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 everybody to our meeting here in Greenwich this afternoon. On behalf of the select committee, I would like to welcome the members of the public and thank them for coming.
The first thing we generally do is an introduction of the MLAs on the committee.
[The committee members introduced themselves.]
MR. CHAIRMAN: I would also ask the staff people sitting at the table to introduce themselves.
[The staff introduced themselves.]
MR. CHAIRMAN: Thank you. Our consultants are over there at this table, and I would ask them if they would introduce themselves.
[The committee consultants introduced themselves.]
MR. CHAIRMAN: Thank you. In addition, I would like to introduce Miss Shelly Rowan, Chester - I didn't see you there - who is with the Workers' Compensation Board, and Mr. Brad Fraser who is also with the Workers' Compensation Board over there in that corner. Thank you very much.
By way of a brief explanation of the purpose of our meeting - first of all for any people who may be present and planning to make a presentation who are injured workers - our committee has been charged with making recommendations to the Legislature with respect to changes that need to be made to the workers' compensation system as a whole. We are more than happy, and in fact, encourage people to come forward and tell their stories, as it helps us look at amendments and changes that may be necessary to make the system work better for themselves and for others.
However, our committee is obviously not doing an appeal of decisions; that is not our mandate. We are not able to, as a group, review an individual case and give redress. Our mandate is more general than that. If someone has concerns about their particular case then, after they have given their presentation this afternoon, I would ask them to talk to either Ms. Rowan or Mr. [Brad] Fraser, and provide them with your case number and some of the pertinent information and they will see what they can do.
I should also indicate that, in the interest of time and efficiency, there is a general limit of approximately 15 minutes in presentations, so that when people are giving their presentation, I will give them a warning shot - if you will call it that - after approximately two minutes is left, just to let you know that you are getting to the end. That is so that we can hear everyone who wants to give a presentation.
I should also indicate that the committee would appreciate it if people, in making their presentations could target their remarks to two issues: what they think is wrong with the system in particular; and what they suggest we might do to make the system better. I know that many people would feel frustration, who would be injured workers - there obviously may be other people present - but there are many people who were injured workers who may feel some personal animosity to people in the system. We would ask that you keep those references to a minimum. The purpose of our committee is to look at how we can make the system work.
Without further ado, I believe the first presenter here this afternoon is Mr. Robert Green. I am not sure if Ethel Green is with Mr. Robert Green. Yes. Come forward folks.
MR. ROBERT GREEN: As you know, hurricane Robert Green just blew in. I would like to say, in order to get my views across, I have to sort of tell you people about my injury, if that is okay.
MR. CHAIRMAN: That is fine.
MR. GREEN: And any questions, I would be happy to tell you how to change this system.
MR. CHAIRMAN: Mr. Green, if I might ask just a very few preliminary questions that we have. It helps our consultants with your particular situation. I don't want to throw you off your stride here. What was the date of your injury, Mr. Green?
MR. GREEN: 1989.
MR. CHAIRMAN: And what was the general type of injury that you suffered?
MR. GREEN: It was a tear in the plantar fascia of my right foot. They said it was my right leg, but they don't know what it was.
MR. CHAIRMAN: Is your case presently in the system?
MR. GREEN: No. I went to a tribunal. I will present this and you will find out.
MR. CHAIRMAN: That is fine. You were involved in the tribunal, that was your last level of appeal?
MR. GREEN: Yes.
MR. CHAIRMAN: You are obviously not presently represented by counsel with respect to this . . .
MR. GREEN: No.
MR. CHAIRMAN: That is fine. Thank you very much. I will let you go ahead.
MR. GREEN: I have timed this. I have 15 minutes on this, so I am right on the nose.
MR. CHAIRMAN: That is fine. Go ahead, sir.
MR. GREEN: Ladies and gentlemen, my injury happened at the Upper Clements Theme Park in August 1989. Through no fault of my own, I was injured to the extent that I am totally disabled today, according to two orthopaedic surgeons, one being the best in the Maritimes, and according to a pain clinic specialist.
My injury was a tear of the plantar fascia, the main cord running from toe to heel, in my right foot. Because of my injury, I tended to favour my right foot, which caused damage to both legs. At present, I have a hard time walking and being on my feet for any length of time. During one operation, I developed super-ventricular tachycardia, which is a racing of the heart, which was caused by the amount of sodium pen I was given.
Now I am unable to do anything because I get tired and sore. I have also developed osteoarthritis in my joints. This also occurred because someone else caused my injury.
With the outside appeal hearing, the injured workers at least had a chance to receive benefits. As you know, the Appeal Board was outside people who were not biased. At every turn, the WCB found ways to cut me off, even though I had doctors' letters to the contrary. I was cut off three times for various reasons and won each and all three of my appeals, because of the evidence.
WCB didn't like this outside, unbiased Appeal Board, so the government and the WCB got together and said, let's have an internal appeal board. All I read in the papers for a whole year was that the WCB was broke. This was a way to get everyone off benefits and get out of their mess. They did this, and I suffered the consequences by being cut off for yet another stupid reason in August 1993.
I have not been on nor did I receive any payments from WCB until their, let's get together and solve this appeal. They called it mediation. I call it, take what we offer you or else be on a long list to appeal. Some of the facts in my case are very similar to other injured workers. I will give them to you in point form. These are some of the idiotic things that went on between me and the Workers' Compensation Board.
No. 1. My orthopaedic surgeon, one of the best in the Maritimes, said I was totally disabled. A general practitioner for WCB said I could go back to work. The WCB process was to cut off benefits so I would have to appeal at great cost to the taxpayers. The Appeal Board stayed here at the Old Orchard Inn, having their appeals for years. The same government hired a lawyer to represent me.
I would win my appeal, be given retroactive benefits, which only covered the bills which had added up in the meantime. But the benefits did not continue on a regular basis and there was always another appeal months down the road to start the process all over again.
I was overweight before I was even injured. When my specialist suggested I lose weight before I had surgery, I was cut off benefits by the WCB for not complying with treatment. When I was told to attend the pain clinic, WCB would not cover the cost of travelling to Halifax or for these treatments. I was attending pain clinic while I was cut off benefits. I was termed totally disabled by Doctor Gross and the pain clinic.
I was put on vocational rehab, went to school for Grade 12. The vocational rehab covered three subjects. I received 98 per cent in one subject, 93 per cent in another, and 89 per cent in the third. I had honours. They cut me off and told me I could return to work, that nothing was wrong with me. They would not allow me to take the other three subjects to complete my Grade 12. My rehab worker said I was not contacting her. My wife had made phone calls there and they were never recorded. They offered me a position back at my
previous work. My doctor and my lawyer said I could not go back to work. Again, they cut me off. Because of this, shortly after, both my wife and myself had to claim bankruptcy. We almost lost our house.
The WCB lied repeatedly to both my wife and myself whenever the occasion presented itself. I term myself and my wife good Christians and it makes me fume when a government body lies so much. One day I came to pick up a cheque owed me for one of my appeals. My worker came to the door of the interview room and threw the envelope across the table at me and said, "This is what you came for Mr. Green.".
At one time the WCB was a friendly place. Now it is like an armed camp, cards to unlock doors, guards on duty looking at you constantly. The main desk is behind thick glass windows, all because a person took a bayonet in frustration and tore the place apart one day. He was at the end of his patience and sanity and I am getting close to that too. At the appeals they give you a lump sum of money and make you think you are getting a lot of money but spread over the time you were waiting for it, it does nothing to help the money you owe for that length of time.
This is how it is so hard to get WCB benefits. I went to my surgeon one day and he said, this appointment is the last because there is nothing more surgically that can be done for you. That is all the WCB needed to cut me off but all the time this doctor had made numerous reports, as you can see, before that stating that I was totally disabled while I was attending the pain clinic. My MP in my constituency stated that to him it was clear-cut. If specialists stated that I am totally disabled, why are a general practitioner and the WCB not settling with me?
I went on the orders of WCB to physiotherapy to get tested. They agreed with WCB that I could go back to work, with reservations. The next day I could not move because of their torture chamber. They did not care whether I had osteoarthritis or any injury. They wanted to know how much I could lift, push, pull, et cetera. I was in bed for the next week. This is one more place that WCB uses to get people back to work.
I was cut off from August 1993, to the present because of the refusal to take the job at the park. After dear Dr. Savage gained power and new legislation came into being, I and many of my fellow injured workers were taken for a ride. The new legislation is supposed to be for loss of earnings, not an injury. What I am about to tell you is that I went to their tribunal which centred around my injury, not my loss of earnings. I am luckier than many workers. They still have nothing. At least I got a little that was owed to me through the mediation process. I was supposedly represented by a workers' counsellor who was there to guide me through the mediation process. She advised me to listen to what was offered. She would then meet with me and my wife to discuss the offer. The tribunal stated they could only discuss my temporary total disability which was from when I was cut off in August 1993, to October 1994, when I finished my pain clinic visits.
Dr. Gross stated in a letter to my lawyer in February 1994, not October, that I was totally disabled while at the pain clinic. Also take notice that this tribunal is centred around my injury, not my loss of earnings. They offered me $17,000 benefits plus $4,000 to cover medical costs for my temporary total disability. It seems like a lot of money, eh? When bills have accumulated over a period of a year and not being able to work, $17,000 is shit. The tribunal also told me if I could get a doctor to increase my disability by 8 per cent, I could reapply for total disability benefits; again, concerning my injury, not loss of wages.
My lawyer suggested at a break in the meeting that the offer was good, take it and run, otherwise, I would end up on a waiting list of two to three years to appeal. Some choice, eh? I went back in the meeting, signed the papers and went home. Promptly after the tribunal, I received all my records in a box. I knew then this was the end. I phoned my workers' counsellor and asked her why I got my records. I also contacted an MP and he got in touch with her as well. My answer was, case closed, no appeal, I am out. This made me beyond angry. During the meeting I took what they said and believed them. They lied to both my wife and I again. I had signed and to them - the WCB and the government - my case is closed. Not quite, if this government and the WCB and all the crooked people in this tribunal think that I am going to hang up my coat after all these years, they are sadly mistaken.
WCB still owes me, from 1994 to the present, some $30,000. I will settle for $20,000 in court just to get rid of these dimwits. For as long as it takes to learn law and court procedures, I will attend the Supreme Court if I do not get satisfaction because I am not going to fool around anymore. In the past, committees were going around the province having meetings and they reported back to their respective governments every time. Nothing was done. At these meetings the government committees would confide with WCB and tell them their side of the stories, in all cases all behind the scenes. This is my assumption and I am not usually wrong. Never was there one injured worker on these commissions who actually knew what it was like. I don't trust this commission or any other commission until I am satisfied I have been justly treated and apologies come to me and my wife and, yes, all injured workers for being lied to for so long.
It would be nice if this government owned up to the mess and publicly apologized in the news media for the turmoil they have caused the injured workers; in my case since 1989. I know this will not happen because the government and the WCB hasn't got the guts to do so. Thank you for allowing me to share my frustrations today. Thank you.
MR. CHAIRMAN: Thank you, sir.
MR. GREEN: Anything else?
MR. CHAIRMAN: No, that is fine. At this time there will be an opportunity for members of the committee to ask questions, if that is all right. Fine, I will open the floor. Is there someone who would like to ask Mr. Green a question?
Well, I have a question, Mr. Green. From your presentation, I understand that when you reached the settlement at the mediation level I think, is that what we would describe as ADR, or alternate dispute resolution, was that the same process?
MR. GREEN: At the end of my speech that is what it was, a tribunal . . .
MR. CHAIRMAN: Yes, that is fine.
MR. GREEN: . . . mediation.
MR. CHAIRMAN: Yes, when that happened, did you understand that you were settling your claim completely or did you feel you were just dealing with your claim up to that point?
MR. GREEN: During this meeting they had told me that if I got a doctor, and they said it right in front of their lawyers and that, that if I got a doctor to say that I was another 8 per cent - like, see, I thought I was going to be covered from a certain period of time to a certain period of time, total temporary disability, and then to the present time, total disability, because I had doctors sign that I was temporary total disability for the first period; the last period I was termed totally disabled. What they were dealing with is just the temporary total disability and the hell with my total disability, okay? - during the meeting they said that if I get a doctor, I can get back on, I can get my total disability benefits if the doctor said that I was another 8 per cent disabled. They told that to my wife, myself and my worker lawyer. We went in the other room and she says, well, you should grab this. You should grab this.
So, you know, what was I to do? If I didn't grab it, everybody was telling me, forget it, you are out. To me, as far as I am concerned, in the newspapers and everything, they said, if you didn't grab the money they offered you at this tribunal, that you would have to wait two or three years, just like I said. We believed them, as Christians, my wife and I believed them. We went in, we came back, we signed the papers, and I got a box in the mail. I knew that was going to happen. Since 1989, they have been lying to me.
MR. CHAIRMAN: I felt that you were telling us that you had been told that, in fact, you were dealing with a temporary disability, and in fact, they have treated your release as being a complete release.
MR. GREEN: It was a way out for them.
MR. CHAIRMAN: Yes, I understand.
MR. GREEN: Instead of $30,000, they only gave me $17,000. They owed me $30,000 for that many years. But I am lucky, I will tell you right now, they have left a lot of injured workers out on a limb. Just like this MP said - since 1989 I have been messing around
with MPs, I have been messing around with the government, phoning them up. My bills have totalled unbelievable amounts. They have never given me anything. This MP right here, and if you want his name, I will tell you his name, but this MP said, if two specialists, surgeons tell the WCB that you are totally disabled, then you are darn well totally disabled, not temporarily totally disabled. And for a general practitioner to say, oh, you can go back to work, it was just a way out for them.
They just used their doctor and they used their lawyer to get you the hell out the door. I am speaking from experience, because I was a paramedic in Detroit for 20 damn years.
MR. CHAIRMAN: Thank you. Do any of the consultants have a question? Mr. Power.
MR. MICHAEL POWER: Mr. Green, do you have a copy of that release?
MR. GREEN: I have them all in my thing, I can hand them out.
MR. POWER: I was just interested if I could have a look at that.
MR. GREEN: I have nine of them.
MR. CHAIRMAN: That is fine. If you can provide us with even one, that would be fine, but if you have more copies, that would be great too.
MR. GREEN: Yes, I have a government lady that works for the government.
MR. CHAIRMAN: Good.
MR. GREEN: I hope you forgive me, but I just don't trust anybody anymore. Especially people who lied to me. My Dad and my ancestors and everything, I think they were honest people, and I know that you are honest people. But, I tell you, when a government and the WCB lies to you, that is pretty bad, I think. I don't care whether I get any more money. I am just fed up. I just can't take it anymore.
MR. CHAIRMAN: Mr. Parker.
MR. CHARLES PARKER: Mr. Green, I just have a couple of questions. Are you presently receiving Canada Pension Plan disability benefits?
MR. GREEN: Yes, I am getting Canada Pension for a different reason, for my injuries on the ambulance. I played professional hockey for the Detroit Junior Red Wings. I have osteoarthritis, plus my heart.
MR. PARKER: Is that your source of income at this time?
MR. GREEN: That is all. That is it.
MR. PARKER: And Mrs. Green, do you work?
MRS. ETHEL GREEN: I work.
MR. PARKER: So that is family income as well?
MRS. GREEN: Yes. May I make a statement? Is that all right? At the time of Bob's injury, our income was very low. I didn't have the job I have now. I was only making $6 an hour. When his income was taken away, and when - I am sorry, I do this all the time, I apologize - his income was cut off and he was kept constantly being cut off of workers' compensation, there was no way that I could keep things going.
We had two children to raise. We ended up on social assistance for a period of time. Luckily I had a good background, and I was able to get a good position through social assistance. A position became available, and I had the background for it and I was able to get that position, which got me in the door to a little bit of a higher wage. Well that was 1989, it has taken me 10 years to get to the point where I can maintain this family. My children are grown now, they are gone. I can't do anything for them now to help them get where they are going.
We had to go through bankruptcy. I have lost all my credit. Can't get anywhere with anything anymore. That is what this has done to my family and I imagine many others. It is not right. They have to change things, and do things differently than they are doing now, than they have done in the past.
MR. CHAIRMAN: Thank you very much.
MR. PARKER: I have a second question, Mr. Chairman. Have you considered or are you eligible to reapply to have your case reopened with the WCB?
MR. GREEN: Well, because they lied, I phoned my MP up and I said, what is going on here? I got this box, all my records and everything. My caseworker who said, sign it, because they had told me during the meeting that I could keep on trucking. I got paid for my temporary total disability, but I wasn't paid for that total disability, from 1994 to the present, which is 1998. Okay?
Under those circumstances, I signed that, or I would have told them to go pound salt and I wouldn't have signed it. Anyway, I told my worker and she said, oh well, they passed new legislation, you can't appeal, you can't do anything, you are out. And the MP phoned me back, and he said the same thing. Oh, my workers' counsellor, Miss Clarke, said that you can't do nothing.
MR. PARKER: Maybe that is what they thought. My understanding is that if there was new medical evidence that you could reapply, and even again, if there is new medical evidence that comes again down the road, you could reapply a second time.
MR. GREEN: How can you have new medical evidence when the medical evidence is already there? Why in the heck didn't they settle with me at that tribunal instead of half-assed settling with me?
MR. PARKER: I am not sure. It is an option that is open to you. It is my understanding that you could . . .
MR. GREEN: Well, I would like to know where that opening is, because an MP and my workers' counsellor - who goes to those tribunals, I had my own lawyer in Kentville, but the government took that away - urged me to sign, and I signed.
MR. PARKER: I am just saying, I don't think that is the end of it. I think, my understanding under the Act, you still have the option to go back, and have your case reopened.
MR. GREEN: No. We were told no.
MR. PARKER: My understanding is that you do have that option. You may want you to check with our people here today.
MR. GREEN: And not only that, they said that - I lost my train of thought - the tribunal, they said that I couldn't appeal or anything.
MR. PARKER: You might want to check with our WCB people that are here. There are two of them that perhaps . . .
MR. GREEN: Well, it was the WCB people that said that to me.
MR. PARKER: I don't know but I am just suggesting this as an option for you at this point in time.
MR. GREEN: If the new legislation, like I said in my report, if they said that it is concerning loss of wages, where the heck am I getting my loss of wages? All they wanted to cover was injuries, not loss of wages. So, they are backtracking on what they said on this tribunal in the new legislation. So they enact a new legislation in the government, and they do the opposite in the tribunal.
MR. PARKER: I understand your frustration. I just mentioned that there is an option still open to you.
MR. GREEN: I hope I answered your question, because I got the word no. I can't appeal, I can't do anything. The door is shut.
MR. CHAIRMAN: I believe those were all the questions from the committee and the consultants. Thank you very much Mr. and Mrs. Green. I honestly do appreciate you coming here today, because our job as a committee is to hear from people. I don't know if it is any consolation to you, but none of us, none of the people sitting on the committee today, were elected when the last Workers' Compensation Committee came through town. I am not criticizing . . .
MR. GREEN: Well, I can tell just by looking at you that you mean a lot more to this committee than the last people, because they didn't give a darn. They were fiddling with themselves. They didn't do, as far as I am concerned, they didn't even carry on as gentlemen. That is all I have to say about that.
MR. CHAIRMAN: Well, thank you.
MR. GREEN: And I have been to two or three of them.
MR. CHAIRMAN: Thank you very much for coming this afternoon.
MR. GREEN: Thank you sir. Thank you very much, committee.
MR. CHAIRMAN: Our next presenter is John Melanson. Is Mr. Melanson here? Have a seat Mr. Melanson. Again, I am going to go through a little list of questions here first, before, I don't want to break your stride or anything.
MR. JOHN MELANSON: No, you won't.
MR. CHAIRMAN: Okay. Can you give us your full name sir?
MR. MELANSON: John Alfred Melanson.
MR. CHAIRMAN: Where do you live, Mr. Melanson?
MR. MELANSON: In Middleton.
MR. CHAIRMAN: What was the date of your injury, if you were injured, Mr. Melanson?
MR. MELANSON: September 20, 1991.
MR. CHAIRMAN: In general terms, what kind of injury did you suffer?
MR. MELANSON: I injured a disc in my lower back.
MR. CHAIRMAN: Do you have a case in the workers' compensation system?
MR. MELANSON: Yes, I have.
MR. CHAIRMAN: What stage in the system is it at?
MR. MELANSON: Well, I got a letter from my dearest friend, Judith Ferguson, that it is on hold.
MR. CHAIRMAN: We know what stage it is at now. You are at the WCAT sir, right?
MR. MELANSON: Yes. I would say you got probably a 10 per cent chance if you walk up the road here, somebody will hit you, that I will be before the appeal board until I die. When they put me in my casket, that is the day they will have my appeal.
MR. CHAIRMAN: I understand, I think, where you are. Are you presently represented by a workers' adviser or workers' counsellor?
MR. MELANSON: I have a make-believe one in Halifax. I might be wrong. Excuse me if I say the wrong word or something here but, anyway, I was hauled in for, like that gentleman, they offered me a pie in the sky, a golden egg. They called me in. I was represented by a lady in there that spent 20 minutes with me and sat there like a bump on a log while they discussed my case. I guess she is representing me, as far as I know.
MR. CHAIRMAN: But at least, whether you are satisfied or not, you do have a workers' adviser, fine. Did you ever have a workers' counsellor under the old system where you used to have a private lawyer?
MR. MELANSON: Yes. I had Curtis Palmer in Berwick. He represented me right up to this new deal the government came out with that they were using these other lawyers.
MR. CHAIRMAN: Just a question, which of the two systems did you personally think worked better for you?
MR. MELANSON: None of them.
MR. CHAIRMAN: As far as the workers' counsellor or workers' adviser, which did you think . . .
MR. MELANSON: I thought my own private lawyer, like Mr. Palmer representing me, was the best because he knew my case. I mean we didn't go in and spend 20 minutes before we went before the board, like we had a bunch of people sit like you from Workers' Compensation Board and that. He knew my life history. He worked for my case. Mr. Palmer, since 1991, represented me, this case, plus he represented me to get my Canada Pension, too. So I mean he knows my whole case. We do not have to sit down and he doesn't have to ask me a bunch of questions. He knows what to say about my case and he is prepared, which I thought my grandson would have probably did better than what this here lawyer did for me when I went in before . . .
MR. CHAIRMAN: The ADR, the alternate dispute resolution.
MR. MELANSON: Yes.
MR. CHAIRMAN: That is fine. Now, go ahead, sir, make your presentation. I just wanted to ask those preliminary questions.
MR. MELANSON: I have got a few comments before I make my presentation.
MR. CHAIRMAN: Sure.
MR. MELANSON: I am glad to see there are some elderly gentlemen in the crowd here today. I am sorry that we haven't got any elected representative from our way. I mean they are all from Cape Breton. They are fighters up there, I will say that for them but I would rather see that we had some representative on the board from our area but that is just mine, but I will carry on.
What I would like to see is that they change the people, the board, and get rid of these lawyers in Halifax and let us go back to our old system. Since I have been hurt all I ever see in the paper is they are hiring big expensive employees for the Workers' Compensation Board. The last thing I read was they hired a psychiatrist. Well, I have been crazy all my life so I don't need somebody to tell me that. But the board's got one now and I have never been before him - or her, sorry.
I lost my house. I live on $9,600 a year, my Canada Pension, below poverty, me and my wife. By the time we pay our clothing, our heat, our lights, we have very little to live on. Food is a luxury. I used to go to the store and I bought just an ordinary thing, but today it is a luxury if I go buy anything expensive. I am a little slow here. I am trying to follow what I wrote to you guys.
MR. CHAIRMAN: Take your time.
MR. MELANSON: I worked all my life. Right now I am below poverty. I don't have no get up and go no more. I just hate, every day I hate, but it will come, I hope. I would like to see you fellows recommend that they change this appeal board. Get some people in there that are honest people, not somebody like these young girls. Well, this lady over here works for the Workers' Compensation Board?
MR. CHAIRMAN: Yes.
MR. MELANSON: As far as I am concerned they must have them on the same as Michelin does down there. The more people they deny, the better their wages are because they sure deny a lot of poor innocent people. They will tell you one thing and do something else. Contact people, I have called numerous times and the only way you get any satisfaction out of this Workers' Compensation Board is to give their secretary hell. Tell them off. I hate to do that; I would not do that to anybody. I apologize, but I will tell you it does not take long before Ms. Ferguson, or one of the other ones, they call you back as soon as you get off that phone from giving that secretary a hard time, which I would like to see changed. The poor girl is probably off on nerve pills right now.
MR. CHAIRMAN: I do not mean to interrupt you but I take it that you found that you did not get a response from the Workers' Compensation Appeal Tribunal until you . . .
MR. MELANSON: Got nasty.
MR. CHAIRMAN: Then that was the only time you got a call back?
MR. MELANSON: Yes, and you had to really get nasty with them. I used some four letter words but it worked and when Judith called me, I said, it didn't take long for you to call me back now, did it? She was without words for about five seconds or a few minutes, she never said a word to me. She said, what do you mean? I said, well, that is the only way I got to talk to you. So anyway, I would like to see you guys get that back to the people. A 30 cent call, well, the Workers' Compensation Board must make millions of calls so they are probably on this cheap rate so they get probably less. When I call, I have a toll-free number and they say, well, sorry, we'll give you their voice mail. So you get the run-through and the, I'll call you back within 24 hours. I tell you that you wouldn't want to be hanging by a rope waiting for them to call you, but I would like to see that.
I have been approximately four years waiting to get before the appeal board. I called Ms. Ferguson for two years. Every other week I called her, four to six weeks, and this was three years ago and now in that four to six weeks you will hear your appeal. So I got nasty about it. A gentleman down home, who was a representative and has since passed away, I called him and he checked on it and he told me that they were lying to me, that they had no idea when my appeal would be heard. It was before the courts, what I am suffering with, and they were waiting for a decision on this. Like I told him, I said, am I that nasty a person that they couldn't have told me that? I would have felt better if they had.
I find the communication between me and them is very poor. This is just my case. I am not stating for anybody else, because I have heard lots of other stories. A letter in the mail or even if she would have said four years ago, it is before the courts, when it gets through the courts, that is when your appeal will be heard. I would have sat back and said, there is a light at the end of the tunnel. Then I have to get on the judge's part, why aren't they hearing this case? But no, they wouldn't tell you that. I think they should really change that way, the board should.
Little things they could do, like waiting four years for an appeal, that is terrible. How would you like me to say, well, I will hire you, but I will pay you in four years? I worked for Larsen's, I worked 23 years. I was doing my job and I got hurt. It just seemed like I committed a crime. I know guys down in the Correctional Centre - I drive a shuttle bus once in a while for different people, I take people that go in there - they are treated better than I am. They have steak twice a week, they watch cable television, and they have recreation. I don't have none of that stuff, because I can't afford it.
It shouldn't be on my part to prove that I am innocent. I am not a doctor, I didn't go to school and take medicine, but when my doctor states I am injured I shouldn't have to prove it. They should have to prove that I am not. I went in and I did all their tests, and went to all their doctors, their appointments, and all this. They told me the same thing. We can't operate on you, we will make you so you can't bend, and you will have to live with what you have, your mobility and that. Someday you might wake up, it might not work. They told me that.
I asked to be retrained. They told me I was too old. I was 48 years old when they told me this. If they would have retrained me, probably today I would not be here. I would have found a job. I have a Grade 9 education. I made my money with my back.
This is what I would like to see you fellows do, change the system so I don't have to prove without a doubt that I am injured. If my doctor says that, I am not going to go and fake an injury to get this. If I faked it, I am stupid, I would belong in a mental institution, because since 1991 I have been suffering with this. I lost everything I worked for, me and my wife both, our house and everything. They don't want too much to do with us.
As far as Mrs. Clark, on this ADR, or whatever you want to call it, it is something to make her money, because she is sure not looking after the poor injured guy. When you take your guy in there, like I got hurt in 1991, they offered $14,500 for the rest of my life, to live on. That is a joke. That is like me cutting you and then throwing salt in the wound to make it hurt worse. I drove in there in an ice storm for them to tell me this.
Now, my last, this is it, I don't know how much time I have left, but this is about it . . .
MR. CHAIRMAN: This is the two-minute warning shot for you.
MR. MELANSON: My last is, let's go back to our own private lawyers, get our lawyers. If they don't want to pay us, let us go and be able to have our own lawyer in our own area represent us, not in Halifax. If I have to call her, she doesn't have a long-distance toll-free number. So it costs me money. You don't call her when you want to know things or anything like that, if you have somebody local, you can go in and see him.
Go back to the guy in the local office representing us, it would be better for us, to the injured worker. If I get anything out of it today, which I doubt, I know you fellows are nice gentlemen and that, but I don't think you are miracle workers, I notice there are no spike marks in any of you fellows' hands, so I know. If anything happens today, I would love for you fellows to go and look at this compensation board, and start from the top. Don't start from the little guy. The top guy makes the rules, start with him, and nail him, make him accountable, put him out in the street, make him accountable.
I have been to about 10 appeals, about 20 meetings like this. I sat back and I argued with Dave Stuewe. Dave Stuewe told me in 1992, he said, boy, this Workers' Compensation Board is going to be tickety-boo, no long waits, no nothing. As far as I am concerned, from what I get off the street, it is worse now than it ever was. I don't see Mr. Stuewe here though. He is probably in his office in Halifax looking out his window right now.
I am glad to see, and this is it, I am all through, you don't have armed guards, because our minister in Halifax, he won't even let one of us upstairs anymore. I don't see any guns or knives or anything like that.
MR. CHAIRMAN: You are very safe sir. (Laughter)
MR. MELANSON: I am not scared. I carry one in my backseat. (Laughter) So, if I don't like what you say, I can go out and get it and come back in. (Laughter) That is just a joke.
MR. CHAIRMAN: That is why we have vice-chairmen, if you come back with a knife . . .
MR. MELANSON: Which one is it?
MR. CHAIRMAN: Ms. Godin. (Laughter)
MR. MELANSON: As far as I am concerned, when you walk into a building, I have been in banks, in vaults, that you don't have as much security that you do at the compensation board. What makes me laugh, listen, I have to tell you this little story. I was in there one day, and this gentleman was at the desk there, he was dressed up in a uniform, had a nice hat on. He laid back in the chair reading a book. He said, you know, all these fellows come in here and give me a hard time. I said, you want me to, I can call a busload of fellows up, come down and give you a real good hard time. He shut up, he walked out the door, and never came back. He left the office. Anybody could have broke in at that time. If you want to get rid of him, just tell him a story. That is it for me.
MR. CHAIRMAN: Thank you very much, Mr. Melanson. I just had one quick question for you. Has your workers' adviser ever indicated to you that she would see you in your home area as opposed to in Halifax?
MR. MELANSON: If I want to wait another year or year and a half.
MR. CHAIRMAN: Okay. That is fine. The other question I had for you is that my understanding is that the number you have for your workers' adviser, you have to call at your own expense?
MR. MELANSON: Yes.
MR. CHAIRMAN: You don't recall being given any toll-free numbers to call your workers' adviser?
MR. MELANSON: I had a letter from them and it was not a toll-free number on the top of the letter.
MR. CHAIRMAN: Thank you. Those are my questions. I believe there were some committee members, Mr. Corbett.
MR. FRANK CORBETT: Thank you, Mr. Melanson, for coming here. When did you receive the letter from Ms. Ferguson stating that your appeal would be delayed?
MR. MELANSON: You won't believe this. Monday morning. It was mailed Friday in Halifax. Our mail service is good in the Valley, so you want to write me a letter, it gets here fast. August 21st it was sent, sir. I got it Monday in the mail.
MR. CORBETT: Is it fair to categorize you as a chronic pain sufferer?
MR. MELANSON: Yes.
MR. CORBETT: Okay.
MR. CHAIRMAN: Mr. DeWolfe, did you have a question?
MR. JAMES DEWOLFE: Mr. Melanson, just one question, did you accept that lump sum payment that was offered?
MR. MELANSON: No.
MR. DEWOLFE: You didn't. Okay. Thank you. I wasn't clear on that.
MR. MELANSON: No, I didn't. It looked good. At the time, my heat bill was behind, my light bill was behind, which it still is, but . . .
MR. DEWOLFE: The lights are still on though?
MR. MELANSON: Yes, the lights are still on. Nova Scotia Power is very nice. They changed. I don't know what happened to them. They are very obliging to a person. You tell them the truth, and you keep up with what you tell them, they do hang on.
At the time, like I say, I could have used it. I mean I am not saying that $14,000 didn't look really good but then I said, well, I get that, I have a mobile home I bought and I got a $20,000 mortgage on that so I said if I put that $14,000 against that, I still owe $5,000. I still owe all my bills. I got nothing. So if I say no, I just got another 5 to 10, 15 years to wait, and maybe I will get something.
MR. CHAIRMAN: Mr. Parker.
MR. PARKER: Mr. Melanson, you mentioned somewhere there earlier that you were told by somebody that you are too old to be retrained?
MR. MELANSON: The Workers' Compensation Board itself.
MR. PARKER: Did they put that in writing to you or verbally?
MR. MELANSON: I thought I had a letter. I won't mention any names because I do not want to cause anybody - but the lady that was there, I am sure she sent me a letter and I had it home in a bunch of papers and when we moved out of our house, I lost a bunch of papers. I wrote to the Workers' Compensation Board because I figured they would send me a transcript of all my papers, and it would be back in there, and it would cost me $30 to have it done. I did not have the $30.
MR. PARKER: So did you question that, or object to it?
MR. MELANSON: Oh, yes. They told me that my education is Grade 9. I went and had myself tested and my level was below, way low, because I had been out of school so long. They told me that it would take three to four years before I would be up enough to get my Grade 12.
MR. PARKER: Did they indicate to you what type of retraining they might offer to you or . . .
MR. MELANSON: They never offered me nothing.
MR. PARKER: Do you feel yourself that you are capable of being retrained?
MR. MELANSON: I did, yes. I would love to be back in the workforce, I mean to get away from this, you know, have a paycheque come every week, I would love it.
MR. PARKER: Finally, what is it that you think you would be capable of being retrained for?
MR. MELANSON: I do not know. It would have to be a sedentary job, you know, to do with computers or like a dispatcher in a trucking outfit or something like that I could probably do, but you would have to have the education in that. They just told me that I was not in the category to be retrained. They said by the time I got retrained I would be up to retirement age.
MR. PARKER: What about something even like - you mentioned earlier you drive a van, or something - like a taxi driver, or something like that, would you be capable of doing that?
MR. MELANSON: A lot of days I would as long as I did not have to do any lifting or lugging and getting in and out of the cab. It is when I start doing stuff, this is when the injury, like I have severe pain and I live on Tylenol quite a bit of the time. My doctor prescribed a heavier drug but she said it was addictive. It was $70-some for 30 pills. I could not afford it so I said, well, and it is addictive and if I would have been on them, you know, I would have nothing now, which I got; me and my wife, we have learned how to pinch the pennies but they did not want to talk to me about no retraining or nothing.
MR. PARKER: Thank you.
MR. CHAIRMAN: Mr. [Charles] MacDonald, sir.
MR. CHARLES MACDONALD: I guess, following Charlie, it is basically your mobility when you are walking or you are up and working and that that the back . . .
MR. MELANSON: Yes, pains.
MR. CHARLES MACDONALD: Yes, and I would imagine sitting at times too are . . .
MR. MELANSON: Most of the time. Like today, I drove here, I drove from my place to here and when I got here, like I always come early so I can sit for awhile and walk around because if I do not the pain will get so bad that my vision will go blurry sometimes. The pain will bother me that bad but I just take ordinary extra strength Tylenol and usually if I lay down, it goes. I try to do stuff but there is not too much that I can do.
MR. CHARLES MACDONALD: Thank you.
MR. CHAIRMAN: Are there any other questions from the committee? Do any of the consultants have any questions? Mr. Neville.
MR. JAMES NEVILLE: Did they have you assessed for a PMI pension, Mr. Melanson?
MR. MELANSON: No. They took me in to see Dr. King. He walked me across the floor and back and forth and looked at me and told me to go home. I got a letter, he said I had no disability. I don't know if he has got X-ray vision or what but, anyway, that is all he did. I was in his office probably 15 minutes. He took my name, my address, and walked me across the floor and told me to go home. He wrote me a letter and told me I was not totally disabled. He said I had a small one, but I was not total.
MR. NEVILLE: And they have got you under that chronic pain deal now?
MR. MELANSON: Yes.
MR. NEVILLE: Well, hopefully, pretty soon there will be something done about that, you know, get some sort of justice . . .
MR. MELANSON: The only way there is really going to be justice with this organization, I mean we can sit here, you can sit here, you can come around the Valley every two weeks, until you hit the top of that Workers' Compensation Board and get in there and kick their ass. If you ran a business like the top of that Workers' Compensation Board runs,
you would be bankrupt like the Workers' Compensation Board is. You know, the money is gone they say. They haven't got any money to pay us.
MR. CHAIRMAN: Thank you very much, Mr. Melanson, for coming in here today. We appreciate you taking the time to come in here today. It was very helpful. Thank you very much, sir.
MR. MELANSON: Well, I just hope you fellows do something.
MR. CHAIRMAN: We are going to try.
MR. MELANSON: I will have to find out where all you live, so I can come tell you. I eat heavy.
MR. CHAIRMAN: Are there any other presenters who wish to make a presentation at this time?
MR. ROGER EISNOR: I didn't know about any presentation because I had called the board back in the spring and they said they would let me know in plenty of time and send me out the forms and I have yet to receive them.
MR. CHAIRMAN: Why do you not come forward, sir, and we will hear from you. I am going to ask you my rolling list of questions here, so I do not want to be off-putting but it just helps us a little bit in trying to figure out what has been going on in your life. I take it you have a case involved in the workers' compensation system at this time?
MR. EISNOR: We did have, but what has happened is some of them went to the Supreme Court, but our judge will not make a ruling on some of the decisions of the older injured workers.
MR. CHAIRMAN: Okay, that is fine. So, first of all, your name is, sir?
MR. EISNOR: Roger Eisnor.
MR. CHAIRMAN: Where do you live, Mr. Eisnor?
MR. EISNOR: I live in Wilmot.
MR. CHAIRMAN: What was the date of your injury?
MR. EISNOR: August 15, 1984.
MR. CHAIRMAN: What type of injury, generally, is your injury?
MR. EISNOR: Well, that is hard to explain because I was injured right from my rear end clear to the top of my head. So I had numerous broken bones. My back was all frigged up in two places. I have steel rods in my back; I have pins and plates in my shoulders. I still got ruptured discs and stuff in my neck and I am full of arthritis. So where to tell you that I start, I don't know.
MR. CHAIRMAN: Well, I think you gave us a pretty good general indication of what . . .
MR. EISNOR: The only part that did not get injured was from the rear end down and that is below the buttocks, but the back affects the legs, okay, so there are days that it is pretty damn miserable, in plain English, to get around. The hotter the weather, I feel a little bit better but, as soon as winter comes, you seize up.
I would have had a presentation ready but, like I said, I did not get any information. I did call them and they promised they would send it, because I heard someone say it was in the daily paper but whatever it is, today, to buy a daily paper, I did not feel I could afford to buy one every day just to keep finding out. I did contact our local MLA who is in power now, who was not in power at the time though, and that was before the election, I was talking to him and he gave me the toll free number for our Premier's Office.
Well, the good old Premier never called back either and I am still waiting. I made four long distance phone calls and I am still waiting. I would have known maybe about this meeting here a little bit more but, our local good old MLA, he neglected to mention the thing to the Workers' Compensation Board, the questions I wanted to ask. So I am kind of blindfolded today without anything to present, but I do have a few questions I would like to ask.
Back, I think, in 1992 or 1993, they did freeze the permanent partial disability indexing of the workers' compensation for injured workers.
MR. CHAIRMAN: I don't want to interrupt you at all, because we certainly want to hear from you, but just for your information, we are not from the Workers' Compensation Board.
MR. EISNOR: I know you're not.
MR. CHAIRMAN: Okay. I just wanted to make sure that you understood that, just so that you understand that we are not the people with all the answers, so to speak. As long as you understand that, because, in fact, the reason we are going out to hear from people, is because we know we don't have all the answers. I just wanted to make sure that you understood that, sir.
MR. EISNOR: Well, that is great, because I am glad that we got you all in a bunch. Now maybe somebody will give me some answers and get back to me. I'm not sure if it was 1992 or 1993, but they were kind enough to freeze the little indexing that they used to give the injured workers. If it dropped down below 2 per cent, then all of a sudden, they wouldn't give you anything at all. But if it was 2 per cent and above that, they would do the same as what Canada Pension has increased their people over the years.
If they are, I would like to find out when they are going to take the freeze off, because I have been informed that the employees at the Workers' Compensation Board have gotten an increase in their salaries. I would kind of like to know if that is true, why and how much, and if they figure that 2 per cent out of $500 or $600 of what some of the permanent partial disability guys are getting, if they figure that is quite as good as their 10 per cent of $60,000 or $70,000, which I don't think it is, but just in case, I would kind of like to know. Why is it that they haven't taken the freeze off of this yet?
If I could, I would like to ask one of the employees of the Workers' Compensation Board if they did get an increase this year, if they would be kind enough to tell me?
MR. CHAIRMAN: I might suggest that after the meeting today, that the best way to do that kind of thing would be to talk to either Ms. Rowan or Mr. [Brad] Fraser, and they can perhaps answer some of those questions for you.
MR. EISNOR: There shouldn't really be any secret though, should there?
MR. CHAIRMAN: I am certainly not trying to keep it a secret.
MR. EISNOR: I just thought I would ask, to see if they could tell me if they did get an increase. I would kind of like to know, because I am having a hard job finding out from the government.
MR. CHAIRMAN: I understand, but the format doesn't really permit us to engage in a sort of question-and-answer session. But I think I get the drift, sir, which is that you wonder why pensions are frozen, while the employees at the Workers' Compensation Board, their salaries are going up?
MR. EISNOR: I was kind of wondering why or how they think that an injured worker getting $6,000 or $7,000 and less a year, how they figure in their own mind that they can support a family on that, and pay their everyday bills. If they are having a hard time on $50,000 or $60,000, what do they think that we are doing? We are robbing Peter one day to pay Paul the next, and Paul to pay back Peter. You go behind every year. It is not just me. I am asking for the injured workers, why haven't they done something?
We keep voting for people we think are going to do a good job in some cases, and then all of a sudden, I even had my MLA ask me today, well, why do I want to know that question? I had to laugh, because it doesn't stand to reason why they would freeze the injured workers what little bit they are getting, and give themselves a 7 per cent or 10 per cent or 15 per cent raise, whatever it may be. I am still having trouble finding that out. It just doesn't stand to reason.
This is what I would like to know. When are they going to take it off? I hear it is until the year 2000, maybe longer, then they will decide. Our government controls this, you know. It is a government organization, it is like I told the Attorney General back in 1984 or 1985, the only reason Al Capone was thrown in prison, he didn't have a licence to screw us. They took it up, because it is quite a good profession, and they are still doing it. It is no different.
My condition today is due to the workers' compensation and our medical system. The reason I say that is because in the medical system, some doctors want to have absolutely nothing to do with you if you are a workers' compensation claim. Nothing. I have had a doctor tell me right to my face, he couldn't help me, I will not do the surgery, because I want my money and I don't want the damn hassle with the workers' compensation. I can prove that.
No wonder, I mean, a guy is in misery all the time. It is bad enough that physically you have a rough day, but when you get jerked around by the doctors and the workers' compensation, that is going too far. I am a little afraid of what is going to happen to our younger generation down the road. People do have to live. I was told, where I was self-employed, if I didn't pay into the system, I was fined. If I didn't pay the fine, I went to the Big House. Believe you me, they are living a hell of a lot better than I am today. It is not a bad place to be as far as I am concerned. At least you will get looked after, and that is more than what the board is doing right now for the injured workers.
That is all I have to say. I just would like this information back from one of you kind people. I will leave my name and address, if someone can take it, and don't lose it, then I would appreciate that.
MR. CHAIRMAN: I guess I have one question for you. You said that you had a specialist that wouldn't treat you because you were a workers' compensation case?
MR. EISNOR: Oh, yes.
MR. CHAIRMAN: Did you have any difficulty with other physicians in accessing service because you were a workers' compensation case?
MR. EISNOR: Yes, my family doctor told me he couldn't do anything more for me, he went as far as he could at the time. He wouldn't contradict anybody that was in the board, or anything like that, he didn't want to have the problems. He didn't say it in those words but I knew what he meant. I didn't have a doctor for quite some time. Then I went to another doctor in our area down there, because when you don't sleep because you have pain and you can't sleep, and you have nothing to take for it, and you can't afford to buy nothing for it, after a while you don't give a hoot what happens to you or what they give you. Anything they will give you, you will take to get rid of the pain.
I did finally find a doctor, a local practitioner who said that he would do something for me, and by God, he did. He didn't mind picking up the phone and calling them up, if they said something he didn't like, he would tell them they were crazier than hell. If it wasn't for him, I wouldn't have gotten as far as I did today. But it is the specialists who don't want to have nothing to do with you because of that reason, the workers' compensation.
It hasn't changed since I have been dealing with them, since 1984. They wrote me letters and said, they won't give me no more hassle, no more nothing, you go for your surgery, get recuperated. I never even got out of the house and they had a letter written, laying on their desk, saying we are not responsible for your injuries, and we are not giving you consent for nothing, and didn't have the guts to send the letter. I can prove that too, because I have the letter.
MR. CHAIRMAN: Some of the committee members may have some questions for you, sir. Ms. Godin.
MS. ROSEMARY GODIN: Mr. Eisnor, thank you for coming forward even though you were unprepared. I know it takes a lot of courage. You have questions and they are legitimate questions and I can understand that you want them answered. Are you aware that there is information at the back of the room? Did you pick any up?
MR. EISNOR: I picked up a few of the folders.
MS. GODIN: Okay. There are numbers there that you can phone and I hope you take advantage of that and get your questions answered.
MR. EISNOR: Well, will these phone calls be returned any quicker than the ones I have been calling?
MS. GODIN: I would hope so.
MR. EISNOR: I have called the head office and I have had three different people there, and the lady that was working for the Premier's Office, I will get right back to you tomorrow. Well, tomorrow has been what, June, July, August, September, October pretty soon.
MS. GODIN: Do you have a workers' adviser?
MR. EISNOR: No and if it is one from the board, I don't want any.
MS. GODIN: Okay. There is information about the Workers' Advisers Program with a number.
MR. EISNOR: But if they work for the board, they are no good.
MS. GODIN: No, the Workers' Advisers Program is separate from the board. I just think, if you call, you can get some of those questions answered.
MR. EISNOR: Okay. I appreciate that.
MR. CHAIRMAN: Any other committee members have a question? Mr. [Charles] MacDonald.
MR. CHARLES MACDONALD: Just for clarification, did you get injured in a fall, I take it?
MR. EISNOR: No. I had about 4,000 pounds come down on me, kind of smashed things apart, different places.
MR. CHARLES MACDONALD: Top to bottom.
MR. EISNOR: I had injuries, one specialist in Halifax even told me that my neck had been broken, that they didn't even know it. My back was broken, they didn't even know it. That was over and above the 10 broken bones that they did find that were smashed. The only reason that they healed was because I was in bed for 12 weeks. They said I am lucky to be walking let alone alive but I was improperly looked after from day one due to the system.
Our system is getting worse. The workers' compensation is worse now than it was before. There was nothing wrong with our old system as long as they did not lie, cheat, and steal from you. That is all they have done. They are still doing it. They were doing it then and they are still doing it now. So the only way the system is ever going to be changed, as far as I am concerned, if they have injured workers in there that are injured and they can work so many hours a day, hear people's claims, because they would know what they are going through. These people in there do not know and they are getting paid enough that they do not
give a damn. If they would pay the injured workers what they were supposed to get and get rid of the umpteen dozen people they got in there, including their high paid lawyers and doctors, they would not have any problem today. They just will not have it but they are spending so much money trying to screw the little guy from getting $300, $400 or $500 a month.
I was even told by one of the big mucky mucks when they were in power in there, well, sell your house and when you spend that money, when that is all gone, then you get on social assistance. I worked 14 to 16 hours a day to get what I got and I will be damned if someone is going to take it, damned, no one will be taking it unless I decide to sell it or give it away. Then, fine, I will do that, but the government will never take it. That is all I have to say. I thank you.
MR. CHAIRMAN: Do any of the consultants have any questions? Mr. Neville.
MR. NEVILLE: Mr. Eisnor, did they have you assessed for a PMI pension?
MR. EISNOR: You mean through the board, yes. A Mr. Reardon, I believe, was his name and he assessed me for 50 per cent. That was back in 1990 or 1991, I think. I would have to check my records. Like I said, I was not prepared today for this but I was paying in, because I was self-employed, okay, and I had to base it on the previous year. They kept telling me that I paid in for $15,000 and I paid in for $24,000, you see, and it is not right. So since 1984 until the present, as far as I am concerned, they have cheated me out of, on the percentage, they cheated me out of $9,000 a year, 50 per cent of the $9,000 a year.
Now, these cases have gone to Supreme Court but our sweet little old judge, she will not make a ruling on them yet.
MR. NEVILLE: You could go back and get reassessed.
MR. EISNOR: I have never been reassessed and since I was back to the doctor in Halifax, which has been quite awhile ago because I was having so many headaches and stuff, and now the Workers' Compensation Board did say they would send me for acupuncture. I have been going to get that in Greenwood but they say my joints and stuff are so full of arthritis now that they do not want to operate on my upper neck, or whatever they call it, because they are afraid that they could paralyse me and the only way they will do that is if I get completely off my feet altogether and I cannot stand it no more. Then you have got nothing to lose but I have never been back for reassessment because I did not figure they would do anything anyway. If it has to go through this appeal board, then I might as well not even bother going back because they are not going to accept what the doctor says. They do not accept anything now so I do not see why they would accept that.
MR. CHAIRMAN: Thank you very much. I might add, sir, that you indicated you were not ready today. If you have any additional information, like written information that you want to send to us, through that good mail system that you have here in the Valley, you are certainly welcome to send that to us if you had a letter, or something else that you thought that would be useful for us, we would certainly be welcome to receive that.
MR. EISNOR: I appreciate that.
MR. CHAIRMAN: Thank you very much for coming and taking the time, particularly when you are unprepared.
MR. EISNOR: Thank you.
MR. CHAIRMAN: Do we have any further presenters at this present time? Yes, sir, come forward.
MR. GARRY RANDALL: Mr. Chairman, I had asked for a slot this evening but if there is time, maybe I could do it now.
MR. CHAIRMAN: I certainly think that would be great if you want to do that. Could you just identify yourself?
MR. RANDALL: My name is Garry Randall.
MR. CHAIRMAN: Where do you live, Mr. Randall?
MR. RANDALL: I live in Port Williams.
MR. CHAIRMAN: Are you an injured worker or . . .
MR. RANDALL: I had a case with the board. It ran approximately between the years of 1988 and 1995. I guess after awhile I just sort of lost interest because it seemed that they did but it will be explained here.
MR. CHAIRMAN: Go ahead.
MR. RANDALL: There is nothing ongoing now with them.
MR. CHAIRMAN: I may have some questions after your presentation is over.
MR. RANDALL: Mr. Chairman and members of the committee, I would like first of all to express my appreciation for a chance to state my views before this committee. I would caution you, however, that I have worked in the construction industry for over 20 years and
can only speak to the experiences I have had. If you will permit me to proceed with my statement here today, I assure you that I will address your goal, if I understand it correctly, of clearing the backlog in the system, specifically the process of appeal.
First, the amount of claims must and can be reduced. Obviously, no injury, no claim, no appeal. Several things, all within the jurisdiction of the Department of Labour, must be addressed to realize that reduction.
First of all, labour legislation must be updated in Nova Scotia. A few examples, the Occupational Health and Safety Act must be amended. Judge Richard in his report condemned the system of internal responsibility as practised by the department at the time of Westray. He called the approach passive and apathetic. He criticized policy deeming employers and workers as primarily responsible for health and safety, virtually abdicating any leadership role by the inspectorate. We all know the tragedy of Westray and how it relates to us here this evening. Justice Richard's recommendations must be addressed.
In my view little has changed since Westray. Often when a call is made to the department for information or to address a matter of safety, a worker is very quickly singled out and harassed, or soon is no longer employed on the job site. I have been told by the co-chairman of a site safety committee when questioning him as to why people were working in an area which had a Do Not Enter-Carcinogenic sign on the door entering that area, that the workers have the right to refuse. Would you refuse if this man was also the man who sent you there to work and made out your time?
The next week when a worker called the department for information about working in an area with the same product, he was confronted the very next morning by supervision and has not returned to the job site. I could go on from personal experiences alone but hope I have made my point. Those with the greatest degree of control, as referred to in the Occupational Health and Safety Act, are not the employees as some would have us believe and the burden to address unsafe conditions should be from the top down rather than the bottom up.
The Mainland Building Trades Council released a document on March 12, 1998, citing over 40 construction-related deaths in five years in Nova Scotia, a number I still find astonishing but still little attention has been paid to make improvement. Their recommendations, if practised, would also dramatically reduce the incidents that could lead to appeal.
We have had Ministers of Labour who do not even understand the Minimum Wage Order in respect to no legal right to refuse overtime. As well, the minimal, if any, premium to be paid for overtime encourages employers to work their employees beyond safe limits. I recently worked on a project where up to 70 hours per week was routine. Tired workers are hazards which result in claims. With the unemployment we experience, 40 hours of work per
week would be realistic and much safer. Believe it or not, this close to the second millennium, a fire hydrant is deemed by those enforcing the Occupational Health and Safety Act as a suitable fixture for construction workers using hazardous materials to wash their hands at before eating their sandwiches.
The immediate efforts of the department should be directed to revision of the Occupational Health and Safety Act as well as strict enforcement and harsh penalties for violators. An adequate number of inspectors, selected from the industries they are responsible for, will be required to achieve the goal of reducing the occurrence of injury which will ultimately reduce the amount of appeals.
The numbers of refusals for compensation must be addressed. If I may once again refer to personal experience, it would well illustrate the point I wish to make. Several years ago, I injured my back at work. I filed the claim after my doctor told me to stay off of work. After one week, I convinced him to let me try to return, at which time he recommended chiropractic care. I would work through my lunch in Dartmouth and leave early for a late appointment back in Kentville. My bills for treatment were forwarded by my chiropractor to the WCB. After approximately one month, I was told no further treatment was required. Easy for the chiropractor, but my back still hurt.
I continued work for a year until it got unbearable once again. Upon calling the WCB, I was told, see your doctor and we can re-open your claim if he says it relates to your original injury. He did relate it to my original injury. However, while waiting for all the proper paperwork, I needed back care so I could work. So I paid my chiropractor, at his request, out of my pocket. The decision at the WCB was that my problem was not related to my original injury. After all, I was only off of work for one week.
It took approximately eight years to finally get all the money I had paid for care to be able to continue to work and finish the appeal process. My brother was not the chiropractor, so there was no gain to be had other than to stay off the rolls of the disabled and be able to work. The winners were the lawyers appointed to represent people such as myself and here is a file to prove it. During that term, the board and myself accumulated this much paperwork and I am sure somebody paid for it.
I feel it is unrealistic that the Province of Nova Scotia allows this type of situation to occur. To reduce the backlog of appeals, I offer the following suggestions and I would hope that you keep in mind that I haven't dealt with the system for a while so I may be a bit outdated with my recommendations also. One could start with approving claims that obviously are of no financial gain to claimants, such as myself. Your report must question why the diagnosis of a doctor licensed in this province is not acceptable proof of qualification for compensation. Are our doctors that incompetent or corrupt? Determine if there is an implied board policy of automatic refusal for some claims, regardless of merit, hoping that they will
just go away. Some reports indicate the success rate of claimants' appeals is extremely high so why add the cost of lawyers and grief?
Explore the cost-effectiveness of using video conferencing to hear appeals while using any savings for additional short-term hearing officers and workers' advisers. If needed, implement voluntary polygraph. Where appropriate, determine eligibility for compensation. To reduce the appeals long term, first of all create a workplace where it is safe so compensation is no longer required. Create a workplace where it is more beneficial to contribute to the system rather than abuse the system. The example of that would be a realistic, fair wage in the Province of Nova Scotia. Government must question, as many workers do, is the WCB providing an insurance for income protection in the case of injury or simply a means of protection from liability for employers?
In conclusion, I must point out that, in my opinion, many workers have absolutely no confidence that the department is willing to act upon their concerns or protect their identity when safety is at issue in the workplace. I would therefore recommend the WCB compile an accurate list as to where the incidents which lead to appeals are generated from and focus departments' resources on better enforcement in those areas. If my observations are correct, the government should exercise its power to encourage what works best to achieve safe work sites. This will ultimately reduce injury, claims, appeals and costs to the taxpayers of Nova Scotia.
As reported by Justice Richard's findings, it must be profoundly unsettling to the people of Nova Scotia to realize that the department's safety inspectorate is so demonstrably apathetic and incompetent. Address that situation and you address the issue you seek to resolve today. Thank you very much for your time.
MR. CHAIRMAN: Thank you very much. Are there questions from the committee for Mr. Randall?
I have a question, Mr. Randall. It relates to your experience on the job site. You indicated that you had experience with workers who had reported safety concerns. I take it these would be tradespeople working on job sites who would be concerned about a safety issue and your experience was that those people were effectively terminated a short time thereafter, is that what happened?
MR. RANDALL: I haven't experienced that myself, but I have seen people not return to the job site.
MR. CHAIRMAN: Your understanding is that wasn't a decision of theirs?
MR. RANDALL: I am certain that wasn't their decision.
MR. CHAIRMAN: Somehow, coincidentally enough, they weren't back at the job site?
MR. RANDALL: Sometimes you change jobs, you go to another job site, and sometimes there is a shortage of work.
MR. CHAIRMAN: But they tend to be punished, in effect, for . . .
MR. RANDALL: Through personal experience, I have been singled out simply for asking for a place to wash my hands, and not specifically by my employer, I had a good employer. I probably wouldn't have been there as long as I was by the actual general contractor who was running the job site.
MR. CHAIRMAN: Again, with respect to the Occupational Safety & Health Division of the Department of Labour. I take it that your experience is, or you feel that the enforcement is quite lax. I don't want to put words into your mouth, but is that your concern?
MR. RANDALL: Yes. They talk a good story, they publish a good report, and they pat each other on the back. I spoke to somebody in that department not very long ago and he told me of all the good things and I should read the report. He informed me that things had changed in Nova Scotia to a very significant degree and that we were, according to his idea, much further ahead than most parts of Canada. I asked him if he ever travelled to any other part of Canada and he said, no, he hadn't. I haven't either but I know people who have and those people say that we are pretty far behind here and we have a long way to go yet.
The sad thing is, you see the people who are here today, right, and in most cases, if the work site had been safe, they wouldn't need to be here, they wouldn't have needed to go through the turmoil that they have. I can't speak, because I don't really know their case, and maybe I shouldn't have said that in that way but I know a lot of people who have, through the fact of an unsafe work site, suffered very much similar situations as these people have.
MR. CHAIRMAN: Mr. [Charles] MacDonald.
MR. CHARLES MACDONALD: Just back on the construction side, Garry, were you in local construction or commercial housing or heavy industrial?
MR. RANDALL: I have it done it all over the 20 years. I started out doing housing and I have been to the Stora project, which is probably the largest current project in the Province of Nova Scotia.
MR. CHARLES MACDONALD: Do you belong to a union at the present time?
MR. RANDALL: Yes, I do, but I have also worked non-union as well.
MR. CHARLES MACDONALD: Now is there any difference? I belong to a union as well and that is why I am asking, if you don't mind. In your observations on the site, as to safety and safety regulations in the observance of them, did you note, is there any difference between a union contract and a non-union contract or the size of the site?
MR. RANDALL: The difference, I think, comes in the fact that on a union site people have an organized body with them. If they bring up a complaint, the management is very slow to single somebody out and say that you are gone, because everybody around knows that is why the guy would be gone and it wouldn't wash very well. That usually doesn't happen because, when there are unsafe working conditions on unionized sites, the guys themselves will address it; you may not even need an inspector. On a site that is non-unionized, and I just experienced it, everybody goes like this. Nobody knows nothing even though the inspector may have just come in that day and shut the job down, nobody knows why. That is what I see. I hope that answers your question. There is a definite difference.
MR. CHARLES MACDONALD: Thank you, Mr. Chairman.
MR. CORBETT: Just one quick question, Mr. Randall. Do you feel that the health and safety of workers would be better served if there was a closer working relationship between the Occupational Safety & Health Division and the WCB?
MR. RANDALL: Oh, I think so. No matter what relationship you develop, it is always a better situation, right? By these people and myself coming here today, I think we have probably gained some respect for some of the politicians that are around right now, just by listening to us and talking with us. So, yes, definitely. You are all in the same department, for God's sake, and the problems that you people are dealing with are probably a great deal caused by what happens on the other side of the building.
MR. CHAIRMAN: Do any of our consultants have any questions for Mr. Randall?
Well, thank you very much for taking the time to be here with us this afternoon. You are certainly welcome to come back this evening and hear our presentations this evening as well.
MR. RANDALL: I probably will. Thank you very much, Mr. Chairman.
MR. CHAIRMAN: Are there any other presenters at this present time?
Yes, ma'am. Come forward. Have a seat. If you would identify yourself, please.
MS. JUDY BENJAMIN: I am Judy Benjamin.
MR. CHAIRMAN: Oh, hello, Judy. If you just would indicate your name and your address and, for the benefit of others, the nature of your injuries and so forth.
MS. BENJAMIN: Okay, I am Judy Benjamin. I live in Centreville, which is outside of Kentville. My injuries started when I whacked my shoulder on a cement pipe. I damaged the nerves in here. They go down my arm, up the back of my neck, to my eye. My face goes numb. It is going down my right side now.
MR. CHAIRMAN: Where were you working at the time? Again, I know the answer to these things, but for everyone's benefit.
MS. BENJAMIN: Canard Poultry.
MR. CHAIRMAN: After you were injured, perhaps you could indicate if there have been any appeals or what has happened with your claim with workers' compensation?
MS. BENJAMIN: With my claim at workers' compensation, to make a long story short, I got injured, I went through back-to-work therapy; I did this for six months. Then they finally said, the doctors, that as long as I left my job that I was at, got retrained for another one, that I would be fine, my problem would go away and I would have no more problems. I sit here five years later and I am worse.
They put me through voc rehab. At the time, being ignorant on my part, not knowing what university is like, my husband worked there and we could get a 50 per cent cut so I thought that would be a really good place to get my business administration certificate - not realizing that you have an hour class and you have a fella up there going yip-yip-yip-yip and then you go home and learn it. I cannot do that like that. It was 17 years I had been out of school. I am used to somebody showing me and teaching me and letting me do it so that I can learn, not an hour of somebody rattling off and then me try to comprehend all this.
Within a week of my first course, I called the compensation board and I told my case manager and my voc rehab counsellor that I was over my head. They told me, oh Judy, you can do it, just keep trying. So what are you going to do? You have to keep doing it. I can't quit the course. Then I would get my voc rehab's favourite thing, you don't do it, you are cut off. I heard this numerous times over my voc rehab. So I kept on doing it and my first term in accounting I was advised to get a tutor. I got a tutor, who is used to getting paid $10 an hour and staying on campus, was driving 16 kilometres to my house for $7.50. Through the rigamarole, she filled out all the paperwork that she was supposed to. She sent it into the voc rehab. It was two days before Christmas before she got her money. So, needless to say, the second half of my accounting, I had no more tutor.
It took me up until two weeks before my final exam in the second part of accounting before I got a tutor and then I had to cram six chapters or 10 chapters, whatever it was, into three weeks and try to learn it. Needless to say, I failed. Acadia University sent me a letter stating that I should take a leave of absence and I was dismissed from my courses. I got a six week job search and with the IT Kit, I don't know whether you guys are aware of that, it is a place where they show you how to do résumés and how to present yourself and all this stuff, I was in my last couple of days of that and my voc rehab counsellor came and told me that she found me a job. I was on cloud nine. Here I am, I have got some credentials, I was going to go as a clerk typist. I was going to have a job that I could do.
The second day into my job, the lady who was supposed to be my boss, found out who I was and due to personal differences, which she doesn't really know me - my daughter was assaulted, her son was hauled in and that was a no-no, her son had nothing to do with it. As soon as she found out who I was, my job was gone and I knew it. You could cut the tension in the air with a knife.
I would ask her how she wanted things done in the office and she would say, do it whatever way you want. So I did it. She asked me to type a letter. I said, do you have any certain way you do letters? There are different formats and styles of letters. No, do it whatever way you want. I hadn't typed for 15 years at this time. I was nervous. It was my second day on the job or whatever, and I was typing this letter. It is a very simple letter, I will admit that, I have it on file, I made a mistake, so I redid it.
The third time redoing it, for missing like a letter, I thought I hit the right letter or whatever, my fingers weren't working exactly right, when she couldn't find anything wrong with it the third time, after doing it for this many times, then she decides to pick out the address. You didn't address that to the front of them. Well, I didn't have it on the other two, either. Why didn't you tell me that then? This is how she was to me.
So on the third day, by that point, I went to my doctor on the way home from work. I had to have painkillers. I didn't tell anybody I was on painkillers because I had to keep this job. This was going to be my livelihood. I had to keep it or I was cut off. I knew that. So I did what I was told. Then I had to go down for my PMI in Halifax. By the time they finished manipulating me for their two minutes assessment that they do on you, I was in pain. I went home, I went to my doctor, I showed him. He put me off work for the next day. Ice on, ice off, every 10 minutes, to do nothing.
So I called in to work and told them that I was off work and that was fine. When I wasn't there Friday, they called my voc rehab counsellor and she came all the way down and had a nice little chat, took their word, never talked to me, never asked my opinion or nothing and I get this nice little letter in the mail that says I am non-compliant and uncooperative. Due to that, I am cut off. In other words, I did everything I could in my power so that I wouldn't have to work.
So I appealed that decision. I did get my six week job search back. When I went in to get the instructions on that, halfway through explaining what was expected of me, she looked at me and said, ". . . or do you have any intentions of even doing it?". I am not a person who raises my voice, I am not a person who curses and swears at people, I am not going to do it. I don't feel that anybody should have to do it to get their point across. So, when I got that back, then she said, you have to call me this and you have to do this and you have to do this. I did everything and I kept copies of everything that I sent them so that I would have it so she can't say, well, no you didn't do this. Well, I have a copy right here, I did it. That gentleman's file right there, mine is probably about like that with dealing with them.
Then after that, I had to have surgery. I had one week left in my job search. They told me that was it, I was going to be in the hospital, operated on, I wasn't going to be looking for a job. That is it, you are on your own. Then this wage loss came into effect. I believe it was in 1996, am I right? So I am on this waiting list. They told me they had to start from 1990. My injury was in 1993. They said within six months I should hear something. I called six months later, they were still working in 1990. I am in 1993. Well, if it takes you six months to go halfway through 1990, it is going to be what, six or seven years before you get to me?
So I used my powers of persuasion. I called my MLA and my MLA got my impairment. Needless to say, we went bankrupt. We didn't lose our house because of the way the market was at the time. It was down. We would have ended up owing $1,000. So we got to keep our house. Before this, I had to put up with the financial creditors calling me, wanting money, harassing me and the whole bit. Very emotional. So I got through that. We went through the bankruptcy. Now we are to the point where we can't get $1,000 even to get ourselves a cheap car. Our car has died. My husband has been working at Acadia University for 17 years and he has just now got a foreman's position and now he doesn't have a car. If we don't have a car to get back and forth to work, especially in the winter time - he has to go in and check to see if there has to be work done - how is he going to get there? He is going to lose his job.
A year ago last July, I was lucky enough to get a job at the convenience store across the road. In order to do my job, the girls who work there do all the heavy stuff. They put all the stock away, they keep the pop coolers filled up. When stock comes, they make sure all the heavy stuff is done so I don't have to do it. Even my boss does this for me. My husband comes over and does the closing because I can't. I count the cash, he does the rest. If it wasn't for that, I wouldn't have my job. I am only making $5.50 an hour. I work 80 hours a month and in the two weeks that I have 25 and 30 hours, by the time I am finished it, that is my weekend off, I am on the couch for two days with a severe headache and in pain. Every day I wake up in pain and the compensation board wants to move you in, get you through the process and get you out as fast as they can so they don't have to deal with you anymore but
I am not going to give up. I fought for what I got so far and if I hadn't fought, I would probably be like some of the other people who are sitting here who have nothing.
Basically, that is pretty much it. Right now, I am fighting for the rest of my wage loss. They told me if I had been working when they had done my wage loss, that it would have been easier because then they would just take what I was making and deduct it from what I was making previously and they would pay the difference. When they came out, they did an assessment of the Valley area and I believe they gave me between $2.00 and $3.00 is all the difference in wage loss that I have got.
MR. CHAIRMAN: You are saying that they have assessed your wage loss as only $2.00 or $3.00?
MS. BENJAMIN: Yes. I was making $12-plus an hour and now I am making $5.50 for a part-time job.
MR. CHAIRMAN: You are waiting for a reassessment of your medical impairment level now, correct?
MS. BENJAMIN: That was mentioned about six months ago in talking to people and they told me that no, there could be nothing done with my wage loss for three years after. There is supposed to be a recalculation done after three years, right? They told me that it was wrote in stone by the government, they could not give me any more. I did some checking and I found out that that is not true. What is wrote in stone is your cost of living increase. I am not interested in $2.00 or $3.00. I want the rest of what I feel I am owed. My injury dictates what I can do, when I can do it or if I can even do it and how long.
MR. CHAIRMAN: I guess the obvious question is, Ms. Benjamin, what changes do you feel should be made in the system to make it work better for you and other people with your kind of problem?
MS. BENJAMIN: I think the compensation board says that they are there for the workers. They are not there for the workers. If they were there for the workers - we do not asked to be injured. I would rather be back at my old job working and earning a living. It is not my fault that I got hurt. I did not deliberately go and beat myself with a pipe so that I wouldn't have to work anymore and I could draw a pension for the rest of my life. I have a little two year old grandson that I have problem picking up. By the time he goes home, I have a headache but I am not going to stop picking him up.
MR. CHAIRMAN: With respect to the appeal process, could you make some comments on that?
MS. BENJAMIN: It stunk. When I put my appeal in for, I presume, the last decision, when I appealed that decision with Margaret Lahey, that said I was non-cooperative, non-compliant and I won my appeal, I assumed that that was done and over with. They didn't believe what she said. They believed my word. Come to find out, this May just gone by, it went through the Appeals Tribunal and what was the determining factor in that? That same report that said I was non-compliant and non-cooperative. Needless to say, I reported this lady at the time and nothing seemed to be done about it. But this time, since the heat has been on and the people sat in in the Premier's Office, her boss decided that she better do something about it and this lady now is taking people courses. If I ever have to go back into voc rehab again, I am not having her. I can get along with anybody but I refuse to get along with her because she is only going to put the screws to me again like she did last time.
MR. CHAIRMAN: So voc rehab is the agent in the Valley for the Workers' Compensation Board, is it, for rehabilitation training?
MS. BENJAMIN: That is what they call it. What is it? The integrated services unit.
MR. CHAIRMAN: Do members of the committee have some questions for Ms. Benjamin? Mr. [Charles] MacDonald.
MR. CHARLES MACDONALD: Ms. Benjamin, I guess just one on a clarification. You talked earlier, when you first got injured and you were in rehab, were you in therapy at that time?
MS. BENJAMIN: Do you mean voc rehab?
MR. CHARLES MACDONALD: I am not sure. It was early, just after you had . . .
MS. BENJAMIN: I went through therapy and back-to-work therapy and back to work.
MR. CHARLES MACDONALD: Yes, but then they took you off that and put you in . . .
MS. BENJAMIN: Then they took me off that and put me in the integrated services unit, yes.
MR. CHARLES MACDONALD: But you said that was a mistake you made?
MS. BENJAMIN: About university. I should be in a place like Kingstec where they have teachers who teach you and you have classes. That was my point on that.
MR. CHARLES MACDONALD: Okay. I was wondering if it was the therapy, if you had stayed in therapy that maybe it would have done more for you than going into . . .
MS. BENJAMIN: No.
MR. CHARLES MACDONALD: It would have done more for you than going into . . .
MS. BENJAMIN: No.
MR. CHARLES MACDONALD: Okay, thank you.
MR. CHAIRMAN: Yes, Mr. Fage.
MR. ERNEST FAGE: Mr. Chairman, my question concerns some clarification. When you are talking about your PMI situation, were you saying, as a recommendation to us, that it should be based on your earnings at the time of injury rather than earnings at the convenience store at another point in time? Was that the point?
MS. BENJAMIN: It should be my wage loss of what I have lost. I went from a $12.35 an hour job down to $5.50 and it is part time. One thing I forgot, in order to do my job as a clerk in a store, I have to take a muscle relaxer, an anti-inflammatory. I am on the highest, he says there is no higher pain pill than what I am on. It is a narcotic and because of those three drugs, I have to take Ranitidine so my stomach is not upset. That is how I do my job.
MR. CHAIRMAN: Your medication, do you pay for that?
MS. BENJAMIN: I am lucky my husband still has medical.
MR. CHAIRMAN: Do you know if you would be eligible for workers' compensation to pay for the medical benefits if your husband didn't? Have you ever approached them or you don't know?
MS. BENJAMIN: No, they don't tell you nothing and when they do tell you, it is whatever they want you to know. I believe that some of them, now this lady that was telling me that there was nothing I could do for three years, that was wrote in stone, they do not know the Act. If they are telling me that, they do not know the Act. If they knew the Act, they would be able to say, well, no, that is not wrote in stone.
MR. CHAIRMAN: Did you have a workers' counsellor before you had the . . .
MS. BENJAMIN: I still have my original, well, no, I switched lawyers because my other one wouldn't do nothing for me. I have a private one.
MR. CHAIRMAN: You have hired a private lawyer.
MS. BENJAMIN: Well, no, it is paid for by the WCB as far as I know because when I called them here a couple of months ago, they asked me who my solicitor was and I said, well, I am not exactly sure. Didn't you guys take it over yourselves down there? I said, I don't know, I haven't heard from anybody. Oh, no, yours is still Randy Balcolm. I said, he is? I said, okay. I just assumed that he was no longer my lawyer and that workers' compensation was looking after me.
MR. CHAIRMAN: So you don't even know where you fit relative to the Workers' Advisers Program and the Workers' Counsellor Program?
MS. BENJAMIN: No.
MR. CHAIRMAN: Bluntly put, that is the problem. Yes, Ms. Godin.
MS. GODIN: Hi, Ms. Benjamin. You obviously were quite open to retraining when you went to Acadia. You sounded like you were kind of excited about going. I agree with you, university isn't the answer for everybody. Is that an option that is open to you now? Could you go some place like Kingstec to . . .
MS. BENJAMIN: To be honest with you, the last letter I have from the doctor in Halifax, I am light sedentary work, one-handed use only, occasional use of left arm.
MS. GODIN: Which would mean you can't do things like typing.
MS. BENJAMIN: I could not type, no. I was making bunnies last year for Christmas presents because I had no money and just sewing a little bit here and there, I was flared up in pain.
MS. GODIN: Okay, thank you.
MR. CHAIRMAN: Do any of the consultants have any questions for Ms. Benjamin?
I guess just one last question. The issue of chronic pain. Have you ever been labelled as a chronic pain case?
MS. BENJAMIN: All doctors' reports that have gone to Halifax - because when they cut me off in 1996, my doctor didn't send no more down because he figured what is the sense of sending them, they are not paying me. So he didn't send any down. His last report, he
showed me on the screen, everything was chronic pain, chronic pain, chronic pain, every time I was in. Before I started working, I would have pain but it wasn't intolerable. I didn't have headaches every two weeks or every week. I might have had one every two or three months, depending on if I did too much or whatever. Since I started work, it is at least every two weeks and when I get them, I am down for two days. I am just like in la-la land and I don't feel anybody should have to function in la-la land. It is not nice to be pumping all that stuff into your system and it is still not doing you any good.
MR. CHAIRMAN: My understanding is that your case went to WCAT and leave to appeal was denied.
MS. BENJAMIN: Yes, due to the information from my voc rehab and nothing was ever asked if I wanted to put anything in. I didn't know I was allowed to submit anything or I would have had my two cents in there to let them know the other side of the story, not just hers.
MR. CHAIRMAN: Thank you very much for coming in this afternoon, Ms. Benjamin. We are almost at the hour of 5:00 p.m. so at that we would adjourn until 7:00 p.m. this evening.
MR. MELANSON: Could I ask one small question before you . . .
MR. CHAIRMAN: Yes, sir. Come forward.
MR. MELANSON: How long is it before we are going to know about this? You can tell me whatever but I got some idea. Now, as you know, that letter I got from my dear friend back there, she is going to wait until you make a decision. How long before we are going to have a decision on this?
MR. CHAIRMAN: I am not trying to be evasive but I also don't want to mislead you. The committee's plan is obviously to table a report and I guess this is not a secret, that we are obviously hoping to table a report at this session of the Legislature which begins on October 15th. Now I am not going to be so rash as to say on October 15th, necessarily, the report is there, but the plan is to table a report at the fall sitting of the Legislature this year. I believe there is a form that allows you to receive a copy of the report.
MR. MELANSON: I have got it.
MR. CHAIRMAN: Good. So hopefully we will be better at getting back to you than some people in the past.
MR. MELANSON: Anyway, thank you very much and I am glad you came out and did this. If you can do something for us, we will all be out there singing your praises but if you do not, we will probably be the other way.
MR. CHAIRMAN: I think I get the message. Thank you very much, sir.
[4:56 p.m. The committee recessed.]
[7:17 p.m. The committee reconvened.]
MR. CHAIRMAN: I call the evening session of the Select Committee on Workers' Compensation to order. I would like to welcome everyone from the public who is here this evening and perhaps give a bit of an overview, as I did this afternoon.
Our mandate is to hear from the public and to report back to the Legislature of Nova Scotia, hopefully at the fall sitting, which is set to commence on October 15th. We are interested in hearing from any member of the public who has a presentation to make. I know that we have someone on our list as a presenter, but I do not believe he is present at this time. So, if there are any members of the public who would like to come forward and have comments they would like to make on the workers' compensation system, this is their opportunity. If there is anyone here who does have anything they would like to say, it does not have to be pre-prepared. I noticed some members of the public here who were not here this afternoon, and I wonder if they had anything to say. I guess not.
That being the case, we have someone who has indicated they wanted to make a presentation, so perhaps we might adjourn for a few minutes just in case they are on their way, but late. Does anyone have a suggestion of what a few minutes would be? Perhaps we will adjourn for 15 more minutes just to see if anyone else shows. By my watch, that means that we would resume at 7:40 p.m.
[7:19 p.m. The committee recessed.]
[7:34 p.m. The committee reconvened.]
MR. CHAIRMAN: I would like to call the meeting to order. I would like to welcome our presenter, Mr. Harry How, former MLA for Kings South, among other accomplishments. Thank you for coming this evening, Mr. How, and we look forward to hearing your presentation.
MR. HARRY HOW: Thank you very much, Mr. Chairman. Workers' compensation legislation has been something that I was interested in when in the role you just mentioned and I was involved in certain parts of it to amend it in those days. You would have a copy, I think, of my presentation.
MR. CHAIRMAN: Yes. Yes, sir.
MR. HOW: I will just skip along that without spending a lot of your time. As I say there, our legislation goes back a long way, back to 1915. Curiously, it remained much the same until the present Act was passed in 1995; it was 1994 or 1995. I must say, as I mentioned there, that the present one is perhaps the most confusing - to me at least - of all the legislation we have had, and I will mention a couple of points on that.
Workers' compensation was essentially, right from the beginning, legislation to protect the employer from suit by employees. In return for that protection, the legislation that was passed by successive administrations provided that the employer would pay an assessment and, as I mentioned here, it is something like a premium if you buy life insurance. It was an insurance, in other words. So they pay this assessment - well, that assessment varies, I gather, from time to time and from industry to industry; I don't know exactly the precise formula or basis on which those figures are arrived at by the board - the employee, in turn, is guaranteed benefits for on-the-job injury. Also, in the legislation throughout the years, there is a provision that he - or she - is given the benefit of the doubt. I think when it was designed there weren't too many women workers, so that is why I said, mistakenly, he, but he or she is given certain rights. There are formulas in the Act, as you well know, providing for the amount of that benefit.
Now, what has happened with it, I think, is, one problem with the administration of the Workers' Compensation Act is that there have been, over the years, more and more claims and in the 1980's, I think, the backlog became very onerous, in fact overwhelming to the board. Of course, part of their financial problem was that benefits were broadened, for instance, like that automatic assumption, which I mentioned in my brief, which I will touch on shortly, it added a tremendous financial burden to the board and apparently assessments had to be kept down in order that industry could afford to pay them.
So, I think the board had a squeeze between increased benefits and perhaps rather static assessments. In developing this, I had to go a good deal on memory and time did not permit me to do the research that one perhaps should do to present a more comprehensive brief, but I just thought I would give you a few of my thoughts anyway. One figure I remember reading, I think, was that the board was in debt something like $500 million. Now, obviously, that can't continue. That has to be rectified, but that may not be part of your mandate to make recommendations in regard to the financial aspects of the board.
What I have been concerned about is that the present Act has created new layers of review to what the old Act was. The old Act pretty well was this: you made your application, you might have someone write you a letter or two and, the next thing, you had was an appearance before the board. In those days, they had a board, usually three people. Now, you have an application officer, you have a review officer, you have a hearing officer, and I have forgotten how many more. To me, and certainly to a worker, it would be very confusing to
know how you proceeded through this - I will use the term - thicket or layers of hearings or reviews.
As a matter of fact, I have never seen one yet, in the recent years, where you had a hearing before a board. I don't know what the board means anymore. Maybe I am just ignorant, but I just don't know what it means. I can remember appearing before it many years ago when I was in private practice in the 1960's and 1970's. As I said, there was a three-person board, and you went before those people.
Now, I say here - and perhaps it is not quite as fair as it might be - that because of this backlog, I have had the suspicion that the board sought changes in the Act to lengthen the claim process to justify the long delays, and delays are one of the very real frustrations for people in this province. I can say that without any hesitation or reservation. The delays are monumental in getting anything through because there are so many stages or steps, and that I don't think has served well. I hate to criticize something if I haven't something to offer as an alternative. That was always my creed in politics and I am sure it commends itself to all of you who are now members.
I say here that one of the biggest drains on that board, on their finances, was the acceptance by the Buchanan Government in 1981 of the principle of automatic assumption. That - I think I sent a copy of the piece of the short Act or piece of legislation of 1981 - simply said, "Any coal miner who has worked at the face of a mine or in similar conditions for twenty years or more and who suffers from a loss of lung function will be compensated according to his disability.". It was called, although not named here, automatic assumption. You assumed automatically that they were disabled. They got this pension.
I was there in the Law Amendments Committee when we passed this. There was a lot of pressure to do it. I go on to say here that that was for lung disease, as I mentioned, which the miners were demanding, and which had been developed in the States, I thought, if my memory is correct, it was in Virginia and Pennsylvania, the coal mining states where this concept originated.
What was wrong with this amendment was that the miners could both draw a full pension - you got this automatically - and continue to work. There seems to be an oxymoron; that is an absolute conflict in terms. That is what they wanted. We gave it to them but, as I say here, what was wrong with this amendment was the fact that the miners could both draw full pension and continue to work at the old job, and many did. Now you can see what a strain that put on the workers' compensation finances. As I said here, double dipping, and I suppose that is not the fairest term, but I couldn't think of any other at the moment, when I wrote this. I say there, as a matter of fact, in the early 1980's there used to be stories about miners having Cadillacs, because they could afford them. They could work, and they drew a big pension besides, so they could afford the car. That was the story anyway that came out.
Essentially, there should have been an additional clause in that very thing that we passed - and I should say that I take a lot of the blame for that but we didn't foresee that that was what the result would be - that if you got that pension, that there were limitations on what you could earn afterwards, because the presumption was that you got it because your lungs were gone, or so seriously affected by mining coal that you were unemployable. That was the essence of the theory but in practice, it didn't work that way.
I say that because something should be done about that particular thing for the reasons I am saying to you now. We should have done it years ago. You should do it now, let's put it that way. As I said here, I was appalled when a correction was never made, after I left office and went to the court. As I say here on Page 2, it is obvious what a strain this put on the board's finances, because the miners who continued to work and were injured, could claim additional benefits, because they were employed. So you see how one layered on the other here in terms of the cost to the Workers' Compensation Board.
I would urge you that you do something about that. I think the unions of the country would see the fairness of some restrictions being placed upon a person drawing both a pension or say a full pension on the automatic assumption basis and also working besides.
The second strain, as I mention here at the bottom of Page 2 of my presentation, was the result of a decision of the Nova Scotia Court of Appeal, in Hayden vs. Workers' Compensation Appeal Board, I give you a citation there, although I haven't got a copy of that, you can get that at the Law Library, or I will send it to you. It was a landmark decision as I say, because it held that payments to workers on the basis of the degree of physical disability under Section 38 of the old Act was wrong and that compensation should be paid on the basis of loss of earnings. In other words, a person could have a rather minimal physical injury which resulted in them being unable to carry on the work they had before.
It is not too difficult, I don't think, to imagine situations like that. The court held that they had been wrong all through the years interpreting, the board had been, Section 38 as it then was in the Act, in that manner. I can remember the NDP members of the Legislature in particular being concerned, I think it was Alexa McDonough who used to refer to it as the meat chart method approach, which it was. We divide our body up into sections like meat, and this did away with the meat chart thing, but what happened was, I don't know whether I can blame you folks, but the government then brought in this Act in 1995, and they said, hey, you can't make that retroactive, the old Hayden decision, and you can't make it proactive, or words to that effect.
You have to look at that, I would suggest to you, honourable members, because it is not fair. That decision was fair. It should not have been taken out of the present legislation by legislation, by an Act of the Legislature. Check that, if you would. I would appreciate it, and I am sure all people would appreciate it. The Hayden decision was logical, it was the very thing that was needed, and yet, it has been stifled, if you will, by present legislation. Now, and
I recite to you there on top of Page 3, the first paragraph, the section which I would ask you to kindly refer to, Section 224 of the present Act.
Now, there are other cases and I will mention one more just below this, what I call landmark decisions. But one thing I wanted to mention here, in the middle of Page 3, is that in the 1970's, the Regan Government introduced an appeal procedure, administered by a three-person appeal board. It was thought to be an improvement, and I can remember that we thought, well, it certainly seemed logical, no question about that. But I submit, with respect, that it hasn't worked out that way. I would suggest that it be abolished. I don't think it has served any great purpose. I can remember going before it and for some reason or another they could not tell me what I could bring in for evidence, whether it was in writing, by affidavit, you know, a certificate or affidavit or viva voce evidence. They never seemed to develop what I would call a standardized procedure. So you wonder sometimes why am I here because they did not know whether they were going to hear new evidence, you see, from the previous decision of the board. This was an Appeal Board. They did not know whether they were going to do that or they were not. In any event, I do not think they ever got on track to my knowledge and certainly my experience with them did not make me optimistic about the future of that particular tribunal.
Then I suggest here that one of the weaknesses of the workers' compensation legislation, in my opinion, of course, is that it permits no outside scrutiny. In my view this has inevitably meant that over time the board has become a law unto itself. It is both judge and jury which is incompatible with independence and objectivity. I do not think it strains the imagination to come to that conclusion. We cannot judge ourselves and that is essentially what they are doing. They are judging their own decisions. Another layer is judging a decision of a previous layer.
Under the old Act, which was in there I suppose for what, 50 years before 1995, as a matter of fact it was 1915, but it changed in certain minor ways over those years. Even under the old Act an appeal lay, however, on a matter of law to the Appeal Division of the Supreme Court. Gordon, you know that. The present Act took it out. They said only the board can do it. Only the board can make that appeal under this new Act. Before the claimant could make that appeal and, obviously, it led to such decisions as the Hayden decision or we would never have had it. We would never have had that improvement in the benefits for workers in this province if it had not been for the right to go to the appeal division and Hayden is one that took it. Now, today, he could not do that.
More recently there is a decision again, Doward vs. Workers' Compensation Board. I give you a citation there, a 1997 decision. This found inter alia that the new Act had not repealed the old one, curiously, I have not quite digested that one yet but that is what they say, what the courts say. I say, well, amen to it but that is what they found in part. They found inter alia that it did not repeal the old Act, that is the Act up until 1994 or 1995, whenever that was put through, and that the board had wrongly held in the past that chronic pain and
suffering was not compensable. Now, in fairness, I think this one here, Doward, it must have been the board itself, or the Appeal Board that brought that appeal to the court. That is the Doward appeal from which we got these findings because it seems to me that the Act was changed in 1995, that only the board could bring that kind of an appeal. Now, I did not have time to check that out thoroughly myself but they found in that decision, Mr. Justice Chipman, that the new Act had not effectively repealed the old one and that the other major point in that one was that chronic pain and suffering was not compensible.
I think you should read that decision. Poor Justice Chipman, he had a heck of a time trying to sort these things out because one thing sometimes counteracted another and as I said earlier, it is a confusing piece of legislation to me and his comments in that decision would indicate that it presented some confusing features to him. I think it would be worthwhile glancing through that if you have the opportunity.
As I say, the board has needed these and other corrections by the court periodically. I don't think there can be an argument against that and it proves to me that the courts should have, over the years, played a larger role in the workings of the board. That is why I now suggest that in any revision of the Act the courts be involved. The principal reason is that courts are by their structure independent of government and branches of government which the Workers' Compensation Board essentially is, since if I remember correctly it answers to the Minister of Labour in certain degrees. In other words, I don't think you can be judge and jury and have an effective procedure. I think it is wrong essentially and it has got more wrong - if I can use that term - the more layers or stages that you have to go through to get through to what we call the board, or to the final hearing officer, if that is what the board has become.
Therefore, I say, let me propose that a claimant dissatisfied with a decision of the board would have the right to appeal the decision in respect of the facts and the law to a judge of the Trial Division of the Supreme Court or, if you wish, a judge of one of the other courts. This would be in my view a fitting role for some of the supernumerary judges who have completed their term but are serving on call when they are short-handed.
Continuing on that line of thinking, I would propose as well that to stimulate faster processing of claims there be a right to the claimant who has not had his or her claim dealt with for say, for example, six months, to apply to a judge for an order that the board show cause why the claim should not be dealt with by the board or a judge. I say one thing bureaucracy fears is being hailed before the courts and I do not think that is an exaggeration. I would urge that you consider that kind of approach because, you see, we all benefit from having someone reviewing what we are doing. That is society. That is human nature and that is why I mention these kind of stages, these steps, rather than have them all dealt with by the same board, by the same people over and over again.
Finally, in the appeal process I would suggest that the Nova Scotia Court of Appeal be restored to the role of reviewing the decisions of the trial judges with respect to the law which is essentially what it used to do until it was narrowed by the present Act to just an application by the board itself. The board simply nowadays asks the Appeal Division, would you give us your opinion on this point of law and the Appeal Division does but the claimant does not have that right, you see. That is one of the problems with this present piece of legislation. I would restore it to what it was, that is, either could apply, the claimant or the board.
As I mentioned, this process, this correcting of the board by the courts from time to time, has resulted in vast improvements in the awards to claimants whereas the present Act removes the right of a claimant to be heard by the Court of Appeal. As I said, the Hayden case is the perfect example of why an aggrieved claimant should have that right. Look what that did for the workers of the province.
Then finally on Page 5, speaking of awards brings me back to the matter of indebtedness to the board. I don't know whether this aspect of the board is within your mandate. But I would only say that if industry is finding the burden of their assessments too onerous, then new sources of contribution will have to be found. The debt, if there is one, and I think there is, of the board has to be rectified in some manner at some time. I would say that it can't go on this way. If I have the figure anywhere near right, $500 million, that is a lot of debt.
If you have that right to look into that, and no doubt you do, you are members of the Legislature, and you are a committee of the Legislature, that is something that is of concern, I gather. Why? Because if you are in debt, there is a tendency to not want to increase it, isn't there? That is only human nature. So people could say, well, members of the board could say, we had better not allow that claim, because that is a long-term deal, look what that is going to cost in the long run. You should be on a stable financial basis so that claims are not judged by what it is going to cost in relation to your resources, your resources should be there to answer to a fairly presented claim. That is what it should be. So I would urge upon you, if that is part of your mandate, to look into that business of financing.
Now I have suggested here that years ago, and it has been a long time, I can't remember who, but I think somebody at the Labour Department may have set up a committee to look into the Workers' Compensation Act. It has been looked into by a lot of people over time, of course. But I remember going before it and I suggested that we might even think of broadening the Workers' Compensation Act to make it a contributory one, at the moment it was contributory, yes, by employers, but one might think up a scheme or devise a scheme whereby it became contributory by the workers as well. They take off for unemployment
insurance, they take off for this. Nothing for injury of course, that is the normal pattern today. You might think of that.
Now, true, that would bring into effect different considerations. You might say, and as I mention here, which is just an offhand thought, I am trying to remember what I said in those days, I said a lot of things I might best not have said, but anyway, I thought that had some validity, that is, that if it was a contributory one, in return for which the employee would be insured for any accidents suffered on or off the job, except as I mentioned here, the exception would be caused by their own negligence. That might be an exception. That is just a concept, I haven't fleshed it out but I am suggesting to you that it would therefore be a more automatic thing than it is at the present time. You would be like any insurance type of thing.
At the present time and through the years, the Workers' Compensation Act has been an insurance scheme, but only for the employers. That is what is has been. Now I am saying to you, could you consider broadening it to make it an insurance scheme for workers as well, so that if they are hurt, and they don't have private insurance, and you could gear that into it, if they had it, you don't need to have this kind of coverage, that they would be compensated if they got hurt at home or at work; at home or in the office, so to speak. That is just a thought that I had at that time, I haven't forgotten it over the years.
Another one, if the assessments are becoming excessive for employers, if they are becoming that, and that is why the board is having trouble, because they don't want to raise them, then maybe they could look into an insurance scheme where the employer would have to take out insurance. I don't know whether that would be cheaper, but I think it is something that they might look at. The board would control the amount of insurance they would have to carry. I don't know whether it would be of any advantage or not but I think it is one of the more modern ideas; that is, insurance for that. As I say here, if the employer had to insure his employees, the insurance company would obviously want to insure safe working conditions, wouldn't they? It would cut down on the claims; this would be my logic.
As you know now, I don't think there is very much observation of working conditions in these various plants. I doubt it, there may be, yes, there are inspectors for the Department of Labour, but you know how that system failed, in Westray for example. If it was a private insurance scheme, I know, and you can imagine - at least I can imagine - that the insurance company would be watching the safety of working conditions in that particular industry.
As I say here, one of the weaknesses of the present scheme is that the employer, by the protection he gets from the Act, does not have to be concerned with safety. He pays his money, they pay the injured worker, the board does. It doesn't seem to me that there is that proper connection there, so that he, the employer, is concerned about safety conditions in the plant. If he had to pay insurance, he would be concerned, because his premiums would go up if there were too many claims.
The workers' compensation, I say here finally, has had a long, and I suggest, a beneficial history but it has suffered from lack of outside scrutiny of its operations and decisions. In short, it has gotten inbred. Your committee may not have the opportunity, the time in other words, to give the present legislation the analysis and amendments which, I submit, it obviously needs. It is confusing - I say that again - and a somewhat flawed piece of legislation. Obviously, it was devised by the board itself; I don't think there would be a doubt about that.
In my view, it must be completely overhauled - I say that without any reservation whatever - simplified, made understandable by the workers. I remember when we were in the House, you used to talk about, or in the Courts you used to say that you are presumed to know the law. My answer always was - a law that big that they used to bring in - who, in the name of God could understand it. I remember Stanfield saying one time when they brought an amendment to the Income Tax Act, federally, and I asked him, Bob, did you understand it? God, no, he said, I don't know who could, unless it was the person who drafted it. I am not too sure that every one of them could.
You see, that is what happens. I always thought that legislation should be phrased and worded in language that the average person can understand; therefore the maxim, you are presumed to know the law, would have validity. But, some of the laws today, including the Workers' Compensation Act, don't meet that test.
I say in the end that if you as a committee feel that this task is bigger than merely what time you are able to devote to it and the resources you are able to devote to it, then I would suggest that a Royal Commission be appointed to do just that. I mention there, and you will find that in the Hayden decision, where they mention Chief Justice Alex McKinnon, the late, beloved Chief Justice of this province, reviewed the legislation at that time in 1958. I mention, finally in closing, Mr. Chairman and members of the legislative committee, that I can think of no one more fitted to that task than the recently retired Chief Justice Lorne Clarke.
I thank you for your attention, your time. If there is anything I can add that you wish, I would be delighted to try.
MR. CHAIRMAN: Thank you very much, Mr. How. Are there questions from the members of the committee? Mr. Corbett.
MR. CORBETT: Thank you, Mr. How.
MR. HOW: Your name is?
MR. CORBETT: Frank Corbett, Mr. How.
MR. HOW: Yes, thank you. What is your constituency by the way?
MR. CORBETT: Cape Breton Centre.
MR. HOW: Is it, good, indeed.
MR. CORBETT: Mike Laffin.
MR. HOW: Yes, indeed. (Laughter) Where is old Mike? Do you ever see him?
MR. CORBETT: He is very good and I believe he voted for me.
MR. HOW: A great old guy.
MR. CORBETT: Two things, one by way of comment and the other probably more referring to the question. First of all by way of comment, my father worked in the mines for 47 years and to the life of me he must have hid that Cadillac some well because I have never seen it. He was too busy making kids. There were 15 of us so there was no Cadillac in my yard, I will assure you, Mr. How.
MR. HOW: He didn't have time to drive the car.
MR. CORBETT: Well he didn't, he drove something but he did not drive a car. What I want to talk to you about, you talk in terms of the impact of automatic assumption and how it drove the rates. It is my understanding that Devco is still self-insured and that they paid the WCB a 15 per cent administration fee?
MR. HOW: Yes.
MR. CORBETT: So can you tell me how then that impacts on the board's indebtedness or a drain on the viability of the board?
MR. HOW: Well, because I have always understood it that the automatic assumption, of course, meant an immediate pay-out once you determined that the person qualified but the person kept on working. Now, if they had kept on working without the pay-out, you could see that that meant a lot less money the board would have to pay out. It was the double-dipping effect, if I may use that term. That is not to denigrate the mining but, you see, what it was, was we were concerned with recognizing that after that many years a person like your father would be breathing that coal dust, deteriorating his lungs and that, therefore, that should be recognized but the part was they could not afford both; that is you could not afford to continue to pay them to mine coal and pay them that pension. That was the problem and, of course, then, as I said, if they got injured on the job while they continued to work and they made a claim, then there would be a further drain on it whereas if they had not had the automatic assumption, there would have only been the two drains rather than three.
MR. CORBETT: Thank you for your answer. I do not know if that is the one I wanted. You do not always get the answer you want. Maybe some other people have some questions on that later on. Thank you.
MR. HOW: Thank you.
MR. CHAIRMAN: My comment, Mr. Corbett, is that in my years in court I have never been very successful getting the answer I wanted. Perhaps Mr. How in his years has been more successful than I. Ms. Godin.
MS. GODIN: Hello, I am Rosemary Godin, the MLA for Sackville-Beaver Bank. It is nice to see that you are still so involved in the business of the province, Judge How.
MR. HOW: Thank you very much. You may get older but - I often wonder if it would not be better to enjoy some senility because then you would not be so concerned. (Laughter) My mind seems to be active. I find it hard to get to sleep at night.
MS. GODIN: Judge How, you mentioned incorporating the courts in the decision-making process. I find that really interesting and it brings up the question, would the board then answer to the Minister of Labour or come under the Department of Labour, or would it be involved with the Department of Justice? Have you thought about that?
MR. HOW: Let me just suggest this - and it is a very good question - the Minister of Labour really does not run the board. It answers to him in certain respects and, as I said, I did not have the time to review the legislation to determine what those are at the present time. In fact, I did not know what they were in the previous one but I think if you look at the Act, he is named as the minister in charge, if you will, but I do not think he has much to do with the day-to-day thing. As a matter of fact, the people, what they call workers' counsellors, are employed, I think by the department. The board is on its own. That is why they had a big debt, one of the reasons, but the minister could be answerable for certain aspects of it even though the court was the arbitrating body. I do not see any conflict there. Yes, I think it could be done. I think they are, what do you call that, not mutually exclusive, I think that is one of the phrases but, yes. Well, I would hope that you might push for that particular proposal because I honestly think that that has been one of the weaknesses of the board, that it is both judge and jury.
MS. GODIN: Thank you.
MR. CHAIRMAN: Mr. Samson.
MR. MICHEL SAMSON: Mr. How, one of the suggestions that you make in your presentation, basically it seems to be saying to maybe look at the old system where the courts had a lot more power over workers' compensation in that they were permitted to look at the facts and not just the law. I guess . . .
MR. HOW: No, no, I am sorry, if you gathered that, I did not intend that. The old Act never gave the courts the right to review the facts. It gave the court the right by either the claimant applying to them or the board to deal with a question of law. That was their function and their only one.
What I am saying here is that the court should have a greater role still and that is that a single judge of the Trial Division could be employed to decide on claims, you see, rather than what you call the Workers' Compensation Board. Now, the board would be the administrative body but the court would be the decision-making body.
MR. SAMSON: So would this trial judge be an employee of the Justice Department or of the Workers' Compensation Board?
MR. HOW: No, no, no, he would not be an employee of the Workers' Compensation Board. We would go right back to square one then, you see, that would be the problem.
MR. SAMSON: Well, I guess one of the questions I have and from my understanding of the older system, the problem, one of the whole reasons for establishing the Workers' Compensation Board was they felt that workers were not getting anywhere with the courts. I think it was only under 20 per cent of claims were ever awarded because of the court system and that it seemed that there was a bias against workers when it went to the court. So they needed a fairer system.
MR. HOW: I was not aware of that. I would not have thought so. Is that part of the history of it to your knowledge?
MR. SAMSON: As far as I know, someone might want to correct me if I am wrong, but that is the way I understand it. Under the old system in the courts that traditionally the workers were not . . .
MR. HOW: I do not think, Mr. Member, that the courts ever had a decision-making with respect to the facts of a case. I do not think they ever did.
MR. SAMSON: I guess we are talking a long time ago. We are talking even before the creation of the Workers' Compensation Board.
MR. HOW: Oh, before that. They may have in England. I do not think it has in Canada. I doubt if it has in Canada. Most of these Workers' Compensation Acts are carbon copies of the other one, you see, because they all stem from the British workers' compensation legislation and that is why they are so similar but I see no reason why Nova Scotia should not be a first to improve on it. We have been first in a lot of things, why not here? Why not do this in this field and I would certainly urge you because of the principle that it is better if you are not both judge and jury. We have always held that principle in our democracy, that you should not be both.
MR. SAMSON: In your view, having been involved with the justice system for so many years, I guess two questions. Do you see employees being concerned that the justice system will not be sympathetic to them and, second, should finances come into play, should the board be permitted to raise concerns over finances when it is going before the judge, should the judge be allowed to consider, well, hey, if we pay out this one, this is what it is going to cost the board or should that not be permitted to be brought in, should that be excluded from evidence when someone is appearing before . . .
MR. HOW: I think it would have to be excluded from evidence, you see, for the very reason I mentioned before, that if the board is in debt, as it is, or I believe it is, then that can be an incentive not to pass any particular claim if it looks like it is going to be a very expensive one. Do you see what I mean? It is the same thing with an individual. If you have a debt, you say, I can't afford to buy something, I can't afford it.
MR. SAMSON: The second question, from a worker's perspective, what do you think the reaction would be in the labour community to the idea that we would now move into the justice system and let them make the decision based on the facts of cases and to come to a ruling? Do you see any big concerns coming there?
MR. HOW: Yes. Let me say to you, I would take a chance on the courts. I would risk that as against the board. Look at the level of dissatisfaction with decisions of the board, that I think is your answer right there. We couldn't go wrong trying the courts out. If we are wrong, change it again. That is what you people are there for, indeed so. No, I wouldn't be concerned at all. I think most people are satisfied with the justice system, basically, unless you get a wrong decision. (Laughter)
Let me put it this way, I think that in general there is a greater satisfaction with decisions of our courts than there is with the decisions of the Workers' Compensation Board. I don't mean to denigrate them, but on the other hand, I would suggest that is a fact.
MR. SAMSON: But it would be your recommendation, if we do go to this system, that financial considerations be excluded from evidence.
MR. HOW: Yes, indeed. But get their house in order, that is, the financial part.
MR. SAMSON: That is probably what the judge will recommend.
MR. HOW: Sure. Well, for instance, when I was on the court, you couldn't think, well, now I can't put that fellow in jail because there is no room, or there are too many there. You can't do that. Therefore it behooves the government to build more jails if they need them, not for the court to curtail the number of people who go there. I am not suggesting that the courts are always right, believe me, that is why we have appeal divisions, but I have left that door open too, that there would be an appeal to them, at least on a question of law. You could make it broader still, they could look into facts.
I would urge you to look at those decisions, those two I mentioned. They are really leading decisions with respect to the matters relating to the Workers' Compensation Board: the Hayden one, probably is the greatest; the Doward one, Justice Chipman, I don't know how he threaded through it but he is a bright person, and he did, but I think he had some difficulty doing it. I think that it would be of interest to you all to look at those two decisions. There are other ones, but I don't think they are as landmark as those two.
MR. SAMSON: That is all I have.
MR. CHAIRMAN: Mr. [Charles] MacDonald.
MR. CHARLES MACDONALD: You had suggested that the Act, by and of itself, that the writing of the Act is an encumbrance on the whole system, and that basically it should be rewritten?
MR. HOW: If you do rewrite it, you as a committee could do that, you would get your Legislative Counsel to provide the language for it, but you would tell him the ideas. But I think that the language should be something which is very readable. There is no reason in God's world, why we can't have legislation which is readable. I see some of these mortgage forms now, Mr. Chairman, the Bank of Nova Scotia has one which is in layman's language. Hallelujah! It is great. It is wonderful to see, but they are the only ones.
I said one time in the Legislature, I want to live to see the day that we have legislation coming out of this Assembly which will be in layman's language. Try it sometime. Just see if it doesn't work, change it, Gordon will change it for you.
MR. CHAIRMAN: A good thing, Mr. How, is that should guarantee you a very long and healthy life. Mr. Parker.
MR. HOW: I don't know. Sometimes I think of that song, Stop the World and Let Me Off, when I see some of the frustrations of daily life. Other days I say, well, don't stop too soon. (Laughter)
MR. PARKER: Thank you, Mr. Chairman. Mr. How, I am Charlie Parker from Pictou West. I wasn't here when you first started, so I just thought I would introduce myself. I wanted to ask you about businesses in the province. There are quite a number that are not included, they are not in the workers' compensation system, they don't pay any premiums, like banks, insurance companies, finance companies, and so on. Plus I think my cohort mentioned here that there are some businesses that are self-insured, they don't pay any . . .
MR. HOW: Yes, one was mentioned here by one of your colleagues.
MR. PARKER: Yes, they don't pay any premium other than the 15 per cent administration fee. Do you think there should be more businesses included in the system, therefore providing more money? Do you have any thoughts on that?
MR. HOW: I suppose there should. You bring up a very good point, Mr. Parker. I suppose banks have said, well, how could you get injured in here? I don't know. I haven't hung around banks that much, only when I wanted a loan. The thing is, that may be the reason they have been excluded. But on the other hand, I don't know of anybody that can help get this debt down better than the banks, if they were involved. So you might think of that. They have the dough, there is no question.
MR. PARKER: I believe farms are not included.
MR. HOW: Now there is another one. I don't think they are. I think they should be. I can't think of an occupation where there is more chance of getting injured, unless it was mining, than farming (Interruption) I don't know whether they are included. I presume they are. But I think you have to look at that farm one. Yes. I think you ought to consider including that. Now farmers will tell you, we can't afford it and all this sort of thing. Maybe some can't. But I think those, say in agri-business, as they call it, that is the big farms, I think they can afford it, it would be my guess.
MR. PARKER: Okay. Thank you.
MR. CHAIRMAN: Mr. Samson has one final question.
MR. SAMSON: Just one final question as to part of the businesses which are excluded. I am just wondering what your opinion is on including law firms to pay premiums on their employees?
MR. HOW: Well, I suppose they could.
MR. SAMSON: You would agree with that?
MR. HOW: Yes, sure. I don't know how you would get injured in there. Let's face it, if there was a low risk in working in a law office, then assessment would be low. It would work out, sure. I do say to you, Mr. Chairman and your committee, that these finances of this Workers' Compensation Board have to be addressed, or the thing is going to, I think, deteriorate to the point where I don't whether they can pay any of these things. Any organization, the finances of it, should be in good shape. Government is the worst example, I think.
MR. CHAIRMAN: Are there any consultants who would like to ask questions? Mr. Erjavec.
MR. LUC ERJAVEC: I found your comments quite interesting on the need for the Workers' Compensation Board to get its financial house in order. Being 50 per cent funded, they are in a dreadful situation. What I read from your comments, you would suggest that the board get its financial house in order and be fully solvent and funded before they start looking at other major expenses, such as chronic pain and other things like that?
MR. HOW: I suppose they may have to. Chronic pain or not, if you haven't got the money, you haven't got it. I don't know how much of a debt they can carry. But I say to you, it is a very serious situation. I know the board thinks it is. What I have read in the newspapers, the comments there, they think it is. You say, should they do that? I don't know quite how to answer that. I don't want to see people denied a benefit if they can't work because of pain and suffering, the same as if they can't work because they lost a leg, or other things. I think maybe they go hand in hand. Maybe they have to get, right now, a handle on their finances of the Workers' Compensation Board. I can't see any better mechanism for doing it than this committee here and their support staff.
I don't know how to answer that. Should they not allow pain and suffering because the court has said it was there already? If they hadn't, then maybe the situation would be different. It is a difficult question to answer. I would like to be more definite, but I don't know how to be. It is something like this equal pay for work of equal value. (Laughter) There is a chestnut. (Laughter)
MR. CHAIRMAN: Do any of the other consultants have questions? I think those are all of the questions.
On behalf of the committee this evening, Mr. How, I would like to thank you very much for taking the time to come in this evening and we appreciate the benefit of your years of experience as an MLA and Attorney General and Chief Judge, and maybe your suggestion will find good uses for retired judges of the Provincial Court as well. (Laughter) Works everywhere.
MR. HOW: I will serve. (Laughter) I am not gunning for the job, but I would like to see them involved, those who are active today.
MR. CHAIRMAN: Well, thank you very much for coming this evening.
MR. HOW: Thank you for your kind attention and I appreciate your questions and I wish you well in your deliberations. I am sure that you will come forth with something very beneficial to the workers of this province and that is what the name of the game is. Thank you.
MR. CHAIRMAN: Thank you, again. Are there any members of the public who have any presentations they would like to make? As they say, going, going, gone. There being no further presenters this evening, I would ask for a motion that we adjourn.
MR. HYLAND FRASER: The motion is that we adjourn.
MR. CHAIRMAN: We are adjourned. Thank you.
[The committee adjourned at 8:32 p.m.]