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 emplo