An employee appealing the termination of workers’ compensation benefits consents to the disclosure of personal information allowed under the appeal process

PIPEDA Case Summary #2009-016

[Principles 4.3 and 4.3.5]

The employee of a transportation company filed an appeal after her benefits were terminated by the Alberta Workers’ Compensation Board (WCB).  As the respondent in the appeal, the employer received a copy of the employee’s medical records and disclosed her personal information to an Independent Medical Examiner (IME) for the purpose of obtaining an expert opinion based solely on the complainant’s medical records. The employee alleged that the disclosure to the IME occurred without her knowledge or consent.

The Assistant Commissioner found that the complaint was not well-founded. The Alberta Workers’ Compensation Act (WCA), allows the respondent employer in an appeal to disclose information relevant to the appeal for the purpose of pursuing the appeal. By initiating the appeal, the employee consented to be governed by the rules of the appeal process, thereby giving implied consent to the disclosure of her personal information by her employer to the IME.

The following is an overview of the investigation and the Assistant Commissioner’s findings.

Summary of Investigation

A transportation company employee filed a claim for compensation with the Alberta WCB following a workplace accident. Several months later, the WCB stopped paying benefits to the employee, and she appealed this decision.

Section 147(3) of the Alberta WCA provides that “where a matter is being (appealed, an) employer or the employer’s agent (is) entitled to examine all information in the Board’s files that is relevant to the issue under…appeal, and those persons shall not use or release that information for any purpose except for the purpose of pursuing the review or appeal.” The employee was aware of this process.

As the respondent in the appeal, the employer received a copy of the employee’s claim file. Without obtaining the employee’s consent, the employer disclosed her personal information to an Independent Medical Examiner (IME) in Ontario for the purpose of soliciting an expert opinion, based on the employee’s medical records, on whether the evidence supported a work-related injury or suggested a pre-existing condition. After the IME concluded that any ongoing work restrictions related solely to a pre-existing condition, the employee filed a complaint with the Office of the Information and Privacy Commissioner of Alberta against her employer, concerning the disclosure of her medical information to the IME. The complaint was subsequently transferred to this Office.

Findings

Issued May 29, 2009

Application: Principle 4.3 stipulates that the knowledge and consent of the individual are required for the collection, use or disclosure of personal information, except where inappropriate. Principle 4.3.5 states that, in obtaining consent, the reasonable expectations of the individual are also relevant.

In making her determinations, the Assistant Commissioner deliberated as follows:

• As the respondent in the appeal, the individual’s employer received her claim file by right under s. 147(3) of the WCA. The employer then disclosed the employee’s personal information to the IME for the purpose of pursuing the appeal under the WCA.
• By initiating an appeal, the employee consented to be governed by the procedures set out in the WCA – rules which permit her employer to “use or release…information…for the purpose of pursuing the review or appeal.” Thus, the employee gave implied consent to her employer disclosing her personal information to the IME for the purpose of pursuing an appeal when she brought her appeal.

Conclusion

The Assistant Commissioner concluded that the complaint was not well-founded.