|
|
|
|
|
|
|
|
|
|
|
|
|
|
Document
|
|
I93-037P
|
|
|
|
|
|
Institution/HIC
|
|
WORKERS' COMPENSATION BOARD
|
|
|
|
|
|
Summary
|
|
INTRODUCTION Background of the Complaint This investigation was initiated as a result of a complaint concerning the Workers' Compensation Board (the Board). The complainant stated that the Board had collected and disclosed information concerning her sexual life to her employer, and to her former claim representative, in contravention of the Freedom of Information and Protection of Privacy Act (the Act ). The information was contained in a psychiatrist's Non Economic Loss Assessment and cover letter to the Board (the NEL), relating to the complainant's claim for Chronic Pain Disability. The NEL contained information concerning the complainant's medical condition and her sexual life with her spouse. The Workers' Compensation Act has established a two-track benefit system for workers who suffer permanent consequences because of their workplace injuries. It provides compensation for the permanent impairment (the non-economic loss award for the loss of enjoyment of everyday life) and the future loss of earnings (the economic loss award for the employment impact) which result from the injury. Issues Arising from the Investigation The following issues were identified as arising from the investigation: (A) Was the information contained in the NEL "personal information" as defined in section 2(1) of the Act ? If yes, (B) Did the Board have the authority to collect the personal information, in accordance with section 38(2) of the Act ? (C) Was the personal information disclosed in accordance with section 42 of the Act ? RESULTS OF THE INVESTIGATION Issue A: Was the information contained in the NEL "personal information" as defined in section 2(1) of the Act ? Section 2(1) of the Act defines "personal information", in part, as: recorded information about an identifiable individual, including, (h) the individual's name where it appears with other personal information relating to the individual or where the disclosure of the name would reveal other personal information about the individual; We reviewed a copy of the NEL. It contained the complainant's name together with information about the complainant's medical condition and her sexual life with her spouse. It is our view that the information contained in the NEL met the requirements of paragraph (h) of the definition of "personal information" in section 2(1) of the Act . Conclusion: The information contained in the NEL was personal information as defined in section 2(1) of the Act . Issue B: Did the Board have the authority to collect the personal information, in accordance with section 38(2) of the Act ? Section 38(2) of the Act states: No person shall collect personal information on behalf of an institution unless the collection is expressly authorized by statute, used for the purposes of law enforcement or necessary to the proper administration of a lawfully authorized activity . (emphasis added) The Board stated that to properly make a NEL assessment, and to fairly determine the amount of compensation due to the complainant, collection of the information concerning her sexual life was necessary to the proper administration of a lawfully authorized activity. The Board referred us to section 42 of the Workers' Compensation Act (the WCA ), which addresses NEL assessments. Sections 42(1) and (5), in particular, state: (1) A worker who suffers permanent impairment as a result of an injury is entitled to receive compensation for non-economic loss in addition to any other benefit receivable under this Act. (5) The Board shall determine in accordance with the prescribed rating schedule and having regard to medical assessments conducted under this section the degree of a worker's permanent impairment expressed as a percentage of total permanent impairment. Based on the above provisions of the WCA , it is our view that conducting a NEL medical assessment to determine the compensation due to a worker who has suffered permanent impairment as a result of an injury, is a lawfully authorized activity. With regard to whether the collection of information concerning a worker's sexual life is "necessary" to conducting NEL assessments, the Board advised us of the following. The Board stated that when considering the amount of compensation for a NEL award, it is important that a psychiatrist fully assess four areas of functioning, in determining the severity of impairment for the purposes of determining an award in cases of Chronic Pain Disability. The Board has adopted the American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment. These areas are: 1) Activities of Daily Living 2) Social Functioning 3) Concentration, persistence and pace 4) Ability to adapt to stress circumstances. The Board explained that the more comprehensive the examination of these areas, the more accurate the evaluation of the extent of the impairment. Under Activities of Daily Living, the AMA Guides specify this to include activities such as "self care and personal hygiene, communication, ambulation, attaining all normal living posture, travel, non specialized hand activities, sexual function , social and recreational activities". The Guides also state that "what is assessed is not simply the number of activities that are restricted but the overall degree of restrictions or combination of restrictions". It is in this context that questions are asked by the physician about a worker's sexual life. It is an aspect of functioning that can be impaired by a worker's injury. If it is impaired, then the worker's award should reflect that impairment in the context of his/her functioning in this and all the other areas examined. The Board stressed that it is important to understand that this is an extensive evaluation of the impact of the worker's pain on his or her everyday life, and not just his/her work. This allows for compensation for
|
|
|
|
|
|
Legislation
|
|
|
|
|
|
|
|
Subject Index
|
|
|
|
|
|
|
|
Signed by
|
|
Susan Anthistle
|
|
|
|
|
|
Published
|
|
Nov 26, 1993
|
|
|
|
|
|
Type
|
|
Privacy Complaint Report
|
|
|
|
|
|
<<
Back
|
|
|
|
Back to Top
|
 |
|
|
|
© Copyright
2013
Information and Privacy Commissioner of Ontario. All Rights Reserved.
|