Policy
All claim file information is considered personal information under the Freedom of Information and Protection of Privacy Act (FIPPA) and may be disclosed in limited circumstances in accordance with various exceptions listed in FIPPA. Because employers have obligations under the Workplace Safety and Insurance Act (WSIA), and corresponding rights to reasonably monitor and participate in the WSIB’s compensation process, the WSIB has to ensure that any and all disclosures of personal information to employers adhere to the privacy provisions of FIPPA.
Where a specific FIPPA exception allows for the disclosure of personal information contained in claim files, it can generally be disclosed to employers verbally, in claim file status letters, or in claim decision letters. In the absence of a formally raised issue in dispute, or of a specific legislative authority, employers are generally not entitled to receive actual copies of claim file documents.
If disclosure of personal information is allowed, the responsible WSIB employee takes steps to limit the disclosure to the information that is necessary to meet the requirements of FIPPA and the WSIA.
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Guidelines
This document should be read in conjunction with 21-02-01, Disclosure of Claim File Information – General.
Issue in dispute
This policy does not apply where there is an issue in dispute. For more information on disclosure of claim file information to employers where there is an issue in dispute see 21-02-02, Disclosure of Claim File Information (Issue in Dispute).
Employer
For the purposes of this policy, the term “employer” includes
- deemed employers
-
successor employers
-
transfer of cost employers
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placement employers for Labour Market Re-entry (LMR) purposes
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non-accident employers for return to work (RTW) purposes, and
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non-accident concurrent employers.
For more information on deemed employers see 12-01-01, Who is an Employer? For assistance in determining who is a successor employer, contact the WSIB’s Legal Services Branch.
Special rules apply to the disclosure of claim file information to transfer of cost employers, placement employers for LMR purposes, and non-accident concurrent employers. For more information see the section entitled “Special cases,” below.
References to workers/employers
Any references to workers and/or employers include authorized worker or employer representatives; or, if the worker is deceased, authorized personal representatives. For information on who is an authorized representative see 21-02-04, Disclosure of Claim File Information to Worker or Employer Representatives.
Actual claim file documents not to be provided
Employers who have a right to personal information under this policy are entitled to verbal status information about the claim, written status information, and/or copies of decision letters. They are generally not entitled to copies of actual claim file documents.
The few instances whereby the WSIB can provide actual copies of claim file documents under this policy are when
NOTE
Where either the worker or the employer requests written status information about the claim, e.g., a request from the worker for a written payment history, the other party is not generally entitled to a copy of the status letter.
Disclosure under FIPPA
The relevant FIPPA exceptions permitting disclosure of claim file information to employers can be summarized as follows:
Consent
Disclosure is allowed if the individual about whom the information relates consents to the disclosure.
Where the consent of an individual is required before disclosure of personal information can be allowed, the responsible WSIB employee ensures that such consent is
- valid, i.e., actually provided by or on behalf of the individual, and
-
provided verbally or in writing.
NOTE
When a worker signs the consent section on a Form 6, REO6 - Worker's Continuity Report, or FAF, (see 15-01-03, Workers’ Requirement to Claim and Consent), he or she is consenting to the disclosure of functional abilities information
- by his or her treating health professional
-
to his or her accident employer, and in the case of a recurrence, to the new employer.
It is important to note that such consent
- only applies to a worker’s treating health professional
-
is limited to functional abilities information, and
-
does not apply to the WSIB.
No consent required
Federal or provincial law
The WSIB does not require the worker’s consent to disclose personal information to employers where such disclosure is for the purpose of complying with a federal or provincial law, including the WSIA.
Specific provisions under the WSIA require the WSIB to provide employers with copies of claim decision letters and Non-Economic Loss (NEL) assessment reports.
Claim decision letters
The WSIA obligates the WSIB to provide the parties with a written decision, supported by reasons, in all cases. Claim decision letters must, therefore, contain specific information so that the parties (generally the worker and employer) can understand the decision and the evidence upon which it is based.
To be in compliance with the WSIA’s requirement to provide the reasons for its decision, a WSIB decision letter involving entitlement to benefits/services (either initial or ongoing)
- states the decision
-
explains the rationale, including any applicable policies
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outlines the evidence, including health care information, used to make the decision, and
-
advises both parties of their right to object to the decision.
As all of this information is required by the WSIA, it can be disclosed to the worker’s employer in a claim decision letter without the worker’s consent. However, decision-makers must ensure that claim decision letters only contain the personal information necessary to explain and support the decision(s) being made.
For more information on claim decision letters see 11-01-02, Decision-Making.
NEL medical assessment reports
The WSIA obligates the WSIB to provide the employer with actual copies of all NEL medical assessment and any second NEL medical assessment reports. Therefore, these documents can be disclosed to the employer without the worker’s consent.
Purpose of collection and consistent purpose
A specific FIPPA exception allows for the disclosure of personal information to employers that has been obtained indirectly, (i.e., from someone other than the worker), where such disclosure is for the purpose for which the information was collected, or for a consistent purpose.
Where personal information has been obtained directly from the worker, disclosure to employers is generally allowed if it is
- for the purpose for which the information was collected, or
-
for a consistent purpose, and
-
the worker might reasonably have expected such disclosure.
In either case, if the specific FIPPA exception is met, the WSIB does not require the worker’s consent to disclose personal information to the employer.
For more information on collection purposes, consistent purposes, and workers’ reasonable expectations see 21-02-01, Disclosure of Claim file Information – General.
Disclosure examples
The following tables provide examples of specific types of claim file information that can generally be disclosed to the employer without consent (Table 1), and examples of specific types of claim file information that generally cannot be disclosed (Table 2). Both tables, however, provide general guidelines only and their specific application depends on the facts and circumstances of each claim. In all cases, however, the disclosure requirements of FIPPA, outlined above, must be satisfied.
If the special circumstances of the case, the especially sensitive nature of the information, or concerns around the health and safety of any individual raises questions about disclosability, guidance should be sought from the WSIB’s Privacy Office before disclosing any information, including information from either Table 1 or Table 2.
Table 1 – Disclosure generally permitted
Table 1 contains examples of claim file information that may generally be disclosed to employers without the worker’s consent either verbally, in claim file status letters, or in decision letters, if the disclosure is for the purpose for which the information was collected, a consistent purpose, or authorized by the WSIA. What information from Table 1 is disclosed to an employer (verbally or in claim file status letters) may also depend on whether the employer is requesting specific information or whether the responsible WSIB employee is disclosing the information to achieve a WSIA purpose. In all cases, however, the responsible WSIB employee takes steps to limit the disclosure to the information that is necessary to meet the requirements of FIPPA and, where relevant, the WSIA.
Claim File Status Information
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Entitlement to Benefits/Services
Information which the employer already has, such as a claim number, Form 7 information, or Social Insurance Number (SIN).
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History of accident/disease, i.e., date and location of incident, factors precipitating event, content of statements made by workers, employers and witnesses.
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Diagnosis of injury/disease.
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Names of health care providers, i.e., hospitals, doctors, or clinics.
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Reasons/rationale for allowance/denial of benefits/services.
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Results/conclusions of a WSIB investigation, e.g., a claim listed for investigation as a result of significant delays between when a work-related accident occurred, and when the worker reported the accident to his/her employer and sought initial medical attention.
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Ongoing Claims Management
Diagnosis of re-injury or recurrence.
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Confirmed involvement of a specific type of health care provider, such as a physiotherapist or orthopaedic specialist.
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General type of treatment, i.e., physiotherapy, surgery, or chiropractic.
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Date and type of relevant work-related diagnostic testing, e.g., worker underwent a CT scan on July 13, 2005.
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Frequency and/or duration of treatment.
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Whether the worker is co-operating with treatment.
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WSIB appointment and/or referral, i.e., Regional Evaluation Centre, Chronic Pain Program.
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General prognosis, e.g., whether complete recovery is expected.
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Physical limitations/clinical restrictions (functional abilities).
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Extent and percentage of permanent disability (PD) or permanent impairment (PI).
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Confirm/deny whether worker is claiming for a particular injury/condition.
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Payment/Account Information
Type of benefit, i.e., total or partial.
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Payment history, i.e., from and to dates.
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Whether a benefit-related debt has been created and, if so, what period it relates to.
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Arrears information (date/explanation) if the worker has not fulfilled his/her obligation to repay a benefit-related debt.
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Reason health care payment charged to account and category that payment comes under, i.e., physiotherapy, prescriptions, orthotics, etc.
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Early and Safe Return to Work (ESRTW)/LMR Information
General health condition as it relates to co-operation in ESRTW/LMR.
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Whether worker is co-operating in all aspects of ESRTW/LMR.
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General type of LMR program/plan undertaken including time-frames and the names of specific institutions (if any).
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Expected date of completion of LMR plan.
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Whether a referral for counselling has been made.
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Allocation of Costs/SIEF Information
Confirm/deny previous employment exposure (apportionment of costs).
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Confirm/deny pre-existing condition (if such condition may impact entitlement in the claim—see NOTE below).
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NOTE
Where the WSIB determines that a pre-existing condition may have prolonged or caused a work-related injury, the accident employer may be advised that there is evidence of a pre-existing condition but generally may not be told what the condition is or any further details. For more information on the impact of pre-existing conditions on claims see 14-05-03, Second Injury and Enhancement Fund (SIEF) and 11-01-15, Aggravation Basis.
Table 2 – Disclosure generally not permitted
Table 2 contains examples of claim file information which generally can not be disclosed to employers. The only exception is when the information is necessary, for the purposes of a WSIB decision letter, to support and explain the decision being made.
Claim File Status Information
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Entitlement to Benefits/Services
Specific clinical findings relating to the work injury/disease, such as signs, symptoms, results of tests, x-rays, CT scans, etc.
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Particulars regarding emergency treatment, if any.
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Ongoing Claims Management
Particulars of treatment, i.e., names of drugs prescribed/details of surgery, etc.
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Specific details regarding pre-accident work-related conditions including diagnosis, specific clinical findings (such as signs and symptoms) and nature of treatment.
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Specific details regarding non-work-related conditions (whether pre- or post-accident) including diagnosis, specific clinical findings (such as signs and symptoms) and nature of treatment.
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Specific details regarding a worker’s non-co-operation in health care treatment.
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Specific details regarding why a worker has been referred to a specialist or sent for a WSIB appointment.
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Physical findings from PD assessment.
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Information about a worker’s previous employment history, such as names of previous employers, except as it is relevant to an allocation of costs inquiry.
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Specifics regarding a referral for social or psychological counselling.
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Payment Information
Information relating to assignments, garnishments or the re-direction of WSIB benefits (see NOTE below).
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When or if worker was on social assistance or employment insurance (see NOTE below).
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ESRTW/LMR Information
Specific details regarding a worker’s lack of co-operation in ESRTW or LMR activities.
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Specific details regarding a worker's LMR preferences and goals.
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Findings/conclusions resulting from vocational testing/skills evaluation.
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Specific details regarding LMR activities and/or progress.
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Allocation of Costs/SIEF Information
Specific details of previous employment exposure (apportionment of costs).
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Specific details, including diagnosis, specific clinical findings, and nature of treatment, with respect to pre-existing work-related and non-work-related condition(s).
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NOTE
Payment information is normally placed in the “no access” section of the claim file. Employers are generally not entitled to any information placed in this section of the claim file. The only exception is when the information is necessary for the purposes of a WSIB decision letter. For more information on other types of information normally included in the “no access” section, see the section entitled “Determining relevancy” in 21-02-02, Disclosure of Claim File Information (Issue in Dispute).
Employer cannot disclose health care information
The WSIA prohibits employers and their representatives from disclosing health care information obtained from the WSIB without first removing all references to the worker’s identity or case. For more information on offences and penalties see 22-01-05 Offences and Penalties – General.
Special cases
Transfer of cost employers
In the absence of an issue in dispute (see 21-02-02, Disclosure of Claim File Information (Issue in Dispute)), transfer of cost employers are only entitled to claim file status information that allows them to understand why claims-related costs have been accrued. Such information may generally include
- an explanation respecting costs that have been assessed against the transfer of cost employer and what they relate to
-
what the worker’s clinical restrictions/functional abilities are
-
whether the regular employer has offered suitable work, and
-
if the worker is participating in an LMR plan, what the goal of the LMR plan is and the date the goal is expected to be achieved.
NOTE
When a written decision is issued in a claim which directly affects the accident costs assessed in the claim, the decision-maker should provide written notice of the decision to the transfer of cost employer. This notice should also inform the transfer of cost employer of its right to object to the decision. In general, the content of the notice of decision should be limited to the conclusion(s) reached and would not normally include any supporting evidence or findings of fact.
For more information on a transfer of cost employer’s right to object to a WSIB decision see 21-02-02, Disclosure of Claim File Information (Issue in Dispute).
Non-accident employers
Non-accident employers, e.g., non-accident concurrent employers, placement employers for LMR purposes and post-accident recurrence employers, are only entitled to claim file information that assists them in their efforts to provide suitable work for the worker, or to comply with their obligations under the Ontario Human Rights Code or the Canadian Human Rights Act. Normally such information is limited to the worker’s
- functional abilities, and/or
-
accommodation needs or requirements.
Application date
This policy applies to all decisions relating to the disclosure of claim file information made on or after January 3, 2006, for all accidents.
Document history
This document replaces 21-02-03 dated August 1, 2007.
This document was previously published as:
21-02-03 dated January 3, 2006.
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References
Legislative authority
Workplace Safety and Insurance Act, 1997, as amended
Sections 37(4), 47, 59(6), 131(4), 150(1), 181
Workers’ Compensation Act, R.S.O. 1990, as amended
Sections 42, 71(7), 72(2), 114, 155(1)
Freedom of Information and Protection of Privacy Act, R.S.O. 1990, as amended
Sections 20, 21(1), 42, 43
Minute
Administrative
#7, May 26, 2008, Page 461
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