed by the employer or retained under a contract?

Q: Yes

A: Then that is not alright.

Q: Presumably you would take that further and say that is contrary to Section 95 for the employer to take information from the worker’s file and show it to other workers at the same work site?

A: Yes and before 95(1.1) was enacted I would get phone calls from people who were complaining that the psychological reports from their claim file were being posted on lunch room walls.

Q: That is not only illegal that is disgusting isn’t it?

A: Yes it is disgusting.

Q: I think that you mentioned that if there is problem with Section 95 it should be referred to the Crown Prosecutor?

A: I can’t remember the exact words. I could have said two things. One, if complaints are made to the Freedom of Information and Protection of Privacy department or the Board about a breach of Section 95 we refer them to the legal services division lawyers who will look at it and consider to take it to the Crown Prosecutor if it warrants prosecution. Or I may have said that the client or worker could take it directly to the Crown Prosecutor.

Q: Now the Taylor decision was prima facie that there was a breach of Act. Would you agree?

A: Yes

Q: Do you know if that has been reported to the Crown Prosecutor?

A: I don’t know.

Q: Your office has not reported it?

A: I have not reported it.

Q: How many reports to Crown Prosecutors have there been do you know about offenses under Section 95?

A: I am going to ask Mr. Massing to give you those statistics. I can say that the complaints I get about breaches of Section 95 are low.

We don’t have extensive records on referrals under Section 95. Anecdotally my recollection is that we have had 4 matters referred to legal services. It was our view that 2 of those wouldn’t support criminal proceedings and two of them are still under investigation.

Q: I had a question about the meaning of Section 95. 1.1 says that there can be disclosure in compliance with a subpoena, warrant or order if issued or made by a court, person or body with jurisdiction to compel the production of information. Who would be the object of the subpoena or warrant? Would it be the Board or the worker or anyone who has the file, for example, the employer?

A: My view is that person, who received the disclosure from the Board so let’s say for argument’s sake it was the employer. The employer shall not disclose the information except in compliance with the subpoena so therefore it is possible I suppose that the coroner’s office could go directly to the employer – they would normally come right to the Board – and they have compelling powers, ordering powers, powers to compel the production of documents. That is one example.

Q: So this applies to anyone who has the file?

A: This is a very interesting point because it could be argued that Section 95 (1.1) gives a prohibition on secondary disclosure. I am not sure that it gives a prohibition on tertiary disclosure. Therefore if someone has legitimately received disclosure on a secondary basis then I’m not so sure it applies. It ought to but I don’t know.

Q: That was where I was going because in Taylor, for example, Dr. Hatsel had the information and according to Dr. Taylor he had it illegally. Can he distribute that information?

A: That is a very interesting point. I don’t know.

Q: One would hope not.

A: I agree with you but I don’t know if the statute takes it that far.

Q: If it doesn’t it should.

A: I think so.

SAYRE:

Q: You would have to agree that the issues are very complex legally?

A: Yes they are.

Q: You talked about receiving requests and complaints from survivors of deceased workers. Do you feel that people like that are capable of understanding all the legal issues without legal advice?

A: I certainly believe that they are capable of it. E.g. a psychologist asked me to come down and explain the appeals process to a woman in her office. The woman had a minimal formal education and was going through a serious traumatic claim. She was highly intelligent.

Q: Not all workers are going to understand it.

A: If you try and spend the time with them they will understand but more often than not there is not the time. They don’t get that one on one most of the time.

Q: In the example you just gave you provided some legal advice from your training and experience in order to help that worker understand the issues.

A: At least an explanation.

Q: You weren’t doing it as her counsel but you were providing your expertise as a lawyer to her to help her understand her situation.

A: Yes

Q: Without that kind of explanation it wouldn’t have been reasonable to assume that she could understand or protect her rights.

A: I don’t want you to think that I am arguing with you but sometimes people say that people just can’t understand the law and that is not true.

Q: I want to ask some questions surrounding the type of information that is collected. You may be able to tell us what goes into a file and the concerns a worker might have. Let’s start at the beginning. Let’s suppose that a Board officer, an adjudicator presumably, at the early stages of a claim is working on a file. Maybe they are setting the wage rate and they are making notes and rough calculations. Is there any way that those notes would become part of Board records.

A: I will take a stab at answering that. Everybody makes rough notes and drafts and policy is that that should be formulated into a formal memo and put on the claim file. Indeed the substance of any record should go into the claim file. Once that is in the claim file then you can throw out the rough scratches.

Q: Are there any restrictions on the right of the adjudicator to decide to throw away their rough notes or the first draft of a letter or something of that sort?

A: No as long as there is a fair history in the file and the documentation, actions taken on it and reason why is put on the file.

Q: Does it ever happen that an adjudicator will keep informal documents in their own desk that is separate from the claim?

A: I think I remember one case where the worker asked for all information about them and that included what he called a subfile of the adjudicator. We went to that adjudicator and indeed the adjudicator did have a file folder with notes. We got that and photocopied them all and sent them out to the worker.

That is not common practice. Any information that is going to be used in the adjudication process or to make any determination on behalf of a client must be placed on the claim file. So any informal information as Ms. McDonald mentioned would be formulated into a formal record that would be placed on the claim file.

Q: I am not sure if I understand because she explained to us, I think giving the example of a psychologist’s report, that the actual tests that the psychologist applied and the notes from the interview would not go on the file.

A: I’m referring to any information that is used in making a determination for eligibility or ongoing benefits or services must be part of the claim record.

Q: Do you disagree?

A: No I think that he is agreeing. I want to draw a distinction between the psychologist’s rough notes – they are kept in a file - and the adjudicator’s rough notes. If I am at a training session for an adjudicator and they are talking about their rough notes and the rough notes are of substance – either a phone call or a conversation with the employer and it’s important – well you can either put your rough notes on the file or use the better practice of typing the notes up and putting them on the file. The notes are presumably thrown away. I wouldn’t say to an adjudicator that you have to have the typed brief on the file and you have to keep those rough notes. They are transient records.

Q: Can either of you speak to the practice in the functional evaluation unit. My understanding is that not very long ago the practice was that the actual observations by the instructors of the worker’s performance at the workshops were not disclosed, they were not put on the claims. The only thing that was on the claim file was the official report that came up at the end of the two weeks by the supervisor of the process.

A: That might be so. One thing I didn’t say is that absolutely everything about a worker does not go on their file. All evidence and information of substance used by the adjudicator to decide the claim goes on file. The adjudicator won’t see the notes from FOE but they will get the FOE formal report, which was based on the notes.

Q: Suppose we had a difficult case. I am sure that Board officers are trained to realize that they are often deciding the fate of the worker’s future life, the fate of the worker’s family financially by assessing their pension and their loss of earnings in particular. This is based very largely on the results of the formal evaluation units in some cases. Suppose the adjudicator feels that they need to look at the rough notes. At that point would they be trained to put them on the claim files?

A: They should put them on the file if they have seen them. Those notes should be on the claim file.

Q: So if the adjudicator is not happy with the sort of narrative summary of the supervisor who read the actual observations and so he or she goes and looks at it then it should be part of the claim file.

A: Yes

Q: I don’t imagine that you can say that that happens in every case could you?

A: I can’t guarantee it but that is the policy. I don’t have any evidence to show that it doesn’t.

The adjudicators are trained to place any evidence that they used as part of their decision on the file. If they used something that was not originally in the file then it would be added.

Q: They would be violating the directions they had been given by the Board if they didn’t do that. Is that right?

A: Yes

Q: Would there be an issue under Freedom of Information and Protection of Privacy Act if they didn’t do that?

A: I don’t know about Freedom of Information and Protection of Privacy Act. I would have to think about that. I think that maybe it would be a breach of the Board’s rehabilitation services and claims policy. Freedom of Information and Protection of Privacy Act talks about how all the information you have has to be accurate, you have to keep all relevant information that you used to decide a matter for at least a year but it doesn’t say where you have to keep it.

Q: You say that the Freedom of Information and Protection of Privacy Act requires that you keep information for one year?

A: If you have used personal information about the individual to make a decision that directly affects that individual you must retain it, the public body must retain it, for one year after the decision to give the person an opportunity to gain access to it. Since it doesn’t say where information needs to be kept it is not a breach of Freedom of Information and Protection of Privacy Act but it would be a breach of Board policy.

Q: I think that you were explaining to us that unless the adjudicator happens to look at this during the course of making the decision that is the actual observations of the instructors are not considered to be evidence so they wouldn’t fall under that policy.

A: That’s right. The adjudicator is the initial trier of fact and then evidence is what the initial trier of fact had before him or her in making their decision.

Q: I imagine that there are other roughly comparable types of information kept in different divisions and does same thing apply there?

A: Yes

Q: What restrictions, if any, are there on those subfiles that are not considered evidence and therefore not put on the claim file. What restriction, if any, is there on the destruction of those. How are they retained or are they?

A: Freedom of Information and Protection of Privacy rule is that they must be retained for one year after the decision has been made on the individual.

Q: This is information not in main file because the board doesn’t consider it to be information that they have used.

A: We still train people on Freedom of Information and Protection of Privacy. I will give you an example. They have at least incorporated those notes into a final report so we tell them to keep them for at least a year. The Freedom of Information and Protection of Privacy retention period of a year is quite minimal. The Board has much longer retention requirements. Rehabilitation is under going accreditation and they keep it much longer. For rehabilitation, the medical records are kept somewhere between 7 and 10 years.

Q: Would that apply to an instructor’s notes in a functional evaluation unit as well?

A: I think so.

Q: So the Board does have policies, which apply specifically to these types of subfiles?

A: Yes any kind of record that comes under ARC accreditation, which is medical or quasi-medical in nature would fall within that so you are looking at, I think it is a 10-year retention period.

Q: In your presentation you mentioned another place outside the claim file where a worker may find information somehow related to the claim – e.g. the president’s office. What are the retention requirements there?

A: I don’t know that there are retention requirements for the President’s office but I know it is some years because we have had some workers request disclosure of all their records so we have had to ask the President’s office and some of the letters were at least 2 or 3 years old.

Q: It sounds to me that it is a bit of a task for you when a worker requests all information about them, to go running around to all the different departments collecting subfiles or finding out if there are subfiles. Can you comment on whether there is a better way to do it such as centralizing all these records?

A: Not being a records management expert I can’t. I do think it is important to have separate files from the main claim file as long as you have appeal disclosure to employers, thus ensuring some privacy to the client. If you are going to have central repository don’t have it on the claim file. As a practical matter dealing with the idea of having one central place for records, each department has to do their business and each department is very different. For example, the President’s office will need some history of what they have done in order to do work day to day so it will be hard to send it some place else.

Q: What do you have to do when you get a request for all information about me, to satisfy yourself that you have everything that the Board has?

A: The Board has a system that was established when Freedom of Information and Protection of Privacy legislation came into place. Every department has a Freedom of Information and Protection of Privacy contact. That is a person, often a manager who is trained by people in our department on what the Freedom of Information and Protection of Privacy Act means and what their responsibilities. Our analyst will send out an e-mail and I mentioned that there are about 15 departments that may have personal information on a worker. We e-mail those 15 departments and ask for information on the worker.

Q: You have a group e-mail?

A: Yes we have a distribution list.

Q: It is their responsibility to know what their department has and to have their own records to answer that question properly?

A: Yes

Q: You also said that the Board is now in the process of developing a better way of informing workers that these documents that are not part of the claim file exist so that they can ask for them if they want to see them.

A: We are trying and probably will be sending letters out to people like you Mr. Sayre because brochures aren’t going to do it.

Q: You say that 1 in 5 worker requests for disclosure now are for all information including the subfiles.

A: 1 in 5 requests are made to my department – formal freedom of information requests – are from workers asking for personal information apart from their claim file request.

Q: You are not talk then about the ordinary requests that the Board receives for claim file disclosure. Well if the request said all information about me then it would go to you wouldn’t it?

A: Yes

Q: Presumably the proportion of workers who actually get access to these other files is a lot less than 20%.

A: Yes roughly 1100 Freedom of Information and Protection of Privacy requests were sent to my department and about 200 of those would be asking for all information. You saw the statistic that there were almost 11,400 disclosures to workers last year from the Record Management department.

Q: What should a worker do when there is information on the file that the worker considers to be irrelevant or wrong. Freedom of Information and Protection of Privacy Act has some requirements that when an agency is informed of such a situation then they have to either correct the information or at least annotate the record in question to note that it has been challenged by the person whose information that is. Can you tell us how the Board deals with that?

A: Someone who makes a complaint, it will usually come to my department in the form of a letter that says a piece of information on their claim file is incorrect. We will call up the claim and take a look at the area in question. Let’s say that their birth date on a medical record is wrong and it is easy to see that the birth date is wrong in the one instance. The analyst in my department will make the correction right on the document and it will be done in pen. It will be highlighted in red and marked corrected under Section 29 the Freedom of Information and Protection of Privacy Act. Those are the easy ones.

More typically the worker will dispute the diagnosis of their doctor. We’ve made the determination, upheld by the information and privacy commissioner that you

can’t correct an opinion. We do, however, have a duty to annotate it. Our practice has been that right on the record we do an annotation. We say that the worker disputes this and we put the letter on the file. We are looking at ways of annotating on e-file.

Q: From what we have heard it will be more difficult to annotate documents that are wrong.

A: There will be a way to annotate because e-file has an annotation tool.

Q: Will it be like annotating in word processing where you have a note that appears on the screen along with the document.

A: Yes you would have tools like a highlighter or a text box that you could lay right on top of the document.

Q: I am informed that there is a red dot file that has been used by your department?

A: It is a purple dot file and it is so that the adjudicator will catch the file where information has been annotated.

Q: Is the purple dot folder in a separate file?

A: No it is in the file but it is its own folder.

Q: So they will see that the person has objected and the information is provided?

A: They should yes.

Q: If I can just come back to what you were saying a moment ago you were giving an example of someone correcting a birth date. You then gave another example of somebody disputing a doctor’s opinion. You said in something as concrete as a date it can be corrected but trying to change a medical opinion can only be noted. What about something in the middle where the worker sees a report by the field investigator that says this worker was seen carrying heavy objects when he supposedly wasn’t able to work due to a back injury. Then the worker shows documentation that he was in the hospital that day. What would the practice be?

A: I have never seen that but we would annotate the file. You do have the right, as the worker, apart from the Freedom of Information and Protection of Privacy Act to put your own opinion on your file. You don’t need to do a Section 29 application.

Q: It doesn’t seem to me that that adds anything to what I’ve done all my career, which is if I disagree with something in a claim file I write a letter to the Board and I say I want it on the record that we object to this.

A: Of course

Q: Is that all the annotation consists of?

A: Yes that is all it means. Freedom of Information and Protection of Privacy Act wasn’t just designed for WCB but it was for all public bodies throughout the province and lots of public bodies aren’t adjudicative in nature. Section 29 would be useful for a municipality, for example, where a home owner believed that their assessment role has a mistake in it. It doesn’t add that much to the Board.

On your example about the field officer, to decide that type of credibility where the field officer was wrong in what he said and what the worker is saying you would have to have an oral hearing. Section 29 doesn’t contemplate that. That is why annotation is the only appropriate course. You leave the finding of credibility to the triers of fact.

Q: What about all the old files that the Board has? Can workers seek to purge their files of some of this irrelevant material that has accumulated over the years when the practice was that anything that was sent to the Board was added to the claim file?

A: They can certainly ask and we will deal with it.

Q: Does policy require that the Board deal with it or is it only on new information being gathered?

A: I believe that it is not retroactive.

We have been operating on the basis that if any information comes into the file that should not have come into the file after the new policy came into effect that will be removed. Prior to that the old annotation, pejorative and irrelevant policy apply and so that would be the remedy in that case.

Q: For the commission’s benefit that policy was that if a worker said that information was pejorative and irrelevant that allegation, the worker’s position would be stated on file but the material would not be removed.

A: Correct

Q: In the case of e-file you were describing fairly impressive security procedures that have been put in place to prevent documents from being removed. I gather, first of all, that e-file has graphic images of documents as opposed to text?

A: It is a combination of both.

Q: In the case of evidence it is a graphic image is that right?

A: Yes

Q: It sounded to me that once a document has been committed to that file it was extremely difficult to get it out of there.

A: Yes

Q: So what happens in the case of irrelevant information issue once that material that the doctor sends gets scanned into the machine and becomes part of e-file?

A: What I was trying to describe was completely getting rid of that document so that it never existed. The other thing is relating a document to a claim file and that is quite a simple procedure that is at the control of the owner of the claim file. So if I am an adjudicator and there is something that should not be on that claim file I have the ability to basically move the association with that particular claim file away from that document but the document itself still remains somewhere. The reference to that claim file is removed.

Q: That wasn’t quite our understanding when you responded to Mr. Steeves about whether documents could be changed or not. I take it the document can’t be taken off the computer but the connection or short cut that connects that document to the claim file can be removed.

A: It is difficult for a file to be removed from the computer but it is not complex to move a document.

Q: What types of measurements are used to ensure that documents are not taken off the claim file unless there is a good reason for it? Who has the authority to do that?

A: Basically we control access to the claim file and certain permissions like deleting documents around the concept of the owner of the claim file. Typically that would be a Board officer, adjudicator, client service representative or an entitlement officer. If they owned the file then they can do that. Behind that there are audit trails that can be followed to indicate that that has happened.

Q: Would that allow a curious adjudicator to follow the audit trail and see what was taken off?

A: No they couldn’t see that. That is for monitoring purposes only.

Q: When something is taken off the file is there an ability to search the data base or whatever it is called to locate documents that have some key word or key name in them that are not connected to the file?

A: Not at the user level no.

Q: By user are you referring to the officers that make decisions?

A: Yes every day users of the system.

Q: You were talking about the number of disclosures that the Board gave and I was surprised that employers receive 40% of disclosures. Can you tell us how many of those are related to Section 39(1E) applications?

A: No I can’t.

Q: Do you break them down in that way?

A: I don’t know.

Q: Does that figure given to the number of disclosures given to employers include all the different types of disclosures that you described?

A: We were talking about appeal disclosures of claim files. There is legal disclosure, as in the case of an automobile accident and then ordinary course of business is included in that.

Q: To complete the picture of how an employer can get access to a worker’s information, if they have a right of appeal they can get a complete copy of the claim file and that is called appeal disclosure?

A: If an appeal has been filed?

Q: The only exception to that is sensitive claims and you seem to be in some doubt as to whether the Board really had the right to make an exception there but it does anyway.

A: Well it does.

Q: Otherwise in the ordinary course of business the employer can be told information that they are considered to need to know. Is that right?

A: Yes

Q: Would it be possible to give us a break down of the number of employer disclosures and the number of them that are Section 39 (1E) applications.

A: We can try and get them. The appeal division might have that.

Q: I should clarify that 39 (1E) wouldn’t normally be considered a claims appeal from our point of view as counsel but the Board may take a different view from disclosure perspective. Do you know whether you were counting the 39(1E)s in that number?

A: I would think that that it is included. In order to disclose they must file an appeal and the right of appeal with respect to 39 1E lies with the appeal division. So there must be confirmation of an appeal before disclosure is provided. So I would think that they would be included.

Q: What is the average time it takes to disclose a file?

A: In the past we have been as high as 84 days on average. Recently it has been reduced to the 6-day mark.

Q: 6 days of what?

P: Within 6 days of the Records Management of the request for disclosure.

Q: That is good news but also surprising. I had always understood that disclosure through Records Management was always the end of the queue when getting a file or are you talking about the files that are already on e-file.

A: There is a combination of both. Obviously towards the end of last year the numbers I was giving you were over the period between January 95 and December 97. Currently we are at about 10 days.

Q: That takes account of the fact that those asking for disclosure from e-files must be faster?

A: Yes I think we are up to about 5% of disclosures are e-file disclosures and those are within 48 hours.

Q: Are you saying that even the files that have to be scanned in order to copy can be done within 8 days now?

A: Average time from receiving request is about 10 days.

Q: How much does disclosure cost?

A: We don’t have a cost for disclosure. We do have the overall budget number for the Records Management department.

Q: That would include the process of retaining the records, scanning them into the computer for e-file and so on.

A: No scanning into e-file would be different. Records Management is the disclosing of the paper claim files and there are some costs associated with microfilm. But the bulk is around disclosing paper claim files.

Q: Would it be possible to give the commission a rough estimate of the cost per file by taking the Record Management cost per year and dividing it by the number of files disclosed?

A: Certainly the budget for the year is $1.3 million. So 20,000 into $1.3 million.

COMMISSION:

Q: I had a question arising out of the commissioners’ visit to Prince George to see the new case management pilot project. The commissioners observed that the various disciplines involved in the case management team would sit around – and these were actual live files that were being processed – and opinions would be exchanged from the vocational rehabilitation, medical person, case manager, etc. Nothing was recorded but presumably a memo would be created. Who is responsible for recording the minutes of those discussions?

A: Following a team meeting the case manager is responsible for recording that information and it would be entered on e-file now.

Q: That would be paraphrasing of the comments made and would it be in minute format?

A: In essence yes.

Q: And then any conclusions reached by the team?

A: And planned actions by the various parties whether it be the medical advisor , the vocational rehabilitation advisor or others. So it would be an outline of the case plan and the actions that each party would be undertaking.

Q: Could you provide an example, suitably privatized, for Mr. Lewis, the executive director of the commission?

A: Yes

Q: With respect to the file owners deletion of a memo that they thought better of after the one day period how does that interface with a request by an injured worker for all information in the context of the paper file Ms. McDonald was discussing. Would that be accessible to the worker and if so how?

A: On appeal disclosure it would not be accessible if it was deleted from the file.

If it wasn’t on the claim file then they would get access to it when they asked for claim file disclosure. Any request for any and all records so yes they would get access to it

Q: Under what heading is such deleted information stored on e-file?

A: It would stored as an image and there would be an audit trail sent back to that document.

Q: Supposing that Ms. McDonald had a freedom of information request for all information on the file. If she came to you would that information be provided to her to give to the worker?

A: It could be done but it would take some work to get that.

Q: Mr. Steeves asked about off record do not copy. That would be instruction to whom – record disclosure people would see that and then not put it onto the claim file?

A: Are you talking about e-file?

Q: No I am talking about a paper record that says do not copy.

A: Who knows who put that on. I can make the assumption that it wasn’t supposed to go on the claim file and that would be ignored. They may have meant it wasn’t supposed to be copied and quite properly it was ignored.

Q: So the instances that have come to your attention Ms. McDonald, your information is that those instructions, whoever gave them, were ignored by the people copying the file.

A: Yes they have been.

Q: An issue has arisen about field investigator subfiles. If a field investigator puts a memo on the file about suggested malingering or fraud on the part of the worker. Is that put on file if it is utilized by the claims adjudicator?

A: Memo is put on file and that is what the adjudicator sees.

Q: The field investigator would have their own notes as well?

A: That might be so yes

Q: Then the worker would only get this information if they applied for all information?

A: Yes

Q: One of our researchers was observing an appeal division case where he observed that the worker was contesting fact that he had unilaterally engaged in weight lifting that had aggravated his condition. He claimed that the rehabilitation staff instructed him to do that. Found that they did not have the vocational rehabilitation person’s notes on file. Is that an example of subfiles that are not disclosed on the claim file?

A: Vocational rehabilitation consultants often have their own claim notes and they would not go on file but their overall report from rehabilitation would.

Q: I take it that where the review board division calls for a file to assist it in its inquiry that again unless it is all records then it is only the claim file that goes to those appellate bodies?

A: Yes unless, as you said, they specifically compel production of other records.

Q: How broad an access do employees of the Board have to the e-file claim information. Does someone manning telephones have access to the file inf?

A: Yes that is an important part of our strategy to give workers information right away.

Q: That is to enable injured workers not to have to wait for an adjudicator or a case manager to respond?

A: Respond with the same information yes.

Q: What kind of training do you do with respect to sensitive information that might be in the claim file that a telephone inquiry might elicit?

A: All of our CSRs go through a 4 week training process and there is Freedom of Information and Protection of Privacy component to that.

Q: Are you able, Ms. McDonald, because of your all information request experience enumerate a list of all the subfiles that exist in the various departments of the Board?

A: I can tell you all of the departments that we routinely check on an any and al request – psychology department, President’s office, panel of administrator’s office, rehabilitation centre, appeal division, security department, field investigation department, disability awards department, x-ray department, medical service department, legal services division, WCB ombudsman, medical review panel department, policy and research department and the community relations department.

Q: Have you got any idea based on experience as to how productive these inquiries are?

A: I can’t give you a true statistic but most workers who request all records about me will probably know that they have records about them apart from the claim file if they are asking for that information. Most of the time all information about the worker is on the claim file. There may be some minimal tracking. E.g. most workers don’t get assessed by the psychology department.

Q: Just a bit of advice – injured workers are suspicious about not getting full disclosure. I would urge the Board to publicize in every way possible that if you ask for all information you get everything that is available.

A: I think that that is good advice.

Q: How do you know that a worker calling up and identifying themselves as the worker is in fact that worker?

A: We ask their name, address, phone number, some facts on the claim. There is also a personal access number that we recently implemented.

Q: Is it possible that different responses are given to the same type of request. Can one worker make request for file disclosure and another the same but get different information back?

A: I think that sometimes the workers may have the same intent but they may have asked for it in a different way. One may ask for entire claim file and his colleague will say I want my entire claim file and anything else about me. That is part of the education process to educate workers to ask for all that they want.

Q: Two types of disclosure – full record disclosure or full claim file disclosure. Is there anything else a person can get?

A: Someone could say that they want their entire claim file and president’s letter and that is all they will get.

Q: You have to be clear about looking for full record disclosure. That really needs to be clarified.

A: It is a problem and we have to address it.

Q: Sounds to me that you have two files available – the claim file or full record file.

A: It is difficult when you use the word file because you have a claim file but everything else, if there is anything, may be spread out.

Q: When employer makes request, because of an appeal, for file disclosure what do they get?

A: For appeal proceedings they get only the claim file.

Q: Is there any way they get more than claim file?

A: No only if they were before the appellate tribunal, the review board or the appeal division and they feel that there is relevant information from say the psychologist’s notes and they have to order that.

Q: Is there a process that provides for employers to be notified that there is other information outside of the claims file and perhaps even describing that information and basis for privacy?

A: There is not anything out there now. We have a desire to protect worker privacy as much as you can.

Q: Will subfiles continue to exist when e-file system is more broadly in use?

A: We don’t have subfiles in e-file right now. If the requirement came out we would have to have some discussions, for example, with psychology and with Freedom of Information and Protection of Privacy so as to decide how we want to build that into the system.

Q: So right now if there is an e-file in existence the e-file would electronically contain the psychologist’s conclusions and assessment but they would keep their paper subfile?

A: Yes

Royal Commission on Workers' Compensation in BC

Feb 19 Afternoon Session

Name: Gerry Massing

Title: Associate General Counsel, Legal Services

Affiliation: Workers' Compensation Board

Staff Present: TR, GG, OE, GS, SN, PL

Notetaker: Steven Noble

Date: Thursday, February 19, 1998

GENERAL COMMENTS

- Topic of this hearing is Protecting the System

- Protection for Workers

- Fraud

- Prosecution

PRESENTATION

I’ve been with the Board for approximately 22 years.

This afternoon we are presenting on a topic called "Protecting the System". This topic is intended to deal with some of the issues that the stakeholders raised for example the question was raised as to whether or not there is a mechanism for enforcing the statutory requirements such as recording requirements for employers and are those mechanisms adequate, should the Workers' Compensation Board have a hot line for fraud – should there be improved protection for perceived threats of retribution for making claims or reporting unsafe conditions.

We have grouped these somewhat eclectic concerns under the heading "Protecting the System". Mainly what we will be talking about this afternoon are matters of procedure and process rather than entitlement to benefit.

I’ll be addressing this topic under four general headings; 1) the heading of "worker protection" and provisions that deal with that; 2) another area dealing with the provisions dealing with enforcing administrative requirements under the legislation – 3) talking specifically about fraud prevention, detection and 4) I’ll be talking about the topic of prosecution.

I will not be talking about health and safety compliance as that was discussed elsewhere before the Royal Commission. And I will not be talking about Appeals Disclosure and Freedom of Information and Protection of Privacy Act standards because those matters are also being dealt with elsewhere or have been dealt with elsewhere.

I intend to go through a very speedy and quick overview of the statutory and policy provisions and focus specifically on some of the topics that have been identified as being of special interest. Talk about some of the challenges facing the organization - outline the Board’s current practices in this area and talk about present initiatives to address those challenges.

Looking at the overview in Section 13 we have provisions that deal with a prohibition against workers and employers entering into agreements for workers to waive their benefits under the legislation and a prohibition against attempts by employers to dissuade workers from reporting injuries and accidents. The policy references are also outlined on the overhead. [RSCM 47.10 and 94.20]

In Section 14 we have a provisions that restrict or prohibit workers from contributing from their wages to the costs of assessments and the policy references are contained in the overhead. [RSCM 47.20]

In Section 15 we have restrictions on the assignability or the attachability of compensation benefits and again policy references are contained in the overhead. [RSCM 48.00, 48.10, 48.21, 48.22, and 4.40]

With respect to Section 15 – there are some specific exceptions so generally speaking compensation benefits are not assignable or attachable but there are some specific statutory exceptions to that – cloak of protection. The statute contains sections that set out workers’ obligations to report injuries and accidents – employers’ obligations to report injuries and accidents and medical practitioners’ obligations to report on treatment of injured workers.

And finally the statute contains provision that deals with disclosure information which was substantially this morning’s topic – we have Section 95 of the workers' compensation Act which imposes confidentiality around the information obtained by the Workers' Compensation Board and administering the legislation and we have the Freedom of Information legislation which applies to the Workers' Compensation Board as a public body. Within that general overview I am going to turn to particular sections which were raised as topics of interests by the stakeholders.

The first of those topics I’m addressing are provisions that deal with protection of workers’ benefits – essentially once the injured worker or dependent is in receipt of benefits there are provisions and policies under the statutory to ensure that they continue to receive them. Section 15 protects compensation benefits from deductions, seizure, assignment or other legal process.

There are specific exceptions to that protection so for example monies owed to the Accident Fund can be set off against benefits. Monies owing by the worker for Social Welfare Benefits can be taken out of the compensation benefits.

Under Section 98.4 monies owing to a dependent, spouse or family of the worker can be diverted from the worker’s benefits.

Essentially in 1997 we had approximately 80 cases where benefits were diverted from the worker to someone else. In 35 of those cases approximately $53,000 was diverted under the Family Maintenance Enforcement program. And in 47 files approximately $116,000 was diverted to the Ministry of Social Services and Housing. What we don’t have are statistics on the number of times where attempts are made to cease, or attach or compel payment or diversion by way of garnishment proceedings, demand notices, by Revenue Canada or other creditors or other government agencies.

I can tell you that Revenue Canada periodically demands workers’ benefits for satisfaction of income tax debts. Depending on the nature of the claim being made by Revenue Canada the Board resists those claims and there are approximately 20 outstanding cases where litigation is being threatened on that particular issue.

In addition to the diversion of money the Board has received approximately 10-20 complaints per year under Section 14 which is the section that prohibits taking contributions toward assessments from the workers’ wages. That particular activity is prohibited under Section 14 – we have approximately 10-20 complaints per year. Those complaints are dealt with by the Legal Services Department and the Assessment Department. Essentially the investigation of the complaint is conducted by the Assessment Department and depending on the results of the investigation the Legal Department will participate in deciding what to do about the problem. Section 14 is a bit difficult because if you look at the wording of section 14 the remedies are quite limited. If an employer is found to be deducting assessments from workers’ wages it is an offense. So one of the options is a criminal prosecution under the Offenses Act against the employer. There is no administrative sanction or penalty contained in the workers' compensation Act and the remedy in Section 14 is a bit unusual in that it seems to say that the punishment for the offense is to order repayment of the deductions. The Workers' Compensation Board has no legal authority to recover the deductions from the employer and reimburse the worker. And that is often a source of complaint in that the workers often look toward the Workers' Compensation Board for resolution of the problem and the Board’s hands are quite constrained in this area.

And one of the difficulties associated with this section is that the Board’s definition of worker as we discussed in earlier hearings can be quite different from the court’s traditional definition of worker under the law of master and servant. There are many people that the Board considers to be workers who the courts would traditionally consider to be independent operators. And that also creates an area of confusion since the enforcement process under this section is in the courts – it is quite apart from everything else we have the added burden of convincing the courts that the appropriate definition is the one of the Workers' Compensation Board not the traditional master/servant law test. The - apart from the question of prosecution the Board’s response in this area is quite often to investigate the employer, audit their payroll records and engage in a program of information and education in an attempt to persuade the employer to have the employer rectify their behaviour. Alternatively, some workers pursue civil proceedings to recover the proceedings from the employer and the Board has offered staff as expert witnesses in such proceedings so we have provided assistance to workers in their efforts to recover the wrong deductions.

Ontario by comparison also creates an offence for this kind of activity and in their statutory they specifically provide that restitution of the deductions will be made to the Workers' Compensation Board and the Workers' Compensation Board in turn will make the worker full and that is described in Section 155.3 of the Ontario legislation.

Section 13 contains two provisions – the first is that it voids a contract or an agreement between a worker and employer to waive benefits under the legislation and the second provision which is usually more interesting is a provision that makes it an offence for an employer or an employer’s supervisory staff to attempt to dissuade a worker from reporting an injury or an accident to the Workers' Compensation Board. The Board receives approximately 20-25 complaints under Section 13 per year. And every one of those tends to relate to the dissuading components of Section 13 rather than the agreement components. We have one case, which we have pursued by way of prosecution and it was unsuccessful. The offense as found by the court was much narrower than many people anticipate when they first read Section 13. Section 13 contains some fairly compelling language around efforts to dissuade but the actual offense that is described is dissuading the worker from reporting the accident or injury so as soon as the report is made the offense disappears. In the case in question we had a situation where the employer convinced the worker to continue to go on salary and there was a specific arrangement entered into between the employer and the worker about salary continuance during the period of disability. It turned out that the disability was more protracted than either party anticipated and some years later the agreement went awry and the employer wrote some letters which the court considered were bordering on fakery to justify there actions. But despite that strong factual evidence concluded that the mens rea required under this section didn’t exist – that there was a reasonable doubt as to the intentions of the employer despite letters that bordered on fakery. And the case was dismissed. More recently, complaints in this area tend to go to the Board’s field investigation area. In 1997 there were 19 complaints; in 1996 there were 24 complaints, and in 1995 there were 13 complaints. It takes about 2 days of time in the aggregate to investigate each of these complaints and quite often we discover that there is no offense to proceed with charges with because the accident or injury was, in fact, reported in some fashion to the Workers' Compensation Board.

This section would probably require some amendment if more aggressive action or enforcement were wanted. Specifically, some attention should be directed to the specific behaviour that is wanted to be addressed. It would be useful to address the question of what exactly mens rea or mental intention is required for the offense to be constituted. It would be useful to consider the nature of the penalty and I think it would be very useful to consider the possibility of adding some kind of administrative sanction or recourse that the Board could use to administer this section rather than turning to criminal prosecution as the only sanction.

We’ve already talked briefly about the fact that benefits are not attachable or assignable. This is another area where I would suggest to the Royal Commission and through the Commission to the Government that some attention should be addressed to. Because this protection seems to be gradually eroded through other means. Recently or in recent years Revenue Canada has had the Income Act amended? A super lien and a super priority were created for them under the Bankruptcy Legislation and a fairly compelling demand notice powers for Revenue Canada were created under that legislation and as we saw earlier it is creating some tension between Revenue Canada’s needs and statutory power and the needs for injured workers and the Board’s statutory powers and it would appear that we are going to have to litigate that dispute. The Family Emergency Program has reduced the discretion available to the Board in deciding how to divert money to spouses and dependent children. Specifically, the legislation was amended to include reference to workers' compensation as one of the areas that could be attached. And the legislation contains a notwithstanding clause which suggests that it being later legislation than the workers' compensation Act prevails over the notwithstanding clause in Section 15. So there has been some erosion in that area. The Board has received requests from various agencies and recently including the Administrators of the Student Loan Program –to suggest that their scheme is included in the phrase "welfare or social service benefits" under that section and they should also have the right of set off against benefits to injured workers. Regardless of the merits of those claims my point is that I don’t know that with confidence that anyone is standing back and looking at the total picture and resolving in an explicit way whether they want priority given to payments to injured workers under the legislation or payment to some other social or government program.

The next broad topic I intend to talk about is the protection of the administrative integrity of the system. And I am going to talk about aspects of the legislation that deal with the receipt of information and empowering the Board to compel information where it is necessary. And provisions to encourage stakeholders to provide information to the Workers' Compensation Board. As we saw earlier there are specific provisions dealing with workers, employers and medical practitioners’ obligations to provide information to the Workers' Compensation Board.

Looking specifically at the employers’ obligations to report – in Section 54 statute provides that employers should report an accident or injury to the Workers' Compensation Board within three days of the accident or injury. There is a high volume of claims of which those reports are not received within the three days – approximately 15% of the claims in 1997 had employers’ reports received within 3 days; approximately 50% of claims had employers’ reports received within 10 days and approximately of the reports were received outside of the 10 days or never received at all. The Board has administrative recourse under the provisions in Sections 54.7-9. Essentially the Board is enabled to adjudicate the claim and proceed with the payment of benefits in the absence of the employer’s report and is empowered to penalize the employer the cost of the claim. This policy contained in the Rehabilitation Services and Claims Manual at 94.15 – it sets up a process for dealing with penalty actions against employers and I’ve described it as a closed process because it really deals with things on a kind or the Board has tended to dealt with this on a broad level rather than on a individual claim level. That particular policy was a bit cumbersome and unwieldy and we were not able to demonstrate that it was having any salient effect on how quickly reports were being received.

In recent years the Workers' Compensation Board has focused on its own business processes and redesigning its own business processes to eliminate internal delay. We were doing that because it didn’t seem to make sense to be taking action against employers for delays in reporting when the Board, itself, was disabled from moving forward with the information after we received it. So the attention in recent years has been focused on the Board’s own business processes. It is now probably timely to have a look at the issue of delayed employer reporting. I say that because the changes in business processes have equipped the Board to be in a much better position today to identify the effect of late reporting on the Board’s ability to provide timely payment of benefits. There are other models to look at. Manitoba has a 5-business day reporting requirement in Section 18.1 of their legislation. Saskatchewan has a 5-day requirement under Section 52 of their legislation. This Board is developing a program designed to encourage medical practitioners to report 5 days of rendering treatment. So one of the issues is whether or not the three day rule is the appropriate one or whether there is another time frame that is more appropriate.

Another consideration is to look at the remedies that are available and decide their appropriateness. I have described the present policies as being somewhat unwieldy and cumbersome in dealing in sort of bulk justice. Ontario has changed their legislation to provide for a set penalty of $250. And there are two actions around reporting that could cause that penalty to be levied so a late reporting employer might be subject to two $250 penalties in the first instance. That is described in Section 21.3, 152.3 of their legislation and regulation 11.02 clause 13.

Now just on the same topic – the other remedy is recourse is to prosecution. To my knowledge this Board has never prosecuted an employer for late reporting. I’ve canvassed counsel to other Canadian Boards and I’m advised that none of the other their Boards have had any experience in prosecuting employers under this section even though it is an offense in their legislation as well.

The next broad topic I was going to deal with is the question of Fraud Prevention and Detection.

In an overview sense there is no formal, published policy at the Workers' Compensation Board with respect to fraud. Fraud was identified as an area of concern in the Board’s present Strategic Plan. Fraud was considered conceptually at the Panel of Administrators level both with respect to the strategic plan and in sort of peripheral submissions that have been made to the Panel of Administrators. I have been participating in drafting policy – both with respect to fraud and prosecution but it is still in the early stages and no formal policy exists at the present moment. I also noted that there are intermittent references to the topic in the Tysoe Report emphasizing that the Board has a public responsibility for properly inquiring into improperly adjudicating claims under the legislation which is the touchstone of our concern about fraud. The legislation and the manner in which the legislation is administered tends to be founded on trust. Employers’ payrolls are self-reported. The Board does audit employers’ payroll records and does review these records but essentially the Board relies on employers to report their payrolls. Claims information is presented in an informal fashion. The Board does not have as Insurance Corporation of British Columbia does – a pattern of fairly routine informal intake interviews. The Board accepts evidence of a wide-ranging kind. It does not adhere to formal rules of evidence. The Board tends to proceed by way of informal hearings without administering rules and without engaging in formal hearings with counsel, examination and cross-examination.

There are, broadly speaking, two kinds of controls on fraud prevention. The first are internal controls and that relates to the fact that the Board has established policies about financial authorities for its staff, signing authorities for its staff, it has controls of job descriptions of staff, training and supervision of staff to ensure that they are adhering to their public responsibility with public funds. And it has an internal audit department, which periodically reviews our business processes. In addition there is an audit by the provincial auditor on an annual basis. There are external controls – the bulk of the external controls are essentially a check and balance system. The Board operates on information from workers, employers and doctors and the fact that information is coming from multiple sources tends to assist in making it more reliable. The Board also receives first aid reports, it conducts accident investigations, and it responds to complaints or suggestions of inappropriate behaviour from public or stakeholder communities.

Fraud detection is largely from the same sources – the Board has an internal audit department, there is an audit by the Provincial Auditor annually; the Board relies on its staff to be alert to situations that appear to be out of the normal. The Board relies on reports from stakeholder communities and from the public about perceived attempts to engage in inappropriate behaviour under the legislation. A TIPS line or telephone line for reporting these kinds of things has been under consideration and even a matter of debate for a number of years. We’ve heard from employers and workers – both in favour and against the concept of a TIPS line and it is still under consideration. And the Board has staff that reaches into the community both in terms of prevention inspection and its assessment/audit staff, which also provides us with some facility to detect fraud or potential fraud. In addition to that the Board periodically reviews its own systems and examines software systems to assist in detecting these problems. The Board participates in injury agency investigation so occasionally other agencies such as Insurance Corporation of British Columbia or Welfare or Unemployment Insurance will be investigating an alleged fraud and workers' compensation benefits may come in as part of that investigation. The Board has a field investigation staff in the Compensation Services Division, which it uses for conducting these investigations.

The next specific topic is the topic of Prosecution. As I said there is no formal published policy. A draft policy is being developed. On a statistical level in 1997 we made 27 referrals to Crown Counsel. In 1996 we also made 27 referrals to Crown Counsel. In 1995 we made 19 and in 1994 we made 13. Out of those in 1995 – out of the 19 – 12 referrals resulted in charges being laid and 6 of those charges resulted in convictions. In 1996 – I don’t have complete statistics but in the first quarter there were 12 referrals – 6 charges were laid and 3 convictions resulted. At the present moment we have either investigations or charges proceeding against one Workers' Compensation Board employee; 5 service providers; the spouse of a worker; 4 employers; and charges have either been laid in those cases or investigations are ongoing. As I described earlier today under Section 95 which is the privacy restrictions today there have been 4 referrals – 2 of those we felt did not warrant proceeding by referral to Crown Counsel and 2 continue to be under investigation. With respect to prosecution one of the consequences of prosecution is that you leave the administrative process and go into an external judicial process which has certain advantages and disadvantages. There are evidentiary limitations around prosecution. Our experience has been that one of the advantages is you get a judicial or societal validation of concern about matters that are a concern under consideration. It is not just the Board concern – it becomes a societal concern. The degree of public censure that a conviction attracts tends to be higher than the censure under an administrative sanction attracts. And the prosecution carries with it the prospect of imprisonment which none of the administrative sanctions contemplate. Some of the limitations are that in a criminal context there is a very high standard of proof – higher than generally exists within the workers' compensation system. Preparing these matter for prosecution is very resource consumptive. It takes time and the outcome is not assured. It is distressing to everyone who feels strongly enough about a matter to take it to prosecution when they see it being dismissed on what they see as a technical ground so sometimes people are surprised or disappointed at the outcome of a prosecution process.

The Board faces challenges in terms of properly identifying the problem. Is the problem really one of our own administration or is the problem the behaviour that is being described in these sections of the Act to create the offense. Concurrent challenge is developing and implementing effective business processes to assist us in identifying and remedying the problem. The Board needs to balance service goals against enforcement goals. The business processes and the way we go about supporting our business goals in an efficacious, speedy and fair service are sometimes inconsistent with the processes that support criminal proceedings. That was debated in an another environment publicly with welfare benefits over the question of whether or not recipients should be fingerprinted or photographed when they receive those benefits. You get the tension between rigorous standards for prosecution purposes and standards aimed at providing quick and effective service. There is a six-month limitation for laying charges under the Offense Act. That is a short time frame for many of these matters. It gives the Board a six-month window to discover the problem, to develop evidence able to support criminal proceedings and to start the criminal proceedings. In the area of prevention we are moving towards changing that to a one year as opposed to a six-month limitation. And it is a very tight constraint in its context.

Our current practices – I’m going to talk quickly about identifying a problem using administrative tools to carry on with our business, investigating a problem, applying administrative sanctions and prosecuting where appropriate. In this context I’m talking about identifying a problem as detecting or becoming aware of the problem. And the Board relies on its staff, on the stakeholders, on the public, on internal audit and system reviews to make it alive to the problem. It has, in some of these areas, an array of administrative tools available to it. We can adjudicate in the absence of an employer report and administer an administrative penalty on the employer. We can cancel treatment rights of doctors who do not fulfil their obligations under the legislation. You can control this somewhat through your selection of service providers. We investigation complaints when we receive them. One of the responses is to inform and educate the offending party. It is particularly important when we have people such as the homeowners who are new to the legislative scheme or small employers who may not have the same knowledge about the system as others. And the Board can provide expert testimony or assistance in proceedings that the stakeholders have come in. When we investigate the Board uses its legal services department and its field investigation unit to investigate complaints. Referrals can be made to those areas by any staff member. Once the referral is made we evaluate the appropriateness of the complaint. In other words was the complaint referred and is the issue dealt with under Board policy and procedures. Is there an adequate administrative solution? And depending on what we find make recommendations as to the disposition of the complaint. About 1500 matters a year are referred to the field officer area – not all of those matters are with respect to fraud. Field officers also assist in investigation to health adjudicators to determine any initial acceptability of a claim and the circumstances around the injury. If the Board detects a problem there are administrative sanctions. To the extent that there are administrative sanctions they are implemented by the responsible department. So for example additional assessments are levied through the assessment department. The late reporting penalty is administered through Compensation Services and referred to the Assessment Department. So that the extent that those remedies are available are distributed in the organization. If the administrative remedy is insufficient then the question of prosecution is considered. If the case is clear – in other words the evidence is clear and prosecution is not warranted we close the file. If the case is clear and prosecution is warranted in our minds we then refer the matter to Crown Counsel to pursue. If the case is on the cusp we tend to refer it to Crown Counsel for their assessment as to whether or not prosecution is warranted.

Crown Counsel considers a number of factors when they decide whether or not to lay charges. And since we are essentially going to be turning to Crown Counsel we use the same factors assessing the case. Some of those factors are: whether or not the evidence is sufficient to make a conviction likely. As you’ll see we out of the matters referred to Crown Counsel where charges are laid there is about a 50% conviction rate. Is there an adequate alternative remedy? There is a tendency not to prosecute and Crown Counsel tends not to support a prosecution if there is an adequate alternative remedy. How serious is the offense? And that is an internal and an external matter. The matter may be viewed quite seriously from the perspective of the Workers' Compensation Board or its staff. But when you deal with Crown Counsel who are accustomed perhaps with dealing with very serious crimes of violence it is sometimes is an effort to convince them that this matter warrants their attention. And will the prosecution promote, maintain or threaten public confidence in the judicial system? There is a much longer array of these kinds of questions but they are the type of factors that we assess when deciding whether or not to proceed.

Building the case is difficult. We have the problem first of all of detecting the offense. And we are very much dependent on the public and stakeholder communities to alert us to many of these things. We have to meet a criminal standard of beyond a reasonable doubt in preparing the evidence. The Board, rather than police authorities tends to fill the investigative role – it is often difficult to persuade police authorities to investigate what they see as Workers' Compensation Board matters. We have to complete the investigation and then have a report to Crown Counsel within a six-month limitation, which is a very short time frame to meet.

What are we doing to address these? Through a variety of initiatives we are trying to be more proactive about information gathering. So we have an AIRS program which provides for electronic delivery of information to the Board. We’ve developed Call Centres to facilitate telephone communications with our stakeholders. We’ve created an Entitlement Unit, which deals with initial adjudication and simple claims. We’ve developed business processes that are receptive to electronic information transmission – either by Fax or directly into the E-File system. All of this is intended to get the information quickly and avoid delay and to some extent circumvent the problem if you describe it that way of late employer reporter reporting. If we can obviate the reporting by getting the information quickly and get on with the business of paying benefits. The Board has been moving towards information and business integration. The Board has traditionally been accused of operating with a silo mentality. Assessments doesn’t know what Prevention doesn’t know what Compensation Services is doing. So we are trying to integrate our information and trying to integrate our business processes in order to deal with each problem in a single phase and to enhance our own information base in terms of identifying the problems. We have developed greater internal accountability for service delivery. ASG means Assured Service Guarantee so we have an obligation on our staff to provide a service or provide an explanation as to why the service isn’t being delivered within a time frame. We have set pay performance criteria – pay time criteria and you’ll hear from speakers later in Compensation Services in the degree with which we are delivering on those criteria. And we are looking toward software to enhance our ability to look systemically at what we are doing and discovery systemic weaknesses or potential fraud. And we are moving forward in the area of policy development. There are no formal policies at the moment – there are discussion papers and draft documents going through the system slowly and we are moving toward the development of formal policy.

QUESTIONS

ALAN WINTER:

Q: Starting with the obligation to report – sections 53 and 54 and 56 –I’ll deal with Sections 53 and 54 – I notice that there is a different standard for the worker being as soon as practicable and the employer with a set time frame–do any knowledge why that may be?

A: No, anything I could offer would be speculation. It may have to do with the fact that an injured worker might have difficulty reporting his injury from time to time.

Q: Okay, has there been any consideration given to putting in a dual standard such as immediately when the circumstances arise or in the circumstances as soon as possible – there is no set time frame to do it other than as soon as practicable?

A: That is sort of an open-ended question. I don’t know to what extent this organization or other organizations have thought about a different standard.

Q: The reason I am asking is because obviously the employer has a reporting obligation and if it doesn’t meet it it is subject to a penalties and the part of the employer’s responsibility flows from being advised by the worker.

A: Yes.

Q: And you have raised a number of cases that you’ve had or to do with late reporting and I’ve had experience where we end up with a situation where a worker states that they have suffered an injury on Monday for example and he said he went to the hospital because he did something but then works all week and doesn’t report it until the week after – there is an elapse of time in those kinds of cases and making the employer not looking timely – have you heard of those kinds of cases?

A: Yes, and there are sort of two components – one is the reporting on the obligation on the employer has some exceptions to it and if you look to the policy certain kinds of diminimus cases don’t result in a reporting obligation. So if the employer has no time off from work it’s not a case that would trigger the time frame that necessarily. And in other jurisdictions if you look to other legislations some jurisdictions start the employer’s obligation to report from the time when they are aware or should become aware of the problem.

Q: Another element that I’ve experienced is with the employer often gets is a fax from the Board saying we’ve been notified of an injury and gives the name of the person and it says the nature of the injury is and they tell us to file our form 7. And I’ve actually seen cases where the nature of the injury was "unknown". And then the employer is asked to file and if they don’t file in 3 days they get themselves in trouble. Have you heard of those kinds of experiences?

A: I haven’t heard specifically those kinds of cases but I know there are files where when the Board initially designates the category of injury it uses the phrase "unknown" or "multiple". I also note that in Section 54 the late reporting can be in effect forgiven or excused by the Workers' Compensation Board and those might be factors that go into that component of the decision.

Q: I’ve also had a case recently where the form came back to the employer and it said the nature of the injury was "assault". And the employer didn’t know what that meant – it never had an assault reported by an employee and that is what they wrote back. They didn’t know what this is. And again the reaction back from the Board was very difficult. Internally are there concerns being raised or training being done on the communications that is going out to the employers when the Board is requesting information?

A: I will turn to my colleagues here for a more detailed answer but my understanding is that as part of the pro active efforts associated with call centres and the entitlement unit the Board is engaging in training and even review its policies as to the nature of that interaction. What kinds of questions are going to be asked and what kind of information will be sought? That is correct. Also in our claims registration area a number of staff are involved in the first instance and is looking at documents and trying to decipher from those documents what the injury is, what the issue is and there are errors that occur – things like assaults get written down instead of right shoulder injury etc. And I know our manager in that section is taking steps to try and improve that and training is going to be undertaken.

Q: I’m sorry you’ll have to excuse my ignorance - I do have ignorance in certain topics – when the Board receives notification from the worker which I assume triggers the request from the employer if they haven’t received it yet – is that notification oral or does it always have to be written or does it have to be form 6?

A: Actually in more cases than not the initiating document is a medical document from a doctor’s office. And that usually initiates the claim file. In some instances it is a worker’s notification but there has to be some kind of documentation – either the application or letter from the worker, etc.

Q: Okay so a lot of times you say it comes from the doctor.

A: Right.

Q: Did the Board send the same sort of fax or try to communicate with the worker to say we need you to file your form 6?

A: We communicate with the workers, yes.

Q: And do you communicate saying you have to advise your employer if you haven’t already done this?

A: I believe that is contained in the information that goes out to - the worker gets an entire package – an application and a package on workers' compensation benefits and within that would be the requirement I believe.

Q: How thick is this package?

A: It’s a pamphlet – envelope sized – it is probably about what 20 pages or something.

Q: And are there cases starting with a form 7 – I mean a form 6?

A: Yes, there would be some cases that are started with the application forms.

Q: Do you send that to the employer right away to ask them to send back their form 7?

A: Yes, as soon as any document is registered we immediately make requests of the other parties. If the worker is submitting a request we make requests from the worker’s doctor and the worker’s employer for that information so that we can proceed with the claim.

Q: But do you share the information back – I assume that the employer doesn’t get the doctor’s form?

A: No.

Q: Is that a form 8?

A: No, we just send a request out.

Q: But the form 6 itself –the application for compensation - is there a reason why you wouldn’t send that right away to the employer?

A: No, we don’t send that to the employer. What we do is send a request outlining the information that has been provided to us – that we need the employer to provide us with. The actual report.

Q: And why not - Why don’t you send the form 6?

A: The form 6 is probably would be looked upon as being part within the Freedom of Information and Privacy legislation.

Q: Okay – well maybe we’ll come back to that tomorrow.

A: If I may the important thing here is that the Board does serve notice to the employer that it does have a report of an injury to one of its employees with a request to generate their report which gives the employer an opportunity to carry out any investigation or make whatever inquiries are that the employer considers appropriate to live up to its obligations. So the idea of that communication is simply to give an early, expeditious notice to the employer that we have a reported occurrence with a request that they carry out whatever investigation is appropriate to make sure that we get a report. I think that’s the intent of that rather than providing a sort of detailed accounting because our information may be rather sketchy on the basis of initial documents. So – it is lets get the ball rolling – let’s give the employer notice – and let’s have the report coming to us.

Q: And you see that is where the problem is –a lot of times the information the employer has is even sketchier but now they get this note from the Board which is very sketchy to start with and we want information from you and it is very difficult. And what the employer’s been given to respond to that and all I’m exploring is ways that may be more fuller information and only the form 6 has fuller information on it – could it be provided to

the employer? But I think we should explore this a little bit more tomorrow.

A: Perhaps your experience with the form 6 is better than mine.

Q: Now Mr. Massing with respect to section 14 – the worker is not to contribute to assessments –I think you said that there are approximately 10-20 complaints per year?

A: Yes.

Q: And again from my limited experience is when I get involved in them they are almost always owner operators or labour contractors and dependent contractors – is that your experience when you talk about these 10-20?

A: I only have anecdotal – an anecdotal impression but certainly a significant component of them has to do with the area of labour contractors or I’m thinking primarily of the courier industry or the trucking industry where the labour contractor applies and that is often one of the areas of controversy.

Q: When you anecdotal where did you get the 10-20 then?

A: To the extent that we record statistics in this area we – the Legal Services Department has kept some records simply under the headings of Section 14 and field investigations has kept some records under Section 14 without any differentiation and that number is not specifically what that file is about.

Q: Because my impression again of section 14 is – I think you may have said it before and I’d like to confirm that - the problem when dealing with an owner operator or labour contractor is taking the Workers' Compensation Board definition of worker and over laying it on the relationship between something that is a little bit different between the parties – do you think that is a contributing factor to Section 14 problems?

A: That would be part of it as I said the test applied by the Board is somewhat different from the traditional common law test applied by the courts and it creates some uncertainty about the relationship in this context.

Q: I’d like to turn to section 13 – you said that Section 13 –I think you said almost all of if not all of the complaints on the dissuading side?

A: Yes.

Q: And you say there is approximately 20-25 per year and you’ve given us the breakdown – how many active claims are there per year?

A: In 1997 there were about 180,000-190,000 claims. That is a little lower than in 1996 so somewhere between 150,000 to 200,000 say.

Q: Those are actual active claims in that year?

A: Yes. Those are reported injuries in that year.

Q: Oh, just reported injuries there is carry over of claims from previous years?

A: No, sorry. When we record our claims statistics and correct me if I’m wrong – when we record our claims statistics it is the year of injury that we pay attention to. So you might be injured in December 1996 -–claim in January of 1997 and you would be a 1996 claim from our perspective.

Q: Okay and so what were the numbers you used from that last year? That you had?

A: In 1997 we had between 180,000 and 190,000 claims.

Q: Okay and of those you said there are approximately 20-25 complaints?

A: In any given year there is 20-25 complaints.

Q: I’m going to ask some more questions later but let’s flip to fraud – and fraud’s a harsh term –I’ll use the what is in Section 92 - misrepresentation or fraud it covers both– how many complaints are you aware of that are raised about the potential misrepresentation or fraud on behalf of workers in a year?

A: I appreciate your concerns about definitions and what I’m saying is that for statistical purposes in the Legal Department when it was recording those statistics and in field investigations when it records those statistics – we were getting about 40-50 referrals a year that were specifically allegations of fraud.

Q: And then those are investigated by the field investigations department.

A: That’s correct.

Q: And how many of those – approximately per year – are lead to a substantiation of fraud?

A: I’m not sure what you mean by substantiation of fraud. Those as I indicated we have about say 20 referrals to Crown Counsel each year and out of those 20 we get convictions in about half of them but there is a whole other subset where our investigations might not support referring the matter for criminal charges but the Board decides to declare an overpayment on the claim and pursue it as an overpayment file and seeks a recovery of the money.

Q: And I was going to ask you about that because again I’ve seen a lot of cases where an investigator that has been involved from the Board and then there is a suspicions raised to that investigator about the extent of the disability and a common result is the benefits are stopped – and so you are saying another step would be seeking overpayment if fraud or misrepresentation is justified.

A: yes, that’s correct.

Q: do you know approximately how many cases within the system may have benefits stopped due to suspected or from the Board’s viewpoint proven misrepresentation or fraud as opposed to seeking back overpayments to prosecuting?

A: Not as a discrete number, no. I have statistics but I don’t have them right at my fingertips but I can obtain them for you. The field investigations area maintains statistics of dollars recovered in relation to the investigations that they undertake and that would include dollars recovered through declaring overpayments and recovering funds. But that only tells me the dollar amount it doesn’t tell me how many cases there are.

Q: Okay and it doesn’t tell us how many may have been led to just a stopping of benefits without trying to recover?

A: No it doesn’t.

Q: I’m advised that the Board used or may still use a system where they flag a potential fraud – I am told that they are using an "F" system – are you aware of that?

A: I’ll have to defer to my panel for that. I am not aware of that. No.

Q: Is there any system that is used at the Board to bring any attention on that particular file -–that there is suspicions?

A: There are flags that can be placed on files – for example there was a prior prosecution for fraud or a case where the potential exists. There are flags that can be placed on files to indicate that there was a problem with the claim. On that basis it would come up on the claims registration history whenever any claim was established and the adjudicator officer would be required to go back to that prior record to see what the issue was about.

Q: What is the nature of a problem – you say it could be a flag identifying a problem.

A: It could be fraud,

Q: What else?

A: It could be our own internal issue – it could be violence – it could be a violent claimant – things along that line.

Q: Mr. Massing you identified that you were involved – I think you said you were involved - in both the drafting of a fraud policy and a prosecution policy - is that correct?

A: I’ve been involved in meetings and I’ve been involved in reviewing documents, which the ultimate product would be a formal policy in these areas, yes.

Q: Is there any time frame when that policy at least will go to the consultation stage?

A: No, at the present moment my participation has been part of the administration looking at these issues – it hasn’t reached the stage where it’s been referred to either the Policy Bureau or the Panel of Administrators.

Q: Is the policy being looked at to cover all elements of fraud for want of another word – be it worker, be it an employer, be it internal?

A: Yes.

Q: And the same with the prosecution?

A: Prosecution’s a bit odd; prosecution is really a process so it kind of – we deal with prosecution as an aspect of fraud and we also deal with it in other areas. So my answer I guess is this – we have – the Board has turned its mind to prosecution in an Health and Safety context and we’ve been discussing prosecution in relation to non-Health and Safety offenses under the legislation. So it would be all of the various offenses under the legislation.

Q: Just picking - up you mentioned the charges going ahead at the current time and there were a variety of different recipients of those and you said 4 employers.

A: Yes.

Q: Are those occupational health and safety or are those other charges?

A: No, no. I’m not talking about health and safety offenses or charges; that’s non-Health and safety cases.

Q: What kind of cases are they?

A: Those four have to do with potentially forged clearance letters.

Q: Forged?

A: Clearance letters.

Q: Clearance letters. And I don’t recall you mentioned any going ahead against workers – is that correct – there aren’t any?

A: I don’t have an inventory of specific charges against workers at the moment. One of those is charges against the spouse of a worker for allegedly defrauding the Board from benefits. Just last week we had charges against a worker dismissed.

Q: That was one of your workers?

A: No, that was a worker who again was being charged for defrauding the Board for benefits and the case was dismissed. So that was intended – I mean I am casting my eye around the department and saying right – sort of current inventory is what I’ve described.

Q: Now this fraud hotline under consideration - or tip line under consideration –you leave me the impression that this has been under consideration for a long time –about how long?

A: I don’t know the answer to that; I recall about 3 years ago there were a number of workers’ forums and employer forums conducted at the Board with respect to service delivery and one of the topics that was discussed in that consultation process was a hot line or a tips line.

Q: I get the impression from listening to you that fraud – again for want of a better term - is a fact of life within the system no matter how small it might be it’s there – is that accurate - be it worker, be it employer, be it whatever – there is an element of that in the system.

A: I don’t have any way of answering that. Certainly there’s not a – there’s no sense that I’m aware of that – that there’s a constant level of fraud going on out there that we need to be alive to – what there is is a corporate decision that fraud is something that should not and cannot be tolerated and we need appropriate processes in place to detect it and deal with it if we find it.

Q: What is the concern about having the tips line –again – it’s been under consideration and there’s been pros and cons? What are the concerns?

A: I haven’t been part of that specific debate; I don’t know if any of the panels have. [Sorry what was the question]?

Q: We are talking about the tips hot line, a fraud hot line that has been under consideration for a while and I’m asking what are the nature of the concerns that it hasn’t been implemented?

A: Basically they are trying to address the fraud and prevention of it on a global basis rather than just sort of dealing with one aspect of detection so we are looking at other ways to balance it – looking at software for example, which is a more standard approach to that – tips line – what some of the concerns that are – tips line is a very high administrative function where you’ve got a lot of calls coming in need no answer you may have hundreds of thousands of calls coming in so that may be one approach to use. But we want to look at other approaches as well – so we are actually looking at a fraud frame work covering all aspects of employer-worker-service provider-internal fraud and looking at all these various tools and actually working towards presenting the frame work to the Senior Executive over the next few months on that.

Q: I have a few follow up questions then - how long have you been looking into this?

A: I, myself have been involved for about 6 months.

Q: And has it been looked at prior to the six months – before you started looking at it?

A: I believe it has but I can’t – perhaps a year. I don’t know. I believe as Gerry alluded to earlier I think over the last couple of years we have been focusing on and improving upon our own internal processes before turning our mind to some of these other issues – certainly a tips line has been under discussion – I would say periodically by various administrations perhaps over the last couple of years or so. More earnestly we’ve been – began to look at it and other alternatives as Roger has described. We certainly have viewed with Insurance Corporation of British Columbia their experience – which I understand is not all positive. Roger alluded to the issue of the number of calls and the resources that you spend dealing with calls of that – perhaps may have very little if any validity. We do have a duty officer if you will as part of our field operations that’s available to take calls from on a daily basis from anyone who wants to get in touch with the Workers' Compensation Board and report something unusual or unwarranted. So that is available – I suppose one would call it a rather informal way of dealing with that issue.

Q: Do you have any idea when we may see something more concrete – it’s just under consideration?

A: As Roger has already suggested that the frame work around fraud is something that is intended to go forward to – in the next few months – I think that hides the question – I mean the Board has always been responsive to allegations of fraud when it has received them – what we are doing is trying to move toward a formal policy and a formal framework around that.

Q: You mentioned software – can you elaborate on what you mean by software?

A: We are looking at some systems where you would look at some common variables that would lead to potential fraud and abuse – feed them into a model and then using a claim for as an example – you would feed as the claim opens, the characteristics of that claim would be fed into a model and then the model would then read the likelihood of fraud or abuse and it would score the claim – there is software out there similar to do the same thing with employer assessments and registration. A third one we are looking at which is a provider compare which is looking at service provider information measuring the performance in terms of treatment patterns and so – third party providers – which is an administration tool as well as a potential indicator of fraud.

Q: And is that software – that information come out and help determine the field investigation further to take steps?

A: Absolutely, yes.

JOHN STEEVES:

Q: A few things – I think you have covered some of the areas – I think just a different level of detail over some of the same issues – I have a slide - protection of workers’ benefits – this is on Section 14 and 15 and 98.4 – you’ve got three bullets there – and you say pending legislation and failure to re-direct in approximately 20 cases – could we be clear what redirect means?

A: The cases I am referring to are the Revenue Canada cases – we have received demands from Revenue Canada under Federal legislation for payment of benefits that we are paying to workers – in those particular cases because of our view of their legislation we have refused to pay the benefits to Revenue Canada and continued to pay them to the worker. And that is an ongoing dispute between the Board and Revenue Canada.

Q: Okay, and the paragraph above that you cite the 14, 15 and 98.4 as authority for ensuring - for the board ensuring the workers actually receive their benefits – have I got that right?

A: Section 15 specifically deals with preserving the benefits and 98.4 is an exception to that and Section 14 is a slight variation in the sense that wages are supposed to be protected from deduction for assessment.

Q: I was more concerned about the – the ensuring that workers actually receive their benefits and wherever it is you accept that that’s the Board’s responsibility?

A: I’m saying that the statute attempts to ensure that, yes.

Q: Okay, and do you know of efforts by the Board to ensure that workers continue on compensation after the initial forms are complete – that is to be clear that there isn’t - after the paperwork is in that the worker is not paying the employer?

A: I’m not clear that understand your question Mr. Steeves – perhaps you can explain what you want.

Q: I’m thinking of an example where a worker is working in an environment where the deal is that the compensation is paid back to the employer or alternatively the costs – the so-called cost of the compensation is paid back to the employer?

A: The statute contemplates that in Section 34 I believe it is in this sense – there are situations where workers are kept on salary by their employer even though they are disabled and have a compensation claim – the Board has the authority under Section 34 I believe it is to take that into account and pay the benefits to the employer rather than to the worker. That ‘s often – that most often occurs – that’s not fair – I’ve seen that in situations where the government employer and quite often when you have a collective agreement those kinds of arrangements are created in that context.

Q: I’m well aware of what section 34 is – I spent a day in Supreme Court on Section 34 – that is not what I am talking about –I am talking about pressure by an employer on a worker to pay back the employer for part of the claim.

A: I have never been made aware of any such situation or received any such complaints – I am not aware of that happening.

Q: The slide entitled - Protection of Administrative Integrity System –I think you referred to the system in Ontario where there’s fines for late filing for employers?

A: Yes.

Q: And as I understand it that’s almost a routine entry by the adjudicator –if the form 7 is late they put a couple of commands in and a $250 fine results - is that your understanding or do you have any knowledge of that?

A: It is – it is my understanding that it is an administrative sanction as opposed to a court imposed sanction I only have anecdotal information because my request for statistics or analysis of that hasn’t generated anything yet. Anecdotally I am told that there was an improvement in employer reporting initially and I’ve also heard anecdotal information that that has not been sustained over time, so I don’t really know what the impact of those provisions has been but I refer to it as another model of administrative sanction that might be available to the Board.

Q: Yes I think you made that point that we don’t have that flexibility in our legislation?

A: No, this legislation contemplates charging the cost of the claim to the employer and contemplates a sort of several stage hearing process around that.

Q: Or prosecution?

A: Or prosecution, yes.

Q: I think both you and Mr. Winter are aware of my next topic –and that is what do we mean by fraud? – And can you give us some help on that? –Let me tell you – for example I think - are we just talking about a criminal definition of fraud? Or do you include violations of – criminal violations of sections 13 and 14 or all violations - of the sections 13 and 14 – or is it one of those words that is not helpful to try and define or what do we have here?

A: When I am using the word fraud – and as I talked about earlier when we’ve been logging – to the extent that we’ve logged statistics and used fraud as a category we’ve been referring to the criminal activity of fraud which involves elements of deceit and dishonesty.

Q: So that could be a criminal matter arising out of either section 13 or 54 or? If an employer was charged under Section 13 criminally?

A: That’s possible – but that’s not – the cases where – the cases where a charge of fraud has specifically been contemplated in my experience have been cases against workers for allegedly defrauding the Board with respect to Benefits – cases against service providers – as I say there is the – there are the current investigations with respect to forgery and possible fraud on the part of employers with respect to clearance letters and one case of internal staff fraud. No cases have come to my attention under Section 13 or 14 or 15 that I would cast as fraud cases.

Q: Are you aware of a report from Compensation Services to the former Board of Governors that violations of Section 13 – in some cases - was a systemic problem?

A: I’m aware when I talked about the panel being aware of the issue of fraud – I am aware that there have been reports to it – I can’s specifically recall that report, no.

Q: Okay and I’ve just been informed that I am in error – I am instructed that it was section 54 rather than section 13 –that is late reporting by employers is a systemic problem - does that help you more? I see Mr. Sullivan nodding his head or?

A: Only about 30% of our claims are started on forms 7. That may be the issue you are referring to when you say it is a systemic problem – just getting the form 7’s in in time.

Q: My question - was are any of you on the panel aware of a report to the Broad of Governors that problems of reporting under section 54 was a systemic problem?

A: No, I’m not aware.

Q; And just under Section 13 – are you aware that previously the Board of Governors recommended changes to Section 13 to the government?

A: I’m not aware of any specific recommendations for change, no.

Q: Okay – sorry to jump back to fraud but - you gave us some numbers of complaints and ultimately charges and convictions – I think the larger number in 1995 was 12 and 1996 it was 16 – have I got that right?

A: Of convictions?

Q: No, of the larger number being the number of complaints and then ultimately ending up&ldots;.

A: There were three numbers – so for example in 1996 in the first quarter there were 12 referrals to the field investigations area – out of those 12 – no I’m sorry – let me be more clear – I’ve changed the wording – there were 12 referrals to Crown Counsel – the 12 referrals resulted in 6 charges being laid – the 6 charges resulted in 3 convictions.

Q: And were those that ones that involved a Workers' Compensation Board employee, a service provider, a spouse of a worker and employers?

A: No, those – that is current inventory.

Q: And the – are you – I think Mr. Winter was exploring this a bit with you - in terms of a ratio to claims or any other ratio – do you have any information of how BC stacks up with other jurisdictions?

A: Nothing specific; I mean I’ve had casual conversations with people from the Ontario Board about their sense of the world and I don’t have any discrete comparisons.

Q: It is my understanding that especially compared to Ontario –BC is relatively – not fraud free but it doesn’t have as many serious problems as in Ontario where there is clear evidence of organized crime for example being involved and we don’t have that here?

A: We certainly have certainly not disclosed any evidence of organized crime – I mean we have&ldots;..

Q: Let me put it this way – the presence of organized crime in the workers' compensation system has not been reported in the press.

A: And not been reported at the Board. We’ve had – we’ve had discovered what appeared to be a systemic problem a while ago – I wouldn’t begin to suggest that it is organized crime – we have found that at least one situation where there appears to be a systematized approach to trying to get benefits.

Q: Okay - yes, and by systemized approach –do you mean collusion meaning workers and employers are - or fictional workers and employers are – something like that?

A: As far as we can tell – fictional workers with fictional employers.

Q: Yes – and I gather judging from other remarks you made that the Board’s approach is to attack those aggressively –both for immediate reasons but for deterrence/

A: Yes.

Q:You referred later on in your slides to the Field Investigations Unit –I wonder if we could spend a few minutes on that. There is no one here today from that Unit – is there? A: No there isn’t.

Q: And what is the staff of that unit?

A: There are 11 field officers assigned to that unit – 9 operating from the Lower Mainland – 1 operating from Nanaimo and 1 operating from Vernon in the Okanagan.

Q: Okay - can you give us any indication what kind of background field investigators have – are they former police officers or?

A: Yes, almost all the field officers are former law enforcement officers – primarily former Royal Canadian Mounted Police officers – I believe out of the 11 – 9 have that background.

Q: And when we see claim files – we certainly see reports from field officers about problems in the file and sometimes we see reports from claims officers that find nothing but – is it in every case where a field officer has been asked to do something – does a report show up on the claim file?

A: I would think in every case where a field officer has been asked to carry out a formal inquiry that a report would show up, yes. It may rarely if nothing was found perhaps – depending on the circumstances a verbal report but I would think that in almost all instances there would be a report.

Q: And in order to initiate a field investigation- an adjudicator wanted to initiate an investigation – would that be done by a piece of paper or – I’m trying to determine whether you would see it on the file or not.

A: Yes, if there is a formal request for investigation it would be by referral – we do have referral guidelines available to claims adjudicators for making referrals to our field office section. You would see a formal request outlining the nature of the circumstances and the issue to be investigated. I’d like to comment on that slightly – that deals primarily with claims files and field investigations claims files and they are involved in other areas as well.

Q: All right – I agree – my question was only on claims files. A couple of questions on the process Mr. Massing you describe - with Crown Counsel –first of all - who decides whether criminal charges are to be laid – is it your office or Crown Counsel?

A: Crown Counsel ultimately decides whether charges will be laid.

Q: And - so they could over rule your decision?

A: If Crown Counsel decided charges weren’t warranted the Board as anyone else does would have the right to commence a private prosecution. And Crown Counsel has the right to override a private prosecution.

Q: They can step in?

A: Crown Counsel can step in and take over the case and stay the charges, for example.

Q: Yes, and does that mean that if there’s a – I know it never happens but – if there’s a bargain struck between defense and the crown is that done entirely or partly by the crown?

A: The – if there is a bargain struck it is done entirely by Crown – it may be that Crown discusses with the Board – the Board’s perceptions of what it feels are material to the ultimate sentence – or not. For example – in discussions with Crown Counsel we may advocate to Crown that we would like to see a rigorous penalty because this particular problem is of high concern to the Board in the administration of the system. Crown may see it from an external perspective – it’s not a – that not being a likely result or is the Board perhaps having a concern that isn’t going to be sustainable in that external environment and may not accede to that but the decision is made by Crown and from case to case the Board may have some input in terms of suggesting the kinds of results that the Board would like to see.

Q: Is it possible the crown could work out something with the defense and you wouldn’t even know about it?

A: Yes.

Q: So it is a courtesy?

A: If they involve us it is a courtesy. Normally in the report to Crown Counsel one of the things they want to hear about is why the Board thinks it is important and they would have that information available to them.

Q: Section 54 – from time to time employers don’t always get the information on form 7 correct and I’m assuming in the vast number of cases that it is accidental but from time to time there is – it is not accidental and information is put down there because of malice – does the Board have a way of tracking it and doing something about it?

A: I’ll have to defer to the panel again on that. I don’t believe that there is any formal process for identifying or tracking malice.

Q: All right so it is the adjudicator in the process of adjudicating the claim hopefully would make independent inquiries and finds information that is very different than they are in the form 7 – opposite in material points–three is no way for the adjudicator to advise legal or a manager or - is there anything the adjudicator should do?

A: We don’t specifically track or keep statistics on that information, however, our work processes are set up now so that the adjudicators are dealing with a certain group of employers so if there was a series of events occurring on that basis with one employer – the adjudicator would become aware of it and look at options in which to resolve it – either through legal or a meeting with the employer or other options he or she feels would resolve the problem.

Q: This is the reason we should support the case management system?

A: Yes.

Q: a similar question – there is a high volume of late reporting by employer – the adjudicator we are waiting for the form from the employers – is there a procedure in place aside from the case management model for that info to get to legal

Q: And a similar question – you indicated that there is a high volume of late reporting by employers – and what we see from the workers’ point of view is that the worker phones up the adjudicator and says have you made a decision on my claim and the adjudicator says we are waiting from the form from the employer and there’s a couple of phone calls and some weeks go by and sometimes longer – is there a procedure in place apart from the concept of a case management model for that information to get to legal?

A: Two things in response to that Mr. Steeves – one – is that as I indicated earlier any staff member who feels that they have a situation that is a potential under the legislation or a problem has the ability to refer the matter to legal services and we will look at it. There is no specific policy around that topic &ldots;

Q: There is nothing in the adjudicator’s procedure manual?

A: No. Apart from that the Board has as part of the initiatives that I’ve described – started to identify patterns of behaviour from employers and has started to record statistics in that fashion and moved towards sort of an account management response to those kinds of situations.

Q: Yes, you understand the problem that I am posing –that there is from the workers’ point of view – there’s a problem there that it never gets passed the adjudicator and that’s what – what you are telling me that adjudicators may deal with that on their own and you would never know about it in the legal department.

A: That’s correct.

Q: There was some talk with Mr. Winter about forms and to be clear – for all of us - there is the form 8 filed for a medical report, a form 7 which is the employer’s report and a form 6 which is the application for compensation – now Mr. Sullivan I think you said that most claims are initiated by the filing of the form 8 from the doctor – is that correct? A: Yes.

Q: And the second most frequent way that claims are initiated is under the form 7 correct?

A: That’s right, yes.

Q: And in fact most workers – their first contact with the Board would be when they get a letter from the Board with the form 6 with the top printed out with the name of the employer and so on. And they have to fill it out and send it back – correct?

A: That’s correct, yes.

Q; And the reason for that is because the Act requires that there be an application for compensation be in the form prescribed by the Board – correct?

A: Yes.

Q: If a worker was to write a letter to the Board – saying I was injured at work at so and so because I fell off a ladder – signed it - that would be contrary to the Act?

A: Yes but that would initiate the claim.

Q: No no &ldots;.at some point you need a form 6?

A: We can proceed with an adjudication without the application but we would send it out to the worker to complete. Yes.

Q: But if the letter I am talking about was sent on the 365th day and there was no form 6 filed within the one year there might be a time limits problem?

A: There could be yes.

Q: And a partial response with what the employers are saying –the reason workers don’t file the form 6 is that they don’t have a pad of form 6’s in their lunch box? As I say they mostly get it from the Board after a claim is initiated by the doctor or employer?

A: Yes.

Q: I was interested to know –you were talking about getting the system moving as quickly as possible –could you briefly tell us the staff involved in these first few steps and I guess this will overlap with tomorrow but and maybe you want to defer until tomorrow but that would be fine too –

A: I think a lot of the presentation tomorrow is on that very subject yes.

Q: I gather in the broad topic of fraud or in misrepresentation – one aspect of that can be employer providing inaccurate information that supports the claim – does that not come up from time to time Mr. Massing?

A: I can’t – I can only speak from my own experience – the only two situations that come to mind are the one I alluded to where we appear to have had some fictitious employers with fictitious workers getting benefits. And there was one other case a number of years ago where an individual got themselves registered as an employer and as a worker – those are the only two situations that I am aware of where it might be employer participation if you like and employer being the genesis of the fraud.

Q: Just finally some questions on the hotline idea –Mr. Piper I think you were close to that – or maybe it was Mr. Hurst discussing really the efficacy of a hot line and has the Board done studies as part of its consideration of this – how other hot lines in other jurisdictions or other administrative regimes have faired in their efficiency and their costs?

A: I wouldn’t to suggest that the Board has done exhaustive studies but I am aware there has been some consultation with Insurance Corporation of British Columbia and the efficacy of their hot line – the number of resources taken to operate it effectively and the results – that is those calls that result in some quantifiable problem that needs to be addressed vis a vis those that are tips without merits so to speak and I don’t have that information but we could presumably make it available.

Q: And I gather that would be – if that were to exist – it would be available for complaints against employers, against workers, suppliers, and again the Board itself –and indeed I suppose one of the problems is the relevancy and that is one of the problems in terms of the volume isn’t it Mr. Hurst?

A: Yes, certainly one of the issues and we do experience this as I mentioned earlier we do have a duty field officer available on a daily basis to receive calls – some are given anonymously and some there is identification – and we find that 30% of those are without merit and there may be some – you know a personal vendetta between the person making the call and the person being spoken of.

Q: One final point - there is a form that is it a 6A? Where it is a report from the worker to the employer? Have I got that right Mr. Hurst?

A: Yes, there is such a form.

Q: It is a 6A?

A: It is a 6A, yes.

Q: And is that still in use?

A: To my knowledge it is and I believe certain employers do have it. And make it available to their employees in the event of an injury. In other words they retain supplies probably in the first aid area or in other areas that they are operating.

Q: Yes. Yes. And that is a source of information for employers for the accident?

A: Yes.

JIM SAYER:

Q: I want to ask you about an issue that was raised by a union representative that I was speaking to some time ago which seems to raise some questions about section 13 – specifically discouraging a worker from reporting a claim –the scheme that was described was an incentive scheme for all the workers in the department of – some kind of industrial enterprise to have a clean safety record – the way the scheme worked was that if there were no Workers' Compensation Board claims within a period of time – I think it was one year – then everybody got a bonus. And of course the converse of that was never stated explicitly was that if anybody made a claim to the Board during that period of time everybody lost money and one can easily imagine the peer pressure and the consequences on a worker that reported anything but a fairly catastrophic injury in that kind of setting and cost everybody their Christmas bonus or whatever it was – would you regard that as something to be investigated under section 13?

A: We have in my experience in the legal services department – heard of two such schemes and this is anecdotal information – I’m really describing information being reported to me by my colleagues who were more directly involved in them – some years ago we had a large employer who was using a point system and people were assigned points if they had accidents or injuries and supervisors of those people were assigned points and if your points got too high your career was in trouble. It was according to the employer – it was implemented as a health and safety program – the Board investigated that and concluded it was a problem under Section 13 – and if I recall accurately we persuaded that employer to abandon that scheme. More recently I have heard of a reward system – it wasn’t – it was in the way of individual prizes – a television set comes to mind as one of the prizes that was described – that matter was being looked at and I don’t know how the outcome of that has been. Certainly we look at those kinds of things – that’s one of the things under Section 13 – is – when you go out to look at the situation it’s touted as a health and safety – or function as a health and safety program so you get into a difficult task of balancing what is a legitimate health and safety process and what is has been referred to here sometimes as claims suppression. And that is not always a clear picture.

Q: The appearance of those schemes at first blush seem fairly positive –they are intended to encourage people to work safely but the consequences when you look at it from the perspective of the worker are quite different especially if the worker has the injury and has to think – am I going to report it or not – I suppose from the perspective of prosecuting something like that you would have the problem of how you could prove the intent or not – would a different range of sanctions that are provided by Section 13 be able to give you more ability to deal with that sort of effort to discourage reporting of claims?

A: When I talk about Section 13 one of the things that I suggested was amending the Section or providing for administrative sanctions might be something to look at and I have that somewhat in mind in the sense – that if there were administrative sanctions it might to enable the Board to take a more subtle approach – to resolving the problem than the sometimes blunt instrument of prosecution so I think with some creative thought you could do that – in addition – the Board is alive to that at present moments and we are also alive to limitations to Section 13 – and so we are part of the Employer Services Strategy in the Assessment Department – one of the things that is being discussed is whether or not we can design assessment consequences to behaviour of employers that we think create problems under Section 13, 14 and some of these other sections where the statute itself doesn’t set out any administrative sanctions it might be a possibility of modeling something through the Assessment process to try to address these things.

Q: One other thing that you brought up in your presentation that rang a bell with me – put in another context was that you mentioned of having flags on the file –I think the question was whether there was a fraud flag but you said – your response was that there was a flag for problem clients –which could be a fraud, and indication of previous fraud or an indication of a fear of violence on the part of the worker– can you elaborate on that?

A: That was my comment. That was just a flag system that the Board maintained on the claims registration process – so that in the event of any future claims something of that nature occurred prior that the adjudication staff becomes aware of the issue. That is primarily its intent.

Q: How does it work – does the file actually have a coloured wrapper on it of some kind?

A: No, it is a computer flag. Our claims registration system is a computerized system and on that is entered data and should something like what we are talking about occur then a request will be made to enter a flag on to the computerized registration system so should a future claim come up on an individual or something come up with a particular firm – a flag would come up on the record.

Q: So that applies to employers as well then?

A: I can only speak to the claims registration system – there would be a flag come up for example if there was an unpaid assessment then that would be entered into the system as well and a flag would come up in that particular case for employers, yes. And thirdly if it was an issue of violence for example it could apply to the employer as well as the worker.

Q: I was much more interested actually in how it applies to workers and how it might influence the way that their claims files are handled – you’ve mentioned that it would come up when a new claim was being registered – so I take it that it follows the worker for the rest of their life whenever they make a workers' compensation claim – once this flag has been created – is that right?

A: That’s right.

Q: Other than the person who is first registering the new claim is anyone else aware of this flag? Does it pop up on the screen every time an adjudicator opens the file to do some work on it?

A: No. It is mainly on the claims history that is produced originally in the claim file.

Q: My information from the days well before EFILE was that there was some form of recording on the file folder itself if a person was considered to be dangerous –I have heard that being applied to fraud but if a person was considered to be dangerous that that would be something that would be seen by anybody at the Board handling that file? Is that true?

A: On that particular claim file, yes. It could well be recorded on the claim file. That information wouldn’t necessarily automatically be transferred to any new claim file. The new claim file the adjudicator would have to go in and see what the issue was and determine whether it was relevant to the new case.

Q: Can you give us – without spending too much time on it – can you give us any idea of just who had the right to put such a flag on a file and what sort of conduct the worker had to exhibit before it would be done?

A: No, it is fairly discretionary but it would have to be fairly serious – threats.

Q: That is fairly vague.

A: Well, a threat against a staff member would constitute something along that line.

Q: I assume that the worker wasn’t informed that his file was about to be flagged as a dangerous worker so how do you decide whether the worker has really threatened a staff member? Is that strictly up to the staff member to decide?

A: No, we typically use our manager of safety and security is involved in that and I believe there is a director from compensation services has to authorize the use of that flag on the system – so it has to go through that process before it is entered. The actual ability to enter it is very limited.

Q: But the process would not involve going to the worker and saying is this all true or would it?

A: Well, the process has taken place well before the issue is brought to that point.

Q: We heard about disclosure this morning but I assume this is a situation in which the worker would have any input that that was done to the file.

A: No, that’s true.

Q: And would there be any indication in the disclosure that the worker would receive that it had been done?

A: Typically on a claim file of question there is probably that information is available, yes. On subsequent claim files where it is not an issue it probably wouldn’t be an issue it probably wouldn’t be there no.

Q: Do you know where that would appear in the claim file record? Do you know what section?

A: It could appear as a memo where it is documented as to what occurred. And typically in the memo section would be a request to the appropriate Board officer to enter the information on the claims registration system.

Q: is there any procedure for having such a flag removed from a file if a work should find out about it? All I did was raise my voice on the phone and maybe make a few – some unkind language because I was mad – you know I’m not dangerous?

A: In the first instance that wouldn’t necessarily trigger a flag. Those flags are usually reserved for very serious events. Whether there is anything actually written about removal I am not sure but that certainly it can be removed in the same process – through the Director that is in charge of it again so &ldots;..

Q: If or when the worker found out about it the worker would have to come to the Manager of the Department and initiate some special process to ask that they no longer be designated as a problem client?

A: They can just ask if it was an issue.

Q: How about a designation for fraud? What would be involved in that sort of designation because I think that’s what the context issue is worse?

A: As far as I know - fraud would only be entered if there was a conviction.

Q: So a suspicion that the worker had – say a report from a field investigator because that was another subject that I wanted to get into – suppose a field investigator files a report saying that Mr. So and So is clearly capable of more work than he is letting on – and I saw him doing such and such he says he can’t do – that wouldn’t by itself – that report wouldn’t lead to such a designation?

A: No, no.

Q: Only if the Board decided to prosecute a person for fraud and get a conviction.

A: Yes. Just to add to those comments Mr. Sayre – there is another context here as well – the Board like any other employer is subject to the violence in the workplace regulation that has an obligation – both under those regulations and its collective agreement to take measures to ensure the safety of its staff which is another shading on this difficult issue.

Q: But from a worker’s perspective and from my own perspective as an advocate for many many years - we have always wondered why there are some files that seem to have an odour about them of you know every time you turn around there is a new problem and it seems like every time the Board deals with it they deal with it in a suspicious manner and the flag issue to me seems to be a possible answer to the question? I’m interested to hear that there are such things and to get that confirmed and of course concerned about what sort of safeguards can be provided so the flags are imposed only when they are really appropriate and that they are not taken out of context and they don’t influence claims decisions. You can respond to that if you like.

A: The Board is alive to those concerns as well – this is not a – this is not an activity that is taken lightly. I would hope that it is no more than my own experience that some of the cases that I take to court seem to have nothing but trouble associated with them as well.

Q: We’ve all had those. You talked about the telephone tip line suggestion – you said that the discussions that you had had with Insurance Corporation of British Columbia they weren’t too promising I guess because they had experienced a lot of false accusations by vindictive people who thought that was a good way of getting back at the labour they didn’t like or whatever – is that often the case?

A: I didn’t say it wasn’t too promising; what I said was that the issue of dealing with accusations that maybe without merit is certainly one of the factors that we have to take into consideration in managing the tips line. You have to look at the number of resources needed to operate the line and the number of people and the pieces of information if you will that will actually lead to something conclusive happening as opposed to those that too often an awful lot of resources are of very little value so I think it is one of those economic considerations if you will as to whether how viable it is and what return it has as Mr. Piper was alluding as to whether there are other ways of complimenting that process in dealing with it more effectively.

Q: It goes beyond the cost of the administration of the Board doesn’t it? Whenever there is an accusation made – whether it is against the worker or employer and if the Board is going to do anything it’s going to presumably go to some third party or delve into some record that you wouldn’t be looking at otherwise and you invade the worker’s privacy or perhaps let other people know that the worker is being investigated – or the employer. Isn’t that a concern as well – you don’t even want to start an investigation unless there is a reasonably good basis for doing it?

A: That’s true – whether it is a tips line or an anonymous complaint such as we presently receive.

Q: That sort of brings me to my next question – which is the use of the field investigators – and it is something that has troubled me for many years – and it is good to have an opportunity to address some of those issues - you did say I believe that there were written guidelines for claims adjudicators and when and on what circumstances they can initiate a field investigation is that right?

A: no answer.

Q: And if so can you provide a copy of those for the Commission and the Counsel?

A: Yes we can provide that. There is also a field officer procedure guide.

Q: That was my next question. And I was going to go further and ask whether - what are the standards –we’ve heard a lot about privacy this morning and about the new efforts –and in some cases the new efforts the Board must make as a result of the Freedom of Information and Protection of Privacy Act to be careful not to disclose any confidential, personal information to a third party –my limited experience of representing workers who are subject to field investigations is that the field investigators do that all that time –in one case I can recall in a small community the investigator walked around with a picture of the worker and walked into the liquor store and showed it to the clerk and said I’m an investigator from the Workers' Compensation Board and has this person been in here? How often does he buy wine? Went down to the various local businesses and government institutions and again identified himself as a field investigator clearly leaving all of them inevitably with the impression that this person was engaged in some fraud against the Board. That was many years ago – that might be a clear violation of the manual now but can you help us explaining what the Board can do so that workers’ rights don’t get completely trampled in the course of a field investigation?

A: Well I can’t respond to specific sort of anecdotal stories but I – you know we do have the field officer procedure manual and the procedure manual does set out clear guidelines as to when the surveillance is an appropriate investigatory response and some guidelines around how to conduct surveillance so those are described in the procedures manual as the Board’s standards for that activity.

Q: Is that a manual that is accessible to the public or the Commission?

A: Certainly we can make it accessible to the Commission – I don’t know off the top of my head the extent to which we broadcast it into the community but it is certainly available, yes.

Q: You do the appreciate the concerns I raise about the impact an investigation like that would have particularly in a small community let alone a – even Vancouver to some extent. But in a town of 5000 or 10000 people you can imagine? Would you agree with me that that sort of investigation should perhaps never be initiated or at least only in the most pressing cases?

A: I can’t debate particular cases but we have a specific policy and we are happy to provide that to the Commission and to the extent that we use external resources for this kind of investigation we have the same contractual requirements of those investigators as well – and again we are happy to share that with the Commission.

Q: Once the field investigation has been completed –whatever it has entailed – survey and I am not sure what the verb is – surveying – the claimant’s home or talking to people to confirm what the claimant says or whatever it is - there would be no mistaking – we heard that this morning –the field investigators would have their own file in addition to whatever would be put on the claim file - what would happen to those notes and that report if the result of the investigation is that there was no merit and that there was no basis in thinking that this person had done nothing wrong? Would there be a note on the file that an investigation had been done on an allegation of fraud?

A: Perhaps I can help – there are fairly recent procedures in place for dealing with the investigation – information provided to the Board – if we get for example an anonymous information that a worker is engaged in regular employment while receiving compensation benefits for example. That information will not go on the claim file. It will stay in a separate folder if you will until the results of the investigation are completed – if the information is found to be inaccurate and irrelevant for example – absolutely untrue – it will not go on the file period and will be destroyed. So it is a fairly rigorous process and it’s all set out in the Claims Adjudication Manual and we can make that available to you. With respect to the notes that may have been taken of course they would also be destroyed. So only evidence that is considered both relevant and accurate is ultimately placed on the claim file. We’ve talked a little bit earlier about the subledgers and perhaps a good opportunity to comment on that. What field officers do is similar to other officers who work in law enforcement for example would be to keep their notes of their inquiries – they use those notes to formulate the report. Some field officers will likely destroy those immediately after completing the report – some may if there is a question or two or they may have a sense of further clarification may be required may hang on to them for a while but my understanding is that they are purged within a year and destroyed. So they don’t keep a "subfile" per se.

Q: I thought I heard this morning that they are kept for 7 years – different standards for different parts of the Board?

A: I believe that was referring to the Rehabilitation Centre and those were treatment records. My understanding of the field offices is that their notes is kept for approximately one year.

Q: And that is where there has been no substantiation.

A: Even if there has for example certain information may be kept longer – we don’t always transcribe for example a whole tape – so a sworn statement – the person is of course entitled to receive a copy of that but in certain cases the evidence may simply be summarized and it goes on the file and the tape is kept and transcribed only if necessary – that evidence would simply be kept indefinitely.

Q: I just have one more question Mr. Chairman – yes it is regarding the re-direction of benefits under section 15 –the situation arises from time to time that a worker is involved in a contested appeal under the Act – the worker says that he has a compensable injury – the Board either won’t or won’t agree to that or whatever and an appeal is filed and in the meantime the worker applies to say the company’s disability plan for disability benefits –is there any circumstance other than an assignment – written assignment by the worker that the Board would pay those monies directly to the disability company?

A: As I understand the law that would be illegal if the Board did that. Is that correct? We have entered some arrangements and this goes back a number of years – with the signed release from the worker with some disability plans because they may advance monies while there is a decision under consideration by the Workers' Compensation Board and we get a release from the worker – we cannot make the monies payable to the disability plan but we can mail it "care of " with the worker’s instructions but payable to the worker. We entered into that agreement only after being requested to do so on a number of occasions by the joint representatives shall we say of a number of disability plans who saw that as a interim measure if you will to make sure there was some continuity of income where there was an unavoidable delay in dealing with a Workers' Compensation Board case – whether the person had a right to choose between claiming Workers' Compensation Board and some other source of benefits such as a third party for example.

Q: So even in those cases you wouldn’t make the cheque out to&ldots;.

A: No, absolutely not. The only time they make the cheque payable is under Section 15 is to the Ministry of Social Services and Housing and we receive an assignment from them and even there we are very particular about examining the assignment and ensuring that it is properly executed and ensuring that it covers the appropriate time frame. That’s the only time that we instead of paying the money to the injured worker pay it to the other agency. And the other exception is what we talked about earlier – Section 98.4 and benefits to spouses and children.

Q: In the case of the assignment to the BC benefits – is there any process or any way by which the worker can make sure that the amount the Board is proposing to take from his or her benefits is the amount that was actually received for that period of time? There are disputes that come up from time to time about that? What period of time was covered by the benefits and what is covered by the repayment?

A: Well, we would certainly be receptive to the information from the worker which suggests the documentation we have doesn’t support that payment. If you are asking what the specific vehicle for doing that is I don’t know off the top of my head.

Q: What I am asking really is whether the board can or does or will have a process by which it – when the decision letter is sent to the worker saying we’ve decided – you know you are entitled to x benefits and it is usually a retroactive situation where you are entitled to benefits for the last three months for wage loss benefits and this is the amount – that letter will go on to say you - we have an assignment on file to BC benefits –and as we understand it we will be paying y dollars to BC benefits pursuant to that assignment and then give the worker an opportunity to respond if there is a dispute?

A: Whenever there is an assignment from the Ministry of Social Services and Housing we do head our letters with that statement – we are telling them why we are assigning – we try to explain what the deduction is.

Q: Is that after the horse leaves the barn or before?

A: After. Although as in any adjudication process there is certainly the ability to look into the matter and discuss it with the individual worker. Ordinarily there is an assigned statement from the worker covering the periods in question so obviously we exercise due diligence in making sure that those are indeed the appropriate periods for which we are providing an inducement. So you would expect to compare those and look at the signed – and we cannot without a signed – the assignment form – we will not make payments for periods outside the assignment form.

Q: I know from the people who come to us with disputes with BC benefits – that there is often confusion and disagreement over how much money is payable and over what periods of time and when those things were signed so why I am raising this issue although I don’t’ personally do that area of law but problems arise and if the worker doesn’t find out about it until the money has been sent to BC benefits they are certainly not going to get it back from the government at that point without a law suit.

THE COMMISSION:

Q: We had a presentation with respect to the Policy Bureau, the Priorities Committee in the way in which matters get on the agenda and make their way up to the Panel of Administrators –they have to be prioritized because there are a number of matters that need policy consideration - as I hear from you the matter has not yet gone to the Policy Bureau or to the Priorities Committee –and this is in regard to protecting the system from fraud?

A: The formal frame work that we talked about hasn’t yet gone to them – for example the – when Section 95 was amended to be more detailed about disclosure of information which people receive from the Board the question came up as to what enforcement processes would be used by the Board under Section 95 the Policy Bureau examined that and essentially made a recommendation to the Panel of Administrators that the current processes that we use for other non-health and safety prosecutions could be used for Section 95 violations as well so there has been consideration by the Policy Bureau to that extent but the development of a formal, full blown policy frame work has not yet gone to them.

Q: Is that a function of it being assigned a low priority by the administration or is it a function of the available staff and time to address the problem?

A: I don’t know that I could say what it is a function of. But Roger can you answer that? The resource issue in terms of there being so many issues going on around the Board right now and spread pretty thin and in that regard so it is a matter of getting the people together and working towards it but as I mentioned earlier we are getting very close to that frame work and presenting it to the Senior Executive in a couple of months we are going to be doing it.

Q: I appreciate that it is certainly not etched in stone – the frame work and it hasn’t gone to the Policy Bureau yet but for the purposes of this Commission are you able to outline the kinds of initiatives that you think will be going before the Policy Bureau?

A: It’s basically putting through a risk assessment of the exposures that the Board would face across all of the various stakeholders – employers and workers and so on -

Q: Can we stop there and can you tell me what you mean by risk assessment – what techniques and criteria you would use to assess risk across all the different aspects of the Board’s operations?

A: Risk assessment really is the characteristics that situations in which fraud would exist – if we look at a worker example it could be things like mode of address changes – signing a claim on Monday morning at 8 am – various things like that and we go through the whole spectrum of employer – provider – the same approach – so that would be a risk assessment

Q: So risk assessment means identifying the potential areas for problem?

A: That’s correct.

Q: Does that – in terms of the definition of fraud – I don’t want to get hung up on that – but do you include in terms of risk assessment risks of claims suppression which are in a sense under Section 13 as one of the areas of risk assessment?

There seems to be a little fuzziness about whether an offense under the Act is fraud –claims suppression may be an offense but it may not be frauds so in terms of the risk assessment I would like to know what kinds of matters you are looking at from a risk standpoint whether it is all offenses under the Act or whether it is only fraudulent matters?

A: Perhaps I can speak to that Mr. Robertson – to the extent of what we are talking about is a fraud policy and a formal framework around fraud – reviewing that in a sort of criminal sense of and it’s not obvious to me for example inappropriate behaviour under Section 13 would fall into that category. But independently of the fraud policy we are also looking at policies around prosecution as an enforcement tool and that would obviously not just be dealing with just fraud but it would be dealing with all offenses under the legislation.

Q: So that would be late reporting, habitual late reporting, claims suppression, those kinds of things?

A: Yes.

Q: And with respect to claims suppression –which we’ve certainly heard earlier that the Board appears to be committed in its policy deliberations to an experience rating assessment system –and certainly the Commissioners heard that claims suppression - the more stringent the financial sanctions for employers the more likely we are going to see claims suppression –So I am just wondering what kind of emphasis in your deliberations on prosecution you are putting on the detection of and the prosecution of claims suppression?

A: I don’t know that I can give you much of an answer to that apart from the fact – I mean it would be one of the topics that would have to be looked at.

Q: Are there any studies or statistical material from other Canadian boards as to claims suppression – its prevalence that you are aware of?

A: I’m not aware of any but that’s not to say there aren’t any – I just haven’t been in my conversations with the other boards about late reporting as an issue no one advised me of any such information.

Q: In terms of use of the prosecution tool –and we’ve heard prosecution fell into disused on the occupational health and safety side for almost 20 years – has that been a product of a philosophical decision on the part of the Board that they don’t want to use the weapon of the quasi criminal charge to think about compliance?

A: In the health and safety field I can’t speak specifically to what’s happened other than you know models of health and safety over the years have had different emphasis on – information and education has been a way of dealing with health and safety issues to policing and prosecuting of dealing with health and safety and the emphasis has shifted from time to time and from administration to administration to try and find the model.

Q: Using that as just an example of what we have heard but&ldots;

A: But I think more realistically the resources the prosecution requires and the what I suppose I refer to as the blunt nature of the tool tends to mean the prosecution isn’t our resolution of choice for many of these areas.

Q: Is there a public relations issue with employers that the Board doesn’t want to be seen to be too heavy handed for breaches of the Act such as late reporting and those kinds of things?

A: Not that I’m aware of.

Q: Are there any statistics on the number of claim files that are flagged for violent or dangerous claimants or previous examples of fraudulent behaviour or attempts – any statistics on that?

A: Not that I’m aware of.

Q: Mr. Massing you mentioned that you thought an administrative penalty tool somewhere between the current remedy and the full force of the criminal law would be helpful in terms of compliance with the Act?

A: I discussed that specifically with reference to Section 13 – yes. And possibly changing the nature of the administrative sanctions under Section 54 might be a consideration as well.

Q: Where you do detect offenses under Section 13 of so called claims suppression – how is it normally brought to the Board’s attention – is there any auditing process or any investigation process or does it come from tips – from workers or other sources?

A: With respect to Section 13 it’s almost exclusively the tips or complaints from the stakeholder communities – there isn’t another way that brings it easily to our attention – most employers if they are engaging in behaviour of that kind don’t send us documents that demonstrate it.

Q: No I wouldn’t think so – what about field investigation – has that been used at all in terms of where suspected claims suppression is going on?

A: Yes. No if we have reason – if we have a complaint or we have reason to believe from a staff view or for any other reason – we have reason to believe a potential problem then we use our field investigations staff to investigate.

Q: The current fines prescribed under section 13 – do you know Mr. Massing what their current value is?

A: I don’t have that information here those numbers are adjusted according to the Consumer Price Index and we do have table that shows what the various numbers are under the legislation – I just don’t have those numbers with me.

Q: Is there a general consensus that whatever amount they are at right now that they constitute a deterrent?

A: That’s difficult to answer because we haven’t had any success in convicting anyone and having a penalty imposed.

Q: It is hard to know until you get a conviction I guess.

A: That’s right. I think from other areas thought I mean the process itself of going through a prosecution and being convicted – even though sometimes the penalties appear nominal has quite a dramatic impact on people’s attitudes.

Q: It’s the stigma of conviction.

A: Yes.

[Alan Winter]: they publish every 6 months – the numbers go up – there are a few numbers here – employer who is convicted the number is 5000 is January 1, 1998 $18,745.42; for a worker the $1000 with supervisory responsibility is now $3749.16]

Q: You mentioned Mr. Massing that under section 14 of the Act –the section proscribing contributions from workers in any form that the only penalty there is the employer has to pay the money back/

A: Just from reading the section that appears to be the case, yes. Now whether or not the general penalty provisions of the Offense Act would be available as well I don’t know the answer to that.

Q: Okay that is what I was wondering –and section 35 –actually it is not just section 35 but also 98 it seems to give the Board considerable discretion to redirect payments from what would be otherwise be to the benefit of the worker to either the worker’s dependents or others depending on circumstances found to exist by the Board

A: Yes.

Q: Some of them seem to be kind of interesting to say the least – maybe I’ll jump ahead to Section 98.4 that says where the worker is not supporting the worker’s wife or husband and there is likely to be a charge under the municipality they reside – skipping ahead - the Board has apparent authority to divert compensation in whole or part to the benefit of the worker’s wife, husband or their children– is that section ever used?

A: That section tends to come up when we have a fractured family so we have a marital dispute – there may be court orders with respect to maintenance and support and we have received applications under that Section to divert the worker’s funds to the spouse – historically the Board would exercise or claims adjudication staff would look at that section and decide to exercise discretion as to whether or not to make a diversion depending on how large the diversion would be. That process has been largely subsumed into the Family Maintenance and Enforcement program and the activity that I described earlier.

Q: Yes, I can see there might be some application where there is an existing order –but the subsection would seem to encompass a greater – a rather broader discretion even where there is not an order –the Act says that simply the worker is not supporting the family?

A: It provides thought that the family is likely to become a charge on the municipality which seems to be an anachronism from earlier&ldots;.

Q: Yes, how is that determined?

A: At the present moment the only diversions that are being made are Family Maintenance and Enforcement program diversions.

Q: All right and is that privileged to published policy somewhere or do you know what the source of that practice would be?

A: I know that the legal department has issued instructions to Compensation Services staff on how to respond to demands from the Family Maintenance Enforcement Program and orders under that program – I don’t know if it has been incorporated into policy manuals as yet. It would be where there is in fact an order. And I think that is more in the practice directives – the practice manual than in the policy manual.

Q: The act seems to suggest that you can adjudicate on the amount of maintenance to be paid to the spouse and children and the diverter being the adjudicator? That’s not the practice even though statute seems to authorize that.

A: The statute contemplates an adjudication of that issue – there is a – again as I refer to earlier the legislation with refer to Family Maintenance Enforcement has specifically identified workers' compensation benefits as being something that is attachable under their legislation and that they have a notwithstanding clause in those provisions so we’ve had some discussions with the Family Maintenance Enforcement program about the extent to which their legislation compells and resolves and our legislation gives us discretion and in the result given instructions to Compensation Services about the general guidelines to follow when they are faced with these demands. And either still in adjudication they are largely an adjudication that reflects the instructions that have been given but it would be possible to verify that from them.

Q: What about 98.3 –which deals with the instance of a worker confined to jail or prison –the Board seems to be authorized to cancel, withhold payment – are there guidelines to the Board - is there published policy to deal with the application.

A: There is published policy in the Rehabilitation Services and Claims Manual and there have also been appeal Division decisions that deal with that policy. I don’t recall off the top of my head what the intricacies of it are but there has been a decision when suspension is to be given or not appropriate under that Section.

Q: Do you have a sense of what the underlying rationale for the need of that Section would be?

A: It’s a section that has been in the statute since jails was spelled with a g. [Alan Winter interjects[ cites Decision 931059 which is a – the cite is 10WCR7 – in that case the appeal division held that it wasn’t open to the Board to cancel compensation under Section 23.1 which is pension solely because a worker is confined to jail or prison – such cancellation under Section of the Act is contrary to 23.1 and then they talk about that decision again in 10WCR621]

[Sayre interjects] – I was the counsel for the worker on that one so I can provide more information you like. The Charter was raised as one of the issues but the field division didn’t need to resort to it because they concluded that the Act intended that the Board gives them consideration and that since functional impairment pensions are not cancelled from any other reasons the worker can’t work after they retire they choose to leave the workforce or whatever there was no rationale in Workers' Compensation Board terms for cancelling the pension just because the worker had been in prison. That is an issue that will come up before the Commission again because it is one of the cases in which the Board has refused to follow the Appeal Division in other cases so there are other workers – in fact all other workers are having their pensions cancelled under the policy because the policy hasn’t been changed.

Q: That’s the rationale. Just turning then to section 35.1 – it provides for diverting of compensation in the cases of individuals incapable of managing their own affairs – now normally that determination is made through the office of public trustee – is there any liaison with that office or this strictly is within the jurisdiction of the Board to determine?

A: The – I’ll defer to the panel as to the existence of formal policy in this area since I am not that intimately familiar with policy in the Compensation Services Division just from discussions with staff there are unfortunately a number of injured workers who are institutionalized and who have psychological or mental disabilities – and the Board from time to time has to entertain the issues of what to do with the family home and family circumstances so it might exercise discretion under Section 35 to deal with the workers' compensation benefits independently of appointments of accommotee and independently of the process of going through the Public Trustee’s Office. These are very isolated circumstances but from time to time the Board has felt that it has an independent discretion to exercising that section which avoids the necessity for people in these terrible circumstances to go through other processes simply to deal with compensation benefits.

Q: I guess I am just flagging that section and the question that I posed not just for the benefit of today but as well for counsel as to whether there is an issue there in terms of whether the processes are adequate and whether they need to be looked at and possibly updated?

A: That is all of item number 49.00 – it goes through a detailed list of what the adjudicator has to look at in terms of making a decision. I didn’t include Section 35 in my discussion because I was looking more at the process of external agents forcing us to divert the benefits away from the worker rather than areas where the Board has the discretion to make that decision themselves.

Q: I’m not sure if I’ll get a chance to ask it again so unfortunately this is where the question was posed.

A: That’s fine. By way of apology I say that.

Q: Once again Section 54 and it was touched on and not necessarily in the context of the question that I’m about to ask –but it came to mind so I’m going to ask it – it isn’t really a section 54 issue – but I think somebody mentioned – I think Mr. Massing you mentioned something about – well it was in the context of the reporting times for an injury and reporting by an employer – maybe it is a Section 56 issue – I don’t know why I thought it was a Section 54 issue perhaps I was checking into something and had it on my mind so I’m going to ask it - there are reporting time lines for doctors under section 56 for providing reports to the Board and so in 3 days the first report for example is subsection 1(a) – is there anything in the Act that requires medical practitioners to provide medical records in a specific period of time –generally speaking? I’m distinguishing that from reports as prescribed by the Board -

A: I’m sorry I was reading the section

 Q: Okay – an adjudicator writes to the doctor looking for clinical records covering a certain period of time on the topic with respect to a worker let’s say pertaining to a back injury claim and the doctor is then required to photo copy all clinical records pertaining to the back injury and forwarding them to the adjudicator – does that have to be done in any prescribed period of time?

A: No. there is no specific provision that deals with that under the workers' compensation Act – the Board has powers of inquiry under Sections 87 and 88 – and when it is exercising those powers it has the ability to stipulate a return of information within a particular period of time. We do have a fee for service agreement with physicians and within that agreement it does set out prescribed time limitations for submitting reports and has various remuneration depending on the time to process the reports. So in the most recent agreement conclusion reports received beyond 5 days – 5 working days from the date of treatment the physician would in fact lose the form fee if it wasn’t received within that time. So it is a fairly powerful incentive to get them in on time. The Board also has the ability to cancel the doctor’s right to treatment and that is contained in Section 56.5. [Steeves refers to Section 56.1(d) which is close to the current discussion – The Canon of Ethics of the College of Physicians and Surgeons also has a requirement of medical practitioners to assist their patients to obtain the – to provide information that would assist their patients to obtain all benefits to which they might be entitled to – there is a dispute as to what information – at least some doctors think there is a dispute as to what information this means and whether this includes opinions and the College has confirmed that information does include opinions]

Q: Are you aware of any problems of getting medical information on a timely basis?

A: I’m aware of very specific situations where problems have arisen but I am not aware of the general situation. I think generally that is not a problem for us. Most physicians are very cooperative in sending in those reports.

Q: We were talking about over payments resulting from fraud or misrepresentation –the other area I was concerned about was over payments arising from the Board’s own clerical errors if you will – are you able to say whether that is a prominent feature of the overpayment problem generally – how does it relate to overpayments as a portion of the entire problem?

A: I didn’t give consideration to that for today’s discussion because I was focusing on fraud and misrepresentation and overpayments are simply a whole other adjudication and debt collection question that wasn’t something that I examined for today’s proceedings – there is policy and there is an appeal division decision that deals with the Board’s ability to declare overpayments and have some discussion. I can explore this area further and get back to the Commission.

Q: I think that would be helpful – If you look at in the context of protecting the system –it’s an overpayment that has certainly cause other than fraud or misrepresentation but I would like to get an idea if I could as I said just of how it compares to overpayments resulting from fraud and misrepresentation and I think that would be very helpful. Under the general penalty section is Section 77.2 for noting – it says any person that commits an offence under this Act which no other punishment is provided is liable to a conviction with a fine being $1000 and that $1000 is now $3,749.15 – it doesn’t provide though where no other punishment has been provided

A: And when you read Section 14 it does call it an offence under the Act – it doesn’t provide a punishment – it says any person who contravenes Section 1 is an offence under this part and then they also say and is liable to repay if they commit this offence and I think that’s what brings us to 77.2.

Q: Well, we won’t get into statutory interpretation.

A: I just wanted to throw out – to bring it to your attention for future deliberations.

Q: Thank you.

Q: You mentioned that among the tools available to the Board of or – available to protect the system is the auditor general’s report or work –are you aware of the nature of the audit and I am trying to understand whether there is a value for money audit involved with the auditor general?

A: I was reciting that as yet another source where potential frauds on the system might be detected. There is an annual audit done by the provincial Auditor General and they obviously look for any transactions in the system that don’t appear to be properly supported and that might reveal to us information about possible fraud or aberrations in the system is my thought process on that and it’s not a valuation on it if you like.

Q: Not a performance audit in terms of how well the issue is being addressed by the Board.

A: No.

Q: On this late filing issue –we’ve heard disturbing patterning both from Mr. Steeves and Mr. Winter about the confusion that arises among workers and employers in either not having the forms on hand or having access to them - we don’t know what that means in terms of denial of service to workers –in terms of employers we know that there is a system to enforcement in place to try to bring it into line – do you have any idea of what percentage of those late filing issues – of late fining of cases in front of you actually result from the employer not having access to that information or not knowing about filing the form 7 or that there has been an accident and that there is a form 7 required?

A: No, we don’t. There are no statistics on that and no sort of organized way of obtaining that information other than on a claim by claim basis.

Q: So is there any attempt by the Board – well maybe I should ask the question directly - is there someone who has been given the responsibility to look at this issue in a discrete fashion to try to identify some of these problems and report out on them – who is responsible if this in the system?

A: I’m not aware of anyone being specifically assigned to this – I mentioned that this was a timely issue and this sense – the Board, now, feels that it has a sufficient control on its own business processes to be able to start identifying situations where delayed employer reporting is actually impacting on the adjudication process – and once we are able to do that then obviously one of the things we want to look at is why is that happening and what would be the appropriate way of relieving or resolving that problem. Even without having done that and you’ll hear a great deal of discussion from other presenters later on about processes in compensation services and performance and compensation services. We are managing to make timely payments to injured workers in a substantial number of cases. 61% I believe is the number that I am – I don’t pretend to be an expert on those things.

Q: I think you may have somewhat addressed some of my concerns around another area and that is why there is no fraud or prosecution policy –fraud has been around as long as the Board has been around – and I think you have somewhat answered that by telling us that the business processes were not in place or there has been no ability to organize the material in such a fashion to put together a formal policy that one could live by?

A: I missed the last few words I’m sorry.

Q: Without having business processes in place and the data – access to data that you could do a proper analysis of and you wouldn’t – without having that information you wouldn’t be likely to put together a formal policy to live by.

A: Yes. I mean our ability to deal with it in the past has been relatively ad hoc and as you’ve heard from Mr. Piper we are moving towards having systems in place that will help us better determine what is going on and then we can fashion the appropriate response to it. It might include prosecution.

Q: Again - my question around the tip line is again around the same issue –we know there are some 40-50 complaints against workers and 25-35 against employers –you are looking at a total base of up to about 75 complaints a year – to me if you average 3 days a case –that’s one man there – there doesn’t seem to be – I’m not sure what order of magnitude you would expect if you had a hot line but based on your conversations with Insurance Corporation of British Columbia you must have some sense of how that might go –also I think there was when asked whether why it wasn’t moved forward I think that someone suggested that there is some dilemma of how to deal with sorting through and screening tips but you already do that because when you bring that forward in the 20-25 cases that you follow through on – you must have gone through a screening and sorting process. I don’t feel as though – I didn’t quite believe that answer so I’m still trying to get at is why this process has not either been put to bed or concluded – the decision on the tip line.

A: Well, it probably hasn’t been put to bed or concluded because we haven’t – the process hasn’t moved forward to the point where we actually making decisions about what it is going to look like. I mean it is just part of the overall framework we are looking at and when that matures to the point that we can present it for decision – you know a decision obviously won’t be made on it. We haven’t made a decision on the tips line in isolation of the broader framework that Mr. Piper was talking about earlier.

Q: So if you add any more projects you should wait until 1999 because the 1998 agenda is already pretty stretched in terms of projects. The sooner the better I would think.

Q: How long has the three-day limit been in effect? Do you know?

A: No I don’t know. It’s not – it hasn’t been something that has been considered in sort of the past several decades that I know of – I can certainly find that out by examining previous legislation.

Q: It seems to me that if that was the speed limit on a highway and 85% of the people are ignoring it then it probably has lost its relevance. It looks to me that employers don’t really pay a lot of attention to that three-day limit? Is that right?

A: Whether it is a function of paying attention or not I mean we aren’t receiving those forms within that timeframe – that’s essentially&ldots;

Q: Do we know how many claims are paid on the initial payment of a claim without there being a form 7 available?

A: I don’t know off hand.

Q: Because if the number is 50-50 – 50% for ten days – you know you receive form 7’s by the tenth day that are 50% of the claims and 17 days is the optimum target these days for the turnaround from the time an injury takes place to when there is a cheque on its way to the individual - there isn’t a lot of slack there and I think you said that the success rate is 61% on meeting that 17 day target

A: Yes.

Q: Like – maybe you can find out how many – that shouldn’t be too hard to figure out – how many cheques go out without a form 7 being available to back it up.

A: We can certainly inquire – I don’t know that we actually have that data – I mean we know how many claims we have and how many form 7’s we have but I don’t know that we link that to the date of payment particularly.

Q: In all the myriad of paper that the Commission has seen and the part that I’ve been able to read –somewhere in there I saw a document or mention of a document that was a paper or study that was done by either the Board of Governors or the Commissioners about the fraud and how big of a problem it was for the Board and it was filed with either the Board of Governors or with the Commission and do you know about a study that was done which reported back on what they thought the extent of the problem was?

A: I haven’t seen any document that described the extent or potential extent of fraud.