SELECT COMMITTEE ON
THE WORKERS' COMPENSATION ACT
Mr. Michael Baker
MR. CHAIRMAN: Ladies and gentlemen, I would like to call the meeting to order. I would like to welcome those members of the public who are here with us this afternoon to the first meeting of the Nova Scotia Legislature's Select Committee on Workers' Compensation. At the beginning of the process, I would like to introduce the members of the select committee, and I am going to start at my extreme right and then ask the members of the select committee to go around the table and introduce themselves and the ridings that they are from. I will start with Mr. Samson.
[The committee members introduced themselves.]
MR. CHAIRMAN: Thank you. We have a number of consultants travelling with our committee today, and I am going to ask them to introduce themselves, starting with Mr. Neville, who is the gentleman on the far end.
[The committee consultants introduced themselves.]
MR. CHAIRMAN: Thank you. I just wanted to make a few opening remarks this afternoon. First of all, the presentations for members of the public, a number of them have been pre-arranged, and those individuals who have not pre-arranged their speaking, there is no difficulty with that. They can check with Mr. Hadley, the gentleman down there at the far table, and he will arrange for an opportunity for you to speak.
The presentations will be generally limited to 10 or 15 minutes, although we are not interested in cutting anyone off. We want to give everyone a full opportunity to make their presentation. Also, I should indicate, by way of information as to the process, the mandate of the committee is to review the Workers' Compensation Act, the legislation. We are not here, necessarily, to hear an appeal from someone who may have had difficulties with their workers' compensation claim. I mention that because, certainly, people are free to talk about their claim and the difficulties they have had, but they shouldn't believe that by making a presentation here today that we are going to be hearing an appeal from a decision that they may not be satisfied with. There is obviously another process for dealing with that. Obviously, there is a lot of crossover, and the members of the committee recognize that.
The second issue besides the timing is that the proceedings are being recorded so that people shouldn't feel they need to repeat themselves over and over in order to have their message permanently recorded, their remarks will be recorded through the Hansard service, and we will have an opportunity to review them in making our decision. I don't know if any of the other members of the committee have any other comments they would like to make at this stage.
Hearing none, I guess we would ask for the first presenter to come forward, and we will start our presentations. The first one we have, I believe, is Gary Swinimer. Mr. Swinimer, come forward and have a seat. It is very informal by the way, Mr. Swinimer, so you don't need to worry.
MR. GARY SWINIMER: My name is Gary Swinimer. I have filed with the Workers' Compensation Board. I feel that you don't get any help at all. When you call there, they either put you on hold or tell you to call back in 24 hours time, which most of the time, they don't call you back. I have been dealing with them for eight years now. I just get nowhere. It seems like they are not listening, or it is going on deaf ears.
MR. CHAIRMAN: What is the nature of your claim, Mr. Swinimer?
MR. SWINIMER: I hurt my leg fishing.
MR. CHAIRMAN: That was eight years ago?
MR. SWINIMER: Yes. I had operations done, I have had tests done, everything you can mention, and the doctor says I just can't work. The gentleman in Halifax told me, he said, I can't see me paying you for sitting around. I told him, I didn't think it was his money, that we paid into it. But it is really terrible the way they treat you. They don't realize we are human too. I told him, I said, can you live on nothing, that is what I get. He said, no. I said, well there you go.
I went from a half-decent cheque, down to $250 a month, down to nothing. The only thing they will pay for is my drugs and my travelling. Other than that, nothing.
MR. CHAIRMAN: So you are receiving help with drugs and travelling?
MR. SWINIMER: Right, but with a family of three, you just can't get by with nothing, and you can't work.
MR. CHAIRMAN: Mr. Fraser.
MR. HYLAND FRASER: Mr. Swinimer, I was just wondering, where is your claim? I assume it is in the appeal process somewhere, you went through the process, and now it is at the tribunal? Are you waiting . . .
MR. SWINIMER: All I know is that it is in there somewhere. I don't know if it just keeps getting mixed around. Our MLA, Clifford Huskilson is working on it. He just keeps saying, well, they are going to look at it in time. Eight years, I figure, is time enough.
MR. FRASER: Are your doctors telling you that you have a total and permanent disability, or just a partial disability, that you could be retrained, or have you been retrained, or anything like that?
MR. SWINIMER: I tried to be retrained, and I couldn't go through with it, because I just couldn't handle it. My leg, I was just in so much pain, I just couldn't stand it. My doctor, I have letters from my doctor and everything, he told the Workers' Compensation Board, I suggest if I don't learn to walk on my hands, I won't be able to work. I can't stand on my leg any more than two hours a day. There is just nothing I can do.
MR. FRASER: Are the medical advisers to the WCB, are they saying that you are able to work?
MR. SWINIMER: I have only ever seen one once, and that was when I first got hurt. That was eight years ago. I have never been called in again to see.
MR. FRASER: Do you receive correspondence? Does your workers' adviser talk to you, or anybody talk to you?
MR. SWINIMER: The only time they talk to me is when I call, after I have a rage on the phone, they will have someone come on, but other than that, they just put you off.
MR. FRASER: Has anybody ever told you where your claim is, at all?
MR. SWINIMER: Clifford Huskilson said that Carol Samson, or whatever her name is now, is supposed to have it in her hands. Now, I don't know what goes on from there.
MR. FRASER: Did you own your own business or were you . . .
MR. SWINIMER: No, I was a fisherman. I went fishing.
MR. FRASER: You were a helper on a trawler or whatever?
MR. SWINIMER: Yes.
MR. FRASER: How long did your claim last before they cut you off?
MR. SWINIMER: Approximately two years or more.
MR. FRASER: Have you never been offered retraining or anything like that?
MR. SWINIMER: I was. I tried and I couldn't do it. I had doctor's papers saying I just couldn't stand it and that was it.
MR. FRASER: Thank you.
MR. FRANK CORBETT: Thank you for coming, Mr. Swinimer, a couple of short questions. Do you have a workers' adviser?
MR. SWINIMER: I don't know what you mean by that.
MR. CORBETT: Did you ever have legal counsel when you were . . .
MR. SWINIMER: I had a lawyer one time working on it, Real Boudreau.
MR. CORBETT: A local lawyer?
MR. SWINIMER: Yes, he was paid by workers' compensation. I never got no satisfaction out of him.
MR. CORBETT: When the lawyer was finished, did he give you back your files?
MR. SWINIMER: No, I got nothing from him.
MR. CORBETT: You have nothing. You did not receive files and were they advising you to get yourself what is referred to as a workers' adviser?
MR. SWINIMER: No. As far as I know he's still got the files.
MR. CORBETT: Do you know what a workers' adviser is?
MR. SWINIMER: Not really, no. Is it just like a counsellor when you went in there?
MR. CORBETT: No. There is a program called the Workers' Advisers Program which is separate from WCB and separate from WCAT. They provide legal assistance and advice to injured workers. I don't want to bore you with too much history but there was a time there was a fall-down of private practitioners, lawyers in the system were getting out. You would then file under the WAP program and you were not aware of that?
MR. SWINIMER: No. Actually today I was going to go and see an outside lawyer to handle my case, and just see what could be done.
MR. CORBETT: Not to stay on the subject too long, Mr. Swinimer, but your previous counsel still has your records, to the best of your knowledge?
MR. SWINIMER: Yes. Should I go back to see him?
MR. CORBETT: You should go back, I would ask you to go back to him and see where your files are. Have you ever been rated? You have heard the term PMI?
MR. SWINIMER: Is that like a 12 per cent . . .
MR. CORBETT: Yes.
MR. SWINIMER: They told me 12 per cent, right.
MR. CORBETT: 12 per cent PMI.
MR. SWINIMER: But I can't stand on my legs so I don't know.
MR. CORBETT: Could I ask you the nature of your injury?
MR. SWINIMER: I was injured fishing and my legs - between blood clots and nerve endings . . .
MR. CORBETT: Was it a traumatic blow to the legs or something like that? Were you pinned or . . .
MR. SWINIMER: I had some gear come down across my ankle.
MR. CORBETT: So it was like a quick blow, was it, like being squeezed between two objects? Was it the tackle hitting you or something like that?
MR. SWINIMER: I was hit direct right below my knee.
MR. CORBETT: With tackle or something?
MR. SWINIMER: Yes.
MR. CORBETT: And you are 12 per cent PMI?
MR. SWINIMER: Yes, that's what they say but the doctor said I can't work and can't even stand on my leg very long.
MR. CORBETT: I just have a couple of really short questions left for you, Mr. Swinimer, I will not keep you. So you have not heard of the Workers' Advisers Program until I mentioned it today?
MR. SWINIMER: Right.
MR. CORBETT: Do you know when people refer to WCAT, have you heard of that before?
MR. SWINIMER: No, I have not, sir.
MR. CORBETT: So have you heard people refer to the Appeal Tribunal?
MR. SWINIMER: I heard of the Appeal Tribunal. Is that inside the . . .
MR. CORBETT: No, it should be, at least the perception is it should be outside of WCB. What I am getting at, the question is you were not aware of those three separate groups other than you saw everything coming through workers' compensation? I don't mean to put words in your mouth. Is that accurate?
MR. SWINIMER: Right.
MR. CORBETT: I appreciate your time.
MR. CHAIRMAN: Ms. Godin.
MS. ROSEMARY GODIN: Hello, Mr. Swinimer. Thank you for coming today. Which community do you actually live in, Mr. Swinimer?
MR. SWINIMER: I live in Cape Sable Island.
MS. GODIN: Just to continue on about the Workers' Advisers Program, from what I have heard I would guess that you do not have a workers' adviser and I have checked - and we are going to get some photocopied information for you before you leave today, I am going to get this photocopied for you - it is an overview of the Workers' Advisers Program and it has names and it has contact people on it.
Now, even though they are in Halifax they will come down here to talk with you. If you get in touch with them, they will make a trip down here. So I wanted to let you know that and you should not have to go to an outside lawyer. You should get help through the system from this Workers' Advisers Program and it is there for every injured worker.
MR. SWINIMER: But I feel they do not treat you very good at all.
MS. GODIN: This is separate from the WCB. This is the Workers' Advisers Program. Since you bring it up, I would like to know who told you that you were not going to get paid for sitting around. Was that someone at the WCB?
MR. SWINIMER: Yes.
MS. GODIN: I do not think that was called for at all. I am very sorry that you had to put up with that kind of treatment.
MR. SWINIMER: I have been in such rages, like when you call down there, they just treat you right ignorant and I get mad and hang the phone up. Do you know what I mean? It's terrible.
MS. GODIN: So if you were to make a recommendation to this committee, you have already said that you have made phone calls that were not returned?
MR. SWINIMER: Right.
MS. GODIN: And that must be very frustrating for you. So you would like service to improve to the injured worker?
MR. SWINIMER: Let them try to treat us like humans, like they want to be treated. It would be great that you can talk to someone.
MS. GODIN: Mr. Swinimer, if you just hang around for a while, we will get this information to you. I want to thank you for coming.
MR. SWINIMER: Thank you.
MR. CHAIRMAN: Mr. DeWolfe.
MR. JAMES DEWOLFE: Hello, Mr. Swinimer. I understand the nature of your injury goes back seven or eight years. I guess that would be before we had the Workers' Advisers Program probably and these things were not available at that time. They are, in fact, now. Have you been assessed by a specialist in the past?
MR. SWINIMER: No. Well, just that once when I was in there right after I got hurt and that was seven years ago.
MR. DEWOLFE: That was your local doctor?
MR. SWINIMER: No.
MR. DEWOLFE: That was one the workers' compensation provided . . .
MR. SWINIMER: Right. I was in his office.
MR. DEWOLFE: Was that in Halifax?
MR. SWINIMER: Yes. The doctor that first operated on my leg, Dr. Del Campo, I went back to him after for my check-up and he was gone out of the country. He has never been heard from since. So that is my good luck.
MR. DEWOLFE: Yes, this happens. Could you tell me what the nature of the retraining program was that you were enroled in?
MR. SWINIMER: They asked me about computers, or working on computers, so I went to NSIT. I only stayed there maybe three weeks and I couldn't stand just sitting there. I had my leg elevated but still . . .
MR. DEWOLFE: You were in pain?
MR. SWINIMER: I just couldn't stand it.
MR. DEWOLFE: And you do not have to answer this if you do not want to, but I was curious about your education prior to the injury?
MR. SWINIMER: I have Grade 12, GED.
MR. DEWOLFE: Yes, you have Grade 12, okay. Thank you very much.
MR. SWINIMER: Right now, I am taking MS Contin three times a day for the pain in my leg. Now they are thinking I might end up having to lose my leg and it is just terrible.
MR. DEWOLFE: Do you have a family doctor?
MR. SWINIMER: Yes, sir.
MR. DEWOLFE: And your family doctor is keeping a close eye on the situation?
MR. SWINIMER: Yes, sir.
MR. DEWOLFE: That is very sad and I guess you feel that you have been sort of lost in the system?
MR. SWINIMER: Right.
MR. DEWOLFE: Thank you very much.
MR. SWINIMER: Thank you, sir.
MR. CHAIRMAN: Mr. Samson.
MR. MICHEL SAMSON: Just a few questions on clarification. When Mr. Corbett was asking you about your files, if I am not mistaken I guess, and so there is no confusion here, the process as I understood it - and I know Mr. Boudreau is a private lawyer - the deal was that all private lawyers working on workers' compensation files on behalf of the board were asked to turn in all of their files to the Workers' Compensation Board, as they were going with an in-house counsel type of system. Therefore, files were not returned to individual clients and then told to go find yourself a lawyer or go find yourself a workers' adviser. This was all internal. So just not to confuse Mr. Swinimer or anyone else, the process, you should not have had those files returned to you. So nothing was done wrong there. You do not have to call Mr. Boudreau looking for those files.
MR. SWINIMER: Okay.
MR. SAMSON: Those should have been returned to the Workers' Compensation Board and if I understand correctly, they then appoint a workers' adviser once that process has taken place. I will ask legal counsel to confirm if I am wrong here on what the process is but that is the way I understood it, that the Workers' Compensation Board itself would appoint the workers' adviser to Mr. Swinimer, so the question is, whether that has been done. But for clarification purposes, I think we should be clear on how this process works.
MR. CHAIRMAN: I will ask Mr. Power if he would like to comment.
MR. MICHAEL POWER: You're both correct. (Laughter) Seriously, it would depend on where you were in the system. If your appeal was urgent and there were, shall we say, submissions due or deadlined, then they would call for that file to go into the in-house counsel, only if there was some deadline to be met. So it would be oriented around that. So it may very well be with Mr. Boudreau.
MR. SWINIMER: But why would compensation pay him - they are paying him, right, on my behalf and he has done nothing the whole time? That's what I can't understand. Another part of the system.
MR. CHAIRMAN: Perhaps just as a matter of information, the why I don't think that may be an inexplicable truth, but just as a matter of the information. The Workers' Advisers Program that has been established, and before it was called the Workers' Counsellor Program. They are just different names for in-house lawyers in the sense that they are employed by the government, where others are in private practice. The workers' compensation legislation provides that in certain circumstances workers are eligible for legal assistance in pursuing their claim and that is how Mr. Boudreau would have been paid beforehand. It sounds like you may be eligible for a workers' adviser and that is what a lot of the questions from the members here today have been about. The specifics of where your file is seems to be one of the great mysteries, if that helps you at all.
I believe Mr. Fage is next.
MR. ERNEST FAGE: Thank you, Mr. Chairman. Good afternoon, Mr. Swinimer. Maybe just a few questions. The scope of this committee, my understanding, is not to probe your personal file but ask of you, from your experience in dealing with the Workers' Compensation Appeal Tribunal or the legal advice that you have had through your eight years is asking you to give us recommendations on legislation or regulation can be changed to better satisfy you, an injured worker, and to protect the taxpayer here in Nova Scotia and to streamline the process.
In that light, I would ask you, in respect to your dealings with the legal advice, were you satisfied through the course of your case with legal representation given to you?
MR. SWINIMER: No, I wasn't, sir.
MR. FAGE: What recommendations would you put forward to make that work more effectively?
MR. SWINIMER: I really don't know. I really couldn't tell you. All I know was that I wasn't satisfied and it just seemed like everything was always lost. No communication, I found. The communication gap was too far.
MR. FAGE: Not to be speaking on your behalf, but it was that conveyance or transfer of information from the WCB to you that led you to a lot of frustration through the years, it wasn't clear, concise or timely?
MR. SWINIMER: Yes. The lawyer I had too, none of it, there was no satisfaction at all. Even if compensation had a board down in this area for people to come in to talk to, if they had something down in this district it wouldn't be too bad but everything is in Halifax. If you have no telephone - I have no telephone now or nothing - and that don't help.
MR. FAGE: Currently, it is my understanding, that any legal advice is in-house, so you would be appointed legal counsel if you qualified for it from a qualified lawyer of the Workers' Compensation Board in Halifax. Does that appear satisfactory to you? Would you be satisfied if you qualified for that or do you want a lawyer in your own community?
MR. SWINIMER: Well, it would probably be easier if I had someone in my own community, but for me to work with someone from Halifax, I probably wouldn't have no way of communication. That communication gap again. Do you know what I mean? If he was from this area, you might be able to stop in sometime to see how things are going but if you have someone in Halifax, they could say, well, this person is busy or he will call you back. I know all about this call back stuff, it is no good.
MR. FAGE: I hear you loud and clear. (Laughter) The other question that is pertinent to me with regard to this review in your case is that your claim started eight years ago.
MR. SWINIMER: Yes, sir.
MR. FAGE: Do you have recommendations of how you feel that process could be speeded up so that there could be a much more satisfactory time-frame and a process that would satisfy your concern in that regard?
MR. SWINIMER: Well, if someone would just look at it and say, yes, no or maybe or something but when you call down there, nobody knows where the file is, they will say, it must be over in the other section, call back tomorrow. You call back tomorrow, well, we haven't had time to get that. So it is just no good.
MR. FAGE: So the assignment of an individual caseworker for you to deal with as you move along with your claim appears to be paramount in your mind?
MR. SWINIMER: Yes.
MR. FAGE: Thank you very much for your comments.
MR. CHAIRMAN: Mr. Parker.
MR. CHARLES PARKER: Good afternoon, Mr. Swinimer. I have one comment on the workers' adviser, I think sometimes they will also come to you, so if you can't make it into Halifax, certainly, their job is to go out and talk with their clients wherever they are in the province. So that might be of benefit to you and is good to know.
MR. SWINIMER: That would be great.
MR. PARKER: I just wanted to come back to your compensation amount. You said you got $250 a month.
MR. SWINIMER: When I first got hurt, I received, I think, $2,100 a month. A year or so after that, I went down to $250 a month and then after that I got nothing.
MR. PARKER: But you are, at this time, getting medical benefits are you?
MR. SWINIMER: Yes, sir.
MR. PARKER: You are also paid for travelling, you mentioned, if you have to go to a specialist?
MR. SWINIMER: Yes.
MR. PARKER: Have you ever been called into the WCB in Halifax, have you had to travel there?
MR. SWINIMER: When I go to a specialist, I stop in there in Halifax and get reimbursed.
MR. PARKER: So you have been into the office from time to time in Halifax.
MR. SWINIMER: It is just like Fort Knox.
MR. PARKER: Okay, when was the last time you were there?
MR. SWINIMER: About three or four months ago.
MR. PARKER: But you feel that you are not making any progress even going in person, you are still not getting anywhere?
MR. SWINIMER: Right.
MR. PARKER: How are you getting by now? Are you not getting any benefits, what are you surviving on?
MR. SWINIMER: The only thing I am receiving is Canada Pension.
MR. PARKER: So you are on Canada Pension.
MR. SWINIMER: Yes, sir.
MR. PARKER: Does that meet your financial needs or is it inadequate?
MR. SWINIMER: No, sir. My house payments get half of what I get for Canada Pension and when you have three teenagers going to high schools, it is not good.
MR. PARKER: So how are you surviving?
MR. SWINIMER: I don't know how. I am just getting by with family help.
MR. PARKER: Other members in your household working?
MR. SWINIMER: No, sir.
MR. PARKER: So that is your only family income?
MR. SWINIMER: Yes.
MR. PARKER: Coming back to retraining for a minute. You had tried once at NSIT. Is there any other type of retraining that you feel you might be suitable for? Is there any other options for you?
MR. SWINIMER: I don't know. After that I tried to go to the vocational school in Shelburne and I couldn't stand that. I ended up in the hospital more times than I was in the class and they asked me to leave because I wasn't there enough.
MR. PARKER: Nothing comes right to mind that you feel you would like to retrain for or that you are capable of training for?
MR. SWINIMER: There don't seem like there is nothing I can do at this time.
MR. CHAIRMAN: Mr. DeWolfe.
MR. DEWOLFE: Do you have a case number?
MR. SWINIMER: Yes, I do.
MR. DEWOLFE: You do. You presented that to them so they could find your file surely with that. When was the $250 a month cut off?
MR. SWINIMER: I think in 1993, I believe.
MR. DEWOLFE: Approximately, that's close enough. Could you tell me how much your Canada Pension benefits are?
MR. SWINIMER: Right now, $970 approximately. My house payment is $450, so that is not good.
MR. DEWOLFE: It is pretty tough surviving on it, isn't it?
MR. SWINIMER: Right. That is why I have no phone.
MR. DEWOLFE: Okay, thank you very much.
MR. CHAIRMAN: Thank you very much, Mr. Swinimer. We really appreciate . . .
MR. POWER: Mr. Chairman, through you, could you establish the date of the injury? The exact date?
MR. SWINIMER: June 27, 1990.
MR. CHAIRMAN: Are there any questions from the panel of consultants?
MR. POWER: I think there may be, and I just have one more, through you again, Mr. Chairman, has Mr. Swinimer ever been to the Workers' Compensation Appeal Board?
MR. SWINIMER: No, I haven't.
MR. CHAIRMAN: Are there any further questions? Mr. Neville.
MR. JIM NEVILLE: You said before that you had an appeal filed with the Workers' Compensation Board?
MR. SWINIMER: That is what they call it, I guess. All I know is that it is in there.
MR. NEVILLE: Who filed it for you, was it your former lawyer?
MR. SWINIMER: I don't know if Mr. Huskilson did it on my behalf, or . . .
MR. NEVILLE: You were never notified that your claim was held up on account of the chronic pain?
MR. SWINIMER: I just heard about that. You just saying it about that too, I just heard about that.
MR. NEVILLE: You are receiving Canada Pension for your disability?
MR. SWINIMER: Yes.
MR. NEVILLE: That is all, Mr. Chairman.
MR. CHAIRMAN: Mr. Swinimer, can I ask you to look ahead when you answer the question. I know it is not the natural thing when you are talking to somebody on your side, but the microphones don't work very well when you are facing away from them. I know it is not a normal thing to do. Go ahead, Mr. Neville.
MR. NEVILLE: I have finished.
MR. CHAIRMAN: Dr. Lamplugh.
DR. ANTHONY LAMPLUGH: Without going into small details, you mentioned that you had seen a specialist in Halifax three to four months ago, my question is, are you being seen by a specialist on a regular basis?
MR. SWINIMER: Right now I see Dr. Burnett. He is in Kentville. I see him and Dr. Walker. I used to see Dr. Del Campo, but he skipped the country after he operated on me.
DR. LAMPLUGH: I don't think there is a connection. (Laughter) How often do you see the specialist?
MR. SWINIMER: Probably every four to six months.
DR. LAMPLUGH: Do they call you in on a regular basis?
MR. SWINIMER: I usually end up contacting them because I keep having more trouble with my leg, and I keep after them.
DR. LAMPLUGH: Have you been in hospital recently?
MR. SWINIMER: Not recently, no.
DR. LAMPLUGH: Thank you.
MR. CHAIRMAN: Anyone else? Well, thank you again, Mr. Swinimer. I only have one last question. Did you say that you don't have a telephone?
MR. SWINIMER: No, sir. My wife's aunt lives right next door to me. I use it as a message centre. (Laughter)
MR. CHAIRMAN: Thank you very much, Mr. Swinimer. We truly appreciate you taking your time out today to make a presentation to us, and if you want to sit here and listen to the rest of the proceeding, you are welcome to do so. Thank you.
Our next presenter, as I have it, is Rachael Buckley. Is Ms. Buckley here? Good afternoon, Ms. Buckley.
MS. RACHAEL BUCKLEY: Good afternoon. Mr. Chairman, I would like to introduce my husband, this is my husband, Wayne. Thank you for giving me a chance to come here this afternoon, members of the committee also. I have to say one thing, I am scared to death of this thing, because I don't know where to start. I want to thank Mr. Swinimer for breaking the ice before I came on. But I can understand what he is saying, I am going through the same thing.
I am an injured worker. I am a victim of workers' compensation. I was hurt nine and one-half years ago while working in a nursing home. I was an RN working shiftwork. I have been the subject of very - it is emotional for me. I can't walk since my injury. I am not diagnosed yet. No one seems to know what the problem really is. I was originally diagnosed with a lumbar soft tissue injury. It left me with a right leg that doesn't follow me. There doesn't seem to be any answers for it, but it is the way it is working.
Because I have no picture of "my problem", the Workers' Compensation Board has played Russian roulette with my file. They have used lies, they have used everything they could in their power to close my files, to deny my benefits. My injury was February 8, 1989. I have a letter from a Dr. Dobson, written August 23, 1990. He says: Her whole total disability picture is that of an individual with psychiatric problems, which possibly could be a conversion hysteria. This, of course, is non-compensable. He has used sentences like this all along in my files to close my files.
I am now six years without any benefits whatsoever from workers' compensation. I had about a year and a few months of benefits when I first hurt myself. My file was closed in the month of June. I injured myself in February the year before. When they closed it at first, I had to go through the appeal system. That took a year. By the time my file got reopened, I got 25 cents on the dollar for that whole year, for my income. After that, I got maybe one year and four months, I believe, of what I was justly due, of my income. Again, they closed my file, with lies again. They are putting me in a chronic pain syndrome bin. I have been placed in there and I can't climb out.
Since these past six years, my husband and I are trying to get people to answer to this thing, trying to get my file reopened. Nothing is working. No one is able to get anything done with this. I have done everything in my power to get rid of my disability. I was not disabled nine and one-half years ago. I was a working, happy person. I had a good family life. I enjoyed my life. It has changed completely, because of my work injury. But they deny that I hurt myself at work.
I am classified in hysteria and all kinds of things, that I have been tested for. I have been through all the avenues trying to find an answer for this. If it was psychological, I want to know, because I want to get rid of this disability. It is not psychological. I have been tested for it, but they have completely overruled what the doctors that I have been seeing have been saying.
This Dr. Dobson that wrote this sentence here has never laid eyes on me, and I have never laid eyes on him, but yet he is the one dictating what my case is. I think it is horrible. I think it is terrible. When I have to open my file and look at pages that have been written about me, and the lies that have been written, it turns my stomach. I just want to explode, because I know they are lies. I know the hard work I am doing to climb out of this thing.
I have been to the Montreal Neurological Institute, I have been to specialists in Halifax, the top orthopaedic surgeon. I have been to Dr. Harrison at the rehab, I have been at the rehab for almost three months. I was worse when I came out of there, because my disability does not allow me to push with physio, physio is not good on my condition. But yet, I have been trying to walk every single day that I can climb out of my bed. There are days that I can't, there are days that I am bedridden, for months, sometimes. But as soon as I can put a piece of clothing on my body, I am out there trying to walk.
Yet, I see these things written about me that are completely not true. I know the work I am doing on this thing. I know where I have been trying to clear this thing, trying to get cured. But yet, I am treated as if I am a hysterical conversion thing, and I am not. I am sorry that I am emotional. I know you people can't treat emotional sides of cases, but for me, it is emotional. When I am stuck in the driveway and I can't walk, I need two canes to try and walk, and when I cannot walk, and I remember and I think of all the things that have been said about me by these people at the Workers' Compensation Board, it makes me so angry. I know what my thing is like. I haven't got the picture in my hand but I have got the proof of every day I am living it. Every day is a challenge. I have not given up on it and I am not giving up on it. Workers' compensation is not going to make me back off either. I was hurt at work and that is the bottom line.
They can say what they like and use all the lies that they are using. They can say what they like with all these lies, but the bottom line is that it happened on February 8th and I know just what time it was and I know just what it felt like. I know just what happened afterwards. The day before that I did not have two canes and I did not have a wheelchair. Everything
came after that. The day I had to start going around with two canes I wanted to crawl under a table somewhere because I was so ashamed. That was not me. I did not have that impression of myself with canes, having to walk with canes. I remember the lady in my room said, look, you have to. She encouraged me and I did not want to have anything to do with canes. I did not want to have anything to do with a wheelchair, but I need a wheelchair for mobility and whether I like it or not. I remember how embarrassed I was when neighbours first saw me with a wheelchair in my front yard but that was the only way I could go outside. My leg does not follow me. Sometimes it follows me, but other times it does not and when it does, it is not very long before it stops.
I am not sure if I am making things clear. I want so bad for people like you to understand what people like me are going through. It is terrible. I do not want my child to have this legacy, to have to go through what we have been through with the Workers' Compensation Board. It is terrible to think that we are leaving this legacy to our children. If they get hurt at work, who is going to help? Nobody is able to help. I have had lawyers. I have had appeals. I have had the tribunal. I had the tribunal last October and there is still no answer to that. I have been to the ADR process. They did not even offer me anything because they knew they were not able to offer me what I wanted to have.
I am entitled to my just benefits. It is a work-related injury and nothing else. My doctors that I have had for months and even years say that it is a work-related injury, but workers' compensation comes out with these pieces of paper and they fabricate what they like to their own advantage so that my file can stay closed. My hands are tied behind my back. I am a victim and when you are a victim nobody can help you, no one. You go to politicians. They cannot do anything. I have had three different political Parties on the go since my injury, and no one has been able to help. We have written letters. We have seen people. We have done everything in our power. We are now at the Ombudsman level and we have been told not to get our hopes up because he does not have jurisdiction either. Who has jurisdiction? That is what I want to know. Who has got the power to kick their butts because that is what they need and the only thing that is going to help people like me is when they start putting honesty in that building. That is the only thing I think is going to help, when they start looking at the doctors that have had you for patients, not people like this that have never laid eyes on you saying, this lady is this and this lady is that and he has never seen me and I have never seen him.
They sent me to this Dr. King for an assessment for this disability pension thing here. I am sorry, I do not have the right terms. It is probably a PMI or something, I do not know, but anyway they sent me to this doctor. He wrote back that I was this and that. I am not going to tell all the things but it was plain outright lies, that I was a vague historian, I cannot remember, I am sorry. Anyway, he never mentioned though the badgering he gave me when I got to his office. He never mentioned the way he treated me when he was examining me and everything. That does not come out in reports. When I first got there, he had a file this thick which is not my fault if my file is thick. He started going through the sheets. You have been
to this doctor. You have been to that doctor. This one did not help. That one did not help. Why did you go to this one? My dear man, I went to these people for help. That is what I need. I need help to climb out of this mess of a disability that I am in. I do not want my life to be like this but, unfortunately, it is. This does not come out in reports from people like that and it is people like that who get listened to.
I went to a neurosurgeon for a whole five minutes at the most and I am being generous with the minutes here. His report is the most talked about in my file. For five minutes at the most he examined me and he is the one that has precedence over Dr. Harrison who had me for months at the Rehab; Dr. Clark, who had me for years at the pain clinic; these doctors get ignored. My family doctor gets ignored. It is terrible and I am so frustrated with the whole thing. It is not fair. It is not fair to people like me. It is bad enough to be injured. It is bad enough to be coping with a disability that you did not have before, but to have people like that write papers, they do not look at you in the face to say that. They write papers and it is up to the injured party to try and say, no, it is not true. You know it is not true, but how do I prove it? I am at a loss. I am completely at a loss because no one is able to help so far.
I have had lawyers. I have even been to a high quality lawyer. I guess the other lawyers were high quality also, I am sorry, but the one in Halifax here that we went to, he was an independent lawyer. He was not hired by workers' compensation. We decided we would try it. We could not afford it but we said, well, if he can help us, we will go up to a certain amount here that we could afford. The man was unable to do anything for us. Even him, he could not do anything for us. Lawyers hired by workers' compensation are a help but they are not curing the problem. It is bad enough with the disability but when you are hitting walls with papers that have lies about your case and that you cannot communicate to anyone to say this is not true. There is no one there to help people like me.
I am forgetting a lot of things that I would like to say. Again, nine and one-half years is a long time to remember things. All I can say is that it is not good to be disabled. It is bad enough to be like this. I am not in a wheelchair for show. I am not using canes for show. I have worn a pair of aluminum canes trying to walk. I have seen myself going outdoors and just standing for half an hour. I do not just walk for five minutes unless I cannot go any longer but the longest I can stay out there, at least an hour if I can walk, but that means walking from here to that table back and forth. That is my walk but I am getting it. I have learned that every foot counts. I have learned that if I can do three more steps today, it is better than it was yesterday, but then tomorrow I fall down again and I am bedridden again. I see myself bedridden for months sometimes at a time and then I see letters like this. It is not good at all and I do not want my son to go through something like this and I do not want anybody's children to go through something like this.
If nobody talks, nothing will change and there are changes that have to be made, but we do not know who is going to make changes. The government cannot make changes. The lawyers cannot make changes. The tribunals cannot make changes. That is another thing, I
am sorry, I do not want to take too long here, but I am in a chronic pain bin, that I am not even diagnosed chronic pain syndrome. I am not diagnosed by my doctors. Dr. Dobson has me diagnosed chronic pain syndrome. My second appeal, they ignored, we had written a big paper on the thing explaining my situation and they ignored that. They sent me my answer to my appeal saying that I was a chronic pain syndrome case and that I was not entitled to benefits which has totally put me on the wrong track.
I am not a chronic pain syndrome case. I have chronic pain because it has lasted a long time. It has not been able to be cured, unfortunately, by the medical society, but it is not through any fault of mine. I have been everywhere to try and get a cure. To be placed in this chronic pain bin and to have to wait for answers because of this chronic pain bin. We had to wait for a Doward decision. I believe you are aware of, there has been a Doward decision that is very important in this thing. This Doward decision is being bounced back and forth like a rubber ball. Who is going to stop that ball? Nobody is stopping it yet. People are having to wait for a ball to stop rolling so that decisions can be made and made justly, but there is no justice up to now in my case and I swear to that. There is no justice. I am in the wrong bin to begin with. I am not a chronic pain syndrome. I am a work-related injury that happened nine and one-year years ago. Through no fault of mine, it is not cured yet but not because I am not working to cure it.
I had written a paper here, a little bit about my case and I would like my husband to read to you, if possible. Is it okay?
MR. CHAIRMAN: Might I suggest, if it is the written paper that you plan to read, we can receive the paper and it would be part of our record of information when we consider making a report, rather than duplicate the effort of having you read the paper to us. That would, I think, be a lot more beneficial use of our time if perhaps if we took a time, as a group, to ask Ms. Buckley some questions.
MS. RACHAEL BUCKLEY: Yes, sure.
MR. CHAIRMAN: I just think that you, obviously, spent a lot of time writing out a summary for us and we appreciate that, actually. Rather than reading it to us, I think it might be more helpful if we gave the . . .
MR. WAYNE BUCKLEY: The main reason for this is that there are recommendations in there that we feel are important and this is . . .
MR. CHAIRMAN: I might guarantee you that these will be part of the record that will be considered in making our report.
MS. RACHAEL BUCKLEY: I hope I didn't take too long. I am sure I will go out of here and think of things I wish I had mentioned but, again, nine and one-half years is a long time. I don't want to be going on and on about my case but I do think that honesty is at the bottom or at the top.
MR. CHAIRMAN: It's the problem as you see it. Perhaps if there are members of the committee who would like to ask. Mr. DeWolfe.
MR. DEWOLFE: Thank you, Ms. Buckley, for you report. I expect it is in your written report, but I would just like to hear very briefly, if you would, how the accident happened.
MS. RACHAEL BUCKLEY: I was transferring a patient from a wheelchair to a bed with another nurse and it wrenched, I guess maybe that is a good word for it, my back. That was on a Wednesday. I stayed at work but I was sore. I was not booked on work again until the next Monday and when I went into work on that Monday, things really went bad. From then on, it was finished. I couldn't work any longer.
MR. DEWOLFE: The neurologist that you went to see for the five minutes (Interruption) It was a neurosurgeon?
MS. RACHAEL BUCKLEY: Yes, a neurosurgeon.
MR. DEWOLFE: Was he, in fact, from the Montreal Neurological Institute?
MS. RACHAEL BUCKLEY: No. He was from Halifax.
MR. DEWOLFE: Do you have a report from the Montreal visit?
MS. RACHAEL BUCKLEY: Yes.
MR. DEWOLFE: Is it consistent with the report from the surgeon here?
MS. RACHAEL BUCKLEY: No.
MR. DEWOLFE: It is an entirely different assessment of your situation?
MS. RACHAEL BUCKLEY: Yes.
MR. DEWOLFE: Ms. Buckley, you did say that you don't know where to turn to next?
MS. RACHAEL BUCKLEY: Definitely.
MR. DEWOLFE: Hopefully, this committee should bring some direction and bring some clarity to the rules that govern the Workers' Compensation Board. So, your report will certainly be heard and I thank you very much for coming.
MR. CHAIRMAN: Ms. Godin.
MS. GODIN: Thank you, Ms. Buckley, for being here today. You said that you went through the ADR process?
MS. RACHAEL BUCKLEY: Yes.
MS. GODIN: Nothing was offered to you?
MS. RACHAEL BUCKLEY: No.
MS. GODIN: When you say that, is it like the case was dropped and you just didn't hear from them?
MS. RACHAEL BUCKLEY: No. They said that the offer they were planning on making, they knew it would not be acceptable. It was too small.
MS. GODIN: So, it just falls into one of those unsettled ADR cases.
MS. RACHAEL BUCKLEY: I don't know if that is what I would call it. It was closed.
MR. WAYNE BUCKLEY: They mentioned the offer that they would have for us would be seen as an insult.
MS. GODIN: You also said earlier that you want to get rid of your disability and, obviously, you are going through hoops actually to do something to get yourself back to regain your health. Is that at your own cost?
MS. RACHAEL BUCKLEY: Yes, most of it. The first year and four months, it was with workers' compensation, they allowed me. That is one thing. I was told by my family physician that he wanted me to go to the Montreal Neurological Institute because no one seemed to be able to figure out what was wrong with me. So, my husband and I went to Halifax and told my adjudicator, Linda Howard, that we had to go to Montreal. She said, that is fine. She said, workers' compensation will cover your costs. So, we went home, made the plans; my ticket was expensive, I had to have an open-air ticket because I didn't know when I was coming back; my husband had to assist me because I was too sick to go alone. The day before we left, I got a letter in the mail saying that they were not going to cover the cost and my file was closed effectively that day. So, that was the day before I left for Montreal.
MS. GODIN: You did go and you picked up the costs entirely by yourself?
MS. RACHAEL BUCKLEY: I had to pick up the tab, yes, $1,000. I say $1,000, we had to have a night's stay because it was early in the morning I was being admitted, and I didn't want to miss my admittance time. So, we had to go the day before and have an overnight. My ticket was over $500, his was over $200. So, everything put together, it was $1,000 that it cost out of our pockets.
When my file finally reopened, I recall having a little bit paid of doctors' expenses, going to doctors, but I had also started the chiropractic services at that time, I believe. That was supposed to be covered and they never covered anything. They didn't cover for my wheelchair. We appealed that and they wouldn't allow it. The only thing they paid was one cane. They weren't paying my medications at that time. I was on medications at that time and they wouldn't pay - my husband's insurance company was paying my medication - not because they didn't want to, I had not really asked them. I don't think we asked too much of them to pay for, but . . .
MS. GODIN: At the time of the accident, you were working as a nurse?
MS. RACHAEL BUCKLEY: Yes.
MS. GODIN: Were you a full RN?
MS. RACHAEL BUCKLEY: Yes.
MS. GODIN: That was in 1989?
MS. RACHAEL BUCKLEY: Yes.
MS. GODIN: What sort of annual income would a nurse be making in 1989?
MR. WAYNE BUCKLEY: You were working part time at that time.
MS. RACHAEL BUCKLEY: I believe I was around $700 a month.
MS. GODIN: You were working part time?
MS. RACHAEL BUCKLEY: Yes.
MS. GODIN: You have not been able to work a day since?
MS. RACHAEL BUCKLEY: No.
MR. WAYNE BUCKLEY: Around $1,500 a month.
MS. RACHAEL BUCKLEY: Around $1,500 a month. I'm sorry.
MS. GODIN: That is okay. Just as a comment, if I may, and I am not quite sure how to couch these words properly. It is disturbing to me, as a woman, that you would get a letter claiming that it is a psychiatric case and that it is hysterical, that the hysteria is there. I have heard of this happening before. I think it is a thing that women have to put up with more so than men. I just hope that the other people on this committee realize that and appreciate that for a woman to get a letter claiming that it is all in her head and hysterical, it is very difficult and I doubt that there are too many men who are getting letters like that. I feel obligated to say that. Thank you.
MR. WAYNE BUCKLEY: Mr. Chairman, if I may make a comment. Actually, some statements with regard to chronic pain syndrome and conversion hysteria were made approximately six months before her file was closed.
MS. RACHAEL BUCKLEY: Yes, the process had already been begun by . . .
MR. WAYNE BUCKLEY: There was a scenario being laid out.
MS. RACHAEL BUCKLEY: Yes, the stepping stones were being put down.
MR. WAYNE BUCKLEY: Seeing that her condition was not healing as far as the WCB, within their time-frame, wording was put into the file here and there leading to a diagnosis being fabricated.
MR. CHAIRMAN: Mr. Fraser.
MR. FRASER: Just a comment, I guess, and then I will have just a couple of brief questions. I guess the mandate of the committee, as the Chairman had indicated originally, was to hear the concerns of injured workers and bring forward a report to the government and, hopefully, will reflect in legislation whenever that happens. One has to be cautious that the legislation, whenever it happens, will not be an open book to approval of all cases that come before it either. I understand, from your side, obviously you believe that it was work-related and still is, and that is why you are denied.
MS. RACHAEL BUCKLEY: I know it is.
MR. FRASER: And, from what you have said, and at least from what I have heard from what you have said, is that others are thinking that it is not work-related, that it is
something else that has developed over a period of time, and whatever. Otherwise I guess, if it was work-related, they probably would have looked after your needs by now.
MR. WAYNE BUCKLEY: At the WCB?
MS. RACHAEL BUCKLEY: Yes.
MR. FRASER: Yes, that is what I mean.
MS. RACHAEL BUCKLEY: And they have no grounds for those beliefs. If they had read my doctor's reports and everything, they don't have any grounds for that, but it is a convenient excuse to label somebody that can't say, no, that is not true.
MR. FRASER: I am not reflecting on your case. I am just saying as a point, I guess, that no matter what the legislation is, there will always be an interpretation difference, and doctors differing, and I am sure the doctor or medical adviser would say so as well. Other people diagnose, doctors diagnose things a little bit differently, and whatever. There will always be disagreements, and that is why there is an appeal process, and everything else, because when people don't agree with decisions, there is a way to appeal it.
Did you qualify for Canada Pension disability? Are you on that now?
MS. RACHAEL BUCKLEY: I am, but Dr. Dobson did everything that he could so that I wouldn't have it, and Linda Howard also. We ended up having to appeal that, to have Canada Pension, because workers' compensation was saying that there was nothing wrong with me.
MR. FRASER: But Canada Pension disability is for more than work-related, it is for sicknesses or anything . . .
MS. RACHAEL BUCKLEY: Yes, in general.
MR. FRASER: So it is for any disability, not just limited to work in general. Did you have LT, long-term disability benefits at work? Where you worked in a home?
MS. RACHAEL BUCKLEY: You mean with another insurance?
MR. FRASER: Through group insurance?
MS. RACHAEL BUCKLEY: Yes, but because I was hurt at work, I didn't qualify. Apparently, something like that, it is only if you get hurt outside of work. That is what I was told anyway. Long-term disability and short-term disability, those are for outside-the-building injuries, apparently.
MR. FRASER: Yes, well anyway, you have never qualified for them, I guess, even though they were there?
MS. RACHAEL BUCKLEY: No.
MR. FRASER: Okay. Well, workers' compensation would be the first payer, because that is the way it was set up. I know that.
MS. RACHAEL BUCKLEY: They are the ones insuring, yes.
MR. FRASER: Thank you very much.
MR. CHAIRMAN: Mr. Charles MacDonald.
MR. CHARLES MACDONALD: I just want to go back on some of it, but Dr. Dobson never did see you?
MS. RACHAEL BUCKLEY: Never.
MR. CHARLES MACDONALD: You never met with Dr. Dobson?
MS. RACHAEL BUCKLEY: Never.
MR. CHARLES MACDONALD: Yet he wrote a report on your condition?
MS. RACHAEL BUCKLEY: More than one. Yes.
MR. CHARLES MACDONALD: Then you talk about the badgering at the office, was that in the Workers' Compensation Board doctor's office?
MS. RACHAEL BUCKLEY: At the doctor's office, yes.
MR. CHARLES MACDONALD: When you are talking about badgering, it was just in the way that he presented the questions to you, was it? You said first, he was asking one question after another, without allowing you to answer the first one, he was going on to a second one, and third, whatever?
MS. RACHAEL BUCKLEY: Yes, as if I was guilty of having been to these doctors. Why did you go to these doctors? They are not helping you. This one is not helping you, why did you go to this one? You went to this one, why did you go there? He is not helping you. Why did you go here? I had nothing to say. He wasn't giving me a chance to answer to those.
MR. CHARLES MACDONALD: And the neurosurgeon, you only had five minutes with him in his office, or less than five minutes?
MS. RACHAEL BUCKLEY: Yes.
MR. CHARLES MACDONALD: And his diagnosis and the Montreal neurosurgeon's were different?
MS. RACHAEL BUCKLEY: Yes.
MR. CHARLES MACDONALD: And all that is documented with workers' compensation?
MS. RACHAEL BUCKLEY: Yes.
MR. CHAIRMAN: Mr. Parker.
MR. PARKER: Ms. Buckley, I certainly thank you for giving us your information, I sympathize with your case. It has been a long, hard struggle for you, I am sure.
MS. RACHAEL BUCKLEY: Thank you.
MR. PARKER: I had a couple of questions for you. Again, Mr. Charles MacDonald asked about Dr. Dobson. You say, you never actually ever saw him?
MS. RACHAEL BUCKLEY: Never.
MR. PARKER: In your whole life, you never met with him?
MS. RACHAEL BUCKLEY: Never. I have no idea who the man is.
MR. PARKER: How is it that he could write . . .
MS. RACHAEL BUCKLEY: That is just it.
MR. PARKER: . . . a file or information on you, if he has never seen you?
MS. RACHAEL BUCKLEY: What gives him the right? That is what I want to know. What gives him the right to do that? How do you have a doctor that has never laid eyes on you, make judgements on your case? It is ludicrous. But that is what is done.
MR. PARKER: Have you heard of this happening before, with other cases?
MS. RACHAEL BUCKLEY: Not personally, but in the newspaper in these past few years, there have been things in the newspaper. I keep saying, another one that is being diagnosed by somebody that has never laid eyes on them. I don't know if it is him doing it again, but it is him doing it here.
MR. PARKER: So, where would the doctor be getting his information, I wonder?
MS. RACHAEL BUCKLEY: Tough to say. I don't know. I think, well okay, where is he getting it? I was sent to see a psychologist by workers' compensation here. The psychologist was to make an analysis of my brain, of whether it was a conversion and all these things. When her report came back, she mentioned something, that I was a work injury that was experiencing chronic pain. Okay? Which is true, I am experiencing chronic pain, because I have been longer than six months injured. After you are longer than six months, you are automatically shipped into this chronic pain thing. Whether you like it or not.
She said that he comes out with a report saying that I am, according to Dr. Sampson's report, I am automatically a chronic pain syndrome, and that is a non-compensable injury. He comes out with things like this. He puts extra words or deletes words that have been, and ignores things that are important about my case, and twists things around.
MR. PARKER: Was Dr. Dobson, do you think, making a judgement on reading the reports from other doctors?
MS. RACHAEL BUCKLEY: Yes, but . . .
MR. PARKER: And other specialists?
MS. RACHAEL BUCKLEY: To his own advantage.
MR. PARKER: That is where it came from then. You mentioned early on in your testimony, your words were, "Who has got the power to kick their butts . . ."?
MS. RACHAEL BUCKLEY: Yes. Definitely.
MR. PARKER: In other words, to hold them accountable? Who do you feel should be holding the WCB accountable?
MS. RACHAEL BUCKLEY: I wish I could tell you who I think, because I don't know who should. Everybody is saying, who should? Maybe this one should, maybe that one should, but nobody is saying, this one should. The Minister of Labour is supposedly in charge of workers' compensation. So far, I don't know how many rules he can tell the workers' compensation that he can get away with, because workers' compensation turns around and does exactly what they want. They are not accountable to anyone, from what I can see so far.
MR. PARKER: If you had to recommend somebody that should hold them accountable, then you are recommending that it should be the Ministry of Labour or the minister himself?
MS. RACHAEL BUCKLEY: I am not recommending anyone, because I don't know who is going to be tough enough to stand up to these people. Whoever can be tough enough, by darn, put them there and leave them there.
MR. PARKER: You feel there should be somebody though?
MS. RACHAEL BUCKLEY: Definitely.
MR. PARKER: Okay. I guess my final question, Mr. Chairman, is that, and maybe you have mentioned this in your testimony, but what other changes or recommendations do you have for us, to improve the Act? I have heard some of them, but are there others that come to mind?
MS. RACHAEL BUCKLEY: Okay. There is one thing that comes to my mind, this clause of 1990 for chronic pain. That to me is not good for people if you were injured, I was injured in 1989, I don't fall in that category, even though I shouldn't be in that category in the first place. But again, I don't fall in that category. I think that is really putting a stop gap on the thing, people from 1989 won't get anything.
MR. PARKER: So you feel they should be included, if there is a policy on chronic pain, the same as after the 1990 date?
MS. RACHAEL BUCKLEY: Yes. The benefit of the doubt clause, that has not been used for me. I haven't had a chance to have that. They used that in my first appeal to reopen my file, the appeal council that heard my appeal said that they were stretching the limits with the benefit of the doubt clause. Why would they be stretching the limit? I am injured. I can't work like this. I have documentation saying that I can't work. Again, things like that, that the worker does not get a chance to go through. They do not respond adequately and in a reasonable time-frame to the injured workers' points of appeal. They take forever and nobody says, look, that is enough time. It is time to get things figured out. My tribunal should have been figured out a long time ago. I should not even have to wait for a chronic pain syndrome thing. I am a work injury, hurt at work, and I am disabled from it. That is the bottom line but, again, I am having to wait and for how long will I have to wait? Nobody knows because nobody has got any power over these people.
MR. CHAIRMAN: Thank you. Mr. Fage.
MR. FAGE: Good afternoon, Ms. Buckley. Your situation certainly is one that causes one to pause and take very strong notice because, as you have conveyed to us, occupying a
wheelchair since 1989, walking at times with a cane, certainly is not the employment you envisioned when you were enjoying your career as an RN with your family and carrying on with your life. There has been, as you say, no resolution to the situation that satisfies you.
I think, though, you do offer us a great benefit as a unique situation. I picked up that you said you are at the Ombudsman at this point. So that means that to end up at the Ombudsman, you have exhausted every appeal that is possible through the Workers' Compensation Board, through the tribunal, or WCAT process, all the way down the line and by doing that, your recommendations today offer a lot of insight on how the process works and what your frustration or satisfaction level is in each one of them.
A few specific questions in your circumstances and listening to some of the questions you have already answered, chronic pain, if it was compensable, would that have been a proper situation through the years? I mean to me it is one of the mandates of this committee to have a look at the resolution of chronic pain. Would that have been of help in your case if it was compensable during your process through these appeals? You appear to be conveying to us they could never pinpoint a diagnosis that satisfied them.
MS. RACHAEL BUCKLEY: I am not sure how to answer that. I think if it would have got me my cheque in the mail with chronic pain, even though they were calling me chronic pain, I suppose it would have been all right, yes, but I am still not yet a diagnosed case. I do not like being called what I do not know that I am. Again, the cheque in the mail is not there yet but, again, I want to be just in the thing. I am an injured worker without a diagnosis and I think I should be judged on that and no round about words going around and around and around. It is a work injury not yet diagnosed. I am not sure if I am answering your question though.
MR. FAGE: Yes, I think you are answering my question to my satisfaction because to me, obviously, it has been since February 1989, and the occupying of the wheelchair and how it has affected your life, you wanted some resolution to a situation during this entire time-frame whether it was chronic pain or not, it was the resolution. The important thing was resolution. That is what I am getting from your answer.
MS. RACHAEL BUCKLEY: Right, yes.
MR. FAGE: The second one, you raised the recommendation, accountability, someone being accountable. I guess I would want to ask the question, you say you do not know who it should be, would you be satisfied if it was the strength of regulation, or legislation, that protected you rather than the individual because individuals will change over time. Individuals will have varying attitudes and some of what you have described today deals with individuals in different positions rather than the legislation controlling the individual. Is that what you are looking toward as an ending?
MS. RACHAEL BUCKLEY: Yes, if legislation can stick to it, but legislation ends up being appealed. The Doward decision was, I think, legislated so much, or whatever, and it is being appealed. Then the other party is saying, well, I am appealing this decision because I do not like it and the other one is saying I am appealing it back. So if legislation is going to say one thing and that is what we are going to stick with but not legislation that allows for appeals to go on forever. I think legislation would be good if it was there and it was stuck to and it was listened to, but not if it is something that leaves the grounds open to have appeals back and forth so that decisions never get done.
MR. FAGE: Your case certainly appears to offer a unique one that has gone entirely through all the process of course and recourse and has had no clarification or justification or completion for you, Ms. Buckley. I guess for myself, I cannot speak for other members, but strong documentation, not of the individuals involved but of the steps, would probably be certainly of strong help to myself in determining a course that may help put some checks and balances in or offer recommendations to the future. I guess I do not tend to base it on the individual at each juncture, one of those steps, but the length, how you were perceived or how you perceived the process at each one of those hearings and the subsequent appeal of those through the entire process, I think, would certainly be beneficial to me anyway, and if you can offer that at a later date or submit that in chronological order, it would put it in a personal perspective.
MS. RACHAEL BUCKLEY: Yes.
MR. FAGE: Thank you very much for appearing today.
MS. RACHAEL BUCKLEY: Thank you.
MR. CHAIRMAN: Yes, just one question, I was just trying to follow up. Has your case finally been disposed of by WCAT or are you backed up in the chronic pain syndrome backlog at WCAT?
MS. RACHAEL BUCKLEY: At the tribunal, yes.
MR. CHAIRMAN: Yes, at the Workers' Compensation Appeal Tribunal?
MS. RACHAEL BUCKLEY: Yes.
MR. CHAIRMAN: That is what I gathered from your first comment, is that you have gone through the whole system and then you are one of the cases that got diverted to the Ombudsman?
MS. RACHAEL BUCKLEY: No. We diverted, well, after our counsellor told us that - can I clarify something?
MR. CHAIRMAN: Yes, I just want to make sure I understand.
MS. RACHAEL BUCKLEY: The first time they closed my file it was due to lack of objective medical information. It had nothing to do with chronic pain syndrome but then they grabbed onto the chronic pain syndrome and that is how they closed it the second time.
MR. CHAIRMAN: No, I understand, I just wanted to make sure that I was clear in my mind that you were one of the Workers' Compensation Appeal Tribunal cases that has been labelled as chronic pain . . .
MR. WAYNE BUCKLEY: No decision has been rendered at that level yet.
MS. RACHAEL BUCKLEY: Yes.
MR. CHAIRMAN: But that also your case is one of the cases that had been referred to the Ombudsman's Office?
MS. RACHAEL BUCKLEY: By us.
MR. CHAIRMAN: By yourself, yes, I understand and you also, obviously, are awaiting some kind of resolution from that level as well?
MS. RACHAEL BUCKLEY: Yes.
MR. CHAIRMAN: Fine, thank you. That was just for clarification. Are there any other members of the committee? Mr. Corbett.
MR. CORBETT: How are you today? WCAT, Workers' Advisers Program, WCB, do you see them all as the same entity?
MS. RACHAEL BUCKLEY: WCB and who else, I am sorry?
MR. CORBETT: Workers' Advisers Program.
MS. RACHAEL BUCKLEY: The lawyer sort of thing?
MR. CORBETT: Yes, and WCAT, the tribunal, do you see them all as being the same group or do you see each one as independent?
MS. RACHAEL BUCKLEY: Not really, no.
MR. CORBETT: Do you see each one as independent?
MS. RACHAEL BUCKLEY: Well, not completely independent but not completely together either.
MR. CORBETT: Do you feel that when you talk to one body that you are safe or that there is no interference from the other body? If you are talking to WCAT, do you fear that they are sharing information beyond what they should to WCB?
MS. RACHAEL BUCKLEY: Not that, I don't think, the lawyers - no, go ahead.
MR. WAYNE BUCKLEY: If I may, Mr. Chairman, it was our hope that having gone through the internal appeal process of the WCB, that finally having attained the Appeal Tribunal level, there may have been light at the end of the tunnel and, unfortunately, now that level is on hold again. So in that sense it seems to fall again to the same bin where the whole thing works together. I guess it does. I mean we understand that one is related to the other, but we had seen this final level as "the hope".
MS. RACHAEL BUCKLEY: Yes.
MR. CORBETT: The reason I asked that question is because it seems apparent that some people don't see them as being independent of each other. It is important that they be seen as being independent.
MS. RACHAEL BUCKLEY: Are they independent?
MR. CORBETT: Yes, of each other
MS. RACHAEL BUCKLEY: For sure?
MR. CORBETT: Well, it is a better question to ask you, than me to answer that. Because if you as an injured worker, or injured workers out there, do not have the perception that those three entities are independent, then we are in trouble, more trouble.
MS. RACHAEL BUCKLEY: One reason that I wonder about this thing, when I had my paper appeal (Interruption) internal appeal, and it was to go to the tribunal level, my lawyer that was a workers' adviser was trying to dissuade me from going to the tribunal. He kept saying, well, workers' compensation says you are a chronic pain syndrome, so you should think about it. They are probably not going to want to do anything. I didn't know whether he was working for them, or if he was working on my side. Whose side are you on?
I don't know whose side who is on in this thing. I know what my side says. I know what I want. But again, a lawyer that is trying to dissuade me from going through the tribunal, is he on my side, or is he on their side? Why is he trying to stop me from going there? I went just the same. He came with me and helped me out. I have to give him credit for that.
But the question you asked, I can't really answer. I don't know who is with who.
MR. CORBETT: In your course, have you been offered what is referred to as ADR, alternative dispute resolution (Interruptions)
MS. RACHAEL BUCKLEY: Before we left, I have to admit, my lawyer told me on the phone that the person from workers' compensation had told her how much he planned to offer me. The offer was going to be $1,000, completely unacceptable to me. That is six years of no benefits, and to be offered $1,000 for all the expenses we have been through, for everything. No way. When we got to the ADR process, the story ended up that he said that what they had planned to offer to me would just be an insult. The thing was left like that.
MR. CORBETT: Two real quick questions. Previous to this injury, had you ever been involved with WCB before?
MS. RACHAEL BUCKLEY: Never.
MR. CORBETT: How long were you an RN, previous to your injury?
MS. RACHAEL BUCKLEY: Since 1972.
MR. CORBETT: Okay. Thank you.
MR. CHAIRMAN: Are there any other questions from the committee before we go to the consultants? Mr. Charles MacDonald.
MR. CHARLES MACDONALD: Just to follow-up on what Mr. Corbett said, and that is in addition to what you were just saying, Ms. Buckley, on the ADR, in that the offer was already there, or the . . .
MS. RACHAEL BUCKLEY: On the phone.
MR. CHARLES MACDONALD: Before you went through the process.
MS. RACHAEL BUCKLEY: I don't know where the offer was but my lawyer had been told by the person from workers' compensation, I don't know who the person was.
MR. WAYNE BUCKLEY: That it would probably be something . . .
MS. RACHAEL BUCKLEY: Around $1,000. But I don't know who had told my lawyer.
MR. CHARLES MACDONALD: But that was after you went through the process . . .
MS. RACHAEL BUCKLEY: No, before.
MR. WAYNE BUCKLEY: In the days preceding that?
MS. RACHAEL BUCKLEY: On the phone. This was all done on the phone. I was very angry when she told me that. I couldn't believe it, but it got left like that. That was on a Friday, to be exact. I went to my ADR on Monday. When we got there in Halifax, we went through the procedure. When it came time for workers' compensation, they told me that what they had planned on offering would have been an insult. So, I don't know who had told the lawyer. I never found out the name.
MR. CHAIRMAN: Mr. Parker, you have a short snapper, I hope.
MR. PARKER: Short snapper, yes. They offered you $1,000 lump sum?
MS. RACHAEL BUCKLEY: Not offered. They were going to.
MR. PARKER: That was what you had heard they were going to offer you?
MS. RACHAEL BUCKLEY: Yes.
MR. PARKER: I agree with you, that is nothing. What do you feel would have been fair? Were you looking for a lump sum or were you looking for a monthly pension . . .
MS. RACHAEL BUCKLEY: Right now I haven't got anything.
MR. PARKER: Have you thought that through?
MS. RACHAEL BUCKLEY: To have it fair? I think I should have what my wages were when I first got hurt at work. At least I should have a percentage of what I would be earning if I was working. I think. Either per month or a lump sum. I have to think of the future also. I need money for the future also.
I can't get myself insured because I am disabled. I don't fall into any insurance companies that are going to accept me. I am hoping that I have a long life ahead. I was insured by the workers' compensation at work. I think I deserve to have benefits to help me out for the rest of my life, hopefully.
MR. PARKER: Okay. Thank you.
MR. CHAIRMAN: Thank you very much, Ms. Buckley. I don't know if any of the consultants have a question. Yes, Mr. Neville.
MR. NEVILLE: You stated that in June, they opened your case, June 1990?
MS. RACHAEL BUCKLEY: They closed it.
MR. NEVILLE: But they had reopened it from June to April, and they paid you 25 per cent?
MS. RACHAEL BUCKLEY: Yes. For the year. My file got closed on June 1, 1990. It got reopened, it was appealed in January 1991. The decision came in April 1991. It was reopened, my file was reopened, but for that year's period, I got the 25 cents on the dollar.
MR. NEVILLE: And they didn't pay you back to the day that they cut you off?
MS. RACHAEL BUCKLEY: The 25 cents on the dollar.
MR. NEVILLE: You were under the old Workers' Compensation Act, you should have been entitled to 75 per cent of your gross pay. When your claim was stopped or cut off, they should have sent you to the board to have you assessed for a permanent medical impairment.
MS. RACHAEL BUCKLEY: What they should do and what they do are two different things.
MR. NEVILLE: And if you got a PMI pension, then you could go back. You need a wheelchair, you need a ramp in your home, that is covered under the Act, under medical aid. You were denied it all.
MS. RACHAEL BUCKLEY: No way. They wouldn't budge. The wheelchair, there was a one-member committee that decided. It was a Mr. Vaughan. I don't know who he is, but he is the one that said no, she is not entitled to a wheelchair. The decision was made and that was it. We tried to appeal it, but appeals or not, it wasn't, no.
MR. WAYNE BUCKLEY: They even questioned paying a taxi to get her from the lodge where she was staying in Halifax to the rehab.
MS. RACHAEL BUCKLEY: I was there for almost three months. They were quibbling on paying the taxi from the lodge to the rehab. When I finally got to the workers' compensation to collect what was entitled, I had been saving my slips from the taxi, the secretary that was there told me, someone had said, oh let her walk, it will do her good. I
wish to this day I knew who it was. He wouldn't be walking either, I think. That is their attitude, let her walk, it will do her good.
I had to go to the rehab sometimes, I wasn't using my wheelchair all the time, I didn't want to use a wheelchair, if I could help it. I was having much problem walking, I remember having to walk with my head against the wall, and then there would be this big picture, I would have to lift my head up, and go through the length of the picture, and then go back with my head on the wall to get out of that building. It was to let me walk from the lodge to the rehab. That is the way they were.
MR. CHAIRMAN: Mr. Neville, is that the last question? Dr. Lamplugh.
DR. LAMPLUGH: Ms. Buckley, thank you for coming and sharing your problems with us. Are you taking any medications and are they helping?
MS. RACHAEL BUCKLEY: I am only taking medications when necessary. They are not really helping, but I am taking Tylenol, and Percocet-Demi, yes, I should remember. But anyway, I am only taking those.
DR. LAMPLUGH: On an occasional basis, or on a daily basis?
MS. RACHAEL BUCKLEY: No. Just occasional.
DR. LAMPLUGH: Thank you.
MR. CHAIRMAN: Are there any further questions? No. Thank you very much for sharing your difficulties with us today. We truly appreciate your taking the opportunity to come in today, and you have had a long battle, and we really appreciate the opportunity to hear from you. If you want to submit any further information, there was a question about chronology and those kinds of things, we certainly would appreciate that as further information. Thank you very much for taking the time.
MS. RACHAEL BUCKLEY: Thank you.
MR. CHAIRMAN: Ralph Messenger. Is Mr. Messenger here? Make yourself comfortable, sir. It is very informal so start when you like.
MR. RALPH MESSENGER: I'm Ralph Messenger. I was injured 30 years ago. I don't think your system has changed any since. For the first 10 years after I was injured, I was in pain every day. I had a back injury and they did a inter-body fusion first time. That was when I was 20 years old. When I was 30 years old, they did a spinal fusion. The compensation
board, to say they were less than compassionate would be really polite. It seemed like then, and now, that their caseloads were too high for the individuals, that they had very definite cut-off points. You get compensation for six months, we cut off and you fight, we will give it back to you for six months, and we cut it off. It seems like the same system.
I know that there has to be checks and balances when you are dealing with dollars. I have to stand up, my back is hurting. It seems like the compensation board does a definite cut-off on funding and then the responsibility shifts. It shifts from the provincial and then it goes to federal and then we get into long-term disabilities.
I have had pain for 30 years and I have gone back to work. We have about 20 people that work for us now. We have two companies that are working. I don't need the compensation's money now, but I know that there is a lot of people out there that do and aren't getting it. It is really annoying. I could have stayed home today and been just as happy but it just seems like such an unfair system and it is supposed to be something that was set up to help the people who could not help themselves.
If you take a person who is injured, they are not in a mental state that they can deal with the financial burden that just got dumped onto him, their paycheque stopped, and then they have to deal with the compensation board who just doesn't care. They have a budget and these are the rules and this is the way we do it, and we just cut you off whenever we feel like it. That has been my experience and different people that I have talked to, over the years, same thing, just a stone wall.
We know that no matter what system you put in place, it will never be perfect. You are going to get people who will abuse the system, if it is made too easy. I have thought about who is in control. If you put some of the people that are paying part of it, which are the employers, they might not have the time to sit on a review board or an appeal board. If you take some of the people that were hurt, that can't work, that have the compassion for other people and they sit and listen to somebody's appeal, then maybe a different point of view will come of it. It won't be a doctor that has a five minute interview.
I have been into the doctor's offices with the revolving doors. They have a wonderful system. All they are going to do is look at you, write a report, and send it in. There is nothing they can do to help you. So, why waste their time? That was my feeling and it still is.
The other thing is that the pension system was set up. When I was hurt the first time, I was 12 per cent disabled. I was a journeyman plumber. I just can't visualize a part of a plumber, we will cut this slice off and you can't reach over your head, but all the pipes happen to be there. How do you work? That was the logic of intelligent people and there is where I was.
At 30 years old, they decided that I was about 25 per cent disabled. The pipes never got any closer and I still haven't been at work at that trade again. There was, at that time, no rehabilitation or no help there.
In order to rehabilitate somebody, first you have to assess what they can do. Second, you have to have the willingness of the person to want to be rehabilitated and to study something else. If you try to put the round peg in the square hole, it is just not going to work. You can whittle at it and make it fit, but it is not going to fit good.
That is generally it. I could go on but you have heard it and you are going to hear it a lot more before you finish this session. You are going to hear it here and you are going to hear it in every community you go into.
The system is unfair. If you are a young person, healthy today, can't work tomorrow, and somebody cuts off the only source of income that you have, and you have a young family, you are in serious trouble. There was no appeal. You can go to anybody you want. The politicians are too busy and they don't want to hear it. I went to a politician and the question that was asked me, what do you want, to drive a Cadillac? What I wanted to tell him had nothing to do with Cadillacs or anything else, that he would really like to hear. But what I wanted to hear from him is that, yes, he will try to help, but that wasn't it. It was like I was taking more money than our family deserved from the Treasury of this country. All we wanted was enough to keep a roof over our heads and food on the table at that time.
MR. CHAIRMAN: Any members have some questions? Mr. Corbett.
MR. CORBETT: Mr. Messenger, you are an employer now?
MR. MESSENGER: Yes.
MR. CORBETT: The business you are in is?
MR. MESSENGER: We have three video stores and a computer store.
MR. CORBETT: A retail nature. Do you pay WCB on your employees?
MR. MESSENGER: Yes, we do.
MR. CORBETT: What is the rate that you are assessed at now?
MR. MESSENGER: There are two different rates. One is a newer company, one is established with no injury rates. So, we pay at different rates. We are paying approximately, if you want a number, about $1,600 a year right now.
MR. CORBETT: The $1,600, is that paid at a lump sum or are you allowed to pay that quarterly?
MR. MESSENGER: We usually just pay it in a lump sum.
MR. CORBETT: Do you have the option?
MR. MESSENGER: I don't know if there is an option in paying it.
MR. CORBETT: Getting off your injury here a bit, but I just want to ask you some other things from a business perspective. As a small-business person, do you see it as advantageous to you when you have to pay these premiums that you could pay them quarterly? Say if you are assessed at the 1997 rate and then this year you could pay quarterly, would that be more efficient for your business than having to pay one lump sum?
MR. MESSENGER: For us, it is not real critical, but if it was a quarterly, it would be definitely better especially if there was no interest tacked on it because you are going to pay it quarterly, if you just had a straight option.
MR. CORBETT: I am not going to belabour you with too many more questions because we are into the third witness and they see a lot saying this already. I guess I am going to ask my question and probably going to be my question for the tribunal all the way through with the commission. Do you see a difference between WCB, WCAT and the Workers' Advisers Program? Do you see them as being independent of one another?
MR. MESSENGER: They can't be if they are all paid from the same purse. They have one boss.
MR. DEWOLFE: Thank you for your attendance. I had a similar question, I think it was already answered for me regarding your being a business owner and paying premiums. What is your feeling about paying premiums when you obviously feel the system is letting employees down that do become injured?
MR. MESSENGER: It is letting a lot of people down, yes, employees, yes.
MR. DEWOLFE: You feel that the premiums you are paying are not well spent maybe?
MR. MESSENGER: I do not think it is well managed, no.
MR. DEWOLFE: Your situation must have been sort of dehumanizing, when you were injured and going through the system and jumping through the hoops and appealing and getting reinstated and back again. I guess it was a necessity.
MR. MESSENGER: That would be putting it mildly. To say you were treated like dirt would be giving dirt a bad name.
MR. DEWOLFE: Thank you. And, indeed, it must be humiliating and dehumanizing to be ill or to be injured and to be told that, for instance, the injuries are all in your head or you do not qualify, for whatever reason. I do not think I have any more questions for you.
MR. MESSENGER: I do not think there was anybody that was brazen enough to say that to me.
MR. DEWOLFE: Thank you very much.
MR. CHAIRMAN: Mr. Fraser, please.
MR. FRASER: Thank you, Mr. Chairman. Mr. Messenger, when you were injured, you were an employee at that time?
MR. MESSENGER: Correct.
MR. FRASER: And now you are an employer. I just want to get your opinion on if one of your employees were injured now and went for compensation and it came to an appeal process, or whatever, you as that individual's employer, would you want to be a part of a solution to that employee's problem? Do you feel that that is a role that an employer could play today?
MR. MESSENGER: We had to be because they were getting no results.
MR. FRASER: So you feel now if there were an appeal process where you would have a say, to come in and sit around a table with other people, that would be an advantage to the employee and to the employer sector?
MR. MESSENGER: It would be more of an advantage to the employee. They are the ones that need the help at that time too, understanding where the problem is.
MR. FRASER: Yes, yes, thank you.
MR. CHAIRMAN: Mr. Charles MacDonald.
MR. CHARLES MACDONALD: Mr. Messenger, Hyland has just asked one of the areas that I was interested in. The second side is when you talk about dealing with people at workers' compensation and the attitude that seems to prevail on the other side of the table, I guess in all these things, whether we get the right decisions or the wrong decisions, we hope to be dealt with fairly or we would like to perceive ourselves as being dealt with fairly when
we go through a process and not be subject to something that is less than fair. I guess the other side where you talk about the possibility of bringing our employees that have been hurt onto the Workers' Compensation Board, which may bring a different perspective to the board, and you feel strongly on that side as well?
MR. MESSENGER: Anybody that has been hurt and had to deal with the system would understand and the compassion would be there. You would have maybe not a professional point of view but a compassionate point of view.
MR. CHARLES MACDONALD: A compassionate point of view, yes.
MR. MESSENGER: And I have one more thing that I might like to add right now. Six months ago I went back to the specialist. My back was giving me a fit. They tell me that there is no more that they can do for me. I was a little bit ticked off and it is understandable, you keep going through these things. Where the fusion was and still is, is working terrifically well. The joint above it is doing double duty, so it is wearing out and that is where the pain is coming from. I went to the Workers' Compensation Board to ask them, you know, what they were going to do or if there was anything that they were going to do and I really did not care because I do not need it. I was just mad. I have not heard back from them yet and that has been over three months. I would hate to be in a situation of need. If you think that 1996 made a difference to the Workers' Compensation Board, I am sorry, it has not made a bit of difference. You have too heavy a caseload, too few caseworkers, and they are case hardened. I am sorry but that is not going to work.
MR. CHARLES MACDONALD: Thank you, Mr. Messenger.
MR. CHAIRMAN: Thank you very much. Does anybody else on the committee have any questions? Perhaps if any of the consultants, do they have any other questions? Well, thank you very much, Mr. Messenger. I think you brought a unique perspective to us here this afternoon having been both an employer and an injured worker. Thank you very much for taking the time.
MR. MESSENGER: Thank you.
MR. CHAIRMAN: Are there any other members of the public here that would like to make a presentation at this time? If there aren't any, we will be adjourned until 7:00 p.m. (Interruption) Yes, come forward and just have a seat. Would you identify yourself, please.
MR. JOSEPH MUISE: I never prepared anything.
MR. CHAIRMAN: That's all right.
MR. MUISE: I am Joseph Muise. I am an injured worker. I was injured in 1989 and since 1989, I got a spinal fusion in 1990, and I was on workers' compensation because it was a work-related injury. I went to rehab for a year and after that I got on-the-job training for a year at an insurance broker. I got my licence. I was sitting down at a computer for eight hours a day which I could not do anymore. So they said, well, if you cannot do that, we cannot help you anymore. That was back in 1993. So they just cut me off.
MR. CHAIRMAN: So you were in receipt of workers' compensation benefits at the time you were cut off?
MR. MUISE: Yes, from 1989 to 1994.
MR. CHAIRMAN: And then once you left that employment that you had been in, then they cut you off?
MR. MUISE: Yes.
MR. CHAIRMAN: What was the reason given at the time?
MR. MUISE: I had exhausted their program.
MR. CHAIRMAN: And that was just as far as you were told, that was it?
MR. MUISE: No, because I went to the board's medical doctor and he had put down there was zero disability pertaining to the accident. So, therefore, I would not qualify for any more benefits. I had an appeal in 1993, and Mr. Neville was present there. I don't know if you remember, at Rodd Grand Hotel?
MR. NEVILLE: Yes.
MR. MUISE: I waited almost two years for their answer from that. That was the external appeal and after that, yes, I waited two years. Then I finally got the decision and the decision was not satisfactory. So I had to appeal again and again and again and just July, two months ago, I was told I had to seek a workers' adviser and I had until August to present anything. So I called Halifax. They said our closest opening is September, next month. So I had to write a letter to the board asking them for an extension. I got the extension. Now I have to go to Halifax next month to see what is going to go on.
MR. CHAIRMAN: I am going to ask the obvious question at this stage. Do you feel that it would be more helpful for you if you had had a workers' adviser available in the area that you live?
MR. MUISE: Yes. I was not aware and they never told me that they would come down, because I have been waiting for five or six years for appeals and I have to ask for an extension for more time.
MR. CHAIRMAN: Yes. Are there any committee members who would like to ask Mr. Muise any questions? Ms. Godin.
MS. GODIN: Just for clarification, Mr. Muise, and thank you for coming forward, you say you have a workers' adviser?
MR. MUISE: No, I don't. I have got to go on September 15th to see . . .
MS. GODIN: Okay. They have said that you have to go to Halifax?
MR. MUISE: Yes.
MS. GODIN: They did not make the offer to come down to Yarmouth?
MR. MUISE: No. My deadline was August 30th, I think. I wrote a letter to Judith Ferguson at the board.
MR. CHAIRMAN: Workers' Compensation Appeal Tribunal?
MR. MUISE: Yes, for an extension, to see if I could have an extension, more time.
MS. GODIN: I guess it goes back to what Mr. Corbett is trying to establish in that the lines are getting confused here about which body you are actually dealing with.
It is still my understanding - and we were told Friday - that a workers' adviser would come here to speak with you. It would not be a workers' adviser that you are going to see in Halifax. I don't know whether I should give you this information as well, that I gave to the first gentleman.
MR. MUISE: Who am I going to be seeing September 15th?
MS. GODIN: Somebody with the tribunal, is that correct?
MR. CHAIRMAN: No, no, he'll see a workers' adviser.
MS. GODIN: He is going to see a workers' adviser, okay.
MR. MUISE: To appeal again.
MS. GODIN: But if he spoke with Judith Ferguson . . .
MR. CHAIRMAN: That was to get the extension.
MS. GODIN: To get the extension. Do you know the name of your workers' adviser?
MR. MUISE: I don't know who it is. They told me I have an appointment September 15th. I have to go in there. I don't know who I am talking to or for how long. All throughout my appeals, I had one sitting and that was in 1993. Everything else has been done through paper. I have never had a say into anything.
MS. GODIN: With all due respect, Mr. Chair, it still does not sound like he is dealing with the Workers' Advisers Program. He would have to be? Okay.
MR. MUISE: Is there a reason why there is - what is it - two and one-half months waiting period to see an adviser?
MS. GODIN: No. I have a map that says there are 17 people down here in Yarmouth County at this time that are dealing with the Workers' Advisers Program. We were told that they routinely travel the province when they are needed. If they are down here to speak with someone else, they would make an appointment to speak with as many people as they could.
MR. MUISE: I was never there.
MS. GODIN: Okay, thank you, Mr. Muise.
MR. CHAIRMAN: Thank you. Mr. DeWolfe, any questions?
MR. DEWOLFE: Yes, Mr. Muise. I do not want to put words in your mouth but I guess it would be fair to say that injured workers are not informed of the options available to them.
MR. MUISE: No.
MR. DEWOLFE: In your case, to your recollection, you have not been informed that workers' advisers would be on the road or what other options might be open to you?
MR. MUISE: No. I have been waiting since the last - I went through the internal appeal system; I went through the external and then I had to go through the internal appeal. I went through the internal and just last month I got a decision that I could apply. I really believe I am applying under this new law of this chronic pain syndrome. I am not quite sure, that is why I came here today, I might clarify where I am going or where I am heading at.
MR. DEWOLFE: Well, that clarification should be provided from the Workers' Compensation Board, not here, actually.
MR. MUISE: No. I am just . . .
MR. DEWOLFE: It is not happening.
MR. MUISE: No.
MR. DEWOLFE: Okay, thank you.
MR. CHAIRMAN: Any other committee members have questions? Yes, Ms. Godin.
MS. GODIN: Mr. Muise, we are getting some photocopied sheets for you as well with contact people just so that you can double-check that you are dealing with the people you think you are dealing with. Okay?
MR. CHAIRMAN: Yes, Mr. Corbett.
MR. CORBETT: Your injury, Mr. Muise, was 1989?
MR. MUISE: Yes.
MR. CORBETT: Okay. I think the new chronic pain policy - I think you are outside the window. You are involved with FRP more than the chronic pain.
MR. MUISE: I don't even know what I am appealing anymore. (Laughter) I honestly don't. I appealed their medical doctor's decision, there was zero disability. I had the orthopaedic surgeon in Halifax, Dr. Petrie. I had Dr. Harrison. I went to rehab centres. I have been through all that and they disagreed with the board doctor but the board doctor says, zero disability.
MR. CORBETT: Well, I think, Mr. Muise, your part of the report we are going to hear a lot, and it wouldn't be presumptuous going across this province, is people disagreeing with the board doctor. I don't mean to make light of your situation and that certainly seems to be something that is popping up already is where that all fits, is your medical opinion that you get compared to the medical opinion that the board gets.
MR. CHAIRMAN: I don't want to put words in your mouth, sir. Am I sensing that you don't feel as if anyone has ever explained to you exactly how the system works? I get the impression from some of your comments - and I don't want to put words in your mouth - but I just wondered if you could comment on that?
MR. MUISE: I didn't get that clearly.
MR. CHAIRMAN: Do you feel that how the system actually works has been explained to you?
MR. MUISE: No, I haven't. I have even asked to get a copy of their new legislation, they will not supply it to anybody they said. I couldn't get a copy.
MR. CHAIRMAN: Thank you, that answers a bit of my question. Mr. MacDonald.
MR. CHARLES MACDONALD: Who is your board doctor, Mr. Muise?
MR. MUISE: Dr. King.
MR. CHARLES MACDONALD: Dr. King was your board doctor. When did you last receive benefits?
MR. MUISE: My last benefits were in 1994, I had received from 1989 to 1994.
MR. CHAIRMAN: Any further questions from members of the committee? Do any of the consultants have a question for this gentleman? Dr. Lamplugh and then Mr. Erjavec.
DR. LAMPLUGH: Mr. Muise, just on the matter of medication. Are you taking any and is it of any benefit?
MR. MUISE: No, I did take some and I would rather take pain than walk as a zombie.
MR. LUC ERJAVEC: Just two quick questions. You went back to university, the board funded your rehabilitation and you started work as an insurance broker or in the insurance industry?
MR. MUISE: I went in insurance and I worked myself up to my insurance licence and everything.
MR. ERJAVEC: Were you earning an income in insurance?
MR. MUISE: No, it was through rehab.
MR. ERJAVEC: No, you had a job as an insurance representative.
MR. MUISE: Yes.
MR. ERJAVEC: You did have a workers' counsellor for your external appeal in 1993, the external appeal, the one that was refused?
MR. MUISE: Yes. It was a lawyer. I just received my file just this summer. Because the workers' advisers told me that they couldn't take on the case because I was under appeal. The last answer was supposed to go back to him and then from him, if I wasn't satisfied then I would have to go through another adviser.
MR. ERJAVEC: But you did have an external appeal?
MR. MUISE: In 1993.
MR. CHAIRMAN: Thank you very much. I believe those are all the questions. Thank you very much, sir, we appreciate you taking the time to come forward this afternoon. I know it is not easy to come forward sometimes. I sensed you were a little apprehensive and I hope that it was a non-stressful situation. Thank you very much.
MR. MUISE: Thank you.
MR. CHAIRMAN: I guess we stand adjourned now until 7:00 p.m. Thank you.
[4:59 p.m. The committee recessed.]
[7:04 p.m. The committee reconvened.]
MR. CHAIRMAN: I will call the meeting to order. I would like to thank the members of the public for being present this evening. Perhaps what I will ask the committee to do is to do introductions and I will ask everybody at this table, starting with Mr. MacDonald on the end, to do their introductions, where they are from and what they represent.
[The committee members introduced themselves.]
MR. CHAIRMAN: We will ask the consultants at the table to start introducing themselves, starting with Mr. Neville.
[The committee consultants introduced themselves.]
MR. CHAIRMAN: Perhaps I will just go briefly for those of you who were not here this afternoon. The purpose of our committee is to hear the concerns of Nova Scotians with respect to the workers' compensation system. As such, we will be making recommendations to the Legislature with respect to changes in regulations or legislation. For the benefit of those people who are making presentations, we are not hearing appeals, so that people should understand that when they make their presentation, they should be addressing that in the sense
of recommending changes to the existing legislation and not to this committee directly influencing the course of their particular case, if they have a case in front of the Workers' Compensation Board.
Another thing, of course, is that people should recall that the proceedings are being recorded and that they, therefore, do not need to repeat themselves to make a point. We will have a permanent record of the proceedings here this evening for their benefit. So that will make things, I think, simpler for everyone.
Again, a technical note, when people are talking, we would ask that they talk into the microphone because otherwise the people from Hansard will have difficulty recording it.
With that, I would ask the first presenter, which I believe is Harold Hatfield and company to come forward.
Well, they don't seem to be here yet. So is there anybody here from IMO Foods Limited? Is there anyone else from the public who would like to make a presentation at this time? Please come forward. Thank you.
Perhaps if you could just introduce yourself and indicate where you are from.
MR. ALLAN ROBICHAUD: I am Allan Robichaud and I am from Meteghan, that's back in the sticks. I got hurt on February 17, 1983. I am still fighting for money that was owed to me, as far as I am concerned, from 1983-84. I have seen, I don't know how many doctors. I have had many, many lawyers and I went to quite a few meetings. I went to one four or five years ago, which I said was my last because everything that they said, that they were going to help us, after they were gone, we never heard from them again. This was the workers' compensation. I am not a very good speaker, but there are many things with the workers' compensation, as far as I am concerned, that should be changed.
One of the things is the doctor that knows you best, knows your history best, they won't take his word for anything. That is your family doctor. As far as the specialists, I have been to many different specialists. One tells you to do this, the other one tells you that is the worst thing you can do. The workers' compensation sent me to get assessed by one doctor. Because his report was in my favour, they ignored it. They said that he had suggested that they put me on a 20 per cent partial disability, there is nowhere in his report that it was said. At the time, I thought I was going back to work, so I didn't say anything. Then, when I found out I wasn't going to work - maybe it wasn't too late, but - I didn't say anything about it. I let it go.
Another thing, that meeting we had a few years ago, from what I understood, we should have been paid from the start, lost wages. It should never have been on a percentage. That was supposed to be changed. But I don't know if it was changed from a certain date to now, but for us, further on, the earlier ones, we never heard anything about this.
Now other things, when I first went on workers' compensation, I was paid for a certain period of time, then as everybody else, they cut you off. Then you have to go in front of an appeal. When I went in front of the appeal, they started paying me again, but they skipped, I think it was 13 months, then they paid me for another period of time, then they cut me off again. Then I had to go in front of another appeal, they skipped another 13 months that they never paid me. Finally, they put me on a 20 per cent partial disability. I never went back to work from the injury that I had in 1983. But still, they won't pay me for periods of time. I can't understand why. I never went back to work. I couldn't go back to work.
There are so many things wrong that it is hard to explain what it does to a person. It gets on your nerves. They don't care. For lawyers, I think if the government wants to help you out, you should be able to get a lawyer that you know, that you know is going to care what happens to you. I just can't think of everything.
MR. CHAIRMAN: Are there any other suggestions, sir, that you might have about how the system might be made better, from your point of view, changes that you would like to see made? I am sure there are lots, but can you think of any particulars?
MR. ROBICHAUD: Changes, that is one thing that I would like to see. I would like to see them take the word of your family doctor, the one that knows you and knows your history. If the government is going to force the companies to take the workers' compensation, they force the companies to do it, they could force the workers' compensation to pay those who get hurt. It shouldn't only be one way. They say okay, the workers' compensation owes money but it is not the small companies that are out, it is the big companies.
My employer paid his dues, but still, I am fighting to get what I think I deserve. And I have to spend my money to try and get paid, which I don't think is right. I have been doing this for 15 years. I watched them on television a while back, they were in the office there, they had the whatever you call it, and I should have been there too. Lots of them that were there had been injured long after I was.
To fix what is going on, I really don't know. It is up to you people to try and find ways. We suffer enough by getting hurt without suffering trying to get what is coming to us.
MR. CHAIRMAN: Are you still receiving a partial pension?
MR. ROBICHAUD: I am getting 20 per cent. That is not even enough nowadays to buy - as far as I am concerned, I should have been put at least 75 per cent disabled. But if I have to go in front of an appeal for that - I am still going in front of appeals for money that they owe me from 1983-84 - I will be gone by the time I get what is supposed to come to me.
MR. CHAIRMAN: Have you an active case, sir, that is in front of . . .
MR. ROBICHAUD: Yes.
MR. CHAIRMAN: What level would it be at? (Interruption) Oh, it is appealed to the Court of Appeal, okay.
MR. ROBICHAUD: That is all that I can think of, but there are lots of things. I just can't think. There are many things wrong with this. I don't think I am the only one that is having problems. I know in Cape Breton, in Pictou, and that, they have associations, I think, but over here we have not got anything like that. Nobody gets together. We do not get help from anybody. We have to hire our own lawyers now but I think if we had our own lawyers from the start, we would have been way ahead. Somebody you know. Somebody you know who cares. I think that's all.
MR. CHAIRMAN: Some of the committee members may have some questions they would like to ask. Mr. Corbett.
MR. CORBETT: Mr. Robichaud, you have an appeal now in front of the Supreme Court of Nova Scotia Appeal Division?
MR. ROBICHAUD: Coming up, yes.
MR. CAREY NICKERSON: Mr. Robichaud has recently applied for a leave to appeal.
MR. CORBETT: A leave, okay, thank you.
MR. CHAIRMAN: To the Court of Appeal, correct?
MR. CORBETT: To the Court of Appeal, not WCAT. Who represents you in those proceedings?
MR. ROBICHAUD: Clifford Hood.
MR. CORBETT: And he is a private lawyer?
MR. ROBICHAUD: A private lawyer from here in Yarmouth.
MR. CORBETT: Has he been your counsel since . . .
MR. ROBICHAUD: No, I had an appeal a while back and then they said they could not help me anymore with workers' counsellors. So I went to see this lawyer and I asked him if he would take my case and he accepted after a while.
MR. CORBETT: So you did have a workers' adviser?
MR. ROBICHAUD: I had many, up to two or three a year. By the time they are used to your case they get a job somewhere else and you get somebody else and they got to go all through your case again.
MR. CORBETT: And now you have retained counsel on your own?
MR. ROBICHAUD: Yes. The Workers' Advisers Program, if the lawyer was there all the time without so many cases, might have been good but the way it was they had too many cases to take care of and nobody can do that. As soon as they would get a job somewhere else they would move on.
MR. CORBETT: Thank you.
MR. CHAIRMAN: Do any of the other committee members have questions? Mr. Parker.
MR. PARKER: A quick question, coming back to Clifford Hood who is representing you, are you paying him yourself or is that provided through the WCB program?
MR. ROBICHAUD: I am paying myself.
MR. PARKER: So it is your own costs, your own money?
MR. ROBICHAUD: Yes.
MR. PARKER: And you feel that that was better than taking the free services of the Workers' Advisers Program, is it?
MR. ROBICHAUD: Well, they had told me the last time that they could not help me anymore. They would not represent me anymore. I had so many appeals trying to get this money.
MR. PARKER: So it was your only choice then?
MR. ROBICHAUD: It was my only choice but I think I would have gone that way anyhow because the other way it was not helping out. I was getting nowhere.
MR. PARKER: So it is certainly going to cost you money out of pocket in order to try to pay for . . .
MR. ROBICHAUD: It is going to cost me a lot of money.
MR. PARKER: Could I ask you to just briefly explain a little bit about your injury, what happened to you and where you were working?
MR. ROBICHAUD: I was working aboard a boat off Shelburne, February 17, 1983, and it was kind of rough. We had a new guy aboard the boat. It was not his fault but that is the way it worked when you got a new guy, he did not know exactly what to do. Usually we put the first bag of fish in the middle of the boat, inside the checkers, and then the second one we either put on one side or the other and the net was on top and instead of leaving it there, he pulled it to the side where we were going to drop the other bag of fish. The guy at the winch dropped the bag of fish on the checker so it would hold it and the guy had pulled the net at the wrong place. So I went and I hauled that over but then I had to take a rope and go around the back of the bag of fish and it weighed between 4,000 and 5,000 pounds. When I went around the back, the boat rolled and the bag of fish let go. When I turned, I looked and the bag of fish was there and it was either going overboard or dropping and I dropped and it jammed me against the railing of the boat. I did not think it had hurt me. I thought I was only out of breath.
MR. PARKER: What is the nature of your injury then?
MR. ROBICHAUD: It hurt, it is on my spine. That is all I can tell you. I have been at so many doctors. One says this and I went for nerve blocks and this doctor told me, he said we can stop some of the pain but he showed me there and I could see something but I do not know what it was. I am not a doctor. He said we cannot fix that.
MR. PARKER: Thank you.
MR. CHAIRMAN: Mr. Samson.
MR. SAMSON: Mr. Robichaud, I just want to confirm one part of your testimony. You indicated that one of your suggestions to us was that you would like to have the choice of being able to choose your own lawyer. I know Mr. Parker indicated that now you are paying for Mr. Hood, but just to get it clarified, the lawyers that you had before were covered by workers' compensation?
MR. ROBICHAUD: Right.
MR. SAMSON: But is it your suggestion that, okay, let workers' compensation cover the lawyers but give the individuals the choice of which lawyers they go get, they know who the lawyer is and feel this fellow knows me, he is going to work hard on my behalf. That is your suggestion to us, is it? You are not suggesting that you as an injured worker have to go out and pay for your own lawyer, to have your own?
MR. ROBICHAUD: No.
MR. SAMSON: Let workers' compensation pay for it but allow you the option of saying I want this lawyer instead of them telling you here is your lawyer?
MR. ROBICHAUD: I mean that but I do not mean going for Greenspan or somebody like that. I mean a lawyer that you know . . .
MR. SAMSON: Sure.
MR. ROBICHAUD: Okay, yes.
MR. SAMSON: But what you are suggesting is that you be given the choice instead of WCB telling you, Mr. Robichaud, here is the lawyer who will represent you?
MR. ROBICHAUD: That is right because I feel that a lawyer that you know and knows you so much will work harder for you and you will trust him more too.
MR. SAMSON: Sure, okay, yes, I just wanted to clarify that. Thank you.
MR. CHAIRMAN: Any other committee members? Do any of the consultants wish to ask any questions of this gentleman? Mr. Neville.
MR. NEVILLE: Did you return to work at all?
MR. ROBICHAUD: I tried. I tried to go to work the next trip because I did not think - when we got home, I went to the doctor and the doctor said, he said I think you have only got bruised ribs. So I said okay. So I went home and when it came time to go out again, the captain phoned me. He said we are going to go out tonight. I said I cannot go. I said it hurt more than when we came in. So he said, well, just come aboard and you stay at the wheel. So I went and stayed at the wheel, tried to do a little bit, but it was getting worse and worse. So when we came back in, then I could not go back out again.
I travelled to the doctors for, I cannot remember dates and I cannot remember for how long, but finally they sent me to Halifax and then they found out it was worse than it was supposed to be, but I still thought two years after that I was going back to work.
MR. NEVILLE: Are you receiving Canada Pension disability?
MR. ROBICHAUD: Yes, I am.
MR. NEVILLE: And your compensation pension, there is a subsidy the Workers' Compensation Board pays to bring your wages up to $11,500 a year?
MR. ROBICHAUD: My wife would know all of that. I do not know anything about it.
MR. NEVILLE: But a person like you who was injured before 1990, if you are receiving a compensation pension and Canada Pension, they will subsidize the amount up to $11,500. So if you are getting $9,000 a year, they will give you the other $2,500.
MR. ROBICHAUD: Yes.
MR. NEVILLE: You have got to apply for it though.
MR. ROBICHAUD: I think we do.
MR. NEVILLE: That is all, Mr. Chairman.
MR. CHAIRMAN: Thank you very much for coming in, sir, and taking the time to be with us this evening.
MR. ROBICHAUD: Thank you.
MR. CHAIRMAN: Are there other presenters that would like to come forward? Are you folks from IMO Foods? Would you like to come forward, gentlemen? Thank you for taking the time for being with us here this evening. We are very informal. So you can just start whenever you are ready. Perhaps you could introduce yourselves.
MR. SIDNEY HUGHES: I am Sidney Hughes, the President of IMO, and this is Phil LeBlanc. I work in the management area in corporate matters and marketing and tie the organization together. I work out of Halifax, it is an office set-up, and Philip works from Yarmouth here. Our concern and reason for coming here and taking advantage of this opportunity is the aggressive attitude of the Workers' Compensation Board in going after companies that have paid excessive rates for the last 20 years and pouring it onto them and abusing them, in fact. So, I have a few notes and essentially there are two areas on the compensation insurance process which cause us concern and cause us to appear here.
First, I should preface it by saying that we need the compensation board or something that is going to give this type of accident insurance for our employees, and a liability which we accept. The whole basis of classifications and the basis of establishing rates under these classifications is probably the worst area of abuse of any or many organizations that I have seen in government service.
Just on these two things then, classifications and rates, I will do my preface on that. On reading the Act, this Act seems to indicate that it was the intent of the legislation to create an accident insurance fund based on risk or actual experience. You can reference this in Section 121(1). Under that Section it notes that the fund is created to cover risk based on cost over time. Section 122(3), that the intent is to cover the cost of industrial accidents and establish rates based on risk factors with provision to increase or decrease, and there are other sections. I think Section 123 and so on which pretty well gives this wide open board a chance to free wheel and deal up and down, or where it wants to go. They seem to do this without reference to the intent. This bothers me deeply.
There is this little blue book, and I have a couple of years for reference, 1976 and 1977, and in the things, if you wish, we have a few notes that we could leave with you. You can see here, rate structure and classes. Within this book, which WCB staff sets out approximately 900 separate classes for this small Province of Nova Scotia. This is the first complexity, complication in establishing so many classes that you create work for our bureaucracy.
These classes and the rates are assessed to each class. These classes, for some reason, are the original SIC, that is Standard Industrial Classification rates, which were designed by the old Dominion Bureau of Statistics probably 100 years ago or more, and recently adopted I think in 1995 by the board as a way of getting away from what you intended, for the collection of statistical information is what it was designed for: imports, exports, number of employees in an industry; if it was fishery, it was the number of people there that are deriving their lives in that way, in order to build up for Canada an economic picture. They were never ever designed, or relate in any way, shape or form, to workers' compensation risk provision. So, you end up with 1,100 or so, or 900 for sure, classes here.
The clear intent of the Act, which I indicated above, was to offer insurance based on risk. I don't know if you have questions or if you can clarify that point for us, but that is the way we read the Act, or I read the Act in any case.
Now, we have a number of letters, some of which we will leave with you, if you wish to have them, to give you an indication of what we have gone through in our efforts to rationalize or get some reasonableness out of the rates and the implications of these rates, the impact on our company. I have a letter there from S.A. MacLean, dated October 3, 1996
which we have enclosed. It is to an accountant, Ron Harrop, and it is noted there that the classifications for IMO Foods Ltd. of Yarmouth and a related marking company, Fancy Foods Limited of Halifax, were revisited so as to fit into higher classes of SIC rates. Now at the time, they reviewed those and changed the classification, they went to much higher rates. This company was already paying rates that allowed the commission to make well over 70 per cent margin. So, what relationship this has to risk, I fail to see it. Mr.[Philip] LeBlanc, he is the Vice-President and General Manager of the plant here, and he will go into more details specifically about that.
It seems to be that where we were content to coast at rates that were excessive that suddenly we had it in the neck. When we get the letters back, after a hearing, everything is justified, but it is their interpretation of the Act, because the Act is so convoluted and just a mishmash of, here is the intent but here you can do what you want. You are not only establishing rates and classifications, you are monitoring it, you are collecting it, you are policing it and fining people, and you have no come-back at all. They can get completely off the hook because you have created a new super-board which is a hearing committee. So, once you go through one appeal then you are kicked upstairs to another appeal court on top of this, and you have to wait then at least one year or two years. In the meantime, what do you do? Small companies can't go through this. We have fought it a little bit. I don't know how much longer, but it is just absolutely a make-work program at the hierarchical level within the organization.
This is supposed to be insurance. It is supposed to be for our employees. The money should be going there and it should be a very straightforward, simple formula which everyone could read and understand. I don't think the average person could worry their way through that material if they had to. I hope that the people on the legislative committee have read it. If you can and find that it makes any balanced sense, I would like to have some understanding of what it is.
There are a number of letters here. There is one from M.F. Hearns, it states that Section 115(1) of the Act and Section 221 of the Act authorizes the board to fix rates of assessment. This same letter goes on then and contradicts this argument by stating, Section 121(1), to the effect that,
"The Board may establish rates of assessment among any class or subclass and where, in the opinion of the Board, the record, risk . . . in any class or subclass over a period of time determined by the Board differs from the average in other classes or subclasses, the Board may
(a) confer or impose a special rate, differential or assessment to correspond with the relative hazard of the class or subclass; and
(b) adopt a system of rating to take into account the relative costs of claims of the class or subclass.".
and on and on.
First, they tell us that SIC is the way you do it. Then they go on and explain that that is not the way it is supposed to be done; it is supposed to be done according to legislation based on risk but we do it this way anyway and that is the way it is going to be. We are going to administer it that way; we are going to set it up that way and you are going to pay it that way. If you don't, you are going to get very stiff penalties.
MR. CHAIRMAN: I don't want to interrupt you but I take it your company has been assessed penalties or there was a threat to assess penalties?
MR. HUGHES: We have taken the unusual step of paying up front to try to avoid penalties but in the possibility of getting any of that back. I mean, you tire of this after you go through this process for a little while and you say, well, where do we go from here, the United States?
This is one of the items that has kept us from doing more investment in this province. In fact, in the last four or five years, most of our investment has gone south of the border. This is not for only that reason but there are a number of government rules and regulations that are very hard to understand here, so that the industrial climate is, unfortunately, not quite where it should be.
Does it follow, therefore, that the board is grouping Nova Scotia companies into SIC classes with reference to the intent of the law? I question there and I wish you would too and say, what is this all about?
Not everything is wrong with WCB. Their accident coverage is universally available and this might not be the case with a private carrier. The American system is such that they legislate that you must take under certain classes of industry, that you must have this insurance or, otherwise, you could be fined.
A private carrier offers it and for the most part it is very comparable with here, or less in some cases, it might be more in others. It goes more by risk. If you do not have any claims, you get the money back, or a good piece of the money back. All they keep is a modest amount for administration. Here, it seems that if you pay up and pay well that you get reclassified and into a higher rate. So there seems to be a new thrust for premium increase which is relentless.
Equity is a word that the assessors do not seem to understand. A selection of rates from the recent publications is appended here. There are another 880 in the blue book which, if you read them - it is good bedtime reading for you - see if you can compare these rates and ask yourself, you know, how on earth they ever got to be?
In some of the items that will be there if you are interested in them, just as examples, our company is a canner - it is a canning company and Philip will explain this in more detail. We were in SIC 1031 and that was done 15 or 16 years ago because we were one of a kind and there were only two or three other canneries in Nova Scotia. They grouped all the canning companies, very legally, within the Act, you say there, they can assess the need.
Now, this is much higher than they required for money but we did not oppose it. That seemed to be the only class that we reasonably fit. The fact that we put fish in a can instead of apples or vegetables, it should not matter less. The process is quite related and our plant was certainly more modern than anything they had in the Valley at that time.
We have recently been pushed then into SIC 1021 which takes us up about $1.50 or so in rate. That is a rate that was at $4.54 in the last few years and this year it is at $4.43.
If you wish, any of you can visit our factory and have a walk through it, you won't find there the relative comparison of risk, you would have to do it out of the history of what we have paid in, and what has been paid out on our behalf, to the employees. I am sure you know that better than I.
Just by comparison, if you looked at gas distribution, which is a new one for this province or will be, this year from 1996, they pay $1.20. Now they have us up at $4.54. I don't know what relative risk applies here. But that was in 1996. This year, they have moved it down to $1.12. Does it make any sense?
Gasoline and service stations are at $2.16 and our plant, which has a very clean record, at $4.43 or $4.54 as it has been. Crude oil and gas, they have moved it up a little bit from $1.08 to $1.27. What kind of a game is this? General merchandise wholesale, $1.20, it has moved down to 96 cents. For the most part, that is a good part of the activity that we do. We make a shelf-stable grocery item. Put it in cans and packages, and put it on store shelves.
General stores, $1.39 to $1.22; granite quarries, they had moved them up a little bit from $1.76 to $2.11; gypsum mines, $1.25, they have gone to $1.27 this year. Now there is a very interesting one here, metal closure and container industry. It was at $3.06, they have moved it down to $2.76.
If you listen to what Phil has to say, maybe he can elaborate on it, but in terms of the letters that we have back from the Workers' Compensation Board, they are rating some of these companies not according to employees but according to the most active part of their
business. Certainly with our plant, the most active part of our business is making cans. That would give us a $2.76 rating, if they wanted to do that.
As far as I can see, all they are after here is blood. I know they have had a problem but it has surely got to be spread in a different way. There are rates in there that are 50 cents and 40 cents they are moving them a little. The banks, you don't even charge the banks. There is as much liability there as there is in our business office.
If you think that we feel frustrated and mad, some of the letters, I just couldn't even bring myself to send out. I know you have a difficult job if you want to change this Act again within two years of it being changed. I also know that the people who come to you have problems of collecting compensation and the union representation and all that, and the employers seldom speak up. Some place along the way, some of them have to, and get this mess cleaned up.
MR. CHAIRMAN: Mr. MacDonald, I think had a question for you.
MR. CHARLES MACDONALD: I understand you are in fish processing, that is the side that you are in, or fish canning . . .
MR. HUGHES: That is where they have put us now, instead of in the canning. Philip will deal with that, he will answer it if you have a question though. Any questions you have, speak up. We will try to answer them.
MR. CHARLES MACDONALD: Your rates are applied to your office staff and everyone, all the way through the system. There is no separate . . .
MR. HUGHES: It is now.
MR. CHARLES MACDONALD: So that your rate is up, and that stays with everybody, it doesn't matter if it is a secretary or somebody down on the line or . . .
MR. HUGHES: Yes, according to the Act that doesn't have to be, but they disregard the Act. I have seen them come back and give a letter and say, we will give on that point a little, but they are not consistent in handling it.
MR. CHARLES MACDONALD: That was all for now.
MR. CHAIRMAN: Mr. LeBlanc.
MR. PHILIP LEBLANC: My name is Philip LeBlanc and I am the General Manager at the factory here in Yarmouth, the company name is IMO Foods. Just to cover a bit of detail on the history of our rates for workers' compensation here at IMO Foods, and look at some
of the levels of claims that we have been making against what we have had to pay to be covered by workers' compensation, maybe suggest an alternative for a costing scheme, and then just kind of a brief summary. Some of the points probably will be repeated again, as we have already raised them.
Through the 1980's the rate paid to the Workers' Compensation Board was about 1 per cent of our payroll. That was pretty steady through the 1980's, it was level. Then in 1990, increases started. The increases through the early 1990's ranged anywhere from 12 per cent to 20 per cent a year. We were always in the same class, the SIC 1031 class that we are in, which was the canning industry. The 1995-96 the rates were flat, there were no increases. Then in 1997, it was when we were reclassified. In 1997, we were put into the fish processing section, SIC 1021, and at that point, that jumped our rates up by 45 per cent.
We went from the 1980's paying approximately 1 per cent or in the low 1 per cent range, up to the base rate for the SIC 1021 class, of $4.54 per $100. It is a substantial difference over the years. That is 400 per cent over the years. The rates between the two classifications was a 45 per cent jump in one year. That is the time that we appealed that decision, and it is still under the appeal process.
Our factory here in Yarmouth, although it does process fish, packs fish in a can. The fish processing aspect is a minor aspect. As a vegetable cannery puts vegetables in a can or a fruit cannery puts fruit in a can, we put fish in a can. Most of the fish that we can has been purchased from local processors. It is mostly herring, so we buy herring fillets. There is no cutting involved, the fillets are thawed, and then just put in a can by hand. It goes through a production line, packaging line, and is shipped off to a retail store. It is canning as any of the other canneries in the province would be.
We must also mention that we are the only fish cannery in Nova Scotia. If you look at the Nova Scotia Manufacturers Index, it will show IMO Foods as the only one listed. Sometimes when we look at our assessment and they say you are based in your group, there is no one else in our group. When they say it should be higher, how do you come up with a higher rate than what our rate is? We have been in business for over 30 years. The history of claims and employment level and the type of work done over the 30 years has basically been the same.
The can-making aspect of the business also is something unique to IMO Foods in the province. We make our own cans and lids that are used for the fish canning operation. That is a bigger input than the fish, as similar to a lot of food packaging industries, the container is worth a lot more than the ingredients, beer is the classic example, the beer is only worth maybe a couple of pennies but the bottle is worth a lot more. In our case, the can itself has a higher cost input than the fish itself by at least 50 per cent.
If you look at what the major part of our business is, somebody from the outside might say you are producing cans more so than you are producing fish. Just as a point of detail, our man hours involved in fish processing, actual handling of round herring and producing fillets was about 1 per cent of our total man labour input. Nowadays, if you hadn't had the opportunity to visit a fish plant or our plant in particular, there are no knives that are handled, it is all mechanized on the fish processing side of things. The injury level is very low from that operation too, but as we say, it is a small part of our operation. We would have no objection to having some split up of our operation, so that perhaps this portion is reviewed as a fish processing operation, and that could go under that class.
As it was mentioned, there is a certain group of the workforce that is involved, purely, in administration and office-type work, so that has a different rate as well. If that was split up, maybe some of the higher risk would be a higher rate but not the standard $4.54 rate right through the whole group.
Over the past seven years, from 1990 to 1997, IMO Foods has paid workers' compensation approximately $215,000, based on the lower SIC 1031 class and for the past two years in the higher SIC 1021. Over that seven year period there were $70,000 in claims made from all employees from all divisions, so we are paying basically three times what the claim rate was over that period.
We do receive insurance on health care, for instance, from a private company. In their case, they are looking for more like 15 per cent over what they pay out in claims as a premium. It is reviewed annually or sometimes every three years they review what we are doing. To go 15 per cent from one type of insurance up to 300 per cent for an injury type of insurance, there are huge variations there.
IMO Foods is primarily an exporter. We export about 90 per cent of the production outside of the country. To be an exporter, you are then compared to all the other countries in the world. The United States of America is a big market and everybody is trying to sell in the U.S. market.
The quality of all producers nowadays is very good and the service level is very good. You are competing on price, primarily. Any of the factors that affect your price and your cost of production affects your competitiveness in the market. In Canada, we are finding it more difficult all the time to be competitive in world markets because of these apparent taxes that affect producers and exporters.
If we are going to lose our competitiveness, we are going to lose some of these markets. We cannot afford to lose markets in value added processing. Canada is famous for exporting raw fish, unprocessed fish, unprocessed wood, a lot of different products. When you have an industry that takes a product and adds a lot of value to it and has a shelf-stable,
ready-to-eat product out in the market, this is valuable for the workforce and helps the economy by bringing in export dollars.
The 1998 rate versus the 1988 rate is $3.51 per $100 versus $1.10 per $100. Although our classification is $4.54, we are actually at $3.51 because of the merit-rating system that is in place. As you show that you do not have a high level of claims, as you know, your rate is reduced. We are at a reduced rate but this is still a very high rate compared to where we were. This change in rates affects our costs by about $15,000 a year, adds $15,000.
One of our recommendations, rather than trying to fit companies into very broad categories for us into the fish processing category, when we are a unique type of operation, if more effort was put into looking at the actual claims and a premium on top of those claims, rather than whatever the set rate for that industry, this would be more fair for a manufacturer, that it was more reflective of their claim level.
For instance, for IMO, from 1993 to 1997, claims amounted to $18,000 over that five year period, or approximately $3,600 per year. Even if we had to pay at a premium of 50 per cent on that, that would be $5,400 a year. However, under the existing plan, IMO Foods has paid $158,000 over the past five years which is over $31,000 a year, on average for a claim, in claims averaging $3,600.
In summary, it is our contention that the charges by the Workers' Compensation Board represent a heavy tax. It is not merely a cost of doing business, it is more like a tax. There is no relationship between the assessment and the risk or the liability. We feel this is wrong and needs to have a serious look at ways to make this more equitable for manufacturers.
We have some charts of our experience on charges and claims over the past 12 years which we will leave for review at a later point. We thank you for your consideration and open the floor to any questions that you might have also for more detail.
MR. CHAIRMAN: Do any members have questions? Yes, Ms. Godin.
MS. GODIN: Thank you for coming here this evening and either of you can probably answer any question I ask. I am not sure if I missed this. You may have said it earlier, but how many employees does IMO have?
MR. HUGHES: We average 100.
MS. GODIN: About 100 employees, that is in Halifax and Yarmouth?
MR. HUGHES: Yes, that is right. We are trying, because of things like this, taxes like this, and the extremely high rate percentage that goes in now to benefits of all kinds, including compensation, to mechanize an awful lot more. These kinds of things are forcing people on the street and causing companies like ours to search around for a few dollars to do things in a different way.
MS. GODIN: And how many years have you been doing business in Nova Scotia, Mr. Hughes?
MR. HUGHES: This company started in 1969 with its first shipments. In 1968 it was under construction.
MS. GODIN: And when did you start corresponding with the WCB about your concerns? Was it back in 1990 or was it 1997 or some time in between there?
MR. HUGHES: Actually in the 1980's. The first period when rates started to escalate quite sharply, we had meetings with the Workers' Compensation Board. They came in and had a look and studied our operation. That is when we were grouped in the canning trade and I think that is SIC 1031, if I am not mistaken. Although those rates are high, they were still at $1.00 or $1.50 less than fish processing because back then there was still a lot of fish processing that was being done, filleting with a knife. Today, even a fish plant, very few are left doing that.
It has been mechanized but we went through this procedure at that time, found that there was complete understanding. It was done in a very respectful way back and forth. They studied it. They came back with a ruling which grouped us with the canning trade where we probably should be. Although as I say, if you want to look at our metal container business, it would be even another dollar lower than that again. For some reason you brought that rate down in the $2.00 range. I gave you that number. I don't know if you noted it or not but that is the highest dollar part of our business, is making cans.
Then we came back in the last two years and attended a hearing, which I thought was a private hearing, you know, an outside look but it proved to be just an inside look which came back with an answer, I think six or eight months later, giving us a few weeks to respond or go to these higher rates. We got a lot of sympathy at that hearing by the way but when the letter came back, it did not have any relationship to the sympathy.
MS. GODIN: So that brings up the next question I wanted to ask you. Have you been given an explanation that is satisfactory to you as to how you went from canning to fish processing?
MR. HUGHES: No.
MS. GODIN: They did provide an explanation as to why . . .
MR. HUGHES: Yes, they have adopted the SIC classifications and you understand, if you go back 60, 70 or 100 years when these classes were designed, almost every fish plant in Nova Scotia had a canning operation in it. Why? You did not have freezing. They were for the most part lobster canneries and they made chicken haddies and that kind of product. These were old-fashioned retorts stuck in a floor. There were lobster plants where they took the claw meat out with a little hand, like an old-fashioned wringer, little miniature wringers, and the hands went in them. They did cleaver work and the fingers came off, you know, that was a canning operation.
It is not like that anymore. It doesn't fit the old-fashioned SICs. How they were allowed, on their own, without your approval, to go ahead and move this way, I do not know, but maybe they have an explanation of that, but it fit their purpose to suddenly group everyone into 1,000 classes, or 900 classes, and a lot of mystery in there.
MS. GODIN: And when you deal with the WCB, are you dealing with the same people each time?
MR. HUGHES: No.
MS. GODIN: You are being passed from person to person?
MR. HUGHES: Yes.
MS. GODIN: Do you feel like you are getting the run-around?
MR. HUGHES: Yes.
MS. GODIN: Mr. Chairman, if it is okay with Mr. Hughes, I certainly would like to see a copy of that letter, at least one of the letters that he was sent.
MR. CHAIRMAN: He can leave any material with the committee that he thinks is appropriate.
MR. HUGHES: Well, we put a few of the letters in a package and you can copy that. We did not bring enough. We did not realize that the whole Legislature was going to be here.
MR. CHAIRMAN: This is not the whole Legislature. There are more where we came from.
MS. GODIN: Those are all my questions, Mr. Chairman.
MR. CHAIRMAN: Thank you very much. Are there any other committee members? Yes, Mr. MacDonald.
MR. CHARLES MACDONALD: I just wanted clarification on SIC 1031 and the rate on SIC 1031. You say it is $1.50 below what you are paying? Would that take it down to $3.00 or would it take it to . . .
MR. PHILIP LEBLANC: The SIC 1031 rate for 1997, we only have the 1997 book . . .
MR. HUGHES: That is the 1996 there.
MR. PHILIP LEBLANC: Yes, 1996 was $3.06 for SIC 1031, and $4.54 for SIC 1021 in 1996. That is where it was about $1.50. The gap did narrow a little bit in 1997.
MR. CHARLES MACDONALD: And yet you have brought yours down to $3.54 on the merit system or that side?
MR. PHILIP LEBLANC: Yes, because of the low level of claims. Another point that we found in recent time with the Workers' Compensation Board that has been a positive, is that when someone does go out on claim, or before they go out on a claim, first, there is a better review process than there ever was before. At one time it was very easily accepted. They went out on a claim and there was not much review. Now we get some contact between the WCB and ourselves and the doctor and the patient, or the claimant, and in cases where we can have them back to work earlier at a reduced level of work, even where they can work a part day, this has happened in one case in our instance and we got an employee back to work faster and it has cut down on the final claim. So that is a positive. The merit rating and demerit rating system, again, is another positive. So there are some positives going on that we should also bring up.
MR. CHARLES MACDONALD: If you don't mind, Mr. Chairman, are you paying monthly now or are you on the yearly, once a year?
MR. PHILIP LEBLANC: Annual.
MR. HUGHES: That usually puts it right upfront. So $40,000-odd goes out in one lump and that hurts.
MR. CHARLES MACDONALD: And are you producing at that time of the year?
MR. HUGHES: We produce all the time.
MR. CHARLES MACDONALD: You produce year-round, do you?
MR. HUGHES: Yes.
MR. CHARLES MACDONALD: Thank you.
MR. HUGHES: If I can elaborate a little bit on that, this is an excellent move. The board has had a lot of pressure to do something about it because there were so many claims that were questionable. There were claims that I would say within the largest blocks of payments made, based on our later finding out, because there was a time when we did not know that an employee left and went on workers' compensation, that some doctor had signed a slip and some lawyer had made a case and they were out there drawing quite substantial amounts of money. This, I think, represents the largest part of claims ever against our company. There were claims that we had no knowledge of, so I feel very good, and as Philip has explained as well, about the fact that that division within the Workers' Compensation Board is working better. We need that fund for our employees who are genuinely hurt and should draw on it, but we do not have to be using it as a welfare fund.
MR. CHAIRMAN: Mr. Parker.
MR. PARKER: I have a couple of questions for you. First of all, workplace safety training, are you involved in that? If so, what types of things are you doing?
MR. PHILIP LEBLANC: What we do with workplace safety, the plant workers are unionized at the factory, so they have a safety and health committee. What we do is, any issues that they bring up, where they think they need some training, or if they have a question on safety, we will address that. We have a mechanism that we have to take action or address it, management, within three days. If it doesn't get addressed, then we have a meeting where it is discussed. It goes through a program where they have a few steps to go if they don't think the proper, corrective action was taken. That is basically how our safety and health system works.
MR. PARKER: What type of accidents are you seeing? Is there a common thread to them?
MR. PHILIP LEBLANC: We actually asked for a printout. We haven't had any time loss claims in 1998, I believe. The last claim we had, someone twisted their foot. They stepped on the side of a pallet and twisted their foot. Another person had twisted their foot in the wintertime. They went out to dump some garbage in the dumpster and twisted their foot. In 1997, those were the two claims that we had.
MR. PARKER: Any, what you would call, really serious accidents over the years, at your plant?
MR. PHILIP LEBLANC: I have been there since 1990. There have been none since I have been there. Nothing where we have had to have an ambulance arrive. In the worst case . . .
MR. HUGHES: We have sent someone over, but it wouldn't have to do with an accident.
MR. PHILIP LEBLANC: At times somebody has gone up to the hospital to check if they hurt their finger or something, but it has not involved loss of time.
MR. PARKER: The second thing I wanted to ask you about, you recommended that the rate that you pay should be tied to the number of accidents you are having, or at least there should be a correlation between what is being paid in and what is being paid out.
MR. PHILIP LEBLANC: Yes.
MR. PARKER: Do you see any danger in that for employers in general? Perhaps they would, to keep their rates down, if that was in effect, that they would not want to report accidents, or discourage employees from reporting accidents, in order to keep their rates down?
MR. PHILIP LEBLANC: I suppose that could be a possibility and that can be with any kind of system. People can be hiring people and not showing it on their payroll, perhaps, so they don't have to include it in their workers' compensation aspect. But I think in general, employers are fair with the way that they handle employees. The way the system works, where generally they will go to receive some care, if they have been injured in some way, then the doctor will file a report. It is out of your hands at that point. When they go for some care, if there has been an injury or they require medical care, the doctor will ask, and then the doctor fills out a claim which goes to the Workers' Compensation Board.
MR. PARKER: Okay. Thank you.
MR. HUGHES: I don't think that we would imply that there wouldn't be some classes. But instead of 800 in Nova Scotia, what do you really need? Maybe 50, maybe 100, I don't know, 80? As long as you then had a level, and you are not asking for recommendations, but it doesn't seem to me to be going the right way now. You could certainly simplify the administration vastly if you had a picture of extreme liabilities and lesser liabilities and a mode there in the middle and patterned your rates graphically. Yes, some of them would come up, maybe ours would, I don't know, but it would be more equitable. It wouldn't surely leave you with a pipeline company or an oil company paying $1.25 and us paying $4.00-and something, and us having little or no accident claims. There has to be a simpler way to do it.
MR. CHAIRMAN: Mr. Corbett.
MR. CORBETT: Ms. Godin was asking you before about bodies you may have presented your case to before. Were you involved when the last Act was rewritten? Were you involved with the Law Amendments Committee then? Did you go to that group and discuss it at that point?
MR. HUGHES: I don't even know if I knew about it. It was just by accident that we found out that you were coming here. I don't know how this was advertised. Somebody mentioned it to me, and we have been trying to put some material together. We have had to do it mostly during the night last night and this morning.
MR. CHAIRMAN: I might just speak to that briefly. There was extensive advertising but like everything else, I suppose there are always some cracks and things fall through. If it is a consolation to you, there was extensive advertising, particularly newspaper advertising to advise people, both in dailies and local papers. I know it is never perfect, if that is any consolation to you. I am sorry to interrupt, Mr. Corbett, but just to answer his question.
MR. CORBETT: The private carrier you have for your disability insurance and so on in your workplace, do you see the employees probably accessing that more readily than WCB?
MR. PHILIP LEBLANC: Our plan basically, that we have, is covering prescription drugs and some extras like eyeglasses and orthopaedics, or different things like that. I am not sure that those are covered under workers' compensation.
MR. CORBETT: I am just trying, if your plan had covered time loss from an accident at home (Interruption) Your plan doesn't cover that?
MR. PHILIP LEBLANC: No. What it covers is prescription drugs and glasses. There is a life insurance aspect and an accident aspect but more for loss not for injury.
MR. CORBETT: Okay. Thank you.
MR. CHAIRMAN: Mr. Fage.
MR. FAGE: Mr. Hughes, I was very interested to listen to your story about the appeal process, and how you felt about it, and how the process went, that there was sympathy but the recourse or the reason was the same, that the classification was where you ended up. In that appeal process, is there a better method or a recommendation you might give, not the classification, but how the appeal process itself is dealt with? Many people on both sides of this equation are concerned about that appeal process.
MR. HUGHES: Keep in mind that this is off the top of the head. We haven't used it very often and I haven't attended any other hearings. I don't know if they are open to the public or not, but the little dark room I was in, there was no one else there but a lawyer or a lady and myself.
I could say that I don't like the fact that the provider of the service is the judge and jury and collects the fines. I think that is basically wrong. To go on from that, I do recall way back in the late 1950's, 1960's attending, just as an observer from business administration classes, a U.K. system whereby they had a tribunal according to the seriousness of the matter, but this is outside the major court system, more like your Small Business Claims Court, where you would have a learned judge that would know these industrial matters, not only compensation Act but some others, and that that acts as a bit of a tribunal where he sits as judge and each side presents their case. He does a ruling on the merits as he sees them, and you have to sign off at that point, and it is outside.
MR. FAGE: That is the key point here, if you are an injured worker, in the appeal process there is an outside independent tribunal that you can take your case to. You would feel more comfortable if that was the ultimate outcome of an employer appeal as well?
MR. HUGHES: I don't know for sure, because I don't know the incidents that are coming forward. I do understand that some of the changes - I have been told second-hand or third-hand, that some of the changes - you made in 1996 have resulted in far less outside legal cases. I don't know if you are familiar with what I am saying or not, you probably are, more so than I but whether that be a union supporting a worker or a company opposing a situation, I am not sure what the implication is.
There must be some way of simplifying the language and writing it in basic English and French, if necessary too, to get all this bureaucratese out of it. Some of the terminology and words are going around in circles and so much double-talk in the Act itself where you read the intent and then go to the next page, regardless of the intent, the board can do what it wants to do anyway. That goes on and on in several paragraphs. I don't think that you as legislators intended that to be. It just baffles me who would ever do the writing of that Act.
MR. FAGE: I guess it is hard for me to comment. I am not in that profession of writing Acts but I tend to agree with you, as a person with somewhat of a business background and someone who would like to know what you are allowed to do and not to do, not what you may be allowed to do under 35 different varying circumstances. It can be frustrating.
My original question, I was seeking some clarification on that and your answer has brought us back to the substance of the legislation. My question was quite specific because you were talking about being in a small, dark room with an internal appeal. I come back to that for the clarification. I was wondering did that mean that you are talking that it should be
an independent external appeal that you would appear before as an employer rather than an internal appeal?
MR. HUGHES: I thought that was what it was at the time until I got the letter six months later.
MR. FAGE: But you would be in favour of that or not?
MR. HUGHES: I think so. It would have to be debated and you people are in a better debating position. I am not unfamiliar with the development of legislation. I have put a little together. I did work inside there 15 years with Trade and Industry and know that interrelationship of departments has to come into play to bring these things alive in a proper way, and the Attorney General's Department to do so, but this one just does not read well to me. I tried to scan it quickly, too quickly. The more I read it the more confused I get.
MR. FAGE: Thank you very much.
MR. CHAIRMAN: Are there any other committee members who have any questions? Mr. Fraser.
MR. FRASER: Thank you, Mr. Chairman. I am interested in I guess the employer's perspective because I was an employer for a number of years. Do you feel that if you have an injured employee, your input into the final decision, or the decisions that are made along the way, is pertinent and important?
MR. PHILIP LEBLANC: In more recent times, although we have not had very many claims, it has been the case that we have called at times and said, where is this going, you know, we have a question about a case. They have thanked us for calling and said they would look into it in a bit more detail. So they seem responsive to some information and, as I said, we have got called in the past about trying to get somebody back earlier but previous to that, say before three years ago, we would never hear and we seemed, like you say, to be out of the picture once it was out of our hands and our comments would not have any bearing or any interest with the board.
MR. FRASER: If you had the opportunity to sit at a table where a final decision was being made on an employee, or at least a proposal, would you be comfortable sitting there and being able to veto that recommendation from the WCAT, or somewhere along the way, where in the long run it might affect your rates negatively where the tribunal's decision might be too generous in your feeling? Would you feel comfortable making that veto or having that right to veto?
MR. PHILIP LEBLANC: We might need some more time to consider it. Personally, I would think having a veto might be a little bit too strong, if the employer itself had a veto, because, as you say, you may veto any case that was sort of a major case just to control your rate. So, as we were saying, for ourselves where you would want a third party involved, maybe that would be a better mechanism. Now, Mr. Hughes may have a different opinion on that.
MR. HUGHES: I have not thought of it in terms of a veto in any case. I think that if in the tribunal or judge situation where the two parties, if they are both invited or asked for comment, that you have to deal in facts or you are going to be told there is the door. You are not going to be vetoing anything as I see it. Both cases will be made and I suppose you would tend to cause the situation where both sides may overplay their hand, or overstate their case, but beyond that I do not envisage a situation where we should be given an authority to veto but neither do I see this continuing situation where WCB dictates, judges, charges and fines.
MR. FRASER: I just want to go back to, again, we are a committee and I think eight out of the nine of us are new MLAs elected this year. So we are of an open mind, going out to the communities to hear both sides, whether it is injured workers or employers, or both, or all of those.
There may come a time when employers will take on a more important role in the decision-making process and when employers are asked to pay a premium because if they have bad claims, or have a bad year, if our recommendation is that we bring an employer in to help WCB make that decision, I guess I am concerned that employers will say to a worker, or to the tribunal, or whatever it is, that, gee, this is going to affect our rates for the next number of years, maybe the next five years. We are going to veto this even though we feel an employee has been unjustly done in here. I think the process will be that employers will be involved because increasing rates in their sector or in their business are going to be negatively affected on bad claims.
MR. HUGHES: Again commenting, without a lot of opportunity to consider, but I do not foresee that this fund should be dry. I think there is some provision within it that rates should not accelerate faster - I think the new Act says faster than 20 per cent or 10 per cent, or something or another - or to go down the same way maybe, but there has to be money in there. You have to get this thing back on a better actuarial basis and get a substantial block of money so that you do not have to hit any one manufacturer or company so hard in any one claim or any one year. I do not mean that they would swing to that degree.
You have pluses and minuses. There has to be contributed by all companies, all parties, an element here of actual insurance money over and above the claim and administration money, but I hope that as you build that fund that the administration and the overhead section just does not go where the banks have gone and be tapped off at the top.
It has to be truly operated with a simple open report that is available both to the workers and the employers.
MR. FRASER: My last question then, Mr. Chairman, as an employer, Mr. LeBlanc, would you want to be there?
MR. PHILIP LEBLANC: I would like to be, at least as an observer. I think it would be useful.
MR. FRASER: Thank you very much.
MR. CHAIRMAN: Do any members have questions before we go to our consultants? Fine. I would ask our consultant, Mr. Erjavec.
MR. ERJAVEC: Thank you. As a representative of the business community with the committee, I can understand your frustration at the difficulty of getting information from the board, the transparency of the board, particularly on the financial transactions and administrative side of things. I hear that from a lot of my members and throughout the business community.
Just a couple of quick questions and a couple of comments, your rate is $4.54. Any idea what your competitors, say in New Brunswick or P.E.I. would pay?
MR. HUGHES: I tried to find that out a few years ago and I guess I got tired of waiting, but their operation is different again. It is only Connors and that is the George Weston Group. They have a lot of frozen fish, wet fish, salmon business, canning business, and I do not know if they are all in one kettle or not.
MR. ERJAVEC: Okay, you aren't sure on an exact number. Maybe it is something the committee could look at, just for the two industries, to compare New Brunswick and Nova Scotia. The second thing, I know in the next few years, I follow these issues quite closely, and we are looking at Canada Pension, they are going to double our business premiums in the next three years. Already without any legislative changes, the WCB and some of their reports are looking at high rate increases, let alone putting any legislative amendments forward. What would these increased premiums, both CPP and WCB, do to you in your ability to employ Nova Scotians here in the province?
MR. PHILIP LEBLANC: We had started to address that a little bit at the start, that all our investment in the past three to five years has all been in the United States. We haven't really done any expansion or any investing in the factory here, or employed more people. Part of it is because of the uncertain tax situation, and it may be difficult to compete with countries such as Mexico and Chile and Thailand, where we see competition on canned fish products.
MR. ERJAVEC: The last part of this was more of a comment on the appeal. I think under the Act, if I understand correctly, you are allowed to appeal to an external tribunal. When an injured worker does that, they are provided with legal advice from the Workers' Advisers Program, and employers unfortunately are not. In other provinces, employers have, also workers' and employers' advocates. Is that something that you would like to see in Nova Scotia, where employers would have a voice to help them through the system, because of the complexities and legal bureaucratese that none of us can understand?
MR. HUGHES: No, set it up so that you don't need that. I don't know, Philip is saying yes, but I think this is another nest.
MR. ERJAVEC: You would like to see something just even, either make it easy so everyone can do it, or . . .
MR. HUGHES: Let them both go there and tell their stories, forget about the lawyers, in that case. We have lawyers in the family too, but I am not for employing them that way.
MR. ERJAVEC: Okay. Thank you very much for your comments.
MR. CHAIRMAN: Do any of the other consultants have any questions? Thank you very much for coming this evening to make your presentation. I would also mention that if you have any other material, we obviously will be sitting in Halifax, and you can provide that written material to our committee. Certainly in Halifax, if time permitted, I know you have an office in Halifax, you could attend. If there was some other information that you had, that you felt would be salient to your concerns, we would be glad to receive it, because we welcome both injured workers and employers to bring their concerns. Thank you.
MR. HUGHES: We do have an appointment, more or less because IMO Foods Limited in Halifax is my concern, I hang my hat there, and that is the marketing division. It has just been reclassed as a dairy product industry because it happens to buy and sell cheese. Not that it handles it, some other party over in Dartmouth handles it, but we are going to make a small submission to you there, and try to relate it here a little bit, and tie the two together. If you don't mind, we will see you again.
MR. CHAIRMAN: That is fine. Mr. Erjavec.
MR. ERJAVEC: One more comment. I am looking here at my notes, and one thing you raised as a concern is with your high rates, what goes into getting your rate as high as it is. That is where I got into the frustration with getting the financial information. Just for your information, as best as I can understand, with the $2.54 rate, approximately 40 per cent of that is strictly administration and debt servicing because of the huge unfunded liabilities. I think that might be a piece of information for you.
MR. HUGHES: I tried to follow it through here, and I can't . . .
MR. ERJAVEC: It is impossible. It takes a lot of digging.
MR. HUGHES: You can't even find what they pay for their directors.
MR. ERJAVEC: No. I would have definite problems with that, but that is something that I would like to see addressed.
MR. CHAIRMAN: Thank you very much gentlemen. Are there other members of the public who would like to make a presentation here this evening? If so, I would ask them to come forward. I don't see anyone coming forward. What is the pleasure of the committee at this juncture? Would someone like to make a motion that we adjourn?
MR. SAMSON: I so move.
MR. CHAIRMAN: We don't need a seconder for that. I take it we are all in consensus. Thank you very much for coming.
[The committee adjourned at 8:29 p.m.]