Highlights of Noteworthy Decisions

Decision 1363 17
E. Kosmidis
  • Access to worker file, statutory (subsequent disclosure) (to doctor)
  • Consequences of injury
  • Evidence (admissibility) (improperly obtained evidence)

The worker suffered a left knee injury in October 2012. The worker appealed a decision of the Appeals Resolution Officer denying entitlement for a torn meniscus.

In a preliminary matter, the Vice-Chair considered the admissibility of a medical report. The report was from a specialist in occupational medicine who provided services as a consultant to the employer's occupational health services department. The doctor reviewed the worker's file on the employer's premises. However, the file had not been anonymized.
Section 181(3) provides that the employer shall not disclose health information received from a health care practitioner, hospital or other organization about a worker who has made a claim for benefits unless specifically permitted by the Act. Section 59(6) provides that the employer shall not disclose any health information obtained from the Board except in a form that prevents the information from being identified with a particular worker.
The Vice-Chair also referred to the Supreme Court of Canada decision in R. v. Mohan, which set out criteria for admissibility of expert evidence: relevance; assistance to the trier of fact; lack of an exclusionary rule prohibiting the receipt of the evidence; and a properly qualified expert.
The worker relied on two Tribunal decisions in submitting that the report should not be admitted into evidence. However, one of those decisions found that the impugned report was not from a specialist and provided relatively weak evidence, and that there was another expert report available for which the worker's identity had been anonymized. The other decision also found that impugned report inadmissible on the basis that it had been prepared in breach of s. 59(6), but it did not analyze the admissibility criteria in Mohan.
The Vice-Chair referred to other Tribunal decisions in which reports prepared under similar circumstances were admitted into evidence. One of those decisions noted that the Tribunal did not have jurisdiction to hear a charge of breach of the statutory provision. The panel in that decision found that, when the breach involves sharing medical records with retained medical experts for the purpose of preparing the employer's case, the breach, if any, is not so egregious as to cause the panel to refuse to receive the report. The Vice-Chair preferred the reasoning in these cases, which analyzed the criteria for admissibility of expert evidence.
In this case, the Vice-Chair found that the report, from a doctor with expertise in occupational medicine, was relevant to the issue in dispute and would be of assistance. There was no exclusionary rule otherwise prohibiting the receipt of the report into evidence. Further, the worker's name was disclosed to a doctor, who is also bound by confidentiality. There was no evidence that the worker's name has been further disclosed. The disclosure was for a very limited purpose. The employer did not act in bad faith or for an improper purpose.
While the Vice-Chair did not condone the disclosure of the worker's information, the circumstances of the disclosure were not so egregious as to render the report inadmissible. The Vice-Chair admitted the report into evidence.
On the evidence, the accident involved a minor bump to the front of the left knee, with not twisting or excessive motion of the knee. The torn meniscus was not related to this minor injury.
The appeal was dismissed.