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.