- Access to worker file, statutory (conditions of access)
- Access to worker file, statutory (issue in dispute) (relevance) (sensitive information)
- Jurisdiction, Tribunal (access to worker file)
The issue in this proceeding was whether the employer had a right of access to portions of the worker's WSIB (Board) file pursuant to sections 58 and 59 of the WSIA.
The appeal was allowed, in part. Section 58 of the WSIA sets out provisions governing the accident employer's access to documents in a worker's Board file, which are relevant to an issue in dispute. This access is provided to allow the employer to assess the evidence relevant to the case and to prepare its arguments accordingly. While the employer requested access to information redacted under section 58, the Panel clarified that section 58 does not provide an appeal mechanism regarding the Board's exercise of discretion in allowing the employer access to general (as opposed to health record) claim information. The Panel found that the scope of a subsection 59(4) appeal to the Tribunal relates only to health records.The Panel noted that a finding of relevance for the purpose of access pursuant to section 59 of the WSIA does not imply a finding of evidentiary weight since no decision on the merits is made. A finding of relevance only means that the information may be pertinent to the determination of the issue in dispute, and does not mean that the information is or will, in fact, be determinative. The employer was entitled to have access to the records of the worker's file in order to prepare its appeal in this matter, subject to certain deletions. The worker considered the information under Category 2 and Category 4 to be of a sensitive nature, and there was a conflict apparent between the worker and employer. The Panel found that in these circumstances it was appropriate to apply, in a manner similar to Decision No. 1066/21, conditions on the employer's access. The worker requested that the claim information be released only to the employer's representative, not to the accident employer. The Panel found that such a condition exceeded its statutory authority. Subsection 59(5) of the WSIA grants the Tribunal a broad discretion with respect to the conditions it may impose on the employer's access. However, the accident employer, as a party to a "dispute" regarding benefits under the WSIA, has a right of access to relevant documents. In concluding that this is a right, the Panel noted the use of the mandatory, not discretionary, term "shall" used in subsection 58(1). The Panel clarified that the right of access is the accident employer's because it is a party to a dispute. That right can be extended to a representative of the employer, as set out by subsection 58(2), but rests with the accident employer.