Policy Bulletin No. 1992-04

Section 21.8 Workers' Compensation Leave - December 14, 1992

TO: State Departments and Agencies
FROM: Josephine L. Gambino, Commissioner
SUBJECT: Access to Employee Personal History Records by State Insurance Fund Investigators

The purpose of this bulletin is to clarify the responsibilities of agency staff in providing State Insurance Fund investigators access to personnel records of injured employees when an investigation of an employee's workers' compensation claim is being conducted.

New York State employees who have job-related disabilities are eligible for benefits provided by the Workers' Compensation Law. The State Insurance Fund (SIF), serving as New York State's administrator, is responsible for determining the source, extent and duration of the disability; and based on that information, ensuring that employees receive the correct Workers' Compensation Law benefits.

Determination of the extent of disability and entitlement to benefits under the Workers' Compensation Law can require an investigation by the State Insurance Fund. When this happens, authorization for release of information to Fund representatives derives from the following:

1. The Workers' Compensation Law authorizes the Workers' Compensation Board to "...determine all questions in relation to the payment of claims..." and "...to make or cause to be made such investigation as it deems necessary..." to be able to make a decision on a claim. The SIF, as New York State's representative before the Board, is obligated to provide any information the Board requests and is obligated to present the State's position, including all supporting documentation, when the Board requires a hearing.
2. The insuring agreement between New York State and the State Insurance Fund says that New York State, as an employer, shall cooperate with the Fund, assist in effecting settlements, and...

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...secure and give evidence as authorized by the Workers' Compensation Law. Since SIF is acting as an agent of management in the settlement of compensation cases, it is an agency's responsibility, as well as being in its best interest, to assist and cooperate with all parties involved in the timely resolution of workers' compensation claims.

Questions have been raised concerning an agency's ability to release records to the SIF in light of an employee's right to privacy under both the Personal Privacy Protection Act and the Americans with Disabilities Act (ADA). We are advised that the personnel records of an employee who has filed a claim for workers' compensation disability benefits are releasable to the State Insurance Fund pursuant to Section 96.1 (d) of the Public Officer's Law. In addition, the Technical Assistance Manual on the ADA published by the Equal Employment Opportunity Commission states:

An employer may submit medical information and records concerning employees and applicants (obtained after a conditional job offer) to State workers' compensation officers and "second injury" funds without violating ADA confidentiality requirements.

The SIF presents records to the Workers' Compensation Board on behalf of the agency. In summary, these laws allow the release of personnel information to SIF representatives in connection with their responsibilities to provide benefits pursuant to the Workers' Compensation Law.

When SIF determines an investigation is warranted, the investigators, as representatives of New York State management, must have access to all information pertinent to the job-related injury, including medical documentation, witness statements, accident reports, and any other information related to the incident. This might include reference to a pre-existing injury or condition (job-related or not) that the investigator believes is relevant to the case under review. Regardless of where the information is filed, the investigator or agent should be allowed access under the following conditions:

1. The SIF investigator provides a request to the appointing authority in advance, when possible, describing the specific information needed.

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2. The SIF investigator produces proper identification, which can be verified by calling the appropriate regional State Insurance Fund office.

Usually the SIF will send staff investigators to State agencies, but occasionally they will use private investigators. In either case, the agency should verify the credentials of the investigator and, if necessary, contact the appropriate State Insurance Fund District Office for confirmation if there is a question; for example, when advance notice has not been received.

It is recommended that agencies establish procedures for review of records by SIF investigators and advise the SIF of the procedures. A routine that includes whom to contact, the location of records, identification requirements, etc., should be included so that the investigation proceeds smoothly, which minimizes both the agency and SIF staff time involved.

Please direct questions concerning the accessibility of information in employee personal history folders for workers' compensation claims investigations to the Employee Relations Section of this Department at (518) 457-5167.

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