Legislature(2007 - 2008)BUTROVICH 205
05/08/2007 03:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB121 | |
| HB175 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | SB 172 | TELECONFERENCED | |
| + | HB 121 | TELECONFERENCED | |
| + | HB 175 | TELECONFERENCED | |
| + | TELECONFERENCED |
CSHB 121(L&C) am - WORKERS' COMPENSATION RECORDS
3:36:58 PM
CHAIR FRENCH announced the consideration of HB 121. [Before the
committee was CSHB 121 (L&C) am, labeled 25-LS0501\E.A] He
explained that the bill affected a court case which is the
reason he asked for judiciary referral.
REPRESENTATIVE PEGGY WILSON, sponsor of HB 121, said the bill is
an act that releases information in individual worker's
compensation records. It was intended to protect personal
information from falling into the wrong hands. There has been
litigation in this area, and a judge said the language was
ambiguous. HB 121 seeks to do away with that ambiguity.
3:38:40 PM
CLIFF STONE, Staff to Representative Wilson, said the
legislation was introduced to clarify statutory ambiguity. SB
169, which was introduced in 2005, prohibited the Division of
Workers' Compensation from providing information relating to an
individual's records outside the scope of the Workers'
Compensation Act. That bill passed unanimously in both the
Senate and the House. This bill clarifies that the information
is to be kept private and out of the hands of commercial
operators that might pass it on to parties unknown. In the case
of O'Bryan, Baun, Cohen, Kuebler vs. Lisankie et al., the Alaska
Superior Court found the statute to be ambiguous. It also found
that the state did not submit solid legislative intent or
history. HB 121 seeks to clarify that this private information
is not to be freely distributed. There is an opt-in provision in
Section 2; the employee may sign an agreement with the
Department of Labor to allow distribution of their information.
SENATOR McGUIRE asked for clarification that an employee who
wants their information given out has the ability to make those
wishes known.
MR. STONE said that is correct.
3:42:42 PM
SENATOR THERRIAULT observed that this language is different than
SB 169. That language said the employee's name, address, social
security number, and telephone number would be withheld. HB 121
says the person's name is public but not the social security
number, electronic address, or telephone number. He asked why
the bill allows the person's name and address to be public.
REPRESENTATIVE WILSON said it came about through a floor
amendment that she did not support. The argument was that
attorneys need access to names and addresses, but if there is
litigation, attorneys have access to that information anyway.
SENATOR THERRIAULT suggested it's because attorneys want to know
about potential lawsuits. He asked if there is a legal duty to
provide that information.
3:44:20 PM
CHAIR FRENCH summarized the content of the lawsuit referenced
above. On page 5 the judge reviewed the public records document.
The debate was whether confidentiality trumps disclosure or the
reverse. Further along in the decision the court quoted the law
passed in 2005, which said "The division may not assemble or
provide information respecting individual records for commercial
purposes that are outside the scope of the chapter." The lawsuit
asked if the disclosure is for commercial purposes. If it is,
then it's prohibited, and if it is not, then it's allowed. On
page 11 the court found the statute ambiguous. The judge points
out that the transmittal letter from the governor says the
purpose of the legislation is to "enhance the efficiency of the
current system by expanding workers access to legal counsel."
Testimony from Mr. Lisankie was that the division wants to
provide information so people can get good health care, so
providers can get paid, or so insurance companies can settle and
pay claims, but it tries to limit the scope of information that
is given out for commercial purposes.
The judge found that because the legislation is aimed at
protecting workers injured on the job, the law firm's efforts to
give workers information about possible legal rights
accomplishes that aim and so the information had to be divulged.
3:49:05 PM
SENATOR WIELECHOWSKI said he understands the desire for privacy
but to some extent filing a workers' compensation case gives
that up.
REPRESENTATIVE WILSON highlighted that the judge said a statute
is to be interpreted by its plain meaning. If it's ambiguous,
the court looks at legislative intent. We want to clarify that
the intent of the legislature is not to allow private
information to be given out indiscriminately. She cited a letter
from a constituent regarding unwelcome solicitations.
3:51:23 PM
SENATOR THERRIAULT wondered if making sure that workers know
their legal rights isn't covered in Section 2. An employee
wanting solicitations can sign a release, but the default is
that employees get protection. He asked when an employee is able
to sign the release.
MR. STONE said he assumes it's early in the process.
SENATOR THERRIAULT said he'd like an answer to that because
knowing you have the right to hire an attorney is different than
knowing you can sign a release so attorneys will contact you.
MR. STONE said he understands. He referred to SB 130, the
omnibus workers' compensation bill that was the topic of a
special session, and said this bill clarifies the legislative
intent that information is not to be released. The bill was
amended on the House floor to allow release of names and
addresses. Releasing that information makes him question having
the bill. "The sponsor feels that this bill is here to protect
the privacy rights of those individuals…If they want to opt in
and release that information, they can do so," he said.
3:55:08 PM
CHAIR FRENCH said that is the debate, but these are government
documents that are public records. The issue is if those are
commercial purposes and if one of the purposes of the bill was
to help workers get compensation for their injuries.
SENATOR McGUIRE submitted that the current draft does not
accomplish the sponsor's goal. First, she agrees employees
should have access to information about how to recover damages
for their injuries. Second, she does not believe the government
has an obligation to weigh employee privacy interests less so
someone else can earn a living. The bill should give workers a
method and a timeframe for making an informed decision about
whether or not they want their personal information to be
public. When opting to have information made public, it should
include everything. "It's their right, if they would like, to
have the ability for that to be released and potentially go into
litigation that we're talking about. It should not be the law
firm's right," she stated. Commercial rights don't supersede the
privacy rights of individual health information.
3:57:43 PM
CHAIR FRENCH said he partially agrees and partially disagrees.
Private health information, absolutely, but not name and address
because there's no health information there. He said most people
don't know their rights, and they settle for less than they
might get if they had some help. That's an unfair disadvantage.
SENATOR McGUIRE argued in this context a name and address does
carry health information because by definition the person is an
injured worker in workers' compensation. It's not the same as a
name and address from any data bank. She agrees with the second
point. There's a fine line between giving up rights and a person
actually knowing what they're giving up. That should be the
focal point of the bill. In a neutral setting the worker ought
to get the information needed to make a decision about whether
they want their private information to be available or not.
CHAIR FRENCH said the question is whether or not a letter from a
lawyer is so invasive as to be an exception to the broad public
policy of government records being open for inspection.
SENATOR WIELECHOWSKI suggested the analysis should be if the
information should be a public record or not, and for a lot of
reasons it should. Examples of public records include: court
cases, property ownership, property tax exemptions, and the
longevity bonus. These are all part of open and transparent
government. One reason to make a name and address public is so
people who file fraudulent claims can be more readily
identified. The injured worker is going before a public
tribunal. Other information, such as social security numbers and
health records, obviously should not be public. "But names and
addresses, in my book, I think the balance tips in the favor of
making it public," he stated.
4:01:29 PM
CHAIR FRENCH said he asked to hear this bill and promised he
wouldn't hold it. From his perspective, the bill strikes a fair
balance. He realizes it doesn't comport with the desires of the
sponsor, but he doesn't know that there's any will to change it
in this committee. The next referral is finance, and he believes
there will be a strong effort to change it in that committee.
SENATOR McGUIRE asked if the sponsor is comfortable with that.
REPRESENTATIVE WILSON stated the following:
We're living in a different time now than we even did
10 years ago. And we have changed other statutes in
this state to protect people's privacy. And it used to
be that anybody could get on and find out who applied
for a permanent fund dividend. They can't do that
anymore. …because of what else is going on in the
world and identity theft and things like that, we are
slowly ratcheting it down. …not only is that
information available to other attorneys, but to
anybody and so you need to realize that it might not
just be somebody that wants to make some money. It
might be somebody that if they have somebody's name
and address they could do something else. It's
identity theft. So … we're protecting the public.
SENATOR THERRIAULT asked to hear from the department.
4:03:49 PM
PAUL LISANKIE, Director, Division of Workers' Compensation,
Department of Labor and Workforce Development (DOLWD), Juneau,
offered two points of clarification. First, the information
stream begins with a report of an injury or illness incident at
work. The division strongly encourages workers to report
incidents even if there is no intention to do any more than slap
on a band aid. The other point is that although the discussion
has centered on the lawsuit, in his three-year tenure there's
never been a request from law firms wanting to represent people
in an Alaska workers' compensation matter consistent with the
chapter. "By and large, there are not lawsuits with every
workers' compensation claim. By and large, it's designed not to
have a lawsuit claim," he said. "But there are gray areas where
you could argue about whether someone has a right that's in
addition to a workers' compensation benefits claim," he added.
SENATOR THERRIAULT asked at what point the employee has the
right to sign a release and get solicitations.
MR. LISANKIE replied he isn't sure, but it would have to be
early on. "I don't know if we would have enough room to include
it with the original injury report … or if we would have to
design a stand-alone form, which most likely would be
communicated back to someone who had filed an injury report."
SENATOR THERRIAULT noted that names and addresses are public
under the current draft, and he questioned why an employee would
take the extra step to make their social security number public.
MR. LISANKIE replied he can't imagine why anyone would want to
give out their social security number. The division does not
routinely mention or print them in their decisions. However,
social security numbers are on the vast majority of the workers'
compensation forms, he added.
SENATOR WIELECHOWSKI asked how many requests about employees the
division gets in any given year.
MR. LISANKIE said informal sampling indicates somewhere between
eight and twelve requests per day, which is different than the
request in the lawsuit. The typical request is from a service
asking if a particular person has reported any workers'
compensation injuries in the last seven years.
SENATOR WIELECHOWSKI said of the eight to twelve, how many of
those are from companies trying to get information.
MR. LISANKIE said it may be about fifty percent.
SENATOR WIELECHOWSKI asked if the division currently releases
social security numbers, e-mail addresses, and telephone
numbers.
MR. LISANKIE said yes if someone were to ask for a hard copy and
that information happened to be on the piece of paper.
SENATOR McGUIRE observed that initially the debate centered on a
desire to prevent litigation, but Mr. Lisankie reported never
having received a request from a law firm asking for information
about injured workers relating to injured worker lawsuits. Now
her concern has shifted to insurance companies and other
employers. Those entities might want that information to
document pre-existing injuries to deny medical treatment, or to
assess large premiums, or simply to find out if a person is
inclined to file a workers' compensation claim.
SENATOR WIELECHOWSKI responded that's why this is such an
interesting bill. But you need to put all that aside and focus
on whether this should be a public record. You could say the
same thing about property tax records, senior records and
others. Probably a lot of devious things can be done with that
information, but that might not be the right focus. Bad things
can happen on both sides, he said.
SENATOR McGUIRE expressed the view that health records rise
above property records.
CHAIR FRENCH pointed out that the report could be anything from
a cut on a finger to a missing limb, and there's no way to find
out which end of the spectrum it is based on a name and address.
SENATOR THERRIAULT said an employer could use this information
to screen employees. He wondered if that potential danger
outweighs the issue of whether an injured person knows how to
get adequate legal advice. The individual employee can control
whether or not they look for an attorney, but they have no
control over a bad actor that screens them out because they had
the audacity to exercise their rights with a previous employer.
CHAIR FRENCH called an at-ease at 4:14:22 PM.
4:15:13 PM.
CHAIR FRENCH found no further discussion or debate and asked for
a motion.
SENATOR WIELECHOWSKI moved to report CSHB 121(L&C)am from
committee with individual recommendations and attached fiscal
note(s). There being no objection, it was so ordered.
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