SELECT COMMITTEE ON
THE WORKERS' COMPENSATION ACT
Mr. Michael Baker
MR. CHAIRMAN: I would like to call this meeting of the Select Committee on the Workers' Compensation Act to order. First of all, on behalf of the Select Committee on the Workers' Compensation Act, I would like to welcome all members of the public who are able to be with us today for the first of our meetings in Halifax.
At this point in our agenda, I would ask members of the committee to introduce themselves.
[The committee members introduced themselves.]
[The committee consultants and staff introduced themselves.]
For the benefit of members of the public present here today, the Select Committee on Workers' Compensation was created by a resolution of the House of Assembly at the spring sitting of the Legislature. The committee was charged with the responsibility to review the Workers' Compensation Act and recommend changes to the Act to the House of Assembly, hopefully, for the sitting in the fall of this year, commencing on October 15th.
As part of that, the select committee has been meeting throughout Nova Scotia and hearing from members of the public concerning their issues on the Workers' Compensation Act and, in particular, we have been hearing from a large number of injured workers who have concerns about their particular case.
For the benefit of those individuals and the public who may be injured workers and present at this time, we would just caution them to understand that the process that we are involved in is to make changes to the Workers' Compensation Act which, of course, very well may have a positive effect on their individual cases. However, we are not able to intervene directly in their particular case, although, of course, changes that are made may certainly have an influence on the course of their claim.
Without any further ado, I would ask, then, for Judy Clarke, our first presenter.
MS. JUDY CLARKE: Well, to set the record straight, I am not an injured worker. I am disabled but I do not draw workers' compensation. I am speaking on behalf of injured workers.
MR. CHAIRMAN: Thank you.
MS. JUDY CLARKE: Okay. I don't know if I am an eternal optimist or a complete fool but I find myself, again, in front of a committee to make changes to the Workers' Compensation Act. As you will read in my attachments at Tab 6, I have been trying for several years to have the Act be equal to all injured workers, regardless of the date they were injured. If a person was injured in 1989, should their level of compensation be less than a person injured after March 23, 1990?
At Tab 1, the Human Rights Commission states that every person is free and equal in physical or mental disability but, in fact, the new Act was to provide a fair method of compensation. In reality, all it created was a three or four tiered system.
The first one is, those injured before March 23, 1990; the second is, those injured before February 1, 1996 and after March 23, 1990; the third is, those injured after February 1, 1996. Fourth, Mr. Hayden and others who are receiving amounts not covered within the PMI rating systems. I remember the Hayden decision very well. Mr. Stephen Hayden was injured in March of 1985. We all waited in anticipation to see how the fairer method of compensation was to be implemented. We received 50 per cent of our wages on the interim wage loss program that we were assessed at a PMI after March 23, 1990 but injured before that date, only to have the 1996 Act revoked and returned us to PMI. The one I am referring to is 15 per cent of 75 per cent of insurable earnings.
The decision was made on March 23, 1990. It took the court system five years to determine that Chapter 508 was contrary to its own Act. See Tab 2, A Discussion Paper, calculations of benefits under Section 45, 1993 of the Workers' Compensation Board of Nova Scotia.
If injured workers are to be determined by their injury date rather than their PMI, then why shouldn't the March 23, 1990 Hayden decision be retroactive to his injury date of 1985? Even this would not create equality but it would be consistent. Honourable members, equality is the issue. Make the Act unilateral to all injured workers.
I will show you some very contradictory inconsistencies within the new Act. When calculating your income for persons injured before March 23, 1990, all of your CPP is used whereas after that date, only 50 per cent of your CPP disability is used.
At Tab 3, the definitions are contradictory within the new Act. Section 2 in this Act, which supposedly defines the essence of the Act, Subsection, "(o), 'extended earnings-replacement benefit' means an earnings replacement benefit payable to a worker from the later of (i) the date on which the Board determines the worker has a permanent impairment pursuant to Section 34.". If this is actual, then a person could be injured before March 23rd and not assessed with a PMI rating until years later. They should not be reverted to the old meat chart system.
They have also revised the meat chart and the persons injured before March 23, 1990 are now judged under the new meat chart which leaves out the paragraph that states, after a ratings examination is carried out and recorded, the file is referred to the permanent disability awards committee which, after a review of non-medical factors, may or may not be given an additional award.
Moving on, one of the most frustrating experiences with the workers' compensation is to have the specialists' reports disregarded or overruled by the board's general practitioners. The board has got to rely on the findings of the specialists and abide by their findings. After all, the taxpayers and the board are paying for the reports, only to dismiss them.
The following is a list of specialists I can attest to: Dr. Bill Canham, Orthopaedic Surgery; Dr. Reginald Yabsley, Dalhousie University Ambulatory Care Centre; Dr. Willoughby, General Surgery; Dr. Petrie, Orthopaedic Surgery; Dr. Langille, Neurological Surgery; Dr. David Malloy, Neurological Surgery; and Dr. Arthur Shears, Medical Director of the Nova Scotia Rehab Centre. Unfortunately, the list goes on but with the distinguished reputations of the aforementioned it would be redundant. Every one of their reports were in agreement with a favourable decisions for the injured worker and were paid for by the Workers' Compensation Board and yet their findings were dismissed.
Injured workers have been subjected to a cost of living freeze until January 1, 2000. This should be revoked with retroactive payments. Most persons in the private and government sectors have had similar roll-backs or wage freezes overturned. The Workers' Compensation Board employees have just received an increase in wages. Some of them earn
more in one year than persons injured before March 23rd will receive in a lifetime of disability. Where is the justice in that?
The Workers' Compensation Board has been empowered with too much control. They make policies to suit the Workers' Compensation Board's needs for a ruling. Section 7.3.2 and 7.3.3 are prime examples of this. See Tab 5. If they don't get their desired results, they just add another policy to ensure their position is upheld. In actuality, Section 7.3.2 is consistent with the definition we discussed at Tab 3, referring to the PMI date of assessment but inconvenient as injured workers would benefit.
The new Appeals Tribunal is a farce and it requires a complete overhaul. This was to be more expedient but I have yet to see any results. I have been waiting for five years. I always thought that the benefit of the doubt was to go in the favour of the injured worker. Therefore the level of compensation should be not be revoked until such time as their appeal can be heard. I bet there wouldn't be a backlog of cases then.
It is really tragic to see the most vulnerable - and by that I mean the worker who is injured and not able to defend themselves properly, usually left without the financial means or sometimes the physical capacity to defend themselves - to have to deal and be subjected to the demeaning and unjust system within the Workers' Compensation Act. This, at times, can be more mentally draining than the injury itself.
I am sure that a fairer method of calculations of benefits can be established. This is a start but there is a long road ahead. Remember one thing. Health and ability is just one accident away for any person and the assurance that a workplace accident will not cripple a person's dignity or financial capacity is imperative. Disability is difficult enough to live and deal with, let alone losing your dignity.
The Workers' Compensation Fund was intended to compensate workers in cases of a workplace injury. They forfeit their civil legal opportunities and deserve to be compensated equitably. Your committee has within its power to make workers' compensation be equal and fair to all injured workers. In reality, as it stands now, a person injured March 22, 1990 is only entitled to a PMI where a person injured March 24, 1990 is entitled to a PMI and wage loss earnings. Don't make the injured workers carry the burden of underfunding or failure to increase premiums throughout the years. After all, their only crime was being injured at work.
I wish to thank you for your time and hope to impress upon you the necessity for changes to the Workers' Compensation Act as it exists. Should you require any clarification or develop any questions after I leave, feel free to call. I sincerely appreciate this time to express my views. One more point that came up, workers compensation has now extended - I got this after my report was done - benefits for chronic pain. At one time, it went back to January 1996 but now they have revoked it down to that March 23, 1990. Do you think the
people that suffered the longest, the ones injured before March 23, 1990, don't deserve compensation? Thank you.
MR. CHAIRMAN: Thank you very much, Ms. [Judy] Clarke. Some of the members of the committee may have some questions for you, so if you will just bear with us a minute. However, I had one question from your presentation and that had to do with the Canada Pension Plan disability deduction. Am I understanding you correctly that it is your view that with respect to a claim prior to March 23, 1990, all of the Canada Pension Plan disability benefits are deducted?
MS. JUDY CLARKE: Right. What I am referring to there is the Guaranteed Income Supplement for people who were injured before March 23, 1990. They take a person's complete 100 per cent of their Canada Pension when they are calculating their income whereas a person injured and going for wage loss only has to use 50 per cent of their Canada Pension Plan.
MR. CHAIRMAN: Okay, I was curious as to what you meant there. The other question I had dealt with, as you call it, the new Appeals Tribunal, the Workers' Compensation Appeals Tribunal. What is your view of the Workers' Compensation Appeals Tribunal and, in particular, what is your view as to the independence of that tribunal? What is your perception?
MS. JUDY CLARKE: I really believe that the old system of the external appeal board was better. I don't feel that they can be as - what is the word - parted from the board itself. I think it is almost like they are together. Personally, I feel that way but they are not taking the backlog away. We have been waiting for five years. We were in the old external, we still haven't been heard under the new one. Even if we are heard, we are going to be heard under two sets of rules. One before 1990 and what makes a person who is injured before 1990 any less disabled than one injured after? I mean you can't sit there and say to a 35 year old man who is going to live the rest of his life, you are only entitled to 15 per cent of 75 per cent of your wages for the rest of your life because you - oh - missed the date. It is not fair.
MR. CHAIRMAN: Mr. Corbett.
MR. FRANK CORBETT: Thank you, Ms. [Judy] Clarke, for coming here today. I will probably start at the end of your message and work back, but you talked in terms of the board's new policy on chronic pain and the basic parameters they set out, if you really want to call them parameters, of who they will pay. Do you see that there is a wisdom there by the board saying that we have to get the cost of that under control, we just can't throw the floodgates open?
MS. JUDY CLARKE: I understand that you have a big, serious problem if you start paying everybody equitably but you have to at least give the injured workers before March 23, 1990 some hope of something more than just 15 per cent - or I think the highest PMI rating that you could get under the books is 25 per cent, under the old meat chart. I mean that is nothing to live on the rest of your life. You have to give them, well, even when we got the interim wage, we got 50 per cent of our wages and we were quite satisfied with that but to be revoked back to 15 per cent, it is a farce to try and live on.
MR. CORBETT: Is it fair, then, to say that you think the policies that this board keeps initiating are driven by money or monetary reasons rather than reasons of protection for the injured worker?
MS. JUDY CLARKE: Well, it would have to be. I mean this is a realistic society. I mean money is an issue. It is going to cost a lot to revamp workers' compensation but every one of those injured workers' employers paid this workers' compensation. It is not their burden to carry if the funds are short. It is something that has to be made up. They never increased workers' compensation premiums for the employers for years but if they had, the fund was there, I don't think we would be having this discussion. I think it would just be, okay, they are entitled to it, we just don't have the funding, but there has to be some solution besides just not having the funding.
MR. CORBETT: So therefore it is a matter of looking at - and I don't want to put words in your mouth - the unfunded liability in its context and saying that is yesterday's mistake and we can't burden injured workers with that problem. Injured workers have a heavy enough burden.
MS. JUDY CLARKE: That's right. Well, if you are a young person and you are injured before 1989, you have a lifetime to live with this disability and it is hard enough living with a disability but to be demeaned to the point of not being able to support your family and just be able to go out and say, okay, I can afford this prescription without having to take money out of the family's pocket and say, well, maybe I won't buy my pills this month because I really can't afford to. You know if they were compensated at a level that would give them some dignity, even if it doesn't come out to the position of the ones now, they have to be allowed things like the chronic pain. If you were injured in 1989, what is to say that you never developed your chronic pain until 1992?
In my particular case that I am talking about, the accident happened in 1989, he was never assessed for a PMI until 1992. So theoretically under the Act, in 1990, he was not permanently disabled but yet he is dragged back to the old system and cut back to 15 per cent, whereas in 1992 is when he was assessed as being permanently disabled. After his surgeries is when he developed his chronic pain but we are still revoked back to the injury date, not the date of when these things happened. It is funny because workers' compensation is very eager
to acknowledge the fact that he has chronic pain only because of the fact they don't have to pay him for it because of his injury date.
MR. CHAIRMAN: Thank you. Ms. Godin.
MS. ROSEMARY GODIN: Thank you, Ms. [Judy] Clarke. Just for clarification, in Tab 6, you have letters concerning Kenneth Clarke. Can you just tell us who Kenneth Clarke is?
MS. JUDY CLARKE: Kenneth Clarke is my husband of 20 years.
MS. GODIN: Okay, thank you. So this is your first-hand knowledge of the system as you have been fighting, when you talk about we, you are talking about you and Ken.
MS. JUDY CLARKE: Yes. Actually, Ken won't even attend these meetings. He has given up totally on the system. He has no faith. He thinks I am the latter. He thinks I am the fool in my speech, not the eternal optimist.
MS. GODIN: Is your husband still in the system? Does he have appeals ongoing?
MS. JUDY CLARKE: He is in the external appeals. He has been in that since 1992. He is on Canada Pension disability so there are no ifs, ands or buts about this, because if you receive that, you know pretty well that the Canada Pension is very difficult to receive and he is still not; even when we go back to review his case, there is nothing within the law that is going to give him anything.
Mr. Hayden - and I can speak to this because I spoke to Mr. Hayden - at the time I spoke to him he was getting 40 per cent of his 70 per cent. Now, his was not to be revoked with this new Act. He had a letter from a Mr. Adams from workers' compensation he was telling me about. He was to be able to receive that 40 per cent but yet he isn't as disabled as my husband but yet because he was going through the legals, he got the privileged treatment. Also, some of them have 30 per cent or 35 per cent before and if they check the meat chart, if they want to go back through all those cases and check the meat chart, it is who they decided to give that extra little bit to. It is not actual meat chart figures.
MS. GODIN: Has your husband had legal representation throughout this since 1989?
MS. JUDY CLARKE: Well, let me see. We have had about 10 legal representations.
MS. GODIN: At your own cost?
MS. JUDY CLARKE: No, at the board's cost.
MS. GODIN: All of them?
MS. JUDY CLARKE: All of them but what happens is within a year you are passed on to somebody else, maybe less. Sometimes it has been three months and you are passed on to somebody else. So they take time, they review your case and right now I believe it is a Mr. Powroz that is handling it and he is just a legal assistant, I believe. He is not . . .
MS. GODIN: From the Workers' Advisers Program?
MS. JUDY CLARKE: Workers' adviser, yes.
MS. GODIN: On the page following, Tab 6, I believe the last one, at the very bottom, you say something that I find kind of disturbing.
MS. JUDY CLARKE: Yes, I do too.
MS. GODIN: You left an office, a WCB . . .
MS. JUDY CLARKE: No, I was at a meeting with Mr. Brown and Mr. Stuewe. We had a meeting at the Department of Labour and we went through the case and everything was great when we left there. Mr. Stuewe was to get in contact with us afterwards. I talked to him afterwards and he thought that my husband should sue the doctors that operated on him, that they hadn't done a proper job. I said, well, we couldn't afford to go to a lawyer and sue a doctor. He said, well, go to legal aid. I said, well, no, I can't go to legal aid, they only accept people that are on welfare. He says, well, go on welfare then. When he said that, that was when the most - I was speechless, I couldn't talk, I was in tears and I hung up the phone and I have never talked to him since.
MS. GODIN: When was that? I just want to know how recent.
MS. JUDY CLARKE: That was - oh, gosh, I'm not good with dates unless I have them in front of me. That was a couple of years back. It would be just after meeting with Guy Brown and he was the Minister of Labour at that time.
MS. GODIN: Thank you, Ms. [Judy] Clarke.
MR. CHAIRMAN: Thank you. Are there any other members who have a question? Any of the consultants? Mr. Neville.
MR. JAMES NEVILLE: Are you suggesting, Ms. [Judy] Clarke, that the WCB use only 50 per cent of CPP benefits?
MS. JUDY CLARKE: Pardon me?
MR. NEVILLE: Are you suggesting that the WCB only use 50 per cent of your Canada Pension benefits in calculation for that subsidy?
MS. JUDY CLARKE: Yes. If people after March 23, 1990 only have to use 50 per cent, then why shouldn't the same apply to people injured before that date? It should be unilateral. It is discriminatory to take a person injured before that date and use 100 per cent in determining his wage as opposed to a person injured after that date to use only 50 per cent.
MR. NEVILLE: Yes, and the cap that the WCB has is $11,500. Do you think that is low or it is fair?
MS. JUDY CLARKE: Have you ever tried to raise a family on $11,500? Do you know something? Actually in one of my things, if you look through it, it tells you what the welfare are allowed for their monthly allowance. They received more on welfare than we got on workers' compensation which maybe it would have been the right thing to do but that is not an option to us.
MR. NEVILLE: Thank you, Ms. [Judy] Clarke.
MR. CHAIRMAN: Thank you, Mr. Neville. I believe those are all our questions. Thank you very much for taking your time to make the presentation today and I hope you will be able to take some time and listen to the other presentations. Thank you.
Our next presenter is Carol McCulloch on behalf of the Construction Association of Nova Scotia. If you could sit in the first two seats, please. Thank you very much for being here today. I would ask you to introduce yourselves and you can commence your presentation whenever you like.
MS. CAROL MCCULLOCH: My name is Carol McCulloch. I am President of the Construction Association of Nova Scotia. I have with me Mr. David Wilson. He is a contractor and member of our executive and chairman of our safety committee for the last five years, or a terminal sentence anyway.
The Construction Association of Nova Scotia represents about 550 firms throughout the province who service the industrial commercial sector of the construction industry which represents about $1.5 billion in expenditures a year and roughly a little over 10,000 people employed in that sector. I guess workers' compensation is something that the association has been very involved with for at least a good 10 years.
What we have tried to do in our presentation is get at some of the things that employers are concerned at, try and look at where we started with the new Act, and how do we evaluate whether or not the problems that were identified when the legislation was
introduced dealing with the Hayden decision, dealing with the backlog of appeals that existed at the time. Our industry in particular had gone through almost five consecutive years of 25 per cent across the board assessment rate increases. There were companies that actually had assessment rates at $36 per $100 of assessment, as a result of those. And also, to deal with the crisis that the board was in, where there was, once the consultants were finished, found to be 18 months worth of funding left, which didn't provide a very solid foundation for people who were relying on the board in the long term.
I am not going to read the presentation. What we thought we would do is walk through some of the issues in the first part of the presentation, to deal with the kinds of performance indicators, I guess, is the word that the Auditor General used, and words that other compensation boards are using to try and determine whether or not the board is actually performing or whether the combination of the health and safety system and the workers' compensation system are yielding the kind of results that we want. I guess I should say up front that prevention of injuries has been a major initiative of our industry, because of the nature of seasonal and short-term work, preventing accidents has been the only viable solution.
As we go through, what we tried to do was to look at the kinds of things that Dr. Elgie talked about during his early tenure at the compensation board, about the need to be able to make good decisions, to have proper management information, for the board to have the resources that it needed to be able to administer claims, and also the potential to deal with emerging issues that he identified, such as chronic pain, such as stress, such as environmental illness, and a whole host of other occupational diseases that were being developed.
There was, when the government introduced the legislation in 1994, a series of trade-offs that were made. There were trade-offs that were made in terms of the benefits commitments, there were trade-offs that were made in terms of the administrative capacity of the board, and there were trade-offs that were made in terms of the financial position of the board, and the commitment of the government to funding or assisting in trying to mitigate some of the rate increases that went through.
The compensation board, I guess at that time it was accepted, was severely understaffed, I think they were looking at about 9 per cent of their expenditures being contributed to administration, which also included the funding that they were providing to the appeals system, and the funding that they were providing to occupational health and safety.
So, sort of trying to take that environment in place and say, okay, here we are, it is 1988, it has been four years, in some cases, in terms of the buildup of administration of the board, it has been more than six years, what has really changed. I guess the fact that we are here now, that the committee has been created, that you hear so many complaints about the problems with the board, we are still dealing, not with the Hayden decision anymore, and the implications of the Hayden decision, we are dealing with new court decisions, suggests that
other than the fact that we have a lot more people working at the compensation board, we haven't solved a lot of the problems that we set out to solve.
The thing I don't understand, going back and reading through the materials, when we started out, in some of the documentation that was released by the Minister of Labour at the time, we were talking about 2,400 appeals in front of the Appeals Tribunal that were a backlog, today we are still talking about 2,500 appeals in front of the Appeals Tribunal. It is hard to understand how we have come through four years, and appear to have made no progress. I think, it is obviously intensely frustrating for the people who are waiting to hear those things, but it is frustrating for the business community too, because we don't understand why that situation is, and businesses see their assessment rates increasing. I know the average rate is frozen, supposedly, but I don't know too many people who pay the average rate. Most people have gone through reassessment, they have gone through the reclassifications, we have experience ratings. People's premiums, in a lot of cases, have gone up, some have gone down, but a lot of them have gone up.
It is hard to say, in 1998, what it is of the original problems that we set out to resolve have actually been resolved. I guess, one of the things, going back to some of the things that have come up, some of the consistent indicators, the assessment rates, if you look at Nova Scotia, which was not unique in the country, as a matter of fact, we were like Manitoba, and like Ontario, and like New Brunswick, in the problems that were developing through the late 1980's. Those boards, in a lot of cases, wound up in the same situation we did. Legislative change was introduced, financial plans were introduced, there was a trade-off in terms of what could be provided in benefits versus assessment rates versus government intervention into the system.
If you look at the results that some of the boards have been able achieve, it leads one to wonder what has happened in Nova Scotia. We have boards, New Brunswick mind you, didn't start out as significantly behind the eight ball as we did, but they have managed to be 100 per cent funded. Manitoba has made it to 100 per cent funding. There are a number of boards that have been able to significantly meet the financial challenges they have, and have been able to begin to address the assessment rate issue and bring those rates down, and they have been in the financial position to be able to deal with benefits as well.
I guess one of the things that is a concern, in terms of this issue of capitalization ratios, is that even as far as we have come, the financial statements of the board express significant reservations as to whether or not we have actually even made it to 50 per cent funding, given the contingent liabilities that we have. I think one of the other things, in my years of dealing with this issue, is that there is a perception that people who pay a high assessment rate, pay high assessments rates because they are unsafe employers, they are irresponsible employers. One of the things, using Ontario as an example, in Ontario, because
some of the information is more readily available, only 40 per cent of the assessment rate for a general contractor in Ontario has anything to do with their claims experience, 40 per cent of it has to do with the debt, and 15 per cent has to do with overheads and administrative costs of the Workers' Compensation Board.
Even being a very good employer, and even working very hard at your accident performance, there is very little part of your assessment rate that has anything to do with what is going on in your workplace, and there is something fundamentally wrong, I think, with that. It creates what I think we see in our industry and in other sectors, people paying very significant compensation bills and not seeing payments going to their own employees, and they don't understand the difference between what they are paying in and what is being paid out to their employees. I think that is one of the fundamental concerns.
I think when we look at where the board is, as I said earlier, we started with a 9 per cent administrative provision, which included funding for occupational health and safety, that is now up to 18 per cent, and with the changes that have been introduced as part of the assessment process this year, those rates will now go up to 22-23 per cent, because the compensation board, compared to other boards was underfunding the occupational health and safety division. We are now looking at one of the highest administrative rates, one of the things is, what benefits have we gained, in terms of we have more staff, what are the benefits? One of the things that the board points out in its annual report is that the claim processing time has decreased by 18 per cent. Well, the number of claims has dropped by 25 per cent. The administration of the board, the number of staff has doubled, at least the claims should be getting processed faster.
There are some of these things that given the information we have they don't make sense. What is going on? I think this is one of the fundamental issues that Dr. Elgie talked about, that the consultants talked about, whether it was Manitoba in the 1990's, or Nova Scotia in 1993, was the ability of the board to make good decisions, to have good management information for the stakeholders to understand what was going on at the board, to be able to assess the performance of the board, and to understand and be able to anticipate where the problems where and where the solutions were.
I think that in a large part, the board has made attempts in that area, but we haven't gone far enough. I think that is one of the things that is of the most concern to us. One of the things that I think that the select committee could be very useful in doing is looking at the reporting requirements of the Act, and requiring more timely, more consistent reporting. You look at the compensation boards in other provinces, they are required to report within three months of their year-end. In Manitoba, they have initiated a process of providing quarterly reports for stakeholders. The level of detail that is provided in the reports, the level of disclosure of both financial and statistical information with respect to health and safety, is absolutely fundamental for people to be able to interpret results and actually take positive
action. I think Dave is going to spend a little bit of time talking, not in general, but more specifically about the construction industry.
MR. DAVID WILSON: To reiterate one of the points that Carol brought out is that, one of the reasons I got involved in this issue, I was a recipient of these regular increases each year, and one of the things that did get under my skin at the time, I called up to inquire as to why this increase was there. The individual that I spoke to made the statement, well, that is all we can raise it right now; by the legislation at that time, I think it was 20 per cent, and that was about 1989 or something of that nature.
Subsequent to that, I got involved in this and other issues through the Construction Association, but it just activates your frustration that you are paying out, but there didn't seem to be any correspondence to the money you are paying out and why your assessments were going up. They were just going up, because that is the way it is. That doesn't make sense from a business perspective, why is that?
In 1997, the Construction Association of Nova Scotia sponsored the Atlantic Provinces Economic Council to prepare a report on our industry. One of the items that they did, which is in your booklet there, is on a carpenter's employer, and employing a carpenter. For those that are interested, it is Page 12. It shows that if you have a carpenter and you are in Nova Scotia and you are working for a general contractor, your rate is $5.99, not to bore everybody with all kinds of numbers, but in New Brunswick per $100 is $3.20. That is a significant thing.
Now if you go down through it, the different rates, if you just take the Nova Scotia column, which is the first column, Roofing Contractor, $7.75 instead of the $5.99, and my particular rate is in there around $7.87. Then in Rough Carpentry & Framing, it is $10.20, and a nice one to compare it to, in New Brunswick that same rate instead of $10.20 is $3.62.
Those discrepancies are there, and as to the why and the wherefores, the major component that as a contractor competing in the different provinces in Atlantic Canada, I have concerns with the different rates between Nova Scotia and New Brunswick. I give New Brunswick full benefit for looking after their house and getting it cleaned up, but let us do the same thing. That is why we are here, to work this through, and where can we go with this.
We do believe there are a number of changes that need to be made to the Workers' Compensation Act, and to bring our rates more in line with other provinces. For instance, one of the instances that we have to deal with in Nova Scotia as a contractor specifically, is that other contractors can come into this province from my home Province of New Brunswick and compete for up to six months at the lower rates. You can spend a lot of money on labour in six months, which can give you a significant edge on what we do. For us to go up there, we are on the losing end of the stick.
One of the other things that we find ourselves having to do is, when we are hiring smaller contractors, for instance, as subcontractors, they are one to three man operations, usually efficient and usually do good work, so that is an unequal playing field, but they don't have to pay the workers' compensation rate as individual companies. But we do, if we hire them, we have to cover their compensation rates for our work. What we are effectively doing is we are basically going to universal coverage in our industry for all these different entities, which is another burden that we in the construction industry have to bear.
We have endeavoured over the last few years, since 1994, to follow up on our premise that the best workplace is one without any accidents, and that is the quickest, best, safest way to get the cost down, the workers' compensation rate, and - tongue-in-cheek somewhat - we would like to put the workers' compensation out of business. Let's not have any accidents. That is our preference, as would be anybody's.
With respect to that, we were very involved in setting up the Nova Scotia Construction Safety Association, and to date, we are pushing almost $3 million through that operation, which is a levy on our actual workers' compensation rate, that we pay over and above the rate dictated by the Workers' Compensation Board. We want the benefit of the safety training, we want the benefit of an entity that is current, is developing, proactive, we want to be part of that, because we do know, we do have the benefit of the safety training, and a lessening of accident occurrences and incident occurrences.
As a result of that, we are paying more out as the construction industry than just the actual workers' compensation rate. From a construction perspective, we would also look at that and say, well, if we are doing all this great work and we are saving this money, would it not be reasonable to assume that we should get some sort of financial compensation back as a result of that? If we are going to put our people through this safety training to basically eradicate accidents at every opportunity, would it not be reasonable that we should get some benefit, specifically on a financial basis? A rebate program.
Another thing we as contractors like to see is that we have a very difficult time to sit here today and tell any one of you specifically how much labour we are going to be hiring over the next period of time, pick whatever you want, one year, three months, six months. It is very difficult to tell, because the fun thing about contracting, it is a bit of a gamble. You might get a few contracts and you might not, but you have some good competition out there, and if you play your cards right, you get the contract. If you really did it right, you can maybe make some money.
The bottom line is, it is hard for us to predict, at the end of one season, how much labour component we are going to have over the next year, to be able to say okay, we have to pay this much money, which is what we are asked to do by the Workers' Compensation Board, to put that money out, up front, at the worst time of year for us for cash flow, and we find that difficult. What we would like to see is some system of periodic payments, whether
it be monthly, tied in with Revenue Canada, or if that is not possible, some sort of quarterly basis, where we actually pay as we go. It is not a new concept, it is implemented in several jurisdictions across the country. It shouldn't be rocket science, but I am not a computer guy, so I can't comment on what the mechanics would be to put that in place.
There are a number of other points that are here, but that covers the major ones. New Brunswick, Manitoba and other provinces have systems in place that are working. We are not on a 45-year plan, I don't think that far ahead. It is so far out there, it is kind of hard to bring it into reality. What if we get all these bumps, we have several issues outstanding now, I don't know if these numbers can be realistic. Right now, workers' compensation is paying 100 per cent of the occupational health and safety division at the Department of Labour, and that 100 per cent payment is made by 60 per cent of the employers. Universal coverage might be a better idea. If you need some extra dollars to run the system, that is something to be looked at.
The reality is, we have trouble, and you are probably a little tired of that message. As employers, certainly in the construction industry, we are frustrated, the money is going out, we don't have a sense of accomplishment that money well invested will bring back to you. We have a concern with the accountability, timely accounting practices that we can see and we can recognize and we can track to see where it is all going.
We appreciate this opportunity to speak, and we will be back as often as we need to be, as frustrating as that can be.
MS. MCCULLOCH: Possibly just to summarize some of the recommendations that we would like to leave the committee with, one is, I mean if there was one thing that you could do for our industry it is to amend the Act to require contractors, or businesses coming into the province for more than a week to pay Nova Scotia assessment rates. That's the way it is in New Brunswick and it is a huge competitive issue for us because we have a Maritime, if not an Atlantic market.
The next issue is to look at the assessment, I know you're not making administrative decisions but it is very important that the assessment system not just be actuarially sound but it also deal with competitive issues. This is a very critical thing when you have businesses basically competing against each other that are classified differently. Dealing with the new payment option, I think it is very important that the board be mandated to continue on and actually be given some very specific targets to meet in terms of the initiative that they're looking at with Revenue Canada or finding some other method of collecting assessments that doesn't severely disadvantage seasonal industries and it doesn't get the board hooked on penalties. I mean they're collecting $3 million in penalty revenues a year. If we could invest $3 million in fixing the system so we could pay actual payroll, as is the process in most other provinces, then maybe it would be a more positive initiative.
One of the issues for us is certainly the funding for the occupational health and safety system. If we're going to maintain the current schedule I guess of industries that have to pay compulsory compensation premiums, then we really think that the government should reinstate funding under general revenues. It is not I don't think, reasonable to have 50 per cent of the employers in the province funding 100 per cent of the Occupational Health and Safety Division. The government in Nova Scotia itself, which the Department of Labour from time to time does prosecute under the OSH Act only pays as a self-insured employer. They pay 15 per cent towards the administrative costs of the board. Well, they have people going to the appeal system. They have occupational health and safety inspectors on their work sites. Those operations will increase the administrative costs of the board to 22 per cent. They're not contributing to those things and we don't think that that's appropriate.
One of the things that we think is absolutely critical is to get a better understanding of what is going on with health and safety in this province. About the only reporting unit you get are statistics that are released as part of the Workers' Compensation Board's annual report. They're very simplistic in a lot of cases. You can't easily combine them with information that may or may not come out of the Department of Labour. We're strongly recommending a major initiative between the Department of Labour and the Workers' Compensation Board to try and get a handle and to get at prevention initiatives, absolutely critical, and actually to look even at the state of the environment report as a possible model for a state of occupational health and safety report to be prepared annually.
One of the things, as I mentioned before, is to implement certain reporting deadlines, more reporting and more detailed reporting requirements for the board and to actually look at an ongoing requirement for consultation in reporting on performance indicators as well as sort of legislative financial reporting. We think it is very important that, I know the committee has a number of people that are making a number of recommendations with respect to benefits and I think one of the things that is of a concern to us is that the assessment rates in Nova Scotia, they're not the highest in the country, but they are very, very high. We've never, as I said before, I mean I get lots of complaints about the Workers' Compensation Board but I don't get lots of objections to paying compensation bills.
People recognize the value of having that protection for their employees and they're not afraid of paying it but they want to understand that they're getting good value for their money and I think that's a question of confidence and ability to participate and understand the system that is at issue.
MR. CHAIRMAN: Thank you very much. I'm sure some of the members of the committee may have questions. I know I have one or two questions that come to mind. First of all, with the assessment system. Have you had an opportunity to look, in your industry, at the assessment system, the classification system, as between provinces to determine whether or not they break them down in the same kinds of categories in your industry in other
provinces or do you sense that there are different classification systems that lead to very different rates?
MS. MCCULLOCH: The classification system is relatively new and there were a number of things, not just the classification system, but also some policies that were also implemented about the same time about companies that have multiple functions. You used to have companies that had say two or three different operating divisions that may have paid different assessment rates based on what that operating division was doing. You also had companies that may have had a large administrative office staff that were paying rates for that office staff that might have been different than the people that they had in the field or the people that they had in the manufacturing operation. Well, those policies were all changed and so there's the rate of your firm but then there was also the fact that people all of a sudden couldn't have multiple rates and there was no consistency to how it was done before so I mean, I think the board has brought in consistent interpretations although we don't necessarily always like them. They have reaudited people. People's assessment rates have changed quite significantly in our industry.
I don't think that the structure is all that different from other provinces but there are some issues around people's ability to challenge their appeals, people to challenge their assessment classifications. I mean it is supposed to be something that you can appeal. It is a relatively new thing, that you can appeal and I think the forms and the process you go through is the same as if you're appealing a claim which causes people to sort of, you're filling in the box that has to do with your claim when what you're doing is appealing your assessment. I routinely get issues around the functioning of the assessment system and questions about the classifications. The structure is all right. I think that there's a lot of work and knowledge and issues around the administration of it and the ability of people to participate in the appeal process around their assessment so they get to understand where they are and if they feel it is not fair, that they have a mechanism to have that redressed.
MR. CHAIRMAN: The reason I asked that was because I noticed in some of the statistics that even if you allowed for the fact that, for example, New Brunswick had lower rates in every classification, their rates were significantly lower in some classifications than in others, that the ratio, if you want to call it that, was significantly different. I guess I found that rather inexplicable.
MS. MCCULLOCH: One of the things that was interesting and I guess this was one of the problems and this is one of the issues about, we've got transitions going on all over the place and one of the things that happened with the assessment changes was that we were transitioning on assessments too so that you had people kind of moving up a schedule. I don't know, you can ask the Workers' Compensation Board themselves, but in my experience they could never defend the former assessment system. It had a lot to do with who knew whom and who was in what business sector and not a whole lot to do with actuarial soundness. This
new one does, but we're still, in some industries and some very significant industries who have very significant perils, moving our way up to where we should be.
This was one of the issues that we raised recently with the board was the commitment that was made to the business community, was that everyone would get to be paying what they're supposed to be paying, mind you, a lot of contractors are coming down because we went way up, were getting to where they were supposed to be paying in five years. That was the understanding but what the board did was cap the rate increases at 20 per cent a year. Well, if you're starting at 50 per cent, or 50 cents per $100 and you got to get up to $5, but you're going at 50 cents times 20 per cent, you're not going to get there in five years. So, we have got industries that are still transitioning. Some are transitioning down. Some are transitioning up. So even looking at the assessment rates and what people pay doesn't help you.
One of the other things that we were very late as a province to do was to implement experience rating. This has been a significant motivation and I know some people feel that it promotes under-reporting but there is a benefit to the people who take health and safety seriously and have a good accident performance and it benefits them. In Nova Scotia we started at plus or minus 20 per cent. Well, New Brunswick has gone to plus 40 minus 80 now. So even what the assessment rate is and what an individual firm pays are two very different issues and your ability, your incentive, I guess, to manage your health and safety performance in our industry is the critical thing. To manage issues like return to work in other sectors are not the same.
There are a whole lot of aspects to the assessment system that basically, you know, I get my statement and this is what I pay, okay. This is what I pay in premiums. This is what is paid out for my employee. I don't get it. It is sort of what happens and one of the issues that we have traditionally had with the board, which is another timing issue, is when people actually find out what their rates are going to be. We have been as late as November with people finding out what their assessment rates are going to be for January 1st. Now, in our industry . . .
MR WILSON: And that becomes important if you are tendering a project that may not start until such time, three or four months down the road, if you are waiting for weather, you need to know. If your percentage that you have to pay on your labour is going to be up that much higher and you don't have it built in your costs, well, that is definitely coming out of your back pocket. So timely awareness of what your rate is going to be is very important to us.
MR. CHAIRMAN: I take it from that, and maybe I am implying something that you didn't intend, is that you favour higher experience rating percentages? In other words, you would get a more positive rating, or a reduction in rate for a positive performance, somewhat like New Brunswick's? Is that . . .
MS. MCCULLOCH: Yes. I think all the time, definitely.
MR. CHAIRMAN: Thank you. Do other members of the committee have a question? Mr. Erjavec.
MR. LUC ERJAVEC: Thank you. I know, Carol, you have been involved in workers' compensation for a lot of years and among the employer community I don't think there are too many people that know as much about compensation as you. I was really struck by what you said, I think I counted you said it five times, given the information that we have. Do you think as a key stakeholder, and your industry is putting millions and millions of dollars into the compensation system, you have information to know that your money is being well spent?
The second part would be, I know in particular that there is a rate freeze for the next few years and we are looking down the road and saying 45 years from now we are going to be at this rate, or whatever. Have you ever seen what this 45 year plan is? I know you meet regularly with the board and it is something I think you would probably want to know to see how some of these decisions are going to affect you down the road?
MS. MCCULLOCH: I think there are a lot of issues in there because even determining what kinds of things you need to know to determine whether or not the system is working is a big problem. If you look at the board's five year plan, it is in the financial statement. It is two pages. It does not have any numbers. In Manitoba the five year financial plan includes financial projections and other projections of assessment rates that you can determine whether or not the board is performing against.
The 45 year funding strategy was an absolutely sort of critical component of the package that went forward when the legislation was first introduced. I have never seen the document. I understand that it exists and I recently requested it from the board. The chairman of our association is actually a member of the Workers' Compensation Board and he wants to be very fair because the board has worked very hard to try and address a number of these issues. I understand that the 45 year plan is a public document. We requested it a couple of weeks ago from the board. I understand that it is coming sometime but it is very difficult to say we are on track or we are not on track.
I guess one of the big issues about, are we on track is, well, I can't get the plan or if I can get it, I can't get it in time to be able to discuss it with you here today, but also we are only three years into the 45 year plan and there is already significant pressure to deal with new benefits provisions and big price tag new benefits requirements. So, you know, when you are on a 45 year plan which assumes that those things aren't going to happen and you're in year three and you're already dealing with some very, very pricey items, what does that say about the validity of having a 45 year plan?
It is a difficult issue. I think for people in the business community and certainly we spend a lot of time on occupational health and safety, the information is not enough. It is not enough to be able to understand. It is not enough to be able to comment effectively and it is not enough to be able to look at what kind of interventions are needed, especially on health and safety, to be able to improve performance.
MR. CHAIRMAN: Thank you very much for taking the time to be with us. Mr. Erjavec has one question.
MR. ERJAVEC: We've had a few employers come to us with some appeals on their assessments and some of them, in my humble opinion, it has been quite plain something is wrong. Have you ever heard anyone that had a positive answer from their assessment appeal, like just the word on the street, or whatever, I know you don't have numbers but . . .
MS. MCCULLOCH: I have letters from people and I've had conversations with people who never heard, you know, they write letters and they never hear. I know, I mean I think I do, and this is part of employers understanding their ability to participate in the system, and this was a very controversial issue when we dealt with the new Act, is what are the rights of employers.
In New Brunswick we have an office of the Employer Adviser and an office of the Worker Adviser and we have the same kind of structure in Ontario where employers are treated as equal participants and have the ability, because let's face it, in our industry we have 4,000 companies. Their average employment is three and we have one-third of our industry, 8,000 people are self-employed. I mean we're not talking major corporations here. We're talking about small business people who do their book work at night and are trying to earn a living and so their ability to read the Workers' Compensation Act and determine what they can appeal and what they can't appeal and, you know, do I go, I got this letter from the board, what do I do, is not great.
This was seen as, well, the employer was going to challenge and they're all going to take lawyers and they're going to undermine the right of the injured worker. So this whole issue of the employers' ability to participate in this system is a real problem. It is as big a problem on appeals as it is in terms of claims. So, helping employers understand their ability to participate is a big issue. In some cases people write, or maybe they don't write the right person, or I don't know, but there are a lot of people who don't understand why they pay what they pay. They're not opposed to paying. That's not the issue. It is that they don't understand why they pay what they pay or why I'm a manufacturer and not a contractor or one-half my payroll is a manufacturer and one-half of my payroll is a contractor so, which rate should I be in.
MR. CHAIRMAN: Thank you. I believe those are all the questions now. Again, thank you for being here and taking the time to make the presentation. Our next presenter is Mr. Garnet Lake. Good day, Mr. Lake, have a seat right there.
MR. GARNET LAKE: I have come today to talk about injustices done to workers like myself and to make suggestions about changes to the workers' compensation system and the people who work there.
When you're first injured and go to the Workers' Compensation Board, it seems like you're treated like you have committed a crime. It is like you got hurt on purpose and they are there to pass a sentence on you. It does not seem to matter what the specialists say. You see, they take the word of their general practitioners over yours. One counsellor told me that the specialist would say whatever I wanted them to. Then you are threatened, sign this, or we will cut you off. There are so many rules in compensation, what applies to you and what doesn't apply to you. A prime example of this is the March 23, 1990 cut-off date for pensions.
Talk about discrimination; two men working at the same time, at the same type of work, lose their right arms. The one on March 22nd gets paid up to 30 per cent, the one on March 24th receives 75-80 per cent. There is not any place in Canada that this would be considered fair and equal. This law was presented by the Minister of Labour, so maybe the workers' compensation is not to blame for this.
I think it is time that we man workers' compensation with people who have a little experience and a little common sense. Maybe we could employ some of the injured workers who know first-hand what is required to do the jobs they did before the injuries. I am tired of hearing, we know what you are going through, Mr. Lake. Let them try to live for a year or more after they have had compensation cut off. A year with no money, waiting for appeals, a spouse and kids to look after, a mortgage, bills to pay. Let us just see if they understand then.
Bear in mind that 80 per cent of the appeals, 80 to 90 per cent of the appeals have been won by injured workers. If I was an employer who had people working for me that were wrong 80 to 90 per cent of the time, they wouldn't be working for me anymore.
If I can have your indulgence for just a few more minutes, I would like to give you an example of what I am talking about. A worker injured in December 1980 dislocated his shoulder, plus a broken bone, it was stuck up in the top of the shoulder. He was told to go back to work February 1, 1981, even though the shoulder was not healed. He was told he was able to do the work. He worked for 10 years with about 50 per cent use of the left arm.
Same worker, stage falls on him in August 1989, hits his right side down to his right leg. He had his knee operated on in 1989. Worker was told to return to work, December, 1989, although his right leg was still bothering him. He worked until July 1990, when he was forced to stop because of his right leg and his left shoulder. It was discovered later that he had a herniated disc in his back.
He was given a month's compensation and cut off. They said he could return to work. He appealed his ruling. After a year, he won his appeal. But in the meantime, lost his car and truck, borrowed all he could from family and friends, underwent two surgeries on his left shoulder, November 1991, and May 1992. He was put on vocational rehabilitation. This consisted of work hardening for six weeks. This concluded he could do two and one-half hours of light work a day. He was then put on a job search preparation program for two weeks.
In the report from the job search preparation, the person who was running it recommended to the counsellor that this person have retraining, because he only had Grade 10 education. He was given an eight-week job search and was told to contact three to five people per day to find work. He was told to look for work paying close to his former pay, $16.88 per hour, even though he had worked labour work for 20 years, and had the Grade 10 education.
Needless to say, this was worthless, and he was cut off November 1993. He then appealed and won his claim in November 1996. While waiting for his appeal, he had to mortgage his home, he was getting $710 per month in Canada Pension, and $128 per month union insurance. When he went to see his counsellor, he asked about his back pay. He was told not to push for it because as far as the counsellor and his caseworker were concerned, he should not have won his appeal. He applied for training in a two-year accounting course. The course started May 1997. He was cut off compensation, December 1997, for not completing the course fast enough. Eight months to do a two-year course.
The next recourse is to appeal, another year or two of waiting. This is unfair and unjust and just plain inhumane. Yet these people are the ones hired by workers' compensation to render fairly and impartially. What a joke. I know this case is true, because it is mine.
A few more things I would like to say, I have been through both the appeals. The one before we had the new tribunal set up, I won that appeal. I have been through the one since the new tribunal has been set up, I won that appeal. The counsellors at the Workers' Compensation Board seem to not listen to the appeals anymore. They just do what they want to do, if you don't agree with it, you are cut off. That is what has happened to me anyway. I have been jostled around from adjudicator to adjudicator, from counsellor to counsellor.
I think, I totalled it up and I had 21 adjudicators and counsellors on my case. I have met with perhaps five or six of them. I had a letter from one counsellor saying, it was nice working with you, Mr. Lake, we hope you succeed in what you are doing. Two weeks later I had a letter from my next counsellor, who I had never even met - although I called 37 times and got no reply - that I was cut off. They seem to do just whatever they want to, it doesn't matter whether you are injured, whether you are allowed or whether you can go back to work, whether you want to go back to work, it just seems that they do whatever they want to, regardless of what the worker wants to do, regardless of what the employer wants to do.
I just listened to the employers, where one of the employers stated his case, I agree. They should know where the compensation money is going. They should have recourse to know what is happening to their money that is going in. But to the injured workers that apply for this system, that are injured through no fault of their own, it does not seem that the Workers' Compensation Board should be able to apply the fault to these people who are injured.
Thank you for listening to me. That is all I have to say.
MR. CHAIRMAN: Thank you very much, Mr. Lake. I appreciate your taking the time. I had a question for you about your counsellors. Now are you talking about counsellors as in your lawyers, or are you talking about counsellors in the staff that work at the Workers' Compensation Board?
MR. LAKE: Staff that work at the Workers' Compensation Board.
MR. CHAIRMAN: Have you been represented in the past by the old Workers' Counsellors Program, that was where they had a private lawyer paid for by the Workers' Compensation Board?
MR. LAKE: Yes.
MR. CHAIRMAN: And have you had a workers' adviser under the new system where they have a separate adviser program, and if so, what is your experience between the two systems?
MR. LAKE: The first system, the lawyer went to my appeal with me. He went over the appeal, and he went to it with me. I talked before the board. The second system, the counsellor or lawyer there told me it was no good to go to the appeal, so I went to the appeal myself, and won my appeal.
MR. CHAIRMAN: Your adviser wouldn't even go with you to the appeal?
MR. LAKE: No.
MR. CHAIRMAN: Thank you. Do any members of the committee have questions for Mr. Lake? Mr. Parker.
MR. CHARLES PARKER: Mr. Lake, have you ever been involved in the ADR process, or are you familiar with that?
MR. LAKE: No.
MR. PARKER: Alternate Dispute Resolution.
MR. LAKE: No.
MR. PARKER: It is offered to some injured workers, an opportunity to review your case and see if there is a settlement, either a pension or a final lump sum payment. You haven't been offered that at this point?
MR. LAKE: I had a lump-sum payment on one injury back in 1989.
MR. PARKER: No. This is relatively new, within the last year or so.
MR. LAKE: No.
MR. PARKER: You haven't been involved at this point?
MR. LAKE: No.
MR. PARKER: You could ask your workers' adviser about that, he or she may be able to give you some information on that.
MR. LAKE: Yes.
MR. CHAIRMAN: Any other questions from the committee or the consultants? Well, thank you very much Mr. Lake for taking the time to be with us here today. I hope you are able to stay for the rest of the afternoon, at least.
MR. LAKE: Thank you.
MR. CHAIRMAN: Our next presenters will be the Ad Hoc Committee Employers Organization (Interruption) That is all right. With some of the members here, that is one of the biggest fights, which chair you get to sit in. I won't take it that way. I see some of the government members have a different view.
MR. PETER O'BRIEN: Thank you for the opportunity to be here today. My name is Peter O'Brien. I am with the Canadian Federation of Independent Business. Carol has already been here, she is the President of the Construction Association. We are here on behalf of the Employers Ad Hoc Committee on Workers' Compensation and Occupational Health and Safety.
The following have supported and participated in the development of this presentation: The Alliance of Manufacturers and Exporters, The Atlantic Building Supply Dealers Association, The Construction Association of Nova Scotia, The Canadian Council of Grocery Distributors, The Canadian Federation of Independent Business, The Canadian Petroleum Products Institute, The Canadian Restaurant and Food Services Association, The Nova Scotia Christmas Tree Council, The Nova Scotia Federation of Agriculture, The Nova Scotia Forest Products Association, The Nova Scotia Roadbuilders Association, Bowater Mersey Company Limited, Imperial Oil Limited, J. D. Irving Limited, Nova Scotia Power Inc., Scotia Investments Limited, and Michelin. All of these firms and associations support the document that Carol will now start reading.
MS. MCCULLOCH: On behalf of the Employers Ad Hoc Committee, and I should say that the committee is 10 years, 12 years, we have been getting together, and it is very much an ad hoc committee. We have in the past appeared before committees of the Legislature to address this particular issue and to deal with health and safety. We appreciate the opportunity to be here. This brief is an overview of the employer community or a large portion of the employer community, and many of the industries or the associations will be making specific presentations relative to their individual sectors.
We appreciate and we share your concern with the outstanding appeals, but we feel that it is difficult at this point to be able to comment. We think it is unfortunate that the Auditor General's report had not been released, or that the committee hearings had not been delayed until an opportunity to review the Auditor General's report had been there. We hope that that will provide some insight into how to expedite the outstanding appeals. We want to restate our concern with and dissatisfaction with the level of appeals, and the fact that this matter has to be addressed.
The employer community in Nova Scotia is becoming increasingly concerned that influences external to the Workers' Compensation Board are again beginning to undermine the board's efforts over the last four years to introduce a fair, equitable and fiscally responsible workers' compensation system. The Workers' Compensation Act of February 1996 and several initiatives introduced by the Workers' Compensation Board preceding the Act starting in 1993 signalled the beginning of much-needed changes to the workers' compensation system in Nova Scotia.
Key among these were opening channels of communication between principal stakeholders and the compensation process, employees, employers, the medical community, and the board itself; adoption of a philosophy which recognized that early return to work is a good practice for all parties affected by work place injuries; reorganization of the board's internal processes. We witnessed the introduction of the regional integrated service units with staff who became better acquainted with the employers operating in their areas, and more capable of efficiently dealing with claims, a review of assessment rates, and realignment of rates in keeping with recent injury experience, and the introduction of experience rating systems.
Tangible benefits from these changes started to become evident in 1994 when the unfunded liability dropped from $459 million to $379 million and continued to drop to a low of $365 million. Along with the improving financial picture came a number of other positive indicators that the system was on the mend. These included: improving working relationships with employers and employees based on the board's satisfaction ratings; examples of major disability cases being resolved in a manner which allowed injured employees to become productive employees again; examples of board staff working in partnership with employers to eliminate hazardous workplace environments and head off future injuries and claims; claims processing times which decreased by 18 per cent; waiting lists for internal appeals were eliminated with 87 per cent of the decisions being rendered within 90 days of filing; working with WCAT on 200 claims referred to the Alternate Dispute Resolution process and helping settle 70 per cent of these claims.
The employer community, however, is alarmed by the board's 1997 annual report which shows that the unfunded liability has again started to increase. We believe that this confirms our suspicion that recent influences external to the board, the Doward decision and political interference with the board operations, are starting to drive up costs again. We empathize with the board, which must be experiencing a sense of frustration over having to watch powerless while these parties dictate how compensation matters will be managed. We believe that influences will undermine much of the good work the board has done over the past several years, jeopardize the financial viability of the workers' compensation system in Nova Scotia and seriously demoralize board staff who have worked hard to bring about improvements that have begun to materialize.
The Doward decision has led to chronic pain being accepted in Nova Scotia as a compensable occupational injury, a position which is contrary to that held in most other jurisdictions in Canada. The board's 1997 annual report cites that the future cost of chronic pain claims is undeterminable. It is our opinion that the Doward decision caused the external appeal process to stall by introducing uncertainties as to how claims must be paid. This resulted in appeal delays, lobbying by injured worker groups and potential unfavourable political intervention. Doward also required the board to again revise its recently revised computer system to accommodate the calculation of claim settlements in accordance with
policy altered by the decision. This has led to increased administration costs at a time when the system can scarcely afford them.
We note that the board is required to fund activities of the Occupational Safety & Health Division of the Department of Labour. We believe this requirement will offset the government's four year commitment to fund workers' compensation at the rate of $4.6 million per year which was intended to help regain financial stability in the compensation system. We believe costs associated with the recent expansion of the OSH Division will further exacerbate this situation. Finally, we note that the appeal has been filed with the WCAT regarding survivor benefits and with the probable magnitude of such increases, the liabilities are also presently undeterminable.
MR. O'BRIEN: The issue of long-term environmental illness claims is a major concern, as well, to employers. Workers' Compensation Board Policy 1.3.3 deals with the subject of environmental illness and requires that a causal relationship be established between the exposure in the workplace and the worker's illness before a claim for environmental illness is allowed. The policy contains a series of criteria which, if present, would support claims for environmental illness. We have no quarrel with that policy.
In most workplaces today, there is a potential for exposure to minute concentrations of chemicals in one form or another. Workers may suffer short-term adverse effects from such exposure and the board has recognized, in a series of decisions, that workers may be temporarily disabled with such adverse effects. These decisions appear to be well reasoned and properly applied to policy in determining a casual connection between the exposure and the illness.
Our concern is with claims for long-term or continuing environmental illness. The medical and scientific communities have rejected such claims for the most part as being medically unsupportable. There is a concern, however, that a recent decision of the Appeals Tribunal interprets Policy 1.3.3 and the Act in such a way as to not only ignore the medical and scientific communities but also effectively reverse the normal onus of proof in respect to the causal connection between the exposure and the illness. With respect, the appeals commissioner has interpreted the Act and the policy to effectively require proof that the illness is due to a cause other than workplace exposure instead of the worker having to prove on a balance of probabilities that the workplace caused his or her condition.
Since the employer has virtually no rights to argue appeals against claims under the Act, left to the board is the difficult, if not impossible, task of proving a negative and that there is no causal connection. This, coupled with the very narrow grounds under which a decision of WCAT can be appealed means that this decision could become a precedent which effectively opens the system to unsupported claims for long-term environmental illness.
As other jurisdictions have experienced with chronic pain, the floodgates can be very difficult to close after they are opened and the impact on the system can be extremely detrimental. In Nova Scotia, where the system is already overburdened, allowing claims for unproven long-term environmental illness will definitely not help matters.
It is suggested that consideration be given to amending the Act to ensure that giving the worker the benefit of the doubt under Section 187 does not result in a reversal of the onus of proof. Alternatively, the Act could be amended so that there are wider grounds of appeal (issues of law and jurisdiction) from WCAT decisions. This would permit a patently wrong interpretation of the Act or board policy to be addressed by a court.
Nineteen Ninety-Seven witnessed a significant deterioration in the financial position of the compensation board in this province. The board suffered a $5.5 million operating loss, its unfunded liability climbed to a new record of $370 million and the funding ratio of assets to liabilities dropped below 50 per cent - the only board in Canada at that level. This deterioration is cause for great concern because it worsens an already untenable financial situation. The reality of the board's financial affairs is in marked contrast to the complacent tone of their annual report.
The year over year deteriorating financial position can easily be seen in the following comparison. The growth benefit liabilities in 1996 was $53 million, in 1997 it was $70 million. The deficit or surplus, there was a surplus in 1996 of $3.4 million, a deficit of $5.5 million in 1997. Every indication we have right now is that the deficit will continue for a number of years ahead on an annual basis. The unfunded liability was $364 million in 1996, it is now $370 million and increasing. The funding ratio went from 54.8 per cent to 49.8 per cent. Every single one of those figures is going in the wrong direction to develop a strong, viable compensation board.
In the absence of extraordinary investment gains of approximately $5 million in 1997, the financial position would be correspondingly worse. Given the current economic turmoil in the global market place, 1998 will likely produce a further and more serious deterioration in the board's financial position.
The board, indeed, is mired in a continuing financial crisis. It is suffering from very serious cost problems. Debt charges, long-term liabilities and administration costs are unacceptably high. The solution is not to raise more assessment revenue. The average assessment rates of $2.54 per $100 of payroll ranks it as the third highest in Canada and the highest in the Maritimes. When compared to the average assessment of $1.59 in New Brunswick, it is 60 per cent more expensive to provide workers' compensation coverage in Nova Scotia. Even when that portion of the assessment rate used to retire Nova Scotia's unfunded liability is removed, the average rate for Nova Scotia is $2.07 compared to $1.59 in New Brunswick - still 30 per cent higher. Compounding the cost problem faced by the board is the fact that employers are due to pay an additional 28 cents of assessment starting
in the year 2000. That is part of this 45 year plan that we still haven't been able to see. Such an increase would exacerbate an already ruinously high rate.
Immediate administrative and legislative steps must be taken to rein in the additional and ever-increasing liabilities associated with questionable compensable conditions, reduce long-term disability liabilities, reverse any downloading of cost from government to the board, and improve the overall efficiency of the organization and its effectiveness in returning injured workers to work because we believe that almost every worker, in fact we do believe every worker, would much prefer to be working than to be on compensation. Part of the board's challenge is to see that that can happen. A review of the extent to which WCAT is a cost driver also warrants close attention.
Workers' compensation assessments are no different than any other payroll tax in that there is an inverse relationship to job creation. A rise or fall in rates will result in a decrease or increase in jobs respectively. We cannot continue to ignore the cost component of providing compensation in Nova Scotia. To do so will merely perpetuate a system that is unaffordable and becoming more so each year. Other jurisdictions have dealt with the same problems, notably New Brunswick, and have been successful in becoming fully funded while enjoying lower rates for comparable coverage. Employers in Nova Scotia - and I might add employees - deserve no less. It is time for action.
MS. MCCULLOCH: In 1993, Dr. Robert Elgie was Chairman of the Workers' Compensation Board and he reported on the state of the board and on the need for change. He spoke of the efforts under way to improve delivery processes for services, to develop new policies and a funding strategy. Dr. Elgie explained the need for the board to establish itself as a full and capable partner in the workers' compensation system. One of the three points he viewed as critical to the success of fulfilling this role was preparing the information necessary for the board and for all Nova Scotians that will enable them to understand the Workers' Compensation Board's current policy and financial position.
Communications, confidence, understanding. These are critical issues in decision making. Workers' Compensation Boards have a complex group of stakeholders to which they are accountable and with whom consultation is important. The governance structures of the boards themselves reflect the need to balance these interests in reaching decisions.
Consultation for decision-making processes is only one reason for disclosure. The workers' compensation system exists to administer legislation and therefore government policy. In April 1997, Bill Gillis, as Minister of Finance, pledged to make government more accountable to Nova Scotians by tabling a report containing business plans for all Crown Corporations. Nova Scotia was to be a leader among governments in its accountability framework. The business plans indicated performance levels, strategic goals and core
functions of the organizations that were described as outside the direct control of government but, nevertheless, responsible to the people. Dr. Gillis said, the public deserves to know how their money is being spent. This requirement arose out of amendments to the Provincial Finance Act made in 1996.
The Workers' Compensation Board was not one of the organizations required to file a business plan as part of this process. The WCB legislation does require that WCB file an annual report by June 30th of each year as well as a five year plan, the particulars of which shall be prescribed by regulation. I don't know if I have ever seen the regulation, if there is one.
MR. O'BRIEN: I don't believe there is.
MS. MCCULLOCH: The Act also requires the Chief Appeals Commissioner to report annually to the minister and to the House of Assembly. No specific time limit is placed when the report is to be presented and this report may be included in the annual report of the board. The Chief Workers' Adviser is also required to report on an annual basis to the minister.
The requirements to file annual reports are contained in Workers' Compensation Acts across the country. In Manitoba, the board must file its annual report by March 31st and must include a five year operating plan. The Manitoba five year plan includes financial goals not disclosed in the Nova Scotia plan. In addition to its annual report, the Manitoba board now provides quarterly updates on key financial and operational information. The New Brunswick board must report on April 1st and provides comparisons of performance against budgets.
The 1997 report of the Alberta board contains the auditor's report that is dated March 27, 1998 and contains a level of detailed financial disclosure which is much closer to what we are used to through the public accounts system. The level of detailed disclosure varies quite significantly from financial information, performance indicators, details on claim trends and information on appeals. A number of boards, including Nova Scotia, maintain web sites where access to research documents, claims information, assessment information, board governance and financial reports are often available.
In 1993, the Manitoba board also embarked on a program of change focused on bringing the stakeholders - employers, workers and others - into the system as partners through an ongoing dialogue with them which would improve various forms of consultation. The Manitoba board went so far as to create a fair practices office to give employers and injured workers the opportunity to identify issues of fairness and natural justice apart from the appeal structure.
Providing timely and detailed information should not simply be an issue of satisfying legislated obligations. The WCB frequently responds and encourages inquiries by many groups. While this can be of great assistance, the potential for different stakeholders to
misinterpret or receive different information sets is created. The construction sector was impacted by such a situation earlier this year which created a false impression of the industry's safety performance. Indeed, the board released by accident - honest mistake - annual safety statistics which actually represented only six months and so there were some very public statements about what a great job we have done on safety, only to find out that really our safety performance had actually decreased over the year. Actually, the correction from the board, I received it three months after the press releases. The board publishes policies and newsletters and notices. The information, in many cases, is so brief as to be of little value. The information contained on the website to date is not current.
A great deal of confusion appears to exist with respect to the operations of WCAT. The WCB report indicates a backlog of 966 claims while newspaper reports suggest the backlog is in excess of 2,400.
Is the information available to stakeholders and the public sufficient to gain insights into the system and into the challenges ahead or to hold decision-makers accountable? We don't believe so. Even the timing of assessment notices for employers is an issue. For many employers, workers' compensation premiums are a significant budget item, not to mention cash flow consideration. Budget planning processes begin well in advance of the new fiscal year. The timing of WCB notices should be taken into consideration. They should be required by legislation to be released by September 1st, annually.
The ad hoc committee is proposing that greater clarity and certainty be added to the legislative requirements for reporting, more specific and shorter time-frames should be imposed, the content of reports should be clarified and a responsibility for quarterly updates created. Performance measures and reporting should be developed in consultation with stakeholder groups and should be consistently applied. A major initiative is required to improve information flow to support occupational health and safety prevention programs. The employer committee appeals to the select committee to exercise care and good judgement in its deliberations to avoid upsetting a workers' compensation system which has already started to show promise for all stakeholders.
We fully endorse a fair, equitable and fiscally responsible workers' compensation system but caution that in order for us to fund the system, we must be able to compete in the business community and to thrive. We strongly urge the select committee to improve the existing Act without undermining its overall direction and to seek ways of mitigating the Doward decision.
MR. CHAIRMAN: Thank you very much. I have a question, I guess, that comes about the question of information and accountability and those kinds of things and that is dealing with the composition of the board, the appointment process for members and the composition of the board. Do either one of you have any feelings about the existing appointment process for board members, how they reflect particularly employer concerns?
MR. O'BRIEN: Let me say very frankly that one of the real benefits of recent years has been the appointment of key stakeholders to the Board of Directors of the Workers' Compensation Board, not just employers but labour as well. I think that one of the problems we had, and I have been chasing workers' compensation since the 1970's, I have been around too long. One of the problems we had for too long was that there was not a competent board of directors. Our sense today is that there is and we think that that board, with proper legislative support and with proper administrative support, can resolve the difficulties which face us. We would like to point out that that board has absolutely no jurisdiction over WCAT which is an arm's length operation, which I think is where much of the current problem exists.
MR. CHAIRMAN: I guess I am going to ask what the obvious follow-up question is about WCAT. You obviously have some views on WCAT and I think I would appreciate if you could suggest what your views would be with respect to that.
MR. O'BRIEN: Let me say, and these are my views, okay?
MR. CHAIRMAN: Yes, I understand.
MR. O'BRIEN: I am going to be very emphatic. I think that the current situation of outstanding appeals in the Province of Nova Scotia is a disgrace. I will start with that. There is no justification, under any circumstance, to have what appears to be several thousand appeals, many of them going back now seven or eight years, still on the books. There is no way in the world that can be justified. One of things that we had hoped when we were encouraging government to introduce new legislation is that this would finally be resolved properly. It hasn't been. I am frustrated, as I sit before you, because I would love to have the Auditor General's Report, which I understand will be available later this year, and I am sure we would love the opportunity to meet with you at that time to really discuss and resolve once and for all this, it is almost criminal. I can get worked up about the figures on one side, but let me tell you, we get just as worked up about the fact that we have an appeal process that is so badly broken that I don't even know if it is worth fixing. We may have to rebuild something totally different. It is not fair to anybody.
MR. CHAIRMAN: Do committee members have questions for either of the presenters? Mr. Corbett.
MR. CORBETT: This can, I suspect, probably go to you, Ms. McCulloch, because this was in part of your presentation and in your previous presentation also. When you talk about the responsibility of occupational health and safety moving in to WCB, just for the sake of clarity, is your problem with it moving over there or is your problem more how the move is being funded?
MS. MCCULLOCH: Well, I guess it hasn't moved and I guess never any serious consideration has been given that I am aware of in terms of a public debate as to whether or not that issue should be addressed. Certainly a number of governments have found that combining health and safety commissions with Workers' Compensation Boards seems, to me, a logical thing to do. So that discussion hasn't taken place. I think that discussion needs to take place in Nova Scotia.
What our concern has been that slowly, over the last number of years, the funding for occupational health and safety has increased. In the current annual report of the board, $1.4 million was designated to fund the Occupational Safety and Health Division. In the estimates for this year, it shows that $5.2 million will be going to the Department of Labour to fund the Occupational Safety and Health Division. Two issues. One is that only half of the employers in Nova Scotia pay the bills at the compensation board. Those half are now having to pay 100 per cent of the budget at the Department of Labour. The Government of Nova Scotia's general revenues isn't paying anything any more. I don't think that that is appropriate.
The other issue is, where do we want to wind up with OSH? Should the compensation board, if they are paying the bills, be responsible? Do you put a labour/management board of directors responsible for the occupational health and safety system? I don't have the answer but I think it is the change and the shift in funding and the shift in accountability and the possible need to discuss the operational considerations and the pros and cons, because there certainly are pros and cons of making another change.
MR. O'BRIEN: Let me give you a different perspective on the same question. It is a very important question. In 1974-75, I was manager of a small soft drink bottling plant in Nova Scotia. I was visited by Jack Herbin who was in charge of occupational health and safety. He came from the Workers' Compensation Board, not from the Department of Labour. He came in and he said, Mr. O'Brien, do you realize that you have a very unsafe workplace? I said, no, I don't. I had just taken over the operation of the plant. He demonstrated to me what the problems were. He demonstrated to me what the costs were. I said, how did you find out? He said I just looked at your accident rate. I said, now what can we do? He said, we can turn this around very quickly. He came over and spent I think it was four or six Friday afternoons, one hour at the end of the shift for four to six months and at the end of that time, we went from having the worst accident record of a soft drink plant in Nova Scotia to the best.
The reason I raise this story is not because we did a great job but because he was able to focus immediately on an environment that wasn't a safe one and resolve the issue. I think that that is one of the considerations, if they don't come together. There has to be much improved communication than there is today. Crucial.
MR. CORBETT: That is great because that almost leads right into our next question I was going to ask you, Mr. O'Brien, is the fact that you talked before about, and I think the one thing everyone agrees to is getting the injured worker back to work. I think if there is something that both parties agree on, besides the employer and the employee or the injured worker, that they may not like WCB, one thing most people agree on is getting the worker back.
Now we have heard stories that probably border on the farcical about retraining and sending men, in particular, in their mid-50's to learn words and how to put the word too in a sentence and all this stuff. I put it out, I guess, to both of you because you seem to represent industries that by and large have a small employee base when you look at them singularly. I am wondering, how do you see you participating and retraining and I guess almost go back to your previous story, Mr. O'Brien, when you talked about probably being proactive. Could you expound on that a bit for me, please?
MR. O'BRIEN: Yes. We have a subcommittee on this employers ad hoc committee that I am not active in at the moment because I have so many other things on my mind, that has to do with actually helping get the employee back to work. It is an issue that employers are very concerned about because it is a very important issue. Employers want their employees to be working. They want them to be productive. They want them to earn a living. There is an awful lot that is invested, if you just want to look at it in a monetary sense, in training and having good employees. So when one is not there, it is a difficulty.
If there are cases, and I don't dispute for a minute that there may well be, where people are not trained appropriately, then that should be discussed, and we need the kind of communication. Carol, in her presentation, referred to the lack of communication that we have at the board. There isn't enough honest dialogue between all of the stakeholders so that we can look at these issues so that we can address these issues so that we can resolve them. I think that is one of the things that is very crucial as we go down the road. The employer community is more than willing to do that. We have had a committee that has been meeting with the board for a long time and it is primarily larger employers because it is easier to move people and train people in those environments, but we are hoping to learn out of that so we can do others but the communication has to improve. The dialogue has to improve.
MS. MCCULLOCH: We did some survey work with our own members on their interactions with the compensation board this summer and one of the concerns that came back was the perception that they don't understand, you know they pay this bill, statements, and this person, the claim cost x but in terms of actually understanding treatment, what is going on with an injured worker, the employer's involvement in that process, people thought that they just didn't know, they didn't know what was going on between the injured worker and the board or what kind of efforts are underway. So there was a sense of some frustration on behalf of people who are in that situation with employees, understanding what their role is.
I guess for our industry where we have very volatile employment, the last few years we lost 25 per cent of our labour force, there was no work for them. Our efforts have been on the other end of the equation, on a very serious and determined commitment in the non-residential sector to safety and prevention and to try to avoid having to deal with return to work situations because we have a really difficult, unstable labour market so it makes it very difficult for interventions and in some cases the physical demands of the work may also make it very difficult for people to have opportunities to come back to work. We have kind of put our eggs in another basket but certainly the role of the employer in terms of being able to deal with treatment and understanding, that from a small company is a very critical issue.
MR. CORBETT: Is it fair to say, in my wrapping up, that because of the size of your membership's, employee base, that it is easier for you to be proactive in accident prevention and being realistic, talking about job training - re-training, excuse me, is probably a better way of putting it - because, as you said, the volatility of your labour market, where it is two or three people, construction, pipe fitters, carpenters and so on, where you are not going to retrain a one-armed carpenter, if you will, to be a carpenter again, by and large. Do you think it is more important for WCB to spend more time in accident reduction than retraining?
MS. MCCULLOCH: Well, for our industry, and I guess we didn't wait for WCB to do it and we didn't wait for the Department of Labour, we set up the Construction Safety Association at the time when our compensation rates were going through the roof, we agreed to fund that operation ourselves. So in the last four years, we have actually taken money collected by the compensation board and put $3 million in direct funding into that association on top of other efforts. There has been almost 15,000 people a year go through safety training at the Construction Safety Association, at no expense to the government and with a great deal of support for the initiative from the Department of Labour and from the WCB. So I guess we weren't waiting for anybody to do it for us. We took a great deal of initiative and we want to see injuries down and we want to see our compensation rates down but we feel very strongly that preventing accidents is the way to solve the problem. The board has to be there, we have to have a fair system to deal with things when they go wrong but we would rather really work hard at not having them happen at all.
MR. O'BRIEN: We have a different problem than most small firms and as diverse as we are as an association because we represent everything except the chartered banks and that is for very obvious reasons, I guess. (Laughter) We have met with the Occupational Safety and Health Division extensively. We have asked them and are encouraged that they are now prepared to cooperate, to provide us with information that we can distribute to all our members and to make available to any other business in the province that wants it. This information will help them improve safety in the workplace and to really focus on occupational health and safety because it is major issue that every single employer and every single individual in this province needs to address on a continuing basis. We are more than willing to cooperate fully with the department, with the compensation board or with anyone else to ensure that that happens and we will pay the cost, by the way.
MR. CHAIRMAN: Mr. Erjavec.
MR. ERJAVEC: Peter, as we came into the Legislature today, the lobby was all abuzz about Volvo and Volvo pulling out of Halifax. I am just asking you to speculate. In your opinion, do you think workers' compensation could have had a role in that?
MR. O'BRIEN: I hope not. That is my first answer but let me be very factual because I anticipated someone might ask the question whether it was in here or whether it was the media. In Nova Scotia today, the average rate for auto assemblers, and there is only one, is $2.99 per $100 of assessment. Last year in Ontario it was $3.99. This year it is $3.76 and coming down. When I come back in half an hour, I am going to suggest to you that rates are going up substantially here in the next couple of years and the rate here in two years will be $3.52. I don't believe, based on what I have heard, that it has but I think it is the kind of issue that we need to address so that never does happen. We can't afford to lose firms like Volvo.
MR. CHAIRMAN: Mr. Parker.
MR. PARKER: Mr. Chairman, I will address two questions to either one of you. First of all, there are a lot of employers in Nova Scotia that are not included under WCB. In fact, I think it is only 45 per cent of employers who are presently paying into the system. Do you have any thoughts on that? Should everybody be included or are you happy with the present involvement?
MR. O'BRIEN: Let me answer by saying that that is not an issue that has been discussed by the ad hoc committee at length so I won't answer for the ad hoc committee and in the submission I am going to be making to you, I will be recommending much broader coverage. The actual, based on payroll tax deductions last year, was 47.3 per cent of employers. We think it has to be much beyond that. I think Carol already, in her submission, made the same recommendation. I think that you will find many employer organizations would support that.
MR. PARKER: Okay. The second thing, is your organization working with the board or lobbying the board to address the waste that is in the system? Right now there is a lot of money and we have heard from many injured workers on this that there is a tremendous effort on behalf of the board almost to deny them benefits. They are sent to medical specialists to no end, some in the United States and some certainly elsewhere in Canada. There are a lot of lawyers involved, there is a lot of administration and it gets very costly. It is the employers who are paying those premiums and it seems like the board is fighting or working hard, almost to deny benefits but it is very costly and it may be less expensive, almost, to provide benefits to the workers and not to fight them so hard.
MR. O'BRIEN: Carol and I have been meeting quarterly with the chairman of the board and the president of the board now for approximately two years and after every one of those meetings, I feel like putting my head through a wall because we never quite get the questions answered that we asked. Carol has already, in her presentation, talked about a need for better disclosure. In my presentation, I will be giving you a copy of the Alberta board's financial statements. We spent $0.5 million on travel in this province. We understand board members are going to Texas and other places. I don't know why. They may be legitimate but we need to know. We spend in excess of $1 million on consultants. I used to be a consultant and it would be a hell of great business to be back in but what for? What are they demonstrating success in? What is the purpose? We need to know those things. We don't have any of that and what we really need from this board is very full disclosure and we need the same from WCAT. Then we can start looking at these things and say, hey, justify this.
MS. MCCULLOCH: One of the things that we did early on, I guess, and really more in anticipation of the mandatory three year legislative review that is required next winter - well, we really didn't anticipate that you would be here or that we would be here before you - we began to suggest that the board consider updating the original Peat Marwick study that was done. It set out a number of performance indicators. It set out some targets in terms of what appropriate ratios would have been for staff to claims and we asked, I guess sometimes more aggressively than others, for the better part of a year for that report to be updated, for that to be released so that people could have an understanding of what that is. I guess we are still waiting . . .
MR. O'BRIEN: We were promised it last March.
MS. MCCULLOCH: . . . at some point for that to be provided. I think this is the problem. People have given the board the benefit of the doubt. There was no question that they had to spend more money, they had to improve the administration, they had to improve the information systems that they had, they had to develop policies, they had to put some kind of a consistent framework around what they were doing. The question is, should they have stopped a couple of years ago? Did we get far too big, too complicated?
MR. O'BRIEN: And can you justify a 66 per cent increase in staff, which the board has gone through according to the Auditor General up to 1996, and yet you have heard the dissatisfaction from the clients of the board every single time you have had hearings across this province.
MR. PARKER: So there is no question there are problems in the system. There appears to be waste. Who do you think, then, the board should be accountable to? Who is the ultimate bottom line, who do they have to report to?
MR. O'BRIEN: I think the board has to be accountable to the stakeholders. That is the employers and the employees of this province and they should do that through this Legislature. But it has to be done very openly and very clearly.
MS. MCCULLOCH: And I think that is the issue. I think accountability isn't really a problem, it is having the information to be able to hold them accountable that is the problem at the moment.
MR. PARKER: Okay, thank you.
MR. CHAIRMAN: Yes, Mr. Fage.
MR. ERNEST FAGE: Mr. O'Brien, in our hearings so far, there have been two major themes that I know very strongly and one is dealing with injured workers and the settlement and closure of cases and an actual decision occurring instead of you having the right to appeal forever in the endless loop. Those appear to be mostly centred around cases pre-1993, pre- 1990, would probably, in my estimation, anyway, be over 80 per cent, maybe even over 90 per cent of the people who have appeared before us as victims of the procedure.
The majority of those are dealing with WCAT or the appeal process rather than WCB. Are you, in your perception, satisfied with the independence or the inability of what appears to be, in the situation now, to get closure for these people? What is your recommendation to deal with those basically 2,400 cases, the majority of them being pre-Doward decision?
MR. O'BRIEN: I wish I could give you a very direct and honest answer. I can't because I don't know the actual situation. I would like to come back before you when the Auditor General has reported because I think that we have to resolve this. I mean this is the most despicable issue that I think faces workers' compensation in this province. There is nothing else that compares with it. I listened to a man who has been chasing the board since 1936. That is the year I was born. My God, what has it done to his life? Now I don't know whether he has a legitimate case or not. That is not the point. The point is, he has a right to be heard, he should be heard and the issue should be closed properly.
MR. FAGE: I hear you loud and clear. There has to be a decision made at some point so that there is closure and these people are able to move on with their lives.
MR. O'BRIEN: There is no question of that.
MR. FAGE: If compensation is owed, compensation needs to be addressed and there are avenues to address the amount and the form it would come in.
A second theme that has been emerging deals with the premium side that businesses are paying. It appears to be primarily smaller businesses that you would represent. I feel that the categories, a number of them are being lumped in for their deductions.
MR. O'BRIEN: Can I address that in my presentation, if you don't mind, because I have it there.
MR. FAGE: Okay, that would be great.
MR. O'BRIEN: It is not something that we have discussed at the ad hoc committee, in fairness.
MR. FAGE: That would be fine, thank you.
MR. CHAIRMAN: Are there any more members of the committee or the consultants with questions at this time? Mr. Neville.
MR. NEVILLE: Mr. O'Brien, I have two questions. Do you believe that the low rates that businesses paid in the 1980's is the major problem we have today with the unfunded liability? The second question, do you agree that the banks of Nova Scotia should be exempt from paying their fair share?
MR. O'BRIEN: I will answer the second question first. The answer is no. That was easy. The other one is not quite so simple because there were an awful lot of things. There were some firms that paid low rates, there were some firms that paid excessive rates but it is funny, and I am not going to get partisan in my comment here, but if you go back and look at some of the rates when certain governments were in power, you could see friends of certain governments who did fairly well in their sector, to be quite frank. I think that is wrong. I think that has been removed, thank God.
Part of the problem, as well, is that an awful lot of what happened in the old days, you had people like Hawker-Siddeley and Dosco and all those firms that just left and the rest of us are left bearing the brunt of that. An awful lot of firms that are paying for those accidents today didn't even exist at that time. I don't want to suggest for a second there was a really competent administration in those days or wasn't. There were years when there really wasn't proper representation from the stakeholders on either side, management or labour, serving on the board. I remember going in and being shown underlined, selected sentences from consultant reports rather than shown the report. I don't know how naive they thought I was but quite frankly, there was an awful lot of misuse, abuse, et cetera. There was political interference all over the place.
You have heard yourself, people have come before you and said, well, I talked to the minister and he resolved my case. The minister is not allowed to do that, unfortunately because sometimes I think there is perhaps a need for it, but the system should resolve the problem. I think the sooner we make the thing function properly in a completely apolitical environment and based on sound actuarial analysis with fair premiums - and I will discuss that in my own presentation in a different way - the sooner we will have a system that works. New Brunswick, in 1986-87 was in the same position as Nova Scotia. Today, their books are balanced, they have one of the lowest premium rates in the country. They are now looking at improving different kinds of benefits. They are doing different kinds of rehabilitation, things that this province could not afford to do. That is scary because that is not fair to anybody.
MR. NEVILLE: Thank you, Mr. O'Brien.
MS. MCCULLOCH: One of the things that I remember doing, it must be almost 10 years ago, was working to argue that our assessment rates didn't reflect what the costs of the system were. The board has an ongoing lawsuit with one of the actuaries who underestimated what the liabilities of the board were by $75 million or something, which was a lot at the time. We had some pretty fundamental problems in our own ability to make decisions and know where we were. You can see that because Peat Marwick made a killing going across the country advising compensation boards about what their problems were in the late 1980's and early 1990's. It was happening across the country. We just got way more out of control than a lot of other compensation systems did so it was the environment we were in and our ability to address it quickly that allowed a lot of things to get way out of control.
MR. CHAIRMAN: Well, thank you very much. I believe those are all the questions for the moment and we will see you later, Mr. O'Brien.
Our next presenter is going to be the Injured Employees' Self Help Group of Nova Scotia and Mr. Gerard Tremere. Good day, Mr. Tremere.
MR. GERARD TREMERE: Good day. My name is Gerard Tremere. I am the Information Officer for the Annapolis Valley chapter of the Injured Employees' Self Help Group. I would like to express my appreciation for the opportunity to present our views before this committee. Some of my associates were before you during the Wolfville hearings, and they expressed their views of what it is like to be an injured worker and so forth. What I have done is carried out a little survey, and have come up with six topics within the mandate, I believe, of this committee, that could possibly improve the performance of the workers' compensation system.
I will list the topics, and then I will elaborate on them. Topic number one, there could be improvements in the information awareness for the injured worker, to be aware of what is happening in the system. Topic number two is the length of time to appeal. Topic number three is, we would like to keep a legal presence in the rural areas, which is a degradation of
what we had previously. Topic number four is an elected board of directors. Topic number five is, the system has become adversary and complex, it is actually, virtually de facto, a legal system, rather than an administrative law system with the increasing complexity of the system.
Topic number six is, we would like to see the select committee be made a standing committee until there are performance improvements in the workers' compensation. The problem with the compensation system is so serious, and with this political environment, to make it a standing committee, I think, merits consideration. I will discuss those topics and give some recommendations.
In reference to the information, at the start of this decade, it was virtually impossible to get information from the Workers' Compensation Board. Your counsellors didn't volunteer anything, but the Workers' Compensation Board has put a lot of money in the mid-1990's to improve it, and actually they are as good as possible now. There is plain language information written on almost every topic. However, you do hear a lot of complaints from injured workers in our area about not being aware of Canada Pension disability. They can't get any information on it, any status, who qualifies, so forth. That is not an issue for you people, but that is the biggest complaint we have.
Most problems can be solved, the highest payoff on our problem is putting resources into the front end. What we would like to see too is to have, say, the government produce a handbook explaining the compensation system, explaining other income support systems, to people who have never been hurt. At the very front end, and possibly the limitations of the workers' compensation system, so individuals could buy supplementary insurance and so forth. People generally don't know anything, unless they have been involved. That could possibly be a recommendation.
The second topic is the delay in getting to the appeal board. Continually, over the last five or six years, with injured workers, I have always heard that what they would like to see is if an adjudicator or, and under the new system, a hearing officer is passing bad decisions down the line, for them to be censured, a recommendation that the appeal board will not accept this and this individual will have to correct it.
Now another thing that may speed on appeals, if we were able to have interest paid on awards, much like the legal system. Then there would be no motive for foot-dragging. Ontario has that, and most legal things have, say from the date of appeal or so, have an interest. So if you had a six year award that ended up being $30,000 and there was $9,000 interest on it, somebody would ask questions about how this file was administered.
The third topic is, everybody in our area, in the Annapolis Valley, we have a service where we had a lawyer available that you could see, and you could go to, and stuff, and to have the situation where they are all in Halifax, at least on the mainland, and they would prefer to have either some of those people come down, based there, or for the rural people
to return the workers' counsellor system. I don't see where the workers' counsellor system was a costly system, because so much of the overhead of the lawyer was based on the other part of the practice.
Topic four, elected board of directors. Well, that, you would have to have an injured workers' organization, but one aspect, our board of directors present represent various aspects of the community. What we would like you to consider is possibly having a board of directors elected from the pensioners, with some overseeing power on the pension. Currently, that is becoming quite a topic. People are scared of how their pension funds are invested.
With the wage loss system, on topic five, we are ending up with - the original Workers' Compensation Board was keep it simple. Do away with fault. What happened, originally when it came into being was to make a judgement or trade-off for the fault, the worker got 50 per cent. It was very simple. We have ended up with a situation, I am not a lawyer, but investigating all the other Acts and so forth, we have the most complex Act. It is no longer an administrative function, at least for cases that are anywhere near complicated, it is very legalistic. A huge number of cases ended up legalistic. If it does, possibly the appeal board should be under the Attorney General's Department.
The sixth recommendation is just to make this select committee into a standing committee until performance parameters are met.
MR. CHAIRMAN: Thank you very much for your presentation. One question I had was about the issue of legal representation. I represent a rural area, so I am particularly interested in this. Do you know if the members of your group have been offered, by the Workers' Advisers Program in Halifax, to come out to their area to see them, their clients, or have they always been required to go, as far as you know, to Halifax?
MR. TREMERE: I have never heard of anybody coming out. That is not to say there isn't, but I have never heard of it. There are complaints of the time spent under the new system. There is not the time spent. You meet the person on some sort of appeal or resolvement procedure.
MR. CHAIRMAN: I take it that you are also advocating that there should be somebody on the board of directors at the Workers' Compensation Board who in some way represents the people who are receiving pensions from the board now?
MR. TREMERE: To have an elected board, the obvious thing for the employers' side would be to have everybody who is covered, which is the problem under the present system. I am saying that would address this, and I was just thinking that the individual could have some side duties to possibly produce a report, readable to the individuals as to how the pension fund is doing. That is giving a workers' representation into the pension fund, which
in the current conditions is, I think, all around society, that is going to be a point of bargaining from now on, because of the volatility of pension funds, the volatility of monetary issues.
MR. CHAIRMAN: Thank you. Mr. Corbett.
MR. CORBETT: Good to see you, Mr. Tremere. Just one quick question, you talked about the movement of the WCAT possibly from its perceived or so-called independence into maybe the Department of Justice. Through the course of our hearings, we have heard a few times, about the possibility of maybe moving the Workers' Advisers Program into the Department of Justice. Do you find that these groups suffer from a perception of their independence, and that is why you would like one or the other moved?
MR. TREMERE: Yes. There is always that. Well, the moving, I should have elaborated on that too. There is a possibility that if you did move it, you could take in some other similar cases, like car accidents. Have an injury compensation board that would handle workers' compensation car accidents, similar to the Family Court, take something out. The point is, this is no longer a, sort of administrative law thing. This morning, I read the latest judgements from the Supreme Court, and we are getting into very complicated matters, which I see just going back and forth between the Supreme Court and the board. They should be in the legal matter in the first place, in that avenue, or something, I don't know.
Those matters should be shot off, they are going through something, they are going through the Department of Labour board, before they are going to the legal system, but it seems that the legal system is virtually making the decisions, the Supreme Court. It should be made on a lower level. I was thinking too, about the idea, if you had an injury compensation board, that resources could be shared if it was handling other matters besides workers' compensation, handling issues of medical, occupational type thing, like the car accident business, or some of it.
MR. CHAIRMAN: Do any other members have any questions? Mr. Power.
MR. MICHAEL POWER: I am acting as a legal consultant to the committee. With regard to legal representation, do you think that legal representation of the kind, when needed, could be achieved through maybe Nova Scotia Legal Aid, representing injured workers?
MR. TREMERE: I don't know who would pay for it. There have been difficulties in Ontario with so many immigration cases going before the Legal Aid that other people, and the women's groups want a priority. I don't know. It is hard to tell. Legal Aid would solve the problem of having representatives, that would actually be better than the old system as far as having representation in a particular area. Even in the old system, some people were 100 miles from a lawyer, in our part of the province, more southwestern, not so much the Valley.
I don't know. The workers' advisers, I am not sure how they are paid. Are they paid out of, partially government and partially, similar to the old workers' counsellor system?
MR. CHAIRMAN: Mr. Fage.
MR. FAGE: Gerald, just a comment. I think it is very important, the role you fulfil in your group, because advocacy and the presentation of knowledge in your suggestion of a pamphlet or booklet for when somebody becomes injured, that information is invaluable.
MR. TREMERE: Or even before.
MR. FAGE: That advocacy role is extremely important for making sure the resolution happens quickly, and in those cases, everybody is much more satisfied. The question I did have for you though is, you have commented on a number of useful suggestions in various areas, the alternative dispute resolution, which is a negotiated process on a settlement that is currently happening in some cases. Any comments on that particular ADR process?
MR. TREMERE: I have never actually met anybody that has ever accepted it, they just feel that it is lower than what their possible award would be, and confusion about the negotiation part of it, too.
MR. CHAIRMAN: Ms. Godin.
MS. GODIN: Hello. Glad you are here today. You represent the Injured Employees' Self Help Group of Nova Scotia, and I am interested, you spoke about the high level of frustration with the CPP, I believe, when you started . . .
MR. TREMERE: That is recent, very recent.
MS. GODIN: But I am wondering, are you also finding the same sort of high level of frustration from members of your association in trying to get through the workers' compensation system?
MR. TREMERE: No, I was talking about for information solely. Like workers' compensation, they have information on the Internet, even in the rural areas the policy manual is now in libraries.
MS. GODIN: So you are finding that the communication with the Workers' Compensation Board . . .
MR. TREMERE: With CPP, people have been cut off and it is very difficult to know who is eligible for it now. I believe thresholds have been changed.
MS. GODIN: Right, but in terms of workers' compensation, since you do advocacy work for injured employees, do people come to you when they are having problems with the Workers' Compensation Board?
MR. TREMERE: Yes, but not as much as they used to. They are going to the lawyer right off the bat. At one time there was an extreme problem, up until probably four or five years ago, that people weren't aware of the lawyers but the board started sending, I believe put a note on their form letters that you were allowed lawyers.
MS. GODIN: Are you getting any indication that there are injured employees or workers out there who have just given up on the system and just . . .
MR. TREMERE: Yes, and there is a lot of confusion because actually all these dates, these various classes of injured workers, that is still not settled. I think there are still legal matters on that. So, it is difficult. There was some indication last year that it was settled and then some other decisions are made. Like the decision I read today further affected that. So people are confused, especially in those time date things.
MS. GODIN: Right, but are they confused to the point where they just say forget this and go on with their lives?
MR. TREMERE: Yes, I think you will always have that. What happens with that I find a lot too is people do that and then something else happens down the road and then they start on workers' compensation again, particularly people who are doing physical jobs because multiple injuries are a problem. If you have a small bad leg, and something goes wrong with the other leg, you have got a major problem. As people got older they gave up on workers' compensation and come back to try it out.
MS. GODIN: Went back to work you mean?
MR. TREMERE: No. These are people that have had injuries, gone back to work, gave up, or something, and then they get hurt again or are older, whatever.
MS. GODIN: Thank you, Mr. Tremere.
MR. CHAIRMAN: Mr. Parker.
MR. PARKER: Mr. Tremere, I noticed on the sheet we were given here that you are the information officer with your self-help group?
MR. TREMERE: Yes.
MR. PARKER: Are you a volunteer?
MR. TREMERE: Yes.
MR. PARKER: I wonder if you could tell us a little bit about your group. Is it province-wide or are you just in the Annapolis Valley or what?
MR. TREMERE: No, it is just in the Annapolis Valley and in the Annapolis Valley mostly we are concerned with information.
MR. PARKER: I am from Pictou County and we have the Pictou County Injured Workers' Group so you are similar to them?
MR. TREMERE: Yes.
MR. PARKER: And then there is another group in Cape Breton and so on and so you are a local regionalized group that has banded together to try to help each other?
MR. TREMERE: Yes.
MR. PARKER: Are you an injured worker yourself?
MR. TREMERE: Yes. I went through appeal twice. In the Valley at least, I don't know about other rural areas, the appeal board would come down every three months and settle all the cases under the old system and there wasn't really a backlog.
MR. PARKER: How big is your Valley group and how long have you been organized?
MR. TREMERE: We have been organized since 1989 and we have helped about 125 people. A lot of people you don't hear of after you help them. A lot of people get back to work. There are a lot of small businesses in the Valley that it is easier to get an injured worker back to work into a small company. Large companies do not hire injured people.
MR. PARKER: Are you funded in any way?
MR. TREMERE: No.
MR. PARKER: Do you feel it would be useful if an organized injured workers' group would be funded, perhaps some dollars available from the WCB, to maintain your association?
MR. TREMERE: In funding you can run into problems too, but I see a need for it in Halifax that could also serve the other areas.
MR. PARKER: Could you do more if you had some money I guess is the question?
MR. TREMERE: Yes, we could do more but funding has problems. Volunteers and if anybody is paid, that is oil and water. There can be problems there, especially injured workers because everybody is looking for a job. There is a need in Halifax I think for some office and the point is with this wage loss system too, is getting other sources of income. So many people don't realize, or didn't anyway - things are getting better - that there are tax deductions for disabled, stuff like that. That was a real problem. I have helped somebody who had nine kids and didn't realize there were supplementary WCB benefits. They used to have a supplementary, $250. He was on WCB for eight or nine years and didn't realize that.
MR. CHAIRMAN: Mr. DeWolfe.
MR. JAMES DEWOLFE: Hello, Gerard. I would be interested to hear how you would feel about the concept of having a workers' compensation ombudsman as an avenue of last resort and this person not being accountable in any way to the board itself?
MR. TREMERE: Quite a few people used to use the Ombudsman. I think at one time even one-third of their complaints were workers' compensation related. So there are obviously people doing that function in the . . .
MR. DEWOLFE: This would be a special ombudsman perhaps coming under . . .
MR. TREMERE: There are a number of provinces I believe that do have it. I am not sure. That's fairly recent, in the last two or three years, I believe, that they have introduced them.
MR. DEWOLFE: So your organization hasn't given any consideration to that concept?
MR. TREMERE: No. The big problem lately is trying to figure out where you fit because of these court decisions and, you know, people are told one thing on a temporary thing and that changes.
MR. DEWOLFE: The complexity of . . .
MR. TREMERE: Yes, the complexity of it, and particularly people that were hurt in the 1990's.
MR. DEWOLFE: Indeed.
MR. TREMERE: Yes, were hurt around the time of Hayden; some people were hurt in Hayden and never got to WCB until after.
MR. DEWOLFE: Yes. Thank you very much.
MR. CHAIRMAN: Thank you very much. I don't believe there are any further questions from any of the members. I appreciate you taking the time to be with us here today and particularly your group for sending you. Thank you. Our next presenter is Mr. Peter O'Brien of the Canadian Federation of Independent Business.
MR. PETER O'BRIEN: Thank you, Mr. Chairman, and thank you for the opportunity of appearing before you on behalf of the more than 4,000, in fact nearly 4,500, local firms that make up the CFIB in Nova Scotia.
In your press release announcing the public hearings you indicated you wanted to emphasize discussions on WCAT. Unfortunately, we find ourselves in the position where we cannot enter into an informed discussion on the issue because we don't have the facts. This is disturbing to our members as the employer community pays the total cost of WCAT. In 1997 it was almost $800,000. Certainly this year it will be well in excess of $1 million and I hear stories now that they're asking for an additional $1 million for 1999 and God knows where it is going.
The only factual information we have appears in the Annual Report of the Workers' Compensation Board which operates at arm's length from WCAT. The information in the annual report indicates an increase in operating cost for compensation appeals of 16.9 per cent in 1997 and you know as well as I do that that system isn't working because you've been hearing from injured workers all across this province who have appealed and who have not had responses to those appeals.
The Auditor General is currently reviewing the operations of the WCAT and we believe that discussion should wait until that report is made public. It is our understanding that the Auditor General will finish that review this fall. We would appreciate the opportunity to discuss this issue specifically with you in more detail once we have had an opportunity to study that finding. In the interim, let me state emphatically that we are not satisfied that appeals are being heard in a timely manner and that this has caused a great deal of unfounded criticism of the Workers' Compensation Board. Almost all of the criticism you've heard, I am sure you would agree, comes from cases that are prior to the new legislation going into effect in 1996.
Further we believe that the appeals from the current legislation should be streamed differently and not stacked up behind the outstanding appeals from 1995 and earlier. The number of appeals under the current legislation to the end of 1997 totalled 300, or approximately 0.5 per cent of the number of claims. In other words, the new legislation
appears to be working. Obviously, there is an apparent level of satisfaction with the current system.
The Canadian Federation of Independent Business requests the opportunity to discuss the operation of the Workers' Compensation Appeal Tribunal with the select committee once the Auditor General's report is made public. We also believe the Workers' Compensation Appeal Tribunal should publish an annual report in a format that follows the same standard of disclosure as required for the Nova Scotia Public Accounts. In two years we have only seen one report and, quite frankly, I don't know what it said and I'm not sure anyone else does.
The Canadian Federation of Independent Business believes that appeals from the current legislation should be streamed in a different manner and heard within one month from the date the appeal is initiated. I would add to that, and I apologize for not having done it earlier, that the decision, once it's made on that appeal, once the hearing is over, should be provided to the injured worker within a maximum of one week. If there is a reason why they can't do it in one week, they should be told in writing why that is and when the decision will be made public.
We believe the current legislation has resolved the issues which created most of the problems which caused appeals in the past and if allowed to continue with minor changes, will eventually, over 40 years, if you listen to the board administration, see premiums in this province become competitive with other jurisdictions.
For too long the Workers' Compensation Board has been seen as an extension of the provincial social safety net. Even though that is implied in the opening pages of this years' annual report, it isn't. It is an insurance program and I think we should not lose sight of that. Workers' compensation began in this province in 1917 when employers agreed to fund an insurance program that would provide financial and medical assistance to injured workers. In return workers agreed not to sue for workplace accidents. We spend more time in the courts today I think than we do anywhere else on this issue and that's unfortunate. We need to get to a point where we can get beyond that and still provide appropriate justice for injured workers.
After being one of the leaders in developing modern compensation, Nova Scotia now finds itself with a system that is seriously underfunded and which is threatening to make Nova Scotia firms uncompetitive. Employers were concerned for many years that the system was not operating properly. Since the late 1970's employer associations, and I might also add labour, have urged government to improve legislation to ensure that the Workers' Compensation Board would function in a fiscally prudent manner while continuing to provide appropriate services to injured workers. I might tell you that at one stage during that process the president of the Federation of Labour and I jointly appeared before the Public Accounts Committee to oppose a piece of legislation and effectively had a workers' compensation, a
brand new piece of legislation killed because it was totally inappropriate. Even though we sometimes disagree, we certainly have been able to work together because I think all of us want to see a system that works well.
At the same time there have been a number of changes since the inception of the new legislation which are inappropriate which will continue to make Nova Scotia uncompetitive. Currently compensation rates in this province are among the highest in Canada and the cost of compensation is listed as the most harmful to the operation of business by almost 60 per cent of the 447 respondents to our most recent provincial survey, "Setting Nova Scotia Priorities". That is higher than concern about any other business tax or charge. There is some other data there that shows you our members' views of the compensation system and the problems.
When the average compensation rate is $2.54 against $1.59 in New Brunswick, it becomes easy to understand the concern of Nova Scotia employers. Only Newfoundland and Ontario have higher rates than Nova Scotia - Newfoundland is at $2.96 and Ontario, $2.59. Ontario has seen a 41 cent decrease in premiums in the past two years and is projected to be lower than Nova Scotia next year. Newfoundland has also seen a steady decrease in their average premiums and their premiums went up as a result of the Ocean Ranger disaster where so many people lost their lives and because of the high rates of income those people have, the rates for compensation coverage were covered quickly and that created the fiscal problem that Newfoundland has but it is becoming resolved.
Nova Scotia rates are now projected to increase by 28 cents in the next two years when the freeze comes off. This is part of the long-term funding strategy and is scheduled to remain for more than 40 years. We have been told that by the chairman and prior chairman of the board. We have not seen the funding strategy to date.
It is our understanding that the impact of the Doward decision, if not dealt with, will cost an additional $130 million. This is the current estimate for those claims entered or appealed between 1992 and the date of the Doward decision. That translates into an additional 16 cents on the average rate. This will also remain for the balance of the long-term funding schedule of 40-plus years. Together the two changes add 44 cents to the rate or, in other words, a 17.3 per cent increase for every employer in this province for more than 40 years in the future.
It should be understood that the $130 million estimate is for cases during the period 1992 to 1997 only and any expansion will totally undermine the fiscal future of the compensation fund. When you compare the current average rate in Nova Scotia with New Brunswick, it is 60 per cent more costly to insure workers here. Even when you deduct the portion of the Nova Scotia rate used to pay the unfunded liability, the current rate in Nova Scotia is $2.07. Once the projected increases come into effect, the average rate in Nova
Scotia will be 87 per cent higher than New Brunswick. The difference is more than sufficient to make Nova Scotia unattractive to business.
I should give you an example of what happens over the 40 year life for a firm with a compensable payroll of $250,000, more than sufficient bottom line to move. When we take into account the fact that accidents have been reduced in recent years while revenues have continued to grow, it is obvious that there are serious administrative problems in this province. For this reason it is important that full disclosure of the annual operation of the Workers' Compensation Board be made available to all stakeholders. As well, any additional costs will only make the comparisons more onerous.
The Canadian Federation of Independent Business recommends that the Workers' Compensation Board publish a more detailed annual financial statement that complies with the required standard of disclosure for the Nova Scotia Public Accounts. To demonstrate what we mean by full disclosure we have appended the latest financial statement from the Alberta Workers' Compensation Board. We could have appended Manitoba's, or a number of others, but they lay out exactly where the expenditures are and we need that because that is the only way we can really demand confidence and credibility from the Workers' Compensation Board and be able to justify our demands.
The Workers' Compensation Board faces a number of issues which create uncertainty in the business community about its future financial viability. One has been the constant intrusion into the process by a judiciary which has obviously limited appreciation of the principles of compensation. When the board is instructed by the courts to implement old regulations under the provisions of the new law, one has reason to question the courts. I say that with some concern because, quite frankly, it is not something one should do easily or lightly but there is no question in our view that part of what you have been hearing is the confusion that the appeal process has had to face based on court decisions and based on how they are interpreted and how they need to be interpreted. The potential financial impact of the current problems facing the Workers' Compensation Board as a result of this and other recent court and Appeal Tribunal decisions are alarming.
We are aware that the Doward decision could have been resolved, quite frankly, when the Legislature was in session last spring. In fact, we met with representatives of all three political Parties to discuss the issue and were impressed with the understanding that all three had of the problem and their willingness to try to resolve it.
We are still at a loss to understand why the government decided to withdraw the proposed bill at the last moment. Failure to implement the change undermines the capacity of the board to become viable over the longer term. The current delay may well cost employers millions more. Even the board actuaries are not prepared to estimate the potential cost of unfettered claims for chronic pain. They state that right in the annual report.
When we first discussed Doward with board officials, we were advised that the decision might cost in the vicinity of $16 million. The estimate has grown eightfold. It is $130 million now, and in six months, if it is expanded to full coverage, who knows where the cost will lead.
The Canadian Federation of Independent Business recommends that no increases in benefits be permitted until the impact of recent court decisions on chronic pain and survivors' benefits have been determined and resolved through the legislative process. We also recommend that the select committee urge the government to introduce the legislation currently in draft form as soon as the Legislature opens.
This leads to a second management concern which is the apparent political interference the board now appears to be facing. Once management and labour had accepted the new legislation, there had been expectations that the political interference of the past would cease. There is no question that political rhetoric does little to resolve the current appeal or fiscal problems which face us.
It is important in our view that the decisions of this select committee demonstrate an understanding of the real role of the board, of the Appeal Tribunal and their relationship to employers and workers. I stress both stakeholders, not just the employer community. It has to be both and it has to be fair. If this does not happen, Nova Scotia's small and medium businesses face an uncertain future and are concerned about our province's ability to attract new business or retain firms now becoming uncompetitive because of the unreasonable cost of specific premiums.
Let's talk about occupational health and safety because this has become a major concern for our members because of the unfairness of the current government strategy of funding occupational health and safety totally from compensation premiums.
Until 1998, the Workers' Compensation Board contributed $1.4 million to the operating cost. Now the board has been instructed to contribute an additional $5 million this year for the maintenance of the division. We understand the department anticipates an additional $6 million in 1999 and who knows how much thereafter. This is not reasonable as it penalizes the employers who contribute to compensation while ignoring those who do not. It also underlines the weak commitment government has to occupational health and safety. The total cost to the division is now the burden of the Workers' Compensation Board and the firms who fund it.
Currently, according to the board's statistics, 270,000 workers in Nova Scotia are covered by workers' compensation and they work in approximately 14,000 firms. Total employment at the year end was 440,000 in Nova Scotia. The number of employers contributing payroll deductions at the end of 1997 was 29,278. There are actually more firms here but those are the ones that paid payroll deductions. In other words, only 61.4 per cent
of the workforce is covered by compensation and premiums are paid by 47.8 per cent of established businesses. These businesses now contribute the total operating cost of Occupational Safety and Health Division of the Nova Scotia Department of Labour.
There are a number of self-insurers in the Province of Nova Scotia - one is Devco and others - who pay an annual administration fee of 15 per cent for board services. They might argue that that 15 per cent is their contribution to occupational health and safety. Let me tell you that we now estimate that the administrative costs to the board are in the vicinity of 23 per cent, so therefore, they don't pay the back cost.
The Canadian Federation of Independent Business recommends that compensation coverage be expanded to firms like the chartered banks and others who are covered in other provinces but are not included in compulsory coverage in Nova Scotia.
I might add very quickly that firms that employ less than three people in the agricultural sector are historically not covered anywhere in the country, even though they have an option of being covered if they choose to. I think that is the approach that should be taken here.
If the select committee or the Legislature is not prepared to broaden coverage, then the occupational health and safety budget of the Department of Labour should be fully funded out of general revenues.
We have a number of smaller, specific issues that deal with member issues. It is funny how many of them almost parallel some of the things you may have heard from injured workers.
In 1997, there was a three month amnesty period where firms that were not covered by workers' compensation had an opportunity to become covered without penalty. That period was granted at the request of the CFIB because we believed that it was important that all firms have adequate compensation coverage. We had heard of many instances where, in the past, compensation staff had advised specific firms that they did not need coverage. This was particularly true in some areas of the Annapolis Valley, where a number of small contractors had been advised that they didn't need workers' compensation.
The discussion regarding the proposed amnesty went on for some time before it was agreed and announced publicly. During this period, a number of these small firms in the Annapolis Valley were contacted by the compensation board and penalized for not having coverage. Some of these firms had been among the group that had approached the CFIB to initiate the discussions and while the board was within its legal right to penalize the firms, I believe there were extenuating circumstances. The extenuating circumstances were such that penalties for these firms should be waived. The compensation board knows who the firms involved are, and I don't want to mention them by name, because I think it might cause some
of them inappropriate embarrassment. We do recommend that penalties applied to a number of firms in the four months prior to the amnesty period be dropped, because of possible extenuating circumstances.
Another issue which has been brought to our attention is the penalizing of small seasonal businesses, because they don't advise the compensation board of their projected annual salaries at the beginning of the year. These are firms that do not operate year-round, and do not maintain offices in the wintertime, and are not open, in other words, when the compensation board wants the payroll data. While this will probably be dealt with when we get to monthly premiums, which have been promised for the year 2000, there is no reason why the compensation board can't show some consideration to these firms now. We recommend that the board change its reporting policy to ensure that seasonable firms are able to file salary projections without penalty at more appropriate times.
The next one is the Standard Industrial Classification rating system. A growing concern is the manner in which the compensation board uses the standard industrial classification (SIC) codes to classify groups for workers' compensation. The codes were not designed for this purpose, but have been utilized by compensation boards as a convenient method of lumping companies who operate within broad industrial classifications. We appreciate the convenience of using the codes and do not want to suggest that the usage be discontinued, however, we believe that the compensation board needs to demonstrate greater flexibility and understanding when looking at the actual work function of specific firms. Failure to use common sense has led to instances where the groupings have been inappropriate.
In some cases, the compensation board has acted to rectify the problem and businesses have been more appropriately grouped, and one of those was people in the aquaculture industry, who were classified originally with deep-sea fishermen. When we made application to the board and met with them and lobbied them for a while, they finally agreed and they now have a separate and more appropriate classification.
In spite of continued representation, the Workers' Compensation Board now classifies a number of firms, who you have heard from, some of them, who provide consulting services to woodlot owners. They classify them as if they were in the business of working in the forests, of cutting down trees themselves, they don't, and you have been told that by these firms. In this province, the average rate for this group is $10.71; in New Brunswick, the rate is $0.15; and in Prince Edward Island, the rate is $0.25. In other words, one of these firms in Nova Scotia with an annual payroll of $100,000 pays compensation premiums of $10,710; in New Brunswick, it is $150; and in Prince Edward Island, it is $250. I talked with one gentleman in Amherst, who did a little analysis and said, I can move my whole operation to Borden, Prince Edward Island, pay my staff to come back and forth every day from Amherst and still be ahead. That doesn't make sense.
Obviously New Brunswick and Prince Edward Island have recognized the inequity and have modified their classifications to more appropriately reflect the reality of the workplace. I wonder sometimes if this isn't a strategy of the board administration to unnecessarily maintain high premiums to obtain the funds necessary for continuing administrative expansion while maintaining the legislative freeze on average rates.
We recommend that the Workers' Compensation Board establish an arm's length committee to review classifications, when requested, to ensure that firms are classified by activity rather than nomenclature. And let me tell you that there are a number of firms in this province who might be, say Peter O'Brien and Associates consultants who are doing the exactly the same work as the firms that appeared before you who have the mention of forest in their name. The ones that have forest mentioned in their name are charged an average of $10.41, the others are at $0.49. This goes on, not just with this group, this is a group that I happened to meet with, and I asked them to come before you, quite frankly, so that you would understand their problem. This goes on in other areas as well, there is a need to really look at the work activity rather than the name or the broad sectoral grouping. That is what other jurisdictions do.
Another issue that has become more prevalent is the board's practice of penalizing firms who underestimate their annual payroll. We acknowledge that there is the potential for abuse on this issue, but rigorous enforcement of penalties discourages firms when they have unforecasted opportunities to accept contracts. We are aware of a growing number of firms in the construction and services sector who have the opportunity to accept contracts during the year, which were not obvious when the annual salary projections were forwarded to the Workers' Compensation Board. Quite frankly, some of these firms are now turning down work when it gets towards the end of the year, because of the financial impact on their bottom line. We recommend that the Workers' Compensation Board be asked to modify its policies to allow discretion when dealing with unanticipated employment build-ups, and refrain from penalizing firms that can demonstrate that they were not aware of potential opportunities when their annual salary projections were forwarded to the board. Surely, that is just common sense.
Lack of board responsiveness. I think someone asked earlier if they had ever heard from someone who had a successful appeal. Well, we have one, 18 months ago they appealed their assessment and won. They are still waiting, in spite of numerous contacts with the board, for their refund, or even for any acknowledgement from the board that the refund is going to be coming. That kind of thing does nothing to create a sense of confidence, whether it is with an employer or with an employee. It is disgraceful.
The construction industry safety level. We are pleased that the construction sector has agreed to a levy, that is then utilized to provide occupational health and safety training for firms that reduce prices. We understand that the forest industry is also now starting to do the same thing. We are concerned, however, that the levy is forwarded to the one training facility
only, and has the potential of undermining the success of other equally qualified safety operators in the province. We think that we need more rather than less people promoting safety.
We recommend that the individual construction firm be allowed to direct their portion of the levy to the safety training facility of their choice, as long as they demonstrate that they plan to utilize that facility for training. This would also resolve difficulties some firms indicate they currently have in receiving adequate training and, in the long term, continued competitiveness will ensure that all trainers maintain a higher standard of operations. It will also encourage the expansion of well-qualified training facilities across the province. Quite frankly, we need all the support we can get, and all the help we can get, to ensure that every single workplace in Nova Scotia is safe.
In conclusion, Mr. Chairman and committee members, you have heard a great deal of concern and frustration expressed by workers during your hearings. I want to assure you that the small and medium employer community is prepared to support workers' compensation in Nova Scotia, but we too have a lot of concern and frustration with the system as it currently operates. Nova Scotia employers or workers are in a position where they can no longer wait to tackle the problems which you have heard here and throughout your meetings across the province. You only have to look at the impact of court decisions between 1992 and 1997 to understand the concern that we bring to you.
There is clearly a need for a much more open and factual dialogue between the Workers' Compensation Board, WCAT, and all the stakeholders. But before that dialogue can bear fruit, there is a need for full disclosure by both the Workers' Compensation Board and WCAT. The current cost for the employer community is in excess of $158 million annually, and that figure is growing at an alarming rate. Both the Workers' Compensation Board and WCAT management must be challenged to resolve the concerns which have been expressed here and elsewhere across Nova Scotia in front of you. We expect better. You have the opportunity to recommend needed changes to ensure that the compensation system in this province is effective, affordable, open to scrutiny and well-managed. Thank you.
MR. CHAIRMAN: Thank you very much, Mr. O'Brien. I have a question. Your presentation details a number of situations where there seems to be a corporate mentality of unresponsiveness, a good way of putting it, I am being gentle here . . .
MR. O'BRIEN: I wish you wouldn't use the word corporate. But, yes.
MR. CHAIRMAN: Corporate, I mean in the sense of the board.
MR. O'BRIEN: Yes. I know. I agree. Let me say that I think in spite of repeated meetings on a regular basis with the board in spite of repeated requests. We have not been satisfied with the information that we have received and we represent, not just myself but
through the ad hoc committee and others, a significant part of the group that pays the total cost of workers' compensation. We think we have a right to that information. We think also that workers have a right to that information as well so that we can all understand exactly where we are.
We believe that it is critical that the board report in a very factual and detailed manner on an annual basis and that they have five year projections which are targets that you can look at and that you can say, yes, they are achieving them or, no, they are not, then you can question why not, that they show us the 45 year plan which they have been talking about, which they have promised us, which we have not received, and that they have an ongoing honest dialogue with all of the stakeholders in this province.
MR. CHAIRMAN: This is an observation following with my question, but a lot of injured workers have observed that they felt that there was a lack of communication from the Workers' Compensation Board. Then you have the situation of the employer who is successful on an appeal and he seems to be, or that company seems to be treated with the same lack of communication.
MR. O'BRIEN: I cannot argue for one second with the criticism by injured workers about a lack of communication. I support their view. I think that's legitimate and I think that something has to be done about it.
MR. CHAIRMAN: I guess the other, obviously, rates are a big concern for your organization as they affect the viability of business in Nova Scotia. I take it also that the classification system has a certain potential as well for being a very serious problem. Even if rates were low, an arbitrary classification system has other problems built into it.
MR. O'BRIEN: I know of at least four employers who have already appeared before you who have difficulty with the classification system. Let me tell you there are many others. It is one of the complaints we hear on an ongoing basis and they can never get a factual understanding of why they are classified in a certain way in many instances and, quite frankly, we really need to get to a point where we deal with that properly.
MR. CHAIRMAN: Thank you. Mr. [Chalres] MacDonald.
MR. CHARLES MACDONALD: Peter, the long-term funding strategy, do you think that is good for business in Nova Scotia today?
MR. O'BRIEN: If we are going to be 45 years with the highest rate in Canada, the answer to that is no. It is a disgrace.
MR. CHAIRMAN: Mr. Fage.
MR. FAGE: Thank you, Mr. Chairman. Peter, I appreciate the report. It is concise. It is clear and we know exactly where the Canadian Federation of Independent Business stands on a number of these issues and that's extremely helpful. In relationship to the perceived inflexibility of the Workers' Compensation Board, a situation was relayed to me by an employer who happened to fall into a category that you mentioned there, where they were not required. That particular employer had paid eight years on a voluntary basis. Under incorporation the ruling was made by the Workers' Compensation Board that the owner, even though he had another source of health insurance for himself, unless he paid for himself, that they would be cut off. A claim had never been issued. That amount of money for those other workers that are rated higher than provincial average had been paid for all those years and the Workers' Compensation Board forced that employer not to contribute voluntarily for his employees unless he signed himself up. He chose to do the latter.
MR. O'BRIEN: I guess one of the things that always concerns me about things like legislation governing things is that it doesn't always allow for common sense because it cannot always anticipate all of the issues and that's a good example of it. I think that somehow the regulations that go with legislation like this have to permit and encourage common sense. I am aware of a number like that myself and, quite frankly, it makes no sense at all. In some instances they are not even working in the business. They own it but because they incorporate, they now have to be included. I mean it makes no sense and I think that these are the kind of simple changes that should have been addressed by the board itself and could have been in my view if they hadn't been dealing with one of the worse unfunded liabilities, well, it is the worst on a per capita basis of any province in the country.
MR. CHAIRMAN: Ms. Godin.
MS. GODIN: Thank you. Hello, Mr. O'Brien. Yes, you are right we have heard from employers about classifications, the rates classification, and in every case it did seem to defy common sense, what their ratings were. I believe we heard from someone who said there should be more classifications and someone else said there should be less classifications. Have you given any thought to one or the other being better or is it just a matter of being able to communicate better with the board?
MR. O'BRIEN: No. It is more than communication. I think, in fairness, we went into the current system of classifications within the legislation in 1996. There is a need for an evolution because when you do it and you put everybody in, bang. There was a need to have some flexibility so that you could make proper adjustments as you move forward. I work in New Brunswick as well and I do the four Atlantic Provinces. So when they did theirs, they did exactly the same thing but they very quickly started to look at the anomalies in each classification and said even though that doesn't fit here, we will move it here because the accident rate is the same and I think that is what we have to have here. I think that is an area
where there is a real need for proper emphasis so people are treated fairly. I am not sure that we need more or less, I think we just need more accurate.
MS. GODIN: And more flexibility?
MR. O'BRIEN: And logic even more so than flexibility.
MR. CHAIRMAN: Are there any other questions from committee members for Mr. O'Brien? Well, if there aren't any further questions, Mr. O'Brien, again on behalf of the committee, I would like to thank you and your organization for taking the time to make the presentation. It is very helpful and it is also very helpful to hear presentations from business and employer groups as well as from employee groups because it gives the committee a better rounded impression of what the system is about.
MR. O'BRIEN: Thank you very much, Mr. Chairman. We really would like to meet with you after we have the WCAT information because we think it is crucial to the future of this province.
MR. CHAIRMAN: Thank you very much. Our next presenter is Mr. Ray Wagner of Wagner & Associates.
MR. RAY WAGNER: Mr. Chairman and members of the Select Committee on the Workers' Compensation Act, thank you for agreeing to hear from us on really what is a much narrower focus than what you have heard from some of the previous presenters and certainly the previous one to us. I should introduce the people with me here now, Brenda Roberts, who works with me, at my far left, she did a lot of work on this particular project. As well, we have Jennifer Christians, who is in the middle here, and we brought her along as a case study to go through that in a few moments to explain why because it is always nice to have. I know that you have had a lot of people come in and tell their individual stories and, of course, discuss the problems that they have. We felt it was important to illustrate to you some of the problems that are demonstrated as a result of the changes in the Workers' Compensation Act that were done under the 1996 Act.
Let me explain a little bit on the background and what we are concerned about here, and why we are before you today is the injured persons' right to be able to choose in certain selective situations whether they wish to sue or proceed on their own through a civil cause of action or claim benefits through the Workers' Compensation Board. There is a whole host of possible areas but primarily we wanted to focus on auto accidents because auto accidents are pretty familiar to most people, especially in the city with all the traffic that happen from time to time. It is the most readily evident one.
Under the old Act, if you were involved in a car accident, you had a right to be able to proceed against the at-fault driver and secure benefits or recover damages from that party, or you could choose to claim under the Workers' Compensation Act if you were working in the course of your employment at the time of the car accident. For whatever reason, and I have canvassed this and I have looked at it long and hard, I cannot find an answer why that right to elect was eliminated in the 1996 Act. Now, if you are in the course of your employment, under the new Act you have to claim benefits under the workers' compensation scheme.
This new method that was decided under the 1996 Act seems to be a little bit of an anomaly with respect to other Canadian legislations, for instance, in New Brunswick, as an example, Ontario and British Columbia, all contain the right to be able to elect, to elect to whether you wish to sue and recover damages or to claim benefits under the Act.
Now, some of the problems that have been created by the new Act are evident. What happens now, and it is somewhat complex in the sense of how they do it, but by being a worker in the course of employment and you get in a car accident you have to claim through the Act. Whether you receive benefits or not, if you are covered, then the Workers' Compensation Board takes your rights away from you and has the right to do whatever they wish with respect to that cause of action or right to sue. So they have the right to be able to decide whether they are going to go after the third party, the person at fault, or not. So what we have here in this situation, by taking those rights away from the worker - and just as a footnote here, and I will raise this again later, I don't know why from a financial point of view the Workers' Compensation Board would say, look, you can't go to another forum, in other words to a court or to a settlement with the insurer, you have to claim benefits through us because the old way they would actually save money. It would be more cost-effective.
Basically if the worker didn't claim under the Workers' Compensation Act, there would be no payments made by the Workers' Compensation Board to the worker, a substantial saving, I would say as opposed to the current scheme where you have to go in and have to make your claim against the Workers' Compensation Board. The Workers' Compensation Board does respond and takes your rights and can decide what they want to do with it.
Now, I want for a few moments to look at it from a worker's point of view. Some of the problems, and I outline it in my short paper to you, is the confusion that arises. Traditionally you understand when you get in a car accident and you are injured, you go see a counsel and you at least find out what your rights are. The first thing that counsel will say or ask you is, were you in the course of employment and are you covered by the workers' compensation scheme. Yes. Well, there is nothing I can do for you. You have to go down to the Workers' Compensation Board and deal with them with respect to anything with respect to this accident. So this creates a lot of confusion in the historical way that we dealt with and
we still deal with car accidents. The fact that it strips the worker of all their rights and gives it to the board, some of the injustices that arise to the worker are quite extreme.
Another huge problem is when the Workers' Compensation Board acquires the rights from the worker, as in this case that we are going to talk about in a few moments, they have the right to go out and collect against the at-fault third party. So they go against the insurance company and they would say, look, as an example, we paid $5,000 of economic benefits to the worker and we are going to sue on behalf of the worker. We are taking the action and we want to recover our money. The conflict is, of course, the Workers' Compensation Board and their counsel, who act on behalf of the board, are concerned about the recovery of their funds.
What often happens, and it is I think a huge injustice, is that they can decide in their own discretion, without any scrutiny whatsoever how to settle off a pain and suffering claim, how to settle off any future losses, or any excess losses that would normally be claimed through an auto accident. So what happens and where this can be dealt with is that, or the concern is that the Workers' Compensation Board in the conflict of interest situation where they are at, in other words looking to recover only their benefits, do not adequately and fully and properly in our view represent the interests of the injured worker because their benefits are beyond what you would get and receive normally under the workers' compensation scheme in civil law. So we see this conflict arising and it is going to be a huge problem and I believe has been a problem since the inception of the new Act.
I go through in the brief paper here and discuss some of the concerns with respect to delay and you hear about this all the time in terms of the appeals and the processing and the whole host of issues related to the Workers' Compensation Board. If the worker had the right to take her own action and retain counsel, we would be acting from the start to get benefits under Section (b), the no-fault benefits of the policy. We would be looking at getting interim payments. We would be looking at advancing their claim and there are a host of other areas where we can provide some benefits to the client and have some control.
Now, what happens, and as happened in Ms. Christian's case, is that they have to go to the Workers' Compensation Board and have to communicate with the board and wait for them to contact her. As you can see from the factual situation here, the first time that somebody spoke to her was I believe yesterday and she has been trying to reach them since June to find out where she stands. Again, I am going to discuss briefly her plight now because I think this is a good example of the problems that we have.
Jennifer, in her case, was exiting a ramp at Highway No. 102 by Bayers Lake Park. She was going down the ramp and she was rear-ended at a high rate of speed by a vehicle that crashed into her from behind obviously causing injury to her. She goes now and she comes to us and asks for our representation. We say, no, you have to go down to the Workers' Compensation Board and see whether they will assign the rights to us, which they don't do or very rarely ever do, and they will deal with it. So the communication that we get from the
Workers' Compensation Board back to us when we request that we represent her, at least in her rights, and what we will do, and remember any benefits that are paid her, we will reimburse the Workers' Compensation Board for all the benefits that have been paid. That is part of the agreement that we would have with the Workers' Compensation Board. There will be not a loss of one cent to them but they refused to do that.
They say, no, no, we control the action. We are going to decide what we are going to do with respect to her claim. So she goes and talks to them. She calls on numerous occasions from June to September - no activity whatsoever, none whatsoever. She goes back to work after a short period of time. Her employer assists her with an assistant to do her job. They take the assistant away after a couple of weeks and then she is left to do the job on her own and as a result of inability to do the job, she loses her employment altogether. So now she is without work, without benefits, without any accident benefits whatsoever, and at this point in time where she stands now financially is that she has had to put her house up for sale, just recently, just yesterday signed an agreement of purchase and sale to sell her house so that she can try to get some finances to be able to deal with here life. She is selling her house and moving to Bridgewater with her parents. She has no income whatsoever. She doesn't have any idea what the status with the Workers' Compensation Board is and whether they are going to do anything.
It took her I believe three months to approve some physiotherapy treatment that under the old Act we would have had for her immediately and been treated with immediately. So right now she has one more week of sick benefits under UI and then that is it, nothing else, no income, financially broke. She comes to you today devastated and saying to you, look, why did they take the right to sue away? She has declared right from the start that she does not want to go with the Workers' Compensation Board. She wants to deal with the civil system. The Workers' Compensation Board would not pay one red cent to her and be obliged to pay any money, a clear saving to the scheme, and yet she's stripped of her rights and cannot do what she wants to do in her own freedom of choice.
It is not a rogue or something that is obscure to other legislative jurisdictions in this country. In fact, the norm is the right to sue, not the opposite, to eliminate the right to sue. What has baffled us, as I mentioned, from the very start, the final question is, why was this done? Why were the rights of the worker involved in car accidents eliminated? Why were they taken away and why do they not have the right to sue?
When you look at it, there is a clear saving to the Workers' Compensation Board, there is a selection, an ability to be able to pursue the claim, if they want, by the worker, a right of choice that has been eliminated for no demonstrated reason. We suggest on this very narrow point, but very important point, as many points in an accumulative effect have a major impact upon the financial well-being of the Workers' Compensation Board and have a huge impact to each individual, like Jennifer Christian who has been devastated by a change in an Act, that I can't find any good demonstrable reason why it was done.
We are only here today to say that if any legislative changes are to be considered, that we also consider a restoration of the election. In other words, if she chooses and says, Workers' Compensation Board doesn't pay me any money whatsoever, I will take my chances, thank you very much, with my own counsel, that she has a right and an ability to do that, at no cost.
A hybrid is also available, we would suggest it is also a possibility, where in this situation, she could claim benefits, but she could retain her own counsel, and we could pursue it to the fullest of our ability representing her as our client, not the Workers' Compensation Board as our client. Any funds that would be received from the third party or the insurance company, the first funds could go to the Workers' Compensation Board, in full payment before she would receive any money and before any legal fees would be paid.
I have gone over this over and over again, and I have talked to a number of people in our industry. We are not here to garner business or to build business as far as a legal community, but we are here for the rights of Ms. Christian. All the canvassing that I have done, all the talking I have done, nobody has explained to me why that was done. I say to you, why can't it be restored? It should be restored, to restore the dignity that she has a right to choose what she wants to do.
As I mentioned, there are the two systems that we recommend, restoration of the original system, or a hybrid system where there is payment but she could go out and retain her own counsel, and then we can act to the fullest of our ability to maximize her recovery. The first funds that would come through would go to the Workers' Compensation Board; again, no loss to the Workers' Compensation Board.
What happens in some cases, take for instance somebody that has a liability situation that is a little bit precarious - in other words, it may be that your chances of success may not be 100 per cent, they may be 50 per cent or 75 per cent - well, the Workers' Compensation Board, when looking at this picture is going to say, well, are we going to retain counsel and expend the legal expense to pursue a claim to recover our benefits and give excess benefits to the worker? Probably not. They are going to say, well, there is too much risk in this, we are going to leave that aside, and the injured worker is left behind, being uncompensated for benefits that she should be rightfully entitled to under the original system or the hybrid system that we suggest.
You can go through a litany of problems. This is not a problem that only Ms. Christian has, we have a number of cases that have gone through our office where we have said, no, you have to go through the Workers' Compensation Board. There are hundreds of people out there that are suffering the same way, and from our point of view, it is a needless method in terms of how to address these people's rights.
In closing, I didn't go into great detail about Ms. Christian's circumstances, because they are detailed in our memo here and I know it has been a long day for you. We are here to answer any questions, and again, we would urge you to consider this small amendment which has, I would suggest, a financial impact and also an impact on the rights of workers in this province.
MR. CHAIRMAN: Thank you very much, Mr. Wagner. I take it, obviously, that you are advocating a retroactive amendment, otherwise it wouldn't help Ms. Christian, it would be of no advantage to her personally. I guess one question I have is, with respect to automobile accidents that occurred after February 1, 1996 and more than two years ago, there is going to be a problem of limitation for those workers who might want to elect to sue rather than collect compensation benefits. Have you any observations about that?
MR. WAGNER: Firstly, surely we would like it retroactive, if possible, that is the ideal scenario. I don't see how the Workers' Compensation Board would be impacted whatsoever, other than they will lose a huge caseload of these cases that are milling around down there, not being dealt with. They can be dealt with expeditiously. As far as the limitation problem, in Nova Scotia, as you know in the motor vehicle accidents, you have two years, and there are abilities to extend for an additional four. It would be hard-pressed for a judge, I think, to deny an extension in these circumstances if there was a legislative change allowing people to commence action. I think that the civil system can deal with that and address those issues.
MR. CHAIRMAN: Mr. Fraser.
MR. HYLAND FRASER: Mr. Wagner, I just want clarification. If your client comes to you and you are to sue the driver of the other vehicle, I presume that your client would expect to get the bigger settlement that way than vice versa. If it is left to the board, say in this case, do they only sue for the amount that they feel their client would be entitled to under the way that their calculations work, or would this be a profit centre for them to sue for $100,000 and pay the lady $1,000 a month, or whatever it is? I guess I just want a clarification on how it is dealt with between the two different methods.
MR. WAGNER: As I understand it, the board acquires the rights and they would sue for whatever benefits they have paid, they would recover those; any excess recovery over and above that would go to Ms. Christian. Our problem with that is that the conflict of interest arises, what interests do they have in maximizing her recovery? None. Once they get their money, they are not going to see any more of that other than their administrative fees. Are they going to aggressively pursue the claim, to try to maximize her recovery? I think not.
Again, you get into the problems of liability questions and issues or some other problems that may arise, and as we know, in any personal injury matter, they may say, well, it is just too much trouble and we are not going to bother with it. Once they make that
decision in their absolute discretion, that's it. There is nothing more that she can do about it. They have made the choice and the decision on her behalf.
MR. HYLAND FRASER: If your client gets permission to use your firm or an independent firm versus the solicitor for the WCB who is on salary and who is not working for a fee for service, the insurance company would be expected to pay more if you were representing the client, because you have to get paid, versus what they would be looking for, which would be to satisfy the claim for the client. Is that . . .
MR. WAGNER: No. Of course, there is a body of jurisprudence in this province that has similar cases that would say what the range of damages would be. As far as cost recovery, the cost of our part of any claim, regardless of whether it is WCB counsel or us, it generally runs in the range of, if you went to trial, about 7 per cent of the amount of money that is involved in the claim, is part of costs. So you don't receive an indemnity from the insurer for the legal fees that have been recovered.
Really, it is for Ms. Christian to weigh that in her considerations, to say, well, I am going to have to pay a legal fee and in the other scenario, I am not, but I know this person here, maybe they are going to pursue my claim to the greatest of their vigour, while over here, they may not even pursue it, then she has to make those choices. Presented with those options, she has the right of election. That is what was traditionally there, and is in other provinces.
MR. HYLAND FRASER: Just one other question. On this type of litigation, I'm not looking for you to tell me your business, and you can tell me or not answer it if you wish, but do you see many of these particular cases, in numbers, if you can say a number - if you don't want to, that's fine; if you don't know, that's fine - your clients who have contacted you, do you specialize in this type of litigation? I guess, I am just wanting to know, why would she have contacted you? You don't have to tell me, if you don't want to.
MR. WAGNER: No problem. I can answer the question. First off, we are not allowed to specialize in this province, so the word specialization is not a term that we use. Our practice is exclusively personal injury and related type of work. We see people like this all the time. It also includes slip and fall, product defect, and other sundries. I would say probably, and this is just a random guess - I haven't done a statistical analysis within the office - and Brenda can attest to this as well, it may be about 5 per cent to 10 per cent of auto accidents would have this scenario come up. But we see more, obviously as you see now, it is very prevalent after the 1996 legislative changes, so it is there.
She was not at work, she was travelling from one location to a client, and was involved in a car accident. It is not like backing out and backing into a fellow employee. In those situations, WCB covers that, and there is a statutory bar preventing you from taking any action against your employer, any other employee to which the part applies and all that kind
of stuff. There are other bars there. We are not talking about that, we are just talking about somebody who is not related to the system whatsoever.
MR. HYLAND FRASER: Thank you very much.
MR. CHAIRMAN: Dr. Lamplugh.
DR. ANTHONY LAMPLUGH: Mr. Wagner, you mentioned that you had a number of other cases that you felt were covered by the compensation board, do you have any experience that any of them were handled expeditiously?
MR. WAGNER: My experience now, and I have also had conversations with people who are representing workers as well, and the general feeling is that first off, you are not informed about anything that is going on in your former case, now WCB case, they don't even tell you what is going on, minimal if any activity, and you may not even be informed of what the ultimate result before the result is decided.
So that is the experience that we are receiving. We even have a case, this is how bad it can get, where we were looking for the right to sue, the Workers' Compensation Board didn't pay any benefits, but because they didn't lose any income, but they had pain and suffering, and the cost of care issues, and other issues that we can claim under civil law, and the workers' compensation owned that right. I believe, in that case, they did actually allow us to go ahead and represent our client for an administrative fee, and they would make the decision as to what we would settle for, even though they did not pay anything to the injured person.
MR. CHAIRMAN: Mr. [Charles] MacDonald.
MR. CHARLES MACDONALD: Are we strictly talking about people that are using their cars for work-related purposes? Is that where this all arises?
MR. WAGNER: This would be the predominant area and most recognizable area. There are other areas, for instance, if you were in the course of employment and walked into a bank and fell on some water, or they had some ice on the floor or something like that that shouldn't have been there, it could apply to that as well. It could apply to product defect cases, where you are working on a piece of machinery that is defective or something like that that is manufactured somewhere in California or wherever, then it would apply to those situations. They are less common, but there are other situations out there that this provision also applies to, not only car accidents.
Again, anybody that is covered under the scheme, if you buy into the scheme and you pay into the scheme, and you are injured, say at that person's place of employment, and they are also covered under the Act, then there is another statutory bar that precludes that, and you
have to go through your benefits. But we are talking about situations where we are talking third parties that do not pay one cent to the Workers' Compensation Board scheme and are also getting this huge benefit, and the board is paying out this money, and the board is getting nothing in return, other than a huge administrative problem, managing this huge abundance of cases internally.
As far as we can tell, giving as an example Ms. Christian, who from June to September did not receive one single phone call from the Workers' Compensation Board, not one. She was in need of physiotherapy, she was in need of medication, she had no income, nothing, and no communication whatsoever.
MR. CHAIRMAN: Mr. Corbett.
MR. CORBETT: My question is probably more rhetorical, I guess, in some ways, but if Ms. Christian had been involved with an at-fault accident, same scenario only she is at fault, would you see that the board should then have reverse onus and represent her and her company, taking their logic now, to its further end?
MR. WAGNER: If it is an at-fault accident, if she was the person that rear-ended somebody else, and she had some symptoms as a result of that car accident, then under civil law she would have no right of recovery.
MR. CORBETT: No. I am saying, should she be at fault and the other driver, the other participant in this litigation decides then to sue and take her civilly to court, is the board that generous that way too, that they will represent her for free?
MR. WAGNER: In that situation, her insurance company would respond to that claim, not the Workers' Compensation Board. The Workers' Compensation Board, again, has nothing to do with that scenario because the person in front, the person that she hit then would sue her auto insurer and her auto insurer would respond to that claim. The Workers' Compensation Board would have no impact or interest in the outcome of that case.
MR. CORBETT: So it is clear to say the board is in a one-way onus?
MR. WAGNER: Yes.
MR. CORBETT: Okay, thank you.
MR. CHAIRMAN: Ms. Godin.
MS. GODIN: Hi, Mr. Wagner. Thanks for coming. We are talking about, for free, and nobody getting anything. The bottom line is, there must be a reason that someone does not want you to represent Ms. Christian. Who is getting rich out of this?
MR. WAGNER: Well, that is something I cannot speculate on because I do not have any information. One can ruminate about that themselves and find out - are going to think of the possible scenarios. I don't know why the board would find it in their wisdom to insist that you collect benefits from them when you have an option that you do not have to. Nobody has owned up to any reason why that is the case.
MS. GODIN: If you represent an injured person, you take that person out of the system, it is less work for the WCB so it just doesn't make sense to me. I'm just wondering, who is getting what?
MR. WAGNER: Once you make your election, you have made your choice, you cannot go back and say, oh, gee, I didn't do so well on the case, I want to go back to claim benefits. Once you have made your election, you have made your election so you are out of the system.
MS. GODIN: Right.
MR. WAGNER: I agree with you. That is why I am baffled as to why this rule was changed.
MS. GODIN: Okay, thank you, Mr. Wagner.
MR. CHAIRMAN: Mr. Power.
MR. POWER: Yes, thank you. Mr. Wagner, who is looking after Ms. Christian's claim now?
MR. WAGNER: It is down at the WCB and I don't know who is looking after it down there. She could speak to that, I think. Mind you, I should just, as a preamble, warn you that she is extremely emotional about her situation right now, so if she does have difficulty articulating, that is because of her situation. Maybe you can tell us a little bit about - lead us back, your communication with the Workers' Compensation Board concerning this matter.
MS. JENNIFER CHRISTIAN: I spoke with - I think it was Gerry Prichard, yesterday. She had returned a call. My doctor had submitted a form. She submits forms monthly because I see my doctor monthly, requesting extended physiotherapy. She had called me yesterday saying that they would approve it but I have had no physiotherapy since June.
From the accident, I was in physio almost every day for three or four months straight and then it was reduced to three times a week until WCB cut off my physiotherapy and that was June 11th.
MR. CHAIRMAN: Mr. Power, again.
MR. POWER: I'm really interested in knowing, if possible, is there a lawyer looking after your case? Is somebody pursuing actively, as they have the right to do that?
MS. CHRISTIAN: I don't know.
MR. POWER: You don't know.
MR. WAGNER: She has made numerous calls since June, since we went through this process of trying to find out whether we could represent her and agree to pay the board back all its claims. As we say, under those circumstances, could you let us go ahead and deal with the matter? We will ensure that she does not receive anything or no legal fees are paid until you are reimbursed.
After they said, no, it is our claim, we are going to take care of it and we will deal with it as we feel fit, she has been trying to communicate with them on a regular basis and has had no communication - she doesn't have any idea where her case stands, whether they are even going to pursue a case on her behalf, who is going to pursue it on her behalf. She has no information whatsoever.
That is part of the tragedy because when people go through these things, especially acute stages of injury, they like to know what their rights are, what is going to be provided for them and where things are headed. She has no idea. We don't have any idea. As I say, we don't actively represent her. She wanted us to but we don't actively represent her because there is nothing for us to do. We have no right to act on her behalf in any regard, other than bringing her case before you today.
MR. CHAIRMAN: Just a question, Mr. Wagner, do the Section B benefits apply to cases like Ms. Christian's case? Can she claim against her own insurer for Section B benefits?
MR. WAGNER: She can't.
MR. CHAIRMAN: That is what I understood. She can't even make a claim on her own insurance policy to obtain benefits that she would ordinarily be entitled to as a Section B insurer?
MR. WAGNER: That's right. It's one of the exclusions . . .
MR. CHAIRMAN: So the insurance company really wins?
MR. WAGNER: The insurance company, win, win, win, all the way through.
MR. CHAIRMAN: Okay, thank you. Any further questions? Well, thank you very much for taking the time, Mr. Wagner, Ms. Christian and Ms. Roberts for being with us here today. It is something we would not have heard of, I'm sure, otherwise. Thank you.
MR. WAGNER: Thank you very much.
MR. CHAIRMAN: Our next presenter is William Grover. Good afternoon, Mr. Grover. Just have a seat there in any one of those chairs along the front. Perhaps the first chair here will be fine.
MR. WILLIAM GROVER: I'm a little hard of hearing.
MR. CHAIRMAN: That's fine, Mr. Grover. If you could, when you are talking, talk into the microphone. It makes it easier for everybody else to hear.
MR. GROVER: Has everybody got a copy of my submission?
MR. CHAIRMAN: I don't believe we have gotten them. Staff are circulating them now, sir. Mr. Grover, any time you would like to start.
MR. GROVER: First of all, you can call me Bill because I am just a plain, down-to-earth fellow.
MR. CHAIRMAN: Thank you, Bill.
MR. GROVER: I appear before you today as a worker who was seriously injured in 1993 and to advise you that I am totally frustrated and annoyed at how the Workers' Compensation Board conducts its operations. Since my injury, approximately five to six years ago, my wife and I have been compelled to live well below the poverty level and can only afford the bare necessities to sustain a meagre way of life.
Because of the ignorance towards injured workers in this province, there is every reason to believe that the Workers' Compensation Board would like to see the status quo remain a permanent figure in tomorrow's Legislature.
The most repeated criticism of the Workers' Compensation Board, I have to do with, is their procedures, how they make their decisions. Secrecy is one of the biggest evils. They seem to operate on the general principle that they own all the information and the claimant will only be told as little as possible. For example, if you suffer a spinal or serious back injury,
and you might want to know what the average or the range of all permanent back injury awards are, so as to compare it to your situation, I am positive the Workers' Compensation Board will refuse such a request. Similarly, if you ask for copies of other awards and cases similar to yours, even with the names deleted, you won't get them.
This secrecy also helps explain why the Workers' Compensation Board will refuse a request to have a medical representative or lawyer orally cross-examine their doctors or their rehabilitation consultants who say you could easily find work as a watchman, security guard or something similar, so benefits can be denied.
Of the areas mentioned in the preceding paragraphs, the secrecy problems can be dealt with very inexpensively by simple reforms, if the political will exists. The record to date suggests that the Workers' Compensation Board will not themselves generate the reforms necessary. The Workers' Compensation Board is more interested in getting injured workers off claim than rehabilitating them for active employment at a comparable salary level or better.
In the past, any proposed reforms did not go far enough, or represented a step backwards. Our legislation has no teeth. In most cases, employers are not required to hire injured workers at their job or any other suitable position. This happened in my situation when I was employed in the dairy industry.
I am suggesting that there are two perspectives to reintegrating a disabled worker back into the workplace: a well-developed rehabilitation program with employer involvement; and a good program must be go beyond the physical rehabilitation, it must provide educational upgrading, special skill training and job placement service. These types of changes are necessary if we are serious in amending the Workers' Compensation Act.
One would have to question the fairness of a system when benefits are denied an injured worker by a board who rejects legitimate claims, injuries supported by specialists' reports, X-rays, and other medical reports. This is the situation in my own personal claim over the last five to six years. There are questionably some people in this province who reap the benefits without any hurdles and other injured workers who are advised by specialists that they are unable to perform any tasks whatsoever, such as myself, who was rejected and left to flounder about in poverty. This doesn't make sense to the average person.
I hope, ladies and gentlemen, that for the duration of your lifespan, you never have to experience the indignity of what it is like to be down and out with little or nothing. There are so many built-in problems, all the Workers' Compensation Board does is make a mockery of the entire process. Injured workers are frightened and desperate because they are caught in a vacuum created by the Workers' Compensation Board and the provincial government. The denial of benefits to an injured worker is not the proper medicine for a sick system. When something isn't working properly, you fix it, you don't make it worse. You don't put us in
a more embarrassing position by forcing us to become welfare recipients, creating an even greater problem.
Ladies and gentlemen, I, and all other injured workers in this province, have suffered enough and urge this committee to pressure the current government to provide the necessary legislative changes to give injured workers their legitimate benefits and build a system where none need profit at the expense of others. I hope and pray that my case will again be given a proper and an in-depth review in an effort to reach an amicable and just settlement.
In conclusion, I thank this committee for the opportunity to present these concerns and recommendations. I also wish to thank you in advance for any consideration you give this submission on behalf of myself and all other injured workers in this province. Thank you very much.
MR. CHAIRMAN: Thank you very much, Bill. I take it from your submission that you suffered a back injury at work, did you?
MR. GROVER: Yes, I did. A very bad back injury.
MR. CHAIRMAN: Just a couple of questions that we have had in the past for people who have been injured. Has your back injury been classified as a chronic pain case? Have you heard that label applied to your case?
MR. GROVER: It was, but the doctor said also that there was a permanent injury sustained in that accident.
MR. CHAIRMAN: Okay. Are you receiving any benefits at all, at the present time?
MR. GROVER: None whatsoever. I am living off of welfare right now, and my wife gets Old Age Pension.
MR. CHAIRMAN: With respect to your injury, have you an appeal in the system at the present time?
MR. GROVER: I am at the tribunal part of the system, I have been there a year in August.
MR. CHAIRMAN: No indication of when your claim will go forward?
MR. GROVER: They just keep telling me the same thing: nothing has come up, there is nothing new.
MR. CHAIRMAN: Are you represented now by a workers' adviser? Is there a lawyer with the Workers' Advisers Program that is representing you?
MR. GROVER: This is the second lawyer I had. I had Peter Rumscheidt in the first four years, and I have Kenny LeBlanc, who is with the workers' advisers, for the past year.
MR. CHAIRMAN: There is no indication of whether or not or when your claim is going to be going forward at the tribunal level?
MR. GROVER: They never give you any indication of what is going on. I asked for different things and they won't speculate on anything, they won't give you any information, other than what they want to give you, and that is it.
MR. CHAIRMAN: Those are my questions. Do any of the other committee members have any questions? Thank you very much, Bill, for taking the time. Mr. [Hyland] Fraser.
MR. HYLAND FRASER: It is good to see you again, Bill. We went to school back in the 1960's and before that and we haven't seen one another since then, until today. It is good to see you Bill. I am sorry to see you here. I am just wondering, your accident, what happened? Can you explain that to us?
MR. GROVER: As you know, I went from the farm to the dairy business. We left school, I guess, in 1965.
MR. HYLAND FRASER: 1964.
MR. GROVER: We left high school. I went right from the farm into the dairy business. I started out with Maple Leaf Dairy on Chebucto Road, which became owned by Farmers, which in turn went to Twin City. Then I left there and went with Brookfields, which in turn was bought out by Scotsburn. I got hurt. I drove a milk truck for approximately 30 years. Then when I turned 50, they decided they were going to put me in the warehouse, which we fought big time, because a man my age going from a milk truck to a warehouse wasn't a very fair system, which I thought. I had no other choice, take that or leave it. We lost all battles with that, the union and I. I had no other choice but to go in there.
I was only there probably three weeks when I got hurt. I picked up a pallet, which weighed approximately 93 pounds and I went to put it up on the ramp, and when I did, that was the end of my career. It ended just like that.
MR. HYLAND FRASER: Did you receive benefits for a period of time after, and then they tried to retrain you, did you go through any of this?
MR. GROVER: I received benefits for about eight months, six months, then I was cut off, and then I was put back on, because there was a job path find course. I was put back on while I was going through the duration of that, which I might say was a very good program for a young man. It was no good for a man my age, because, what were they going to teach me that I was going to learn in the industry that I belonged in? But for a man in his 20's or 30's, it was a great thing, because it gave him an opportunity to go in something else and make a career.
MR. HYLAND FRASER: Have you applied for Canada Pension disability?
MR. GROVER: Yes. I am at the tribunal stage of that too, now.
MR. HYLAND FRASER: Okay. Good. Thank you, Bill. Good to see you again.
MR. CHAIRMAN: Mr. Fage.
MR. FAGE: Just one quick question, Mr. Grover. What was the date of your injury?
MR. GROVER: The major injury was a spinal injury, and I can't pronounce the name of it, but also, when I had X-rays taken it showed degenerative changes along with rheumatism and arthritis in the lumbar part of the spine.
MR. FAGE: I was concerned about the date.
MR. GROVER: July 15, 1993.
MR. FAGE: Thank you.
MR. GROVER: I can't forget it.
MR. CHAIRMAN: Thank you very much, Bill, again. On behalf of the committee, I appreciate that you took the time today to be here with us and give us your views. Thank you.
MR. GROVER: Thank you very much. Good seeing you.
MR. CHAIRMAN: Our next presenter is Raylene Morris. Go ahead any time, Ms. Morris. You look a little nervous.
MS. RAYLENE MORRIS: A little thirsty.
MR. CHAIRMAN: Okay. Go ahead.
MS. MORRIS: I am here on behalf of my husband, Ed Morris, with workers' compensation. I am appearing before this select committee on behalf of my husband, who was injured on September 9, 1990, when he was working at Cara Corporation at the airport, when he slipped off an iron ladder striking his left knee. He has been in a lot of pain since that happened. He has been in to see so many doctors. It has been appointment after appointment for X-rays, surgery, leg brace, foot wedges, et cetera.
He tried to go back to work but was too much in pain to work very many hours per week and that only lasted a short while and then he was in pain all the time. For a long time I talked to different people at the Workers' Compensation Board. We were led to believe we were going to get a wage loss settlement and a lump sum of money back from when he applied for workers' compensation. It was called a wage loss. When the time came for the settlement, we had not received any money plus they told him that the money he was receiving per month was a part of his wage loss. Then they dropped the sum of money that he was getting as a paycheque, they dropped that to a lower amount.
He also suffers from pain in his other knee because he favours his bad knee, blood pressure, high cholesterol, heart disease, depression, brain deterioration. The point I'm trying to make is, he cannot do much work and cannot be trained to do anything else. In the meantime, when he was getting full pay, we applied for a house and we were approved. So we got a new house down in the Valley. Now things are getting so bad we cannot afford to live like normal people. My health is going bad also. I am limited to what I can do. We are at the point of our lives we can't even afford to live in our home anymore. We are behind in all our bills. We can't get the food Ed needs for his health problems. We rob from Peter to pay Paul but sometimes we can't even get caught up because the bills are too high to get them paid up.
He is a very proud man and still believes in cards, small gifts or flowers for special occasions but cannot afford to buy a card. Last year, for example, for our anniversary, he found an old card and gave that to me which I cherished a lot. I cherish it a lot to make him feel good. His morale is down a lot because of the way we have been living the last while. Thank God we love each other. At least we've got that. They can't take that away from us, I hope. We are only young people and can't live anymore because of all of this bull.
Now, the real hard part of all of this is that there is so many bills, so little money. We can't afford to keep our home. That's for sale. We're two months behind in our payments so we're losing it, if I don't lose it first. We have to go to food banks for food. We drive an old car which we don't know if it is going to get us from point A to point B, but we try our best every day. It is very hard to live this way. So how can anyone sit back and watch their spouse go through all this pain and suffering and hell when you don't know when someone will call with bad news, or knock on your door, that you must go, you're losing your home, or whatever. If there are people out there that can go through all of that and still sleep well at night, please, teach me so I can sleep better too.
I also have been calling workers' compensation, WCAT. The first call they told me maybe one month. I didn't get anybody's name. Normally I get people's names and I write them down but I didn't this time. This is awhile back. The second time another one told me they are hiring three new lawyers, which apparently they did, and it would be maybe three months. The third call, which was not that long ago, someone told me maybe the first of the year we would get some sort of settlement. So I was talking to somebody just the other day. I was told that they are in the process of hiring 13 new lawyers and it is still going to be awhile. Also, at first, they were asking for my husband's name, three times, the last name. This time they asked for his claim number. So what does that mean? Were they telling me the truth or just telling me anything just to get me off their back or off the phone? We are going to lose our home because of not enough staff, lawyers, or just not tell it all, they just don't care as far as I see.
A few years back, and this is not on this, this is just my own words, I have been talking with a very wonderful lady that has been helping me an awful lot and if she hadn't been helping me, I would not have gotten this far and it's Roberta Morrison. She has helped me get this far. She has pointed me in the right direction. She has told me who to speak with or who I should not speak with or who I could call or who I could not call and I have called. I think the Pope is the only one I didn't talk to. I speak with so many people. I try my best and my best is my all and that's all I can do. I get frustrated. I'm human and I know everybody else is human. We all weep and cry when there's pain. I love my husband very much and I don't like to see him in pain. When he's hurting, I'm hurting.
We're going to try to move back closer to the city and I'm not going to stop fighting. I am not going to stop fighting for nobody until I see something done. I'm not. I refuse to. He has been hurt. He paid into this stuff. He has worked hard all his life. He has been shafted too many times and the buck stops here because I'm not stopping.
MR. CHAIRMAN: Thank you very much, Ms. Morris. I had a couple of questions about your husband's injury. He was hurt at Cara?
MS. MORRIS: Yes.
MR. CHAIRMAN: Then he was on compensation for a short while. He received benefits?
MS. MORRIS: Yes.
MR. CHAIRMAN: Then he was cut off, is that correct?
MS. MORRIS: He drove a taxi for a while. He went off.
MR. CHAIRMAN: Okay, so after, yes. Your husband is not receiving workers' compensation benefits now?
MS. MORRIS: No, it is injured workers' benefits.
MR. CHAIRMAN: He is still getting money from the Workers' Compensation Board, is he?
MS. MORRIS: Yes, he is.
MR. CHAIRMAN: What is his appeal? His appeal that you're waiting to have heard, what's the appeal relating to? Is he looking for more money from the board?
MS. MORRIS: Yes. We had a lawyer and the lawyer looked at the case. He informed us that he should be receiving more money than what he is.
MR. CHAIRMAN: So your husband applied for more benefits than the present pension he is getting?
MS. MORRIS: Yes.
MR. CHAIRMAN: When he applied for that increased benefit, he was turned down?
MS. MORRIS: Yes.
MR. CHAIRMAN: Then that's what you're appealing?
MS. MORRIS: Yes.
MR. CHAIRMAN: That's what is being appealed at the Workers' Compensation Appeal Tribunal now?
MS. MORRIS: Yes. They are telling me it was March 7, 1997 that I applied. I have a letter at home, something is there from January 27th that I've applied.
MR. CHAIRMAN: Do any of the committee members have any questions for Ms. Morris? Well, thank you very much. I guess I have one last question for you, ma'am. Obviously, you have been through a great deal of difficulty as a result of the injury your husband suffered and the promise of compensation. Particularly though, now, do they cover any of the medical expenses that your husband suffers as a result of his injury?
MS. MORRIS: Yes. They cover the medication called Surgam. That's an anti-inflammatory medication and that's for his knee only. They will supply wedges for his shoes and a knee brace, they've supplied that, and today they've supplied a cane. Because of his other illnesses, there's a lot of money going out of our pocket for a lot of medication, from his heart to everything else, and I'm not covered at all myself. So there's a lot of money going out on medication.
MR. CHAIRMAN: Is your husband in receipt of CPP disability benefits?
MS. MORRIS: Yes.
MR. CHAIRMAN: Yes, I thought he might be. Thank you. I think that's all the questions. Thank you very much for taking the time to make this presentation today. I know it was difficult.
MS. MORRIS: I also want to say one more thing.
MR. CHAIRMAN: Sure, yes, go ahead.
MS. MORRIS: We came here today with $15 and that went into the car. Hopefully, our car is going to make it back home because the brakes are going.
MR. CHAIRMAN: Good luck.
MS. MORRIS: Thanks.
MR. CHAIRMAN: Our next presenter is Ms. Sherry Munroe. Just have a seat, Ms. Munroe.
MS. SHERRY MUNROE: Hi, my name is Sherry Munroe. I am here to bring up the subject about widows that were put back on the pensions in 1992. I was a widow at the age of 18. I was a bride, a mother and a widow at 18, almost 30 years ago. When I remarried, our pensions were cut off. My daughter, Patty, she received her child benefits from workers' compensation until 1984 when, at the age of 15 she was killed. So my first family is gone but I heard that the widows were allowed to keep their pensions and remarry. Of course, when I remarried, it was cut off. I feel that it's not fair that some people could remarry, keep their cheques. It's more benefit coming in for the family, for their children, and I couldn't and at 18 it is pretty scary bringing up a child by yourself.
I also am here not just for myself but for a lot of the widows. A lot of them that I have talked to are a lot older than I am, probably not that many years left to live, but I feel that we should be entitled to have our pensions back to help everybody out. So I guess that's mainly what I'm trying to bring to your attention, is getting our pensions back.
MR. CHAIRMAN: You indicated that you were a widow at 18 and you said that was 30 years ago. So that would be 1968?
MS. MUNROE: It was 1969, it's almost 30 years.
MR. CHAIRMAN: You would have received benefits for how long? Up to what time did you remarry?
MS. MUNROE: I remarried a year and 10 months later.
MR. CHAIRMAN: So it would be 1971?
MS. MUNROE: Yes.
MR. CHAIRMAN: So you received no benefits from workers' compensation after you remarried in 1971?
MS. MUNROE: No, just my daughter.
MR. CHAIRMAN: With the exception of what your daughter received in her own right because she was a survivor of your husband?
MS. MUNROE: Yes, and it was in July 1984 that my daughter was killed and that stopped immediately.
MR. CHAIRMAN: Yes, I understand. In 1969 or 1970, what was the level of benefits you would have received as a widow, do you remember?
MS. MUNROE: Yes, I definitely do. I received $128 for myself and my child. It was a cheque together but then a little later I believe that it was - well, she got her own cheque after I remarried but it was $128, the very first cheque that I received. I lived on welfare. I refused to go to work and leave a little girl that lost her father at the time.
MR. CHAIRMAN: Do you know how much your daughter was receiving when she passed away?
MS. MUNROE: I believe in 1984 she received $150.
MR. CHAIRMAN: Thank you. That's my only question. Do any of the other members have any questions? Yes, Mr. [Hyland] Fraser.
MR. HYLAND FRASER: Your husband who was killed back in 1968, what was he doing . . .
MS. MUNROE: It was 1969.
MR. HYLAND FRASER: Or in 1969, I'm sorry. What was he doing and why was he on compensation and did he get killed or . . .
MS. MUNROE: Yes. David was 22 years old. Dave was working for Farmers Dairy. He was driving a milk truck. He received workers' compensation because he was killed on the job but we couldn't receive any of the Canada Pension or anything like that, because he hadn't worked previously, like a lot of jobs, I think three years, or whatever, and also, when you worked at Farmers, you used to have to, back then, I think it was, I am not sure but it is either six or eights weeks you had to work before you were insured, he worked five weeks.
MR. CHAIRMAN: Thank you very much for your presentation. I appreciate that information.
MS. MUNROE: Thank you very much.
MR. CHAIRMAN: I believe our last presenter in the afternoon session is Mr. Burnley "Rocky" Jones. Mr. Jones is coming, I see. Have a seat, Mr. Jones.
MR. BURNLEY "ROCKY" JONES: I would like to make a presentation that is based on one fact pattern, just one scenario. It is a case that I have. Obviously for reasons of confidentiality, I will not mention the name of my client. I bring this case to your attention, because I think it is an indication of the inefficiency of the system, and the impact that it has on a worker.
My particular client has an educational background. She has a diploma in nursing, which she acquired in 1974. She has one year of university, and graduated in 1984 as a post-graduate in psychiatric nursing from the Nova Scotia Hospital. Upon graduation, she worked in her career, in the field of nursing until the time she was injured at the Nova Scotia Hospital in May 1986. She first worked at the Nova Scotia Hospital from approximately the spring of 1978 to 1980. She then worked for one year at the Abbie J. Lane Hospital, before returning back to the Nova Scotia Hospital to take a position on the forensic unit.
On May 18, 1986 my client was injured on duty at the Nova Scotia Hospital while supervising the bath of a female patient. The patient in question was fairly heavy, weighing approximately 250 to 300 pounds. When the patient got out of the tub, the patient bolted for the door, unclothed, and in an uncontrolled rage slammed my client into the sink and the sink area. The force, the dramatic force with which my client was shoved into the sink and the cubicle resulted in a twist and an injury to her upper back, shoulders and neck area of her body.
Immediately following the incident, my client reported the injury to the duty doctor at the hospital, complaining of the acute pain in her back. The duty doctor sent her home and recommended that she remain off duty for a couple of days with rest. She attempted to return to work again, however the pain was severe, and it was necessary for her to go off duty again. At this time, her family doctor who was Dr. R. Gill sent her to physiotherapy, and she was prescribed a narcotic and other treatment for pain. Basically, she was prescribed drugs for her pain.
In October 1986, at the request of the Workers' Compensation Board, my client saw Dr. Buhr. She was told to return to work at the forensic unit, against the recommendations of Dr. Gill. She was able to work from October 14 to October 29, 1986, still taking the drugs that were prescribed for her pain.
On October 29, 1986, she was forced to leave duty due to the pain she was suffering. She was off work from October 30th and on the 31st, called in sick, and since November 1, 1986, this particular person has not been able to return to work due to the pain in her back.
She has since seen a variety of specialists at the request of workers' compensation. I recognize that it is late in the day and you have been sitting all day, and I will not go through all of the doctors that she has seen. Suffice it to say that she underwent extensive varieties of treatment including physiotherapy, hydrotherapy, exercise, ultrasound, acupuncture, nerve blocks, and at the same time continued with her medication.
Dr. Loane on October 3, 1988 - now recognize we are now at 1988 - found that she was unable to return to her previous job as a nurse. The Workers' Compensation Board, of course, was involved all of this time. On September 7, 1989, the Workers' Compensation Appeal Board found that this particular person was unable to return to her previous job as a nurse, they found that she would not be able to return to ward nursing or any other duties that involved reaching, stretching, carrying, or pulling of her arms. The only modality that gives here consistent, partial pain relief is the use of the TENS machine.
Based on these findings that the board found, they made an order, the Workers' Compensation Appeal Board ordered on September 7, 1989, a rehabilitation assessment with full compensation during retraining, and the Workers' Compensation Board ordered that this particular person be assessed for a permanent partial disability. The Workers' Compensation Appeal Board also awarded the cost of a TENS machine. And this order of September 7, 1989 was signed by John O'Brien, who was the Executive Director of the Workers' Compensation Appeal Board.
From there, this particular person went to have a functional abilities test. This functional abilities test was carried out by the Centre for Vocational Evaluation and Rehabilitation Services Limited in Stoney Creek, Ontario. She was tested on April 30, 1991 and May 1, 1991. This test of course was arranged in accordance with the order of the
Workers' Compensation Appeal Board of September 7, 1989. This particular functional abilities test - and as I said, I am not going to go through everything, but to give you a bit of background - indicated that the worker had problems with left hand dexterity, coordination, manipulative speed and that rapidly deteriorates after 10 minutes of sustained activities.
They included, in the recommendations, of course - which I am not going to get to everything I want to touch on, the highlights too, I realize you are not trying the case here - a modified job would be required where her left hand and arm and upper back is minimally utilized and where the worker may be allowed to rest for intermittent periods.
On July 2, 1991, Wendy Richard of the Nova Scotia Workers' Compensation Board received the test results and in her report, she indicated that the FAE indicated that the client will be unable to return to her pre-accident type of employment due to a 10 minute limitation with respect to manual activity. The same worker was assessed again in Ontario at the Ontario March of Dimes on King Williams Street, in Hamilton. Testing was done in November 1981, a series of tests. The testing conducted on those dates concluded, based on an incomplete assessment because the worker couldn't finish it, that at least a very modified table and support would be required to accommodate this particular worker's limitations.
Thereafter, it is important that Dr. M. Cooper, MD, CCFP, after examining this particular worker on November 18, 1991 concluded, at this point, it looks as if the worker is permanently disabled and I can't think of any job she would be able to do. This is part of the medical evidence arriving up to this.
By this point, we have the Workers' Compensation Appeal Board making a ruling, then based on that ruling, the worker takes these particular tests. After that, you have Wendy Richard again, from the Workers' Compensation Board, in a letter dated December 3, 1991, advised the worker, "Since you are not able to participate in a vocational rehabilitation program at the present time, your benefits will not be extended beyond December 16, 1991.".
Now in this particular situation, you have the case where a worker is sent off for assessment because of the pain which is recognized by her doctors resulting from her workplace injury, she can't complete the assessment, and the worker from Workers' Compensation Board tells her, her benefits are cut off because she can't complete the assessment.
Of course, it is our position that because of the legislation, decisions made by the Workers' Compensation Appeal Board are final, and the worker for the Workers' Compensation Board in essence, overruled the Workers' Compensation Appeal Board and cut the worker off. Furthermore, the worker continued with more testing, more doctors. She saw a Dr. Delvin at Mount Sinai Hospital in February 1992. This doctor stated, "I feel that she is likely to be left with chronic discomfort in the left intercostal nerve.".
She sees a variety of more doctors which I won't go through the whole thing, needless to say, she applied for her Canada Pension as she is cut off. Health and Welfare, in a letter dated June 12, 1992, stated that, "Your application for benefit(s) under the Canada Pension Plan has been approved.". I draw your attention to the fact that the conditions to be able to obtain Canada Pension are contained in Article 7 of the Canada Pension Plan, Terms and Conditions, and this states, categorically, "This benefit provides you with a pension if you are unable to continue working because of disability. Your disability must be a physical or mental impairment that is both severe and prolonged. 'Severe' means that you are not able to regularly pursue any substantially gainful employment and 'prolonged' means that the disability is of indefinite duration. You are eligible to qualify only if the 'severe' and 'prolonged' criteria are met simultaneously at the same time of the application.". So this particular worker had severe and prolonged pain sufficient to meet the criteria of Canada Pension, resulting from a workplace injury.
Further to this, she sees more doctors. Dr. Reardon in November 1994, and he states, "It is quite apparent that her present symptoms have originated from the May, 1986, injury as described. The ensuing back pain syndrome that has developed has made it impossible for this patient to return to work. There is absolutely no way that she is going to be able to return to the work force. She has a deeply engrained pain syndrome and I cannot imagine any treatment that will be successful in relieving her discomfort.". Which reaffirms indeed the Workers' Compensation Appeal Board finding where they had stated that they felt she would be left with chronic pain and discomfort in the left intercostal nerve, and given her level of function over the past two years, do not feel that she would be able to return to ward nursing or any duties involving stretching, carrying, or pulling of her arms.
The hearing officer's decision of March 22, 1995 - the hearing officer, not the Appeal Board, to be clear - stated that the issue to be addressed was, "Is the worker entitled to a Permanent Partial Disability Award.".
The Appeal Board had already stated that, "It appears from the medical evidence that . . .", this particular client is, ". . . UNABLE TO CONTINUE IN HER PROFESSION AS A REGISTERED NURSE . . .". "The Appeal Board ORDERS the rehabilitation assessment be carried out . . .", ". . . if the assessment proves negative . . .", then this particular worker ". . . BE ASSESSED FOR A PERMANENT PARTIAL DISABILITY BY THE WORKERS' COMPENSATION BOARD.". That is, in essence, the background.
After this, when we look at what happens - on April 3, 1997, we went to a hearing at the Workers' Compensation Appeal Board. I do have a couple of letters. On October 23rd - and I will give these to the Clerk, I guess. I will refer to all of them. There are just three letters. The chairman can have them distributed.
Then, on November 13th, there was a mediation hearing. The mediation hearing occurred as a direct result of a letter that was sent to the worker on October 23, 1997. I will not read it all but there is something in this letter that is important.
"This is to confirm your appointment on Thursday, November 13, 1997 at 5:00 p.m. at the Heather Hotel . . . New Glasgow. Rocky Jones will work on your behalf . . . Please note, the Workers' Advisers Program will not be responsible for Mr. Jones' fees for this mediation session . . .
The mediation program was set up by agreement between Workers' Compensation Appeals Tribunal, the Workers' Compensation Board and the Workers' Advisers Program. It is formally called the Alternate Dispute Resolution Mechanism and is intended, if possible, to settle outstanding cases backlogged in the system, quickly.".
At that particular session, on a without prejudice basis, obviously, an offer was made to the worker. Clearly, the letter set out that if the worker did not accept the particular offer, it did not prejudice the case and the case would go through the normal stream.
On March 6, 1998 - now remember, we had a hearing on April 3, 1997. We went to mediation November 13, 1997. March 6, 1998, after quite a bit of prompting, I must say, by myself, calling numerous persons, I received a letter. This letter only relates to one conversation. It says:
"Further to our conversation of March 5, 1998, I write at this time to clarify the reasons for delay in the above-noted appeal matter.
It is the intent of this letter to update you as to the status of your file. As you may be aware, the Nova Scotia Court of Appeal, on an appeal of a Tribunal . . . to that Court, ordered the Tribunal to rehear the matter to decide specific issues. Some of the issues ordered to be decided are similar to issues in your case.
The tribunal has reheard the appeal, as ordered by the Court, and a decision will be released in the near future. Upon its release, Appeal Commissioners will be in a position to begin to render decisions on those cases which share similar issues.
Unfortunately, I cannot predict when a decision will be rendered on your file. Decisions on those files which have been delayed for the reasons described will be done in chronological order as to the date of filing and where applicable, date of hearing. We appreciate that the delay is troubling, however, the Tribunal has acted upon the Order of the Court as quickly as it
could and will continue to do its best to decide appeals before it in as timely a manner as possible.".
This is signed by Judith Ferguson, Chief Appeals Commissioner. First of all, the issues that were raised in our appeal were not necessarily the issues that were raised in the case that the appeals commissioner is referring to.
To add insult to injury, the hearing was on April 3, 1997, this worker had been injured May 18, 1986, and still trying to get satisfaction through workers' compensation. I received a letter September 1, 1998, a couple of days ago:
"Dear Mr. Jones: . . . On April 3, 1997 you attended an oral hearing before Ms. Diana Musgrave, a WCAT Appeals Commissioner. Unfortunately, Ms. Musgrave was unable to complete the final decision on your appeal prior to the expiration of her tenure with the Tribunal. WCAT apologizes for this and appreciates the inconvenience that this poses.
There are two options, for you and the Appellant to consider with respect to the final decision on this matter and WCAT looks to you for your preference. The first option is that the file is assigned to another Appeal Commissioner who will review the tapes from the hearing and do the decision without holding a new oral hearing. The second option is that the file is assigned to a new Appeal Commissioner who will have a new oral hearing on the issue.
Could you please contact . . .", the scheduling officer, ". . . on how you wish to proceed. Once again, the Tribunal apologizes for the additional delay this has caused.".
I submit to you that this is absolutely ludicrous. Here is a worker, since 1986, who has been fighting with workers' compensation trying to get through this system, and needless to say, the cost to her of my services has now gotten to be substantial. The Workers' Compensation Appeals Tribunal tells her they will not pay for her legal expenses. How else is she supposed to take this matter forward when she has been blocked every step of the way, and still at this point, there is that kind of stonewalling? How can a worker in this system overcome this type of bureaucratic behaviour?
That is what I wanted to say. As you are deliberating, not so much the actual facts in the adjudication of the injury, but the fact that a decision had been made which was overturned by a worker and not the board and they are still jerking this issue around. Those are my comments, Mr. Chairman.
MR. CHAIRMAN: Thank you very much, Mr. Jones. I take it that, speaking as a lawyer for a second, your difficulty is that until you have a decision from WCAT, you can't even go to the Court of Appeal to complain?
MR. JONES: The worker is caught, still caught.
MR. CHAIRMAN: Even though they may be beyond their jurisdiction in trying to overrule the External Appeal Board, you can't go anywhere because you can't get a decision of the WCAT to go to the Court of Appeal on.
MR. JONES: No. I can't appeal a decision, there is none. They hire a commissioner or whatever to hear the case and then they write to me and say, oh sorry, her term has expired, she is no longer there, she didn't even adjudicate it, so, tough luck.
MR. CHAIRMAN: Needless to say, your client is upset by this.
MR. JONES: My client, although she has been getting Canada Pension, it has created severe financial problems for her. Unless this is adjudicated as an example - she has lost the benefits that she had as a government employee at the Nova Scotia Hospital, all of the benefits are gone. She has been left out in the cold. No decision has been made. She is, of course, forced to pay for a lawyer to take it forward, which she cannot afford.
MR. CHAIRMAN: I understand that. I wonder if any of the other members of the committee have any questions at the moment? I will make an observation, that while the specifics may be different, these are not new, unfortunately, in the sense that the committee has heard similar tales of other individuals who have had cases endlessly on appeal and unable to reach decisions.
I appreciate the time you took out of your practice to be here with us today. I will circulate copies of the correspondence to other committee members, so that we can consider this as part of our deliberations in looking at changes to the Act. Clearly this is as good an example as any of a system gone amuck.
I don't know if any committee members have a question. Thank you very much, Mr. Jones. We are adjourned until 7:00 p.m.
[6:06 p.m. The committee recessed.]
[7:28 p.m. The committee reconvened.]
MR. CHAIRMAN: Ladies and gentlemen, I would like to call the meeting to order. I would like to welcome all the members of the public to the evening meeting in Halifax of the Select Committee on Workers' Compensation. In particular, I would like to outline, for the benefit of the public who may not have been here earlier, the mandate of the committee.
This committee was formed as a result of a resolution passed by the House of Assembly at the spring sitting of the Legislature with a mandate to review the Workers' Compensation Act and associated regulations and policies, so that a better workers' compensation system could be instituted in Nova Scotia. As part of that process, the committee has been holding meetings throughout the Province of Nova Scotia, at which we have invited members of the public to make presentations as to the changes they feel should be made to the Act.
For the benefit of those members of the public who may be present and planning to make a presentation who would be injured workers, I have been asked to indicate that we invite them to tell their story so that we can understand how the system has affected them, so that we can address legislative changes to improve the system. Of course, it is important that people understand that we are not able to hear an appeal of their particular case; however, of course, the possibility exists that legislation may have a positive effect in their situation.
Without any further ado, I would ask the members of the committee to introduce themselves, starting with Mr. DeWolfe.
[The committee members introduced themselves.]
MR. CHAIRMAN: I would ask the staff and consultants to introduce themselves, starting with Mr. Johnson.
[The committee staff and consultants introduced themselves.]
MR. CHAIRMAN: Thank you very much. Our first presenter for the evening is the Alliance of Manufacturers and Exporters of Canada. I believe Mr. Smyth is here.
MR. DICK SMYTH: I won't be presenting. Ms. Forsey will present.
MR. CHAIRMAN: Well, anytime you would like to begin.
MS. CAROL FORSEY: Mr. Chairman, my name is Carol Forsey, and I am the current Chair of the Alliance's Employee Relations Committee. I will present our submission, assisted by Dick Smyth, the Alliance Nova Scotia Division, Vice-President. The Alliance of
Manufacturers and Exporters Canada is a national organization of 3,500 manufacturers, exporters and research organizations representing 75 per cent of Canada's industrial output, and 95 per cent of Canada's exports. It was founded on May 30, 1996 when the Canadian Manufacturers Association, founded in 1871, and the Canadian Exporters Association, founded in 1943, merged. The Association of Provincial Research Organizations founded in 1969 joined the new organization in mid-June 1996.
Members of the Alliance in Nova Scotia consist of about 100 organizations, employing over 45,000 Nova Scotians, including 70 per cent of all manufacturing employment and generating manufacturing shipments of over $6 billion and exports over $3 billion. Members add value to many natural resources as well as manufacture and service products, ranging from electronics, newsprint, textiles, dairy products, fish products, metal working, marine, aerospace, automobiles and automotive parts, petroleum refining and construction materials. Members also contribute to the service industry employment and its portion of the provincial GDP.
The Alliance focuses on critical issues that affect its manufacturing, exporting and research members, and works at all levels of government to build a milieu which fosters long-term growth and stability for the manufacturing and exporting sector in Nova Scotia and Canada. The Alliance represents many diverse industries within manufacturing and exporting and the views expressed are the general consensus of its members.
Bill No. 122. The Alliance, or as it was then called, the Canadian Manufacturers Association, last appeared before the Law Amendments Committee reviewing the current workers' compensation on November 28, 1994. Although the association had a number of concerns with Bill No. 122, it did agree that the proposed Act which reformed workers' compensation was good and would be improved with the points made. A revision to the Workers' Compensation Act was long overdue and the benefits of the new legislation would have a positive impact on industry, both in terms of retaining current employers and in attracting new employers to Nova Scotia.
Recently, before, during and since the First Session of the Fifty-seventh General Assembly of Nova Scotia, there has been lengthy discussion about an extensive backlog of appeals before the Workers' Compensation Appeals Tribunal known as the WCAT. Some estimates range from 2400 to 2800 cases. The Alliance agrees with other Nova Scotians that this is unacceptable and needs immediate remediation. Bills No. 15 and 16 attempted to provide a solution to the backlog problem but, unfortunately, failed to get passed before the General Assembly rose on June 29, 1998. The Alliance has several concerns with both bills but, as stated, agrees that the appeals need to be reduced in number.
Resolution No. 844. The passing of Resolution No. 844 establishing a Select Committee on Workers' Compensation is welcome if its mandate to review changes to the Workers' Compensation Act as well as to review recommendations of the Auditor General's
audit of the Workers' Compensation Board, Workers' Advisers Program and Workers' Compensation Appeals Tribunal is done in accordance with Section 161(1) which states: "The Governor in Council shall, within three months of the end of the Board's third complete fiscal year after the coming into force of this Act, appoint a Review Committee to review, report on and make recommendations to the Governor in Council in accordance with the terms of reference established by the Governor in Council.".
If the Select Committee on the Workers' Compensation Act is indeed the Review Committee per Section 161(1), the Alliance is pleased that this is so, despite being a little early. If it is not, and is really a special committee, then the select committee's mandate should be limited to the more immediate issue of the appeals backlog as well as the Auditor General's forthcoming audit report. Notwithstanding the above comments, the Alliance is prepared to discuss a number of issues and expresses its concerns below.
The first issue is the appeals backlog. The Alliance believes that the select committee needs to address the appeals backlog specifically since this is the major issue facing Nova Scotians today. Although resolution of this issue may appear complex, the select committee should be able to recommend some ground rules for the WCAT to follow in order to expedite appealed claims without unduly impacting on the WCB's current unfunded liability and relatively high assessment rates. If need be, the number of WCAT members should be increased, the implementation of regional WCATs should be considered, and the streamlining of each appealed claim decision should be undertaken to reduce the amount of time involved in any appeal. The Alliance recommends that the select committee attempt to define the process to speed up the processing of the appeal claims without making dramatic changes to the Workers' Compensation Act.
Issue number two is competitiveness. Industry in Nova Scotia, as in other jurisdictions, faces a number of challenges - local, national and international competition; federal, provincial, municipal and, in some cases, international, regulations governing business; technology advances which have become more rapid and demanding; lack of employees with the required skills, some old and some new; taxation in many forms such as corporate taxes, capital taxes, business, municipal taxes, co-shared premiums in some cases for health and other benefits Canada and Quebec Pension Plan, employment insurance, workers' compensation and other insurance benefits. The list is endless. A good overview of the above can be found in A Guide for ACOA Nova Scotia Clients published in June 1996.
Despite the above lengthy list of restraints on industry, people continue to stay in business and start up new businesses because they want to provide goods and services to Nova Scotians, Canadians and others. In order to continue, these people must make a profit. The Alliance of Manufacturers and Exporters Canada, and previously the Canadian Manufacturers Association, has measured and continues to measure the amount of time in an eight hour day for manufacturers to reach break-even, that is to cover operating costs. For 1997 this reached seven hours and 34 minutes, leaving 19 minutes after paying taxes to make
money to invest in advanced technologies, organizational changes, skills, new products and new markets to compete effectively. This was an improvement over 1996 and especially over 1991 when only three minutes were left to make money.
Industry in Nova Scotia needs some latitude in order to stay in business and provide meaningful employment to Nova Scotians. If any one of the input costs is changed, this could impact the break-even level and result in a business or industry not having enough funds to improve operations and compete effectively as well as in potentially reducing the number of jobs offered to Nova Scotians.
The Alliance recommends strongly that any proposed changes to the Workers' Compensation Act be made only after an appropriate cost-benefit analysis is carried out by government. The Alliance offers its own Business Impact Test software, used by the federal Treasury Board, as a tool to perform this analysis. A copy is in the Legislative Library.
Issue number three is legislative changes and external influences. The Alliance's current position on the Workers' Compensation Act, Chapter 10, Acts of 1994-95, is to leave it alone and let it operate as is until the review committee is established in 1999. The Alliance and its predecessor, the Canadian Manufacturers Association, believes that the previous Workers' Compensation Act got into difficulties due to not only the long overdue need for revision but also tinkering which occurred over time. Minor as well as major adjustments managed to wreak havoc on the Workers' Compensation Program. Workers' compensation is basically an insurance program and should not be tweaked to fit every special circumstance or request for change. Changes to broaden the range of coverage for workers' compensation and to cover more occupational diseases must be dealt with at a time when the whole Workers' Compensation Act is under review and not done ad hoc prior to the 1999 review.
This tinkering appears to be caused by well-meaning organizations and/or individuals, including but not limited to Nova Scotia elected officials, the justice system, the WCAT and possibly the WCB. The Alliance believes that such tinkering would not usually be normal in insurance companies offering similar programs.
The Alliance recommends that the key issue, namely the appeal backlog, be addressed and that the current Workers' Compensation Act be left alone until the Auditor General's Report is reviewed and the review committee is established per the Workers' Compensation Act, Section 161(1).
Issue number four is the Occupational Health and Safety Division funding. Although the Alliance was pleased with the government's budget presented on June 4, 1998, and accepted towards the end of the same month, it is concerned with the underlying assumption and decision made in that budget, namely on the new method of funding the Occupational Safety and Health Division of the Nova Scotia Department of Labour. In prior years the
division was getting partial funding from the Workers' Compensation Board, but for 1998-99 it is wholly funded.
Although there may be a solid reason for the coupling of the Occupational Safety and Health Division, a government branch, with the WCB, a quasi-government agency, there has never been any public consultation about this. As a result, the WCB must now come up with over $5 million per year to pay for a government branch. There is also a point to be made about fairness in that essentially employers who fund the WCB will end up paying for Occupational Safety and Health Division services which cover a more extensive group of employers. The Alliance would like to see public consultation and/or legislative debate on the funding of the Occupational Health and Safety Division by the Workers' Compensation Board.
In summary, the Alliance realizes that the abnormal backlog of claims under appeal must be dealt with immediately and not left as is. However, the process for dealing with this situation should use the principles outlined in the current Workers' Compensation Act and proceed in a rational procedural fashion to reduce the number of appeals. As recommended, the addition of a more streamlined procedure, plus more people assigned to hear claims appeals, would be very helpful.
The Alliance feels strongly that the Workers' Compensation Act needs a review by a review committee as envisioned in the Workers' Compensation Act under Section 161(1). Ad hoc tinkering with the Workers' Compensation Act will get Nova Scotia into the same problems which existed with the previous workers' compensation legislation.
The Alliance wishes the select committee success in trying to resolve the appeal backlog issue. Thank you, Mr. Chairman, and members of the select committee. We would be pleased to answer any questions you have at this time.
Mr. Chairman, before starting questions, I would like to state that the Alliance is a member of the Employers' Ad Hoc Committee on Workers' Compensation and Occupational Health and Safety and supports the submission made earlier today. Thank you.
MR. CHAIRMAN: Thank you. There may very well be questions from other members of the committee. I guess I had a question for you perhaps with respect to one element of the presentation, which was your last, which has to do with the Occupational Safety and Health Division funding. I'm not sure from your presentation and maybe you can't say whether you favour occupational health and safety funding being 100 per cent coming from workers' compensation or whether you feel it is more appropriate that it be split. I'm just wondering. You sort of skate around the edge of that and I was just curious as to what your organization's position is, if it has one?
MR. DICK SMYTH: Can I answer that question?
MR. CHAIRMAN: Yes, you can.
MR. DICK SMYTH: What we want to see is some sort of consultation prior to doing this sort of thing. It is one of the things that we missed in the budget. There are a number of other things we missed, too, but overall the budget looked good. But when we noticed this very, very recently, we said, what is going on here, how come they are fully funded by WCB, and it was strictly arbitrary.
MR. CHAIRMAN: So I take it that you . . .
MR. DICK SMYTH: I would say we are probably in favour of WCB and the Occupational Safety and Health Division being amalgamated at some point in time. I don't know if this is the right time. It looks like it is being done right now.
MR. CHAIRMAN: Yes, I think it was part of the budget. So I think it is right now, yes. Thank you. Do other members of the committee have questions? I guess not.
I just had one other thing I wanted to perhaps ask you about as far as your presentation was concerned and it concerns the length of the appeal backlog, and that's clearly one of the significant public issues involved. Do you have any sense - and either one of you can answer this - of what, from the point of view of your membership, a satisfactory point of time would be to resolve the backlog? Any idea of whether you think it should be resolved within six months, four months, a year? Do you have any sense of that?
MR. DICK SMYTH: I don't think we ever talked about any sort of deadline. I guess the only thing we were worried about is Bill No. 15 which, I think, was proposing to have a set deadline and anybody that fell beyond that, well, they were all accepted. That part we didn't agree with, unfortunately. I think they should all be reviewed; whether it takes six months or two years, I don't know.
MR. CHAIRMAN: Any questions from any members of the committee? Thank you very much for taking the time to be with us this evening and making your presentation. I might indicate also that we have received the earlier presentation today and appreciate your participation in both of those. Thank you.
Our next presenter is Ernie Hawes. Mr. Hawes, would you just have a seat right there. Keep moving along there. Great, that will be fine. Good evening, sir, you can start whenever you want.
MR. ERNIE HAWES: My name is Ernie Roy Hawes. I am a resident of Halifax. I've been here all my life, except for the Air Force and the Army. My first injury happened at CFB Shearwater in 1969. I was off for two and a half years in hospital and doing physiotherapy.
MR. CHAIRMAN: What was the nature of your injuries, Mr. Hawes?
MR. HAWES: I fell on the back of a three-ton truck because it was wintertime and the ice had got underneath the steel rod and when I was up there unloading it, the rod let go and caught in my pant leg and I come back down on the steel. I got such a run-around from the Workers' Compensation Board at that time it was unbelievable. They were supposed to rehabilitate me. They never did. They were supposed to set me up for a trade through the unemployment insurance but they never did.
After two and a half years, 1972, I moved to Toronto where I seen a doctor up there. He did an operation on me and made me a little better. Then I had a fire and come back home. Then I worked for the government again at the Post Office, odd little jobs but not doing no lifting, just strictly driving, doing messages and no back lifting whatsoever. I went back with the government again at Shearwater in 1983. I re-injured myself again on June 13, 1990. Shearwater paid me up to January 21, 1991. Then the workers' compensation took over and paid me up until April 21, 1992, and cut me off with the understanding that I was too old to be retrained.
MR. CHAIRMAN: How old are you, sir?
MR. HAWES: I'm over 64. I was too old to be retrained even at that time which is eight years ago. I was too old to be retrained. I went through a test. When the test came, I had the ability to be an officer in the Armed Forces, but I was too old to go back in the Armed Forces; I had the ability to be a teacher, but I only had Grade 12; I had the ability to be whatever I wanted to choose between the other two and I chose social service work because I'm interested in that. It was approved by the caseworker. It went to our supervisor and come back with the information that, no problem, you know you have to go to college and get two years in college. I said no problem, who pays for it? We do.
January the following year I was told I was too old. I thought you're not allowed to discriminate against age. In this case we can because you're federal and this is provincial. That is what I was told. I have it on record. The Ombudsman of the Province of Nova Scotia has it on record.
MR. CHAIRMAN: So you were told, because you were a federal claimant . . .
MR. HAWES: I was a federal claimant and not a provincial claimant and the age limit for provincial claimant was 65 but to the federal government there is no such thing as retirement age. You can work as long as you pass the medicals. They told me through the provincial that by the time I took the course, which was a seven year course, I would be too old for the provincial government . . .
MR. CHAIRMAN: So the provincial rule is the rule that caused you the problem?
MR. HAWES: Yes. Then I was told that I would be back-paid, loss of wages. Then I went for another committee. Nine months, they lost my file completely, didn't know where it was. I had, first of all, Kitz Matheson as lawyers. Then I had Chandler Moore. Finally, I have this lawyer firm of - I forget her name now but she works for the workers' compensation in the appeal thing.
MR. CHAIRMAN: The Workers' Advisers Program?
MR. HAWES: That's right, yes. She is shaking her head because she cannot understand it. Every time we come up there, I'm 1,300 on the list. Four months later I'm 666 on the list. Three or four months later I'm 999 on the list. I finally got to be 7 on the list to be interviewed. Finally, in 1995 or 1996, I believe it was, we did appeal our case to the Appeal Board on Brunswick Street. We won our appeal. They were supposed to give me a pension. They gave me 1 per cent which was a slap in the face.
I went to their doctors which they sent me to, five well-known specialists in Nova Scotia, Dr. Sapp, Dr. Reardon, Dr. Holness, you name it, I went to them twice and they said the same thing, I would never be able to do the job I did before but I got two hands. It should be up to the workers' compensation or somebody that is retraining me because I still have a brain and I still have two hands. Even though I can't do what I did before, I can't walk too much and I can't stand too long but I got the old shaft from them.
After that, it was, oh, the Review Board is coming up in three month's time, Mr. Hawes. Three months later, I call. They didn't even know where my file was. So those are the problems I'm having.
Why should I be criticized because I'm a federal employee? If I was still not hurt today I would be working. Why should it be governed under provincial rules when I'm a federal employee?
Now, the pension I do get from Shearwater is very small. I do get a Canadian Disability pension. If I was still working, I would be well into my 20-some odd years at Shearwater instead of just 16 years which I spent over there.
MR. CHAIRMAN: You're getting the Canada Pension disability benefit now?
MR. HAWES: Yes, I am.
MR. CHAIRMAN: As well as the Canada Pension, you say you're getting . . .
MR. HAWES: Shearwater.
MR. CHAIRMAN: . . .a pension from your work at Shearwater?
MR. HAWES: Yes, and Sun Life Insurance through the federal government but at 65, according to their law, according to provincial law, that ceases. The Old Age Pension and the difference doesn't make up - not even 70 per cent of my wages. In fact, it comes to 62.3 per cent.
MR. CHAIRMAN: When did you last receive workers' compensation benefits?
MR. HAWES: April 21, 1992. They cut me off because they sent me to two rehabilitation things for training and exercises and they didn't work out. They were reading reports from them that it was no good to try to get me back because they couldn't do anything for the back and the legs, and the spine is deteriorating. In fact, they told me that maybe in three years I would be in a wheelchair if I didn't watch myself, so I have been taking it easy. Now I've got arthritis in there and I've got a little touch of Alzheimer's Disease. That's the way it is. I still have got two hands and I've got a brain. I'd love to be able to go back to work. If I didn't injure myself this time in 1990, I would still be working.
I think I deserve a fair deal from the workers' compensation and I would like to know where I stand there. Every time I call - I had the Ombudsman in the Province of Nova Scotia call. He shook his head. He couldn't get an answer. Of course, he can only do so much because he's provincial. He can only get a certain number of answers and that's all. He shakes his head because he cannot understand what's going on.
The lawyer I have - in fact, I should have brought the letter - she's bewildered because she doesn't know. I should have been heard months ago. I should have been heard years ago. It should have been settled over four or five years ago. It's just delayed. They're forming new committees and then the new committees have to be retrained.
Well, I've been down to workers' compensation and I can tell you, to be honest with you, it's very pitiful down there, very pitiful. Eight of them go to dinner at the same time. That leaves about one poor little girl in there doing all the work by herself.
MR. CHAIRMAN: Your case, Mr. Hawes, is it now waiting for the Workers' Compensation Appeals Tribunal, the WCAT, you're waiting for it to . . .
MR. HAWES: Yes, still waiting and waiting. Every time I get it, the answer is - two years ago I got the same answer - that they're forming a new committee. You're still on the same list but we can't find your files right now. We will look for them. So three weeks later I call again, uh, I think we have located your files and it's over there in the other office across the street.
MR. CHAIRMAN: Has your case been labelled, Mr. Hawes, as chronic pain?
MR. HAWES: Yes, it has.
MR. CHAIRMAN: I thought it might have been. Thank you. I don't know if any of the members of the committee have any questions for you. Mr. Power?
MR. POWER: Mr. Hawes, I just had one question on your rehabilitation. Did I understand correctly that you were in retraining for . . .
MR. HAWES: Well, physiotherapy, I should say, I'm sorry.
MR. POWER: Did you say that one course was seven years long, where you had seven years of retraining?
MR. HAWES: The course that I would like to take - because I cannot go back in the Armed Forces - I was in the Armed Forces - I was a Warrant Officer in the Armed Forces and I was too old to go back in the Armed Forces so that limited that out.
The other thing, when I had taken the test, I had the ability to be a teacher but I only have Grade 12. So the third or fourth choice that came to me was the social service field. Well, I was very interested in that so I said, okay, is there any chance of me taking that? Well, your IQ is very high, Mr. Hawes. In fact, your test that you had at Manpower was very remarkable for a man that's been out of school for the length of time that I had.
I left quite a few years ago and I left in Grade 11. I got my Grade 12 in the Air Force. They explained to me that I would have to go back to college. I would have had to spend at least two and one-half years in college and I asked them, who pays for this? Oh, we will. As long as everything is okay, two days later they got back to me and said everything was okay by their supervisor, that during the first year I would be set up to go back to Dalhousie or Saint Mary's, whichever I wanted to go to, for the training.
They also explained to me that I had to go out and work with the social service field for two years. Then I had to go out on my own for a year and a half with some different organizations to learn outside, which I said, no problem.
How are you able to get around? I said, well, I'll be able to get around as much as I can get around. I just can't lift. I said, I can't stand too long and I can't walk but I've still got a brain and I've got two hands. So that's the answer I've got, sir.
They told me I was too old which is discrimination, as far as I'm concerned, but they said it's provincial government. I said, well, I worked for the federal government. I said, the federal government - if I didn't get injured - I said, I understand that provincial government is 65 as mandatory retirement, but in the federal government, 65 is not mandatory retirement, not even 75. You can work as long as you're able to pass the medical.
In my last case, I was working with avionics which was a very easy job. Working at Shearwater, you had to do what they call an ambulance run. Every week you had to go on so many weeks - like every eighth week you had to go on an ambulance run. Well, a man of my age, to be put on an ambulance, lifting patients - well, that's what happened. I got injured again. I couldn't refuse it because if I refused the job, I was out.
MR. POWER: Thank you, Mr. Hawes.
MR. CHAIRMAN: Thank you very much, Mr. Hawes. I don't believe there are any other questions from the committee. Thank you very much for taking the time to be with us here today to give us your story of your problems. We appreciate that. We would encourage you to stay around a little while longer and hear the other presentations. Thank you very much.
MR. HAWES: Thank you very much.
MR. CHAIRMAN: Our next presenters would be from the Nova Scotia Federation of Labour, Mr. Rick Clarke, President; and Ms. Betty Jean Sutherland, General Vice-President. Good evening, Mr. Clarke, Ms. Sutherland.
MR. RICK CLARKE: Mr. Chair, members of the committee. I would like to, I guess, first of all, thank the committee for the opportunity to appear because I think it is very important - and we have been following as well as we could what has taken place across the province and what you have been hearing. We will try not to duplicate some of the issues but, rather, maybe to expand on it. There is nothing like hearing directly from claimants as the previous presenter because those are the type of issues that we are hearing on a regular basis.
We do have - and it is not an actual written presentation but it is in point form - some of the major areas of concern. As indicated in a previous letter to yourself, Mr. Chair, we anticipate that we will be forwarding a little more detailed presentation sometime in the near future. I have also brought along with me - and I will be making a couple of references to it - the presentation that the Nova Scotia Federation of Labour had made in 1994 before the Law Amendments Committee dealing with Bill No. 122.
Many of the points that we are raising here, many of the concerns that you are hearing from claimants and other groups, and organizations and individuals across the province are issues that we foresaw, problems with Bill No. 122. At that time, we were kind of tarnished or branded as being fear-mongering. Unfortunately, we sit here before you today to say that it is a sad day but a lot of the predictions that we had made have come true and it has been at the cost of the injured workers of this province. With that in mind, we are hopeful that your committee will have the opportunity to make some very good recommendations because I
think this process is, indeed, the best process for progressive changes to legislation that mean too much to workers.
We will go through the point form. Betty Jean, who is one of our Vice-Presidents, representing CUPE, is also the Chair of our own Workers' Compensation Committee. We will begin with the first points of our presentation. I have ample copies for the committee, that I can leave.
MS. BETTY JEAN SUTHERLAND: A Select Committee on the Workers' Compensation Act has been established by the Nova Scotia Legislature to review changes to the Workers' Compensation Act. Public hearings are being held and changes to the Workers' Compensation Act are needed in the following areas:
Levels of Benefits. The 1996 Workers' Compensation Act reduced all of the benefits then paid to workers injured on the job in Nova Scotia. It did so in order to reduce the unfunded liability of the Workers' Compensation Board for the claims in the 1970's and the 1980's when assessments charged to employers were kept artificially low. The plan was to eliminate the unfunded liability over 45 years. The cuts in benefits have had the dramatic result of reducing the unfunded liability of the board much faster than anticipated. Meanwhile, injured workers have had to accept virtually the lowest compensation benefits in Canada. It is time to rebalance the Workers' Compensation Act and restore lost benefits. The select committee should assess each of the benefits cut in 1996 and at a minimum, it should recommend:
A. Basic Compensation Formula. The 1996 Act reduced weekly benefits by 25 per cent by changing benefits from 75 per cent of gross pay to 75 per cent of net pay (after 26 weeks, the benefit is 85 per cent of net pay). This should now be changed to 90 per cent of net pay which is the level of benefit enjoyed by most Canadian workers.
B. Two Day Waiting Period. The 1996 Act penalizes all workers by denying benefits until two days of wage loss due to an injury. This two day penalty should be eliminated. At a minimum, the employer should be free to pay an injured worker during the waiting period and unions should be free to negotiate payment for those two days in collective agreements.
C. Top-Up. The Act reduces benefits if the employer pays an employee an amount to make up for the difference between their lost earnings and the workers' compensation benefits. This restriction should be eliminated. At a minimum, the employer should be free to pay top-up to employees and unions should be free to negotiate top-up payments without penalty in collective agreements.
D. Permanent Impairment Benefits. The 1996 Act introduced an extended earnings loss benefit for employees who continued to lose earnings due to an injury. However, at the same time, it reduced benefits to employees with permanent injuries by cutting permanent disability pensions by 70 per cent. This new much reduced permanent impairment benefit should be restored to the pre-1996 levels. The board has followed a policy of paying permanent impairment benefits in lump sums. This policy should be reversed except in the case of very low benefits. An employee should receive a pension for life for the permanent effect of their injuries. This restoration of permanent partial disability benefits should include cases of automatic assumption, hearing loss and other occupational diseases.
E. Indexing. For several years, workers on permanent partial disability pensions from the old Act have received no indexing to their pensions to compensate for inflation. The 1996 Act banned any indexing for a period of five years. The indexing formula in the old Act should be restored to protect the value of these pensions.
MR. RICK CLARKE: Do you want to go through the whole thing or maybe if there's questions as we go through, or . . .
MR. CHAIRMAN: Generally most presenters go through the whole thing and then there are questions at the end.
MR. RICK CLARKE: Fair ball, yes. The area that I'm probably going to do most of the focus on is the concern we're having, as across the province, with the backlog. We believe the Act of 1996 introduced an elaborate system of appeals which has created the enormous backlog. If we looked at it from our most cynical view, the Act itself was designed to fail so that the cases wouldn't be heard. The WCAT, for example, in particular, is hamstrung by an array of time-wasting procedures and restrictions. We have created a huge bottleneck requiring appeals for leave to appeal, permission for leave to appeal. New evidence cannot be heard at the appeal level. Claimants may be in line for an appeal and they may receive a new report. If they receive a new report, they can't table it at that level if they happen to be walking through the door. They have to go back through the system again to have their case reheard.
I guess the other area, and I'm going to be talking about in more particular the points, but it has been such a frustrating process even for those that are working with the WCAT, or within the process of the WCAT, that they've introduced the alternate dispute resolution procedure that we're hearing great concerns about across this province. We are hearing of people that may have three to five years wait in a line and they're either faced with another two, three to five years wait or take a substantial reduction in the amount of money that would be normally paid to them. We believe that that's very unfair.
We have a number of recommendations that we believe are needed to make the appeal process fully open and fair to injured workers in this province. First of all, we need a fully independent appeal tribunal. I'm not going to take the time at this sitting, although I think it's a place that it should be heard, the information that is coming to light today of the contact between the chair of the WCAT and with the minister, is raising a lot of concern within organizations such as ours that represent workers. If it is to be a truly independent appeal process, then it has to be totally independent at arm's length both of government and of the Workers' Compensation Board.
We believe that the Act should be amended to ensure that it is a fully independent tribunal with the authority and the mandate to apply the Act to the facts of the case without limitation on the board procedures or policies because, as you know, the board itself, or totally within the structure of the board, are bound by the policies of the board and, therefore, for many injured workers, although the policies and procedures of the board may fly in the face of the intent of the Act, or the interpretation of the Act, the process is bound by the decision of those policies and procedures.
We believe there ought to be a broad right of appeal, thus eliminating the leave to appeal and establish a broad right of workers to appeal unfavourable decisions of the Workers' Compensation Board. It should not be an adversarial procedure. Until Bill No. 122 it was not an adversarial procedure and we believe that we have to revert back to where we were pre-1996 and to remove the employer participation in the appeal process.
No more technical delays, eliminate the restrictions of the use of new evidence to permit the workers' entitlement to be decided without referral back to the Workers' Compensation Board, thus eliminating longer delays for resolving workers' cases. The workers should clearly have the benefit of doubt. Again, that was an issue that had been in place before Bill No. 122 and we believe that we have to revert back to that rather than the current status of the worker being bound by providing strict legal support or evidence.
Limit the length of decisions and this is an issue that the minister who tabled the legislation, we pleaded with him at the time, the proverbial not to throw the baby out with the bathwater when we had the external appeal process. The problem at that time was the lengthy decisions. We said that there's a way to fix that. There's a way to address the court case that resulted in the long decisions and rather than do that we opted for this more cumbersome appeal process now that's creating even more backlogs than we had when we had the old external appeal process.
Eliminate the alternative dispute resolution process. The Workers' Compensation Act is meant to compensate workers at a fair return if they're injured on the job and to compensate them for that injury. It is not fair to take injured workers out who are in an economic crisis because of the long delays and to offer them less than what is deserving. We
think that if there's an award offered, it should be based on the exact amount of money that is due to those workers.
The retroactivity, we have experienced, in our experience, nightmares, because of the Act being made retroactive and policies and procedures of the board being made retroactive. We believe that has to stop with the possible exception of the extended earnings because that was back to March 23, 1990, because that was the decision of the court. Other than that, policies developed by the board, or by regulation, or by Order in Council, ought not to be retroactive because it creates all kinds of undue hardship on injured workers.
We believe that there's too much, and we said so in our presentation we made on Bill No. 122, we are very fearful of the authority that was being given to Order in Council and the Workers' Compensation Board. We were fearful because it was giving power that ought to be in this House. There ought to be legislative changes when it is coming to regulations or policies or procedures that are undermining or taking away benefits that are prescribed for by the Act, then that is a matter that should be for all Parties of the House and not by a board or not by Order in Council.
We believe that the external appeal tribunal ought not to be bound by the policies of the board. The old external appeal process had some latitude in applying the Act. The Act is, again, what's debated and adopted by our legislative process and the tribunals ought to have the power to apply the Act to the cases not bound by policies that are unfair. The regulations excluding applications of the Act, we believe that there should be no exclusions. Regulations ought not to be allowed to exclude a payment. They ought not to be allowed to exclude a disease, or occupational disease or illness.
Chronic pain, and I won't pretend to know a lot on chronic pain because chronic pain is the new issue, but we are very concerned over the way that we're dealing with chronic pain. Contrary to what I read in a media account by someone from the business community, a clipping was sent to me, an article appeared in the Cape Breton Post, chronic pain is paid in other jurisdictions probably with the exception of Nova Scotia. Chronic pain, again by regulation, and we realize that there's a lot of pressure on the board on trying to deal with this issue, but the issue of tough love, I think is a term that's being used for chronic pain, wherein a worker will receive some rehabilitation beyond benefits for a very short period of time and then everything gets cut. If they get through the filtering system that recognizes that the chronic pain is attributed to workplace injury, then chronic pain ought to be compensated as is any other injury, or the result of any other injury that a worker sustains in a workplace.
In benefit of the doubt, again, in our presentation we actually quoted the old Act and the new Act. It was very clear prior to Bill No. 122 that where there was any shadow of doubt whatsoever, the benefit of the doubt went to the injured worker and the claims proceeded. Now it has to be supported by legal and staunch support. I was going to say medical but that's another issue I'm going to touch on in a minute because not necessarily all
medical support is seeing justice for workers today. I believe two select committees of our Legislature had recommended not to recognize pre-existing conditions when determining the degree of disability of an injured worker.
The previous Progressive Conservative Government introduced changes to the Act which, in fact, outlawed or prohibited the use or recognition of pre-existing conditions. We're now having that before us in determining of claims today. That is one area where we are seeing and hearing again the overuse of medical interference within the board. We are hearing of a specialist - one, two or three specialists sometimes recommending that an individual is entitled to benefits and that decision is overturned by board doctors who are saying that it is not totally workplace related, that there has been some pre-existing conditions, et cetera. We believe that we have to stop the use of pre-existing conditions because although an individual may have had arthritis, or something, in the spinal area, functioned very well until the injury, then that worker ought to be compensated for the injury and not something else that may be found when they are doing an examination.
Also on that, we believe that we have to stop the medical interference and if we have specialists that are supporting injured workers and some of these workers are going to the specialists at the urging of the board and if we're not paying attention to the recommendations of the specialists, then I think it is a gross miscarriage of the intent of providing support and coverage for injured workers.
Universal coverage we fully support and, again, at least two select committees of this House recommended full universal coverage, that every workplace, every worker in the Province of Nova Scotia would be covered by workers' compensation. That, in fact, was in Bill No. 122 and I attended most of the Law Amendments Committee hearings, I believe, or we monitored them if I wasn't there on my own. I don't recall anyone lobbying or coming before the Law Amendments Committee to say reduce universal coverage but when Bill No. 122 came back in for final reading, there were exclusions. In sidebar, that is an issue that is being raised within the business community today which is a very valid sidebar. The workers' compensation system provides funding to occupational health and safety for accident prevention.
Occupational health and safety applies to every worker in this province and there are employers out there that are getting free freight and universal coverage would ensure that every workplace, particularly financial institutes are the ones that are excluded, ought to be covered and this would help with some of the financial problems within the board. We would urge that this committee give very serious consideration to this.
The Workers' Advisers Program - and just to touch on, because again I heard the individual that appeared just before us on the problems in the wait and problems that they're having, the workers' advisers from our experience are trying to do the best they can but there is too much of a backlog and we believe because of that workers are being denied their
rightful representation that the Act prescribes or the intent of the Act. We believe that in addition to perhaps, not necessarily eliminating the current advisers' group, that we should be looking at some kind of arrangement that ensures that workers have speedy opportunity to have their claims reviewed by an adviser and if there is no one available through the program here, then they ought to be able to go to a solicitor or adviser of their choice in order to have their cases heard. If this was something, a bit of a reversal under the Criminal Code, I think we would find that it is unconstitutional what's happening, that they're not getting their opportunity to justice.
The other area that I'm working on, an individual's case right now, is in occupational disease. The individual is being denied because of lack of medical support and no one in this province so far can find someone that can diagnose whether or not there is occupational disease. It is in relation to lead poisoning and it is very limited. I think that we have to really take a look at this. Before leaving that and there are just a couple of small issues that I want to touch on. The concerns that we're hearing about the assessment rates from some employers and the assessment rates are high, you know, we don't downplay that. As indicated in the first part of our brief, our rates at one time in the 1970's and 1980's were kept artificially low to try to entice industry and we didn't hear the hollering at that time when they were low.
We're also hearing, and I indicated that there is funding by the Workers' Compensation Board for accident prevention through the Occupational Health & Safety Division, and you have to question whether the money is being well spent in a sense that we're having all kinds of difficulties getting regulations put in place. The regulations are any place, being stuck at the Advisory Council level, leave level, and either at the minister's desk or at Priorities and Planning, or some place where regulations are going through to enforce occupational health and safety. That's a slow process.
There's only one way to really reduce the costs within the workers' compensation system and that is to reduce the accidents and injuries and that's through good regulations and enforcement. When I hear people complain about our assessment, they can't fight progress and good health and safety legislation and then not want to pay at the same time for workers' compensation. If they don't want high premiums, clean up the workplaces and support changes in good health and safety legislation.
I just had a meeting this afternoon with the minister. It was on a number of areas but on a couple of points on workers' compensation. One was, of course, we had written wanting to be before this committee, which we appreciate, and we had urged at that time, in the letter but also at the meeting, that your committee has a chance to review - I understand that is going to happen now - the Auditor General's report, because that's going to be so crucial to bring together what that process sees as compared to what you're hearing and seeing across the province. We also have talked to the minister on two other very crucial points. One is in regard to what other jurisdictions are doing to help the process. Most jurisdictions, today,
provide a workers' compensation adviser to employers' groups and to employees' groups, one person to represent both. The nearest example of this, generally we look at Ontario or West, Newfoundland has one of the best examples, I understand, of where there are workers' advisers providing advice to employers and employees. We believe that's something we ought to be looking at here in this province because maybe we can help avoid some of the delays and some of the problems we've been having here.
The other issue, and I will close on this one, is a concern we're having with appointments to the board. The Nova Scotia Federation of Labour represents approximately 70,000 workers in the province. We work with organizations that are not affiliated with the Federation of Labour and we work very diligently. Most of our work is on issues that are not issues that are bargained by, or for unorganized workers, such as minimum wage and labour standards and things like that. So we feel that we represent the unorganized also. We had been approached to resubmit a name to the Workers' Compensation Board. The person was a health caregiver that we put the name forward to. An individual who apparently represents or is connected with an injured worker group was appointed to the position of a worker representative.
Now, we're long on record, and I will leave a copy of the letter that deals with this matter with you, Mr. Chairman, but we're long on record that we believe, and we made that position back on Bill No. 122, we made it in this letter and I will make it before this committee, that there should be a seat on the Board of Directors of the Workers' Compensation Board for injured workers. We believe that they have to have a voice and a say in what takes place within the process but the Act calls for a balanced representation of employers and workers. If you look at the Act, the definition of worker is very clear. We believe that the appointment that had been made, well, it is done by Cabinet, I was going to say by the Premier or the minister, but I guess the whole Cabinet agrees on the appointments. It is somebody that is removed from the workforce and that has caused an imbalance from our perspective because there's no direct linkage with workers and, again, we do support the inclusion of an injured worker there. We think that has to be clear on who represents who because we do believe there's an imbalance. There are three employer representatives there. There are two worker representatives there and there's a representative there of injured workers, plus the chair and the co-chair, and there is an imbalance. So we believe that has to be corrected.
I think other than the conflict, again on the tribunal, I have very serious concerns on the impartiality of WCAT, where we try to get information on the process where the backlogs are and we find out now there's apparently monthly reports being made to the minister. Yet, we're not given that even though we may be calling on behalf of individuals. I think that's about it and if there are any questions?
MR. CHAIRMAN: Thank you very much, Mr. Clarke. I guess I had one question arising out of your last comments and, in particular, my concern dealt with the composition of the board. So am I understanding you correctly that you would suggest that the composition of the board should be three employer representatives, three worker representatives chosen from organized labour, or nominated by organized labour, the chair, the vice-chair and an injured workers' representative? Is that what I understand you to mean?
MR. RICK CLARKE: Yes. Mr. Chairman, I want to explain also why, and this is not something that we dreamed up, this is something that we worked with two previous governments who recognize that the best route to get nominees from workers is to come through ourselves. We do the screening. At one time we used to appoint, just appoint I guess maybe, because I wasn't involved in the process there, people that may not have a lot of experience in this field. We get background information on people that may have issues, like when it was pay equity, we wanted people's names that were involved in women's issues, or if it is workers' compensation, they had to have some knowledge and experience in labour, the Labour Board, and occupational health and safety. We do the screening and we try to do gender balance. We try to have representation across the province. We consult with organizations that aren't affiliated. Back to some of our earliest appointments, there had been then two labour organizations in the province and many independents. We worked together and put in the first three names for the Workers' Compensation Board and that's something that the system, if you would, like through government, said that it is more valuable that way because, first of all, if people don't get the appointments, then they know that we've done the bending and it comes back to us. I mean we're accountable for it when it comes to labour appointments.
Then the issue on the unorganized, now, I know that maybe in many minds, because that's come up by the minister with us, and that's the first time we've had that by a minister probably in the last 10 years or better, that what about the unorganized. All governments, or the past governments we dealt with long recognize, although they may not agree with our views, they recognize that we speak out on behalf of the unorganized. We speak out for those that are in poverty situations. We're there on Law Amendments, or on labour standards' changes, minimum wage, et cetera. It has long been recognized that we speak on behalf of the unorganized because how do the unorganized in this province get together to talk about their issues? But they do get together at some of our functions because a lot of our functions, when we are dealing with health and safety, are issues that are not necessarily closed door. We believe there is a linkage. Sorry if I went longer on that.
MR. CHAIRMAN: No, no, that's fine. Mr. Parker.
MR. PARKER: Thank you, Mr. Chairman. Rick, Betty Jean, good presentation. I had a question - or I guess it has come up over and over in our travel around the province. The injured workers have said to us that nobody is accountable, the board is accountable to no one. I guess I just want to ask you folks what you think. Who should the board be accountable to?
MR. RICK CLARKE: Well, I think it is a legitimate concern. I think the Act says that the board is accountable to the House through the minister but perhaps, maybe, they should be reporting directly to the House on issues that are so wide-spreading. That could probably be done, I guess, through one of the House committees.
It is at arm's length and the old saying that, not only must justice be done, it must be perceived as being done, I think somehow we have to find a new reporting system. I will refer to WCAT.
Again, I know your question was on the board but here you have a system that is within the workers' compensation that reports monthly to the minister but is supposed to be at arm's length of the minister and arm's length of WCB. The perception by workers across the province is, it's not. There is not the confidence that they are in a fair system.
MR. PARKER: Right. The other thing, I guess, related to that is the policies of the board. They constantly are changing. Really, it is the board - and maybe the makeup of the board is a factor in that - but every week or more often, if there is something the board wants changed, then they do just that, they change it. It affects all future decisions from thereon out.
Really, they are a power unto themselves. They have the authority to almost change the Act at will and that is a big complaint we are hearing from injured workers is that, you know, every week there is something new coming down and nobody is holding them accountable. They just do as they wish.
MR. RICK CLARKE: A bit in the defence of the board members too, Charlie, is, when you look at it - and again, I know you've got reams of material to look at - when we made our presentation on Bill No. 122, it is one of the fears we had because it was such a dramatic change - I would venture to guess, if a lot of the MLAs of the day, when this bill was going through, had been - I don't know how any of them could have read the Act right through. I'm trying to be kind on this. It was so complex, they probably took to briefing notes. It was such a complex piece of legislation, it was rammed through the House, it was put through in a hurry, it was put through, I believe, without a lot of forethought and then it went to this new board to say, put policies in place.
Now, you had a number of people there, you had specialists, lawyers or legal people coming up saying, here is what this documentation means. I'm not saying it was right because I think some of the policies that fly in the face of the Act are wrong. But the accountability
comes to that if we have a truly external appeal process, that if they are not bound by the policies and procedures of the board, then that is how you can get the change.
That would be flagged by the appeal process which would recognize something, a policy that is wrong and unjust and then it is flagged. It can be either addressed in this House or back through with the board to redress it. But if the appeal process is bound by the policies of the board, nobody is ever going to know.
MR. PARKER: Okay, thanks.
MR. CHAIRMAN: Ms. Godin.
MS. GODIN: Rick, you were speaking about the Workers' Advisers Program. I think you said you thought it was working well except that - and these aren't the words you used - but they are overworked, or there are too many injured workers that need workers' advisers.
I've been concerned because there are - you have to be eligible to even have a workers' adviser. I'm hearing from people - and the eligibility is, you have to have a reasonable expectation of recovering at least $500 in benefits or you have not been denied leave to appeal at the workers' compensation appeals. Now, if those things are present, a workers' adviser will not even look at you. So what happens to these people? I've been wondering if you thought that - how can we help this situation?
If I have a workers' adviser saying to me that, look, he has 200 other people who have a better chance of winning an appeal, and so he just told somebody in very nice terms that he cannot help them, what do they do and where do they go? I am wondering if you thought about calling on the services of one of the injured workers' associations or expanding their role and if they would be more helpful?
MR. RICK CLARKE: Well, there are a number of things in there. First, when I talked about the Workers' Advisers Program, the process or the individuals are working hard but if they are bound by the policies and procedures of the board, that's strike one. Part of that could be the regulations that are there, when they can take a case. When we refer to that, unfettered right to appeal, it is just that, that a worker should have an unencumbered right to appeal and that it should not be based on the amount.
I have had one individual - she is from Cumberland County - that had been down here a couple of weeks ago who sat down there for three hours with an oxygen tank with her. I mean, there is limitation on that time. The advisers were backed up so much. Because the case is iffy and she is on a pension from her workplace, they said, well, maybe she should just stay there. That's not right but those are the confines that they are working within. Again, I don't think we should throw the whole process out in the sense of the Workers' Advisers Program, but that we could look at removing the restrictions that fetter them.
The other issue, when you mentioned the injured workers' groups - and I hadn't mentioned it here - we had tried through a couple of ministers, since the Act came in, to get minor funding, compared to what we are spending through the process today, to train injured workers for the unorganized workplaces so that that area could be addressed, and to provide some training to some of our members to take on some of these claims, but we were restricted from the process.
That could help alleviate some of the backlog within the system. It would cost a lot less than having, probably, the second or third largest law firm in the province now working within the system. We work with it on a daily basis and we think that could help process a lot of the claims. We would have to be recognized to be able to do that. We do push and support the work that the injured workers are doing because they are representing their members well.
MS. GODIN: Okay, thank you.
MR. CHAIRMAN: Mr. Fage.
MR. FAGE: Thank you very much, Betty Jean, Rick. I listened with great interest to your presentation. It is a fine presentation but I think it is a little lacking in two areas that are very pertinent to the review we have been conducting.
The majority of claimants or injured workers that have appeared before this committee, I would say, in my personal estimation, at least 80 or, more likely, 90 per cent are pre-1993; most of them pre-1990. The changes to the Act in 1996 do not appear to address their situations. Recommendations made by your submissions today do not appear to actively address their situation. Any comments or recommendations on the largest body in the main number of presentations that we are receiving on how we should address that situation?
MR. RICK CLARKE: We may not have said them just in those words, Mr. Fage, but I think, when you look at the area that we addressed on the permanent impairment benefits, when we talked about the retroactivity of the Act and regulations, it is meant to address some of those areas. When we put in the earnings loss program with the 1996 Act, we cut benefits for other injured workers by over 70 per cent.
MR. FAGE: But the problem these people are talking about is that they have no resolution to their situation. The problem is 2,400 backed-up cases. I fully realize that the amount of benefit they receive is an issue that has to be addressed in that process, but somehow, it is my perception and part of the duty we are charged with is, what are the recommendations to deal with 2,400 backlogged cases in a timely manner that allows closure and fair representation of those injured workers' cases? That is what we are being confronted with as we move through the province, and in the majority of the cases it is that issue there.
MR. RICK CLARKE: I guess we don't say it here, but there had been a couple of issues put before the last sitting of the House, or floated during the last sitting of the House on having even short-term special tribunals established to deal with those. We supported that notion at that time, but I think if you take our whole package together, it is intended to deal with the backlogs, because when we are talking about the independent tribunal, not bound by the boards, that allows them to get these cases heard. If we get more workers' advisers to be able to take these claims without the restrictions of meeting criteria before the cases can be reviewed, if we eliminate that, then those cases can be heard. It is going to be tough, but if we don't do something - and I'm nervous on the reporting time for your committee.
MR. FAGE: That is why I am asking you directly for recommendations, not feelings or that it is intended. That is the main problem that these people are faced with. I think it is important that groups representing labour, like yourself, strongly help us address those issues. We need strong recommendations to be able to deal with that, to bring back a resolution to the House, and hopefully changes to regulation or the Act that can be acted upon to deal with these issues.
MR. RICK CLARKE: I believe it is there, but when we do our written submission, we will address particularly the area of backlogging, because when we are talking about the appeals, we are talking about all the appeals. We see that as a way of dealing with it, but I agree. I think maybe we should have looked and picked out a particular - I don't like the term stop-gap - but we need an emergency action to eliminate the backlog, because it is just going to grow. If we don't do something to make corrective actions now, it is going to grow.
Chronic pain, there is a large number of people in this process on chronic pain. This tough love, by going through a filtering process, first of all, that is going to take psychological evaluation and everything before you can even determine it is workplace, and that is going to eliminate, from the perspective of the policy, a lot of people, so they are going to say, there goes the backlog. We don't agree with that. We think that is going to have to be dealt with. We will address that, it is a very good point.
MR. FAGE: Second issue, Betty Jean, in your presentation I noted, as well as in Rick's, that some benefits had been lowered. We see that as a problem too. The opposite side of that coin is also true, concerns about the unfunded liability that is $370 million currently, estimates of roughly 50 per cent, 46 per cent is all that is funded. The reality of finding enough money to cover the consequences of the actions, I think, is extremely important too.
I think it is very important that we receive sound recommendations on what are alternative sources of income so that disabled workers are protected in this province, so that the competitive advantage for employers is not eroded. I think we have to be prudent in this endeavour, and we will have to recommend prudent measures that that money is found, to make sure that those workers receive just compensation in the proper amount and that we
remain in our competitive advantage, or don't get our competitive advantage too far to reach for employers so that we do have workers in this province.
MR. RICK CLARKE: It would be interesting to see when the Auditor General's Report comes out on just where the unfunded liability is now. Back when Bill No. 122 was coming in, the projection at that time was a 45-year pay-out. Speculation now is that that is somewhat reduced, because of the cuts, and we predicted the cuts were going to go deeper than what was being sold at the time. But in addition to that, the way some of the money has been invested, we believe that the unfunded liability is dropping quicker than what the projection has.
The other issue is universality. I think you will find, and I don't have the statistics, but it is widely supported in other jurisdictions, and it is widely supported in other jurisdictions because the financial institutes, and I will be branded for picking on them, but they are a large group, and the financial institutes generally have a fairly low incident rate, they do have a low assessment rate. They will probably be the lowest ones, we do have rates down to 25 cents or 35 cents, and no one, I don't believe, in this province pays at that level, in all likelihood, financial institutes would.
Nonetheless when you look at the amount of coverage that we have in this province, that is going to help. I would venture a guess, that is one of the reasons why and only one of them, but one of the reasons why New Brunswick is low, because they have full coverage. Most if not all other jurisdictions do, and we had it in Bill No. 122 and it was withdrawn. That is going to help a lot. It is not going to be the be-all, save-all, because when you had a period of time in the 1970's and 1980's that we were kept low, and now those injuries and claims are there. Someplace, we have to try to find it.
We don't have the answers. We don't want to be saying, up the premiums, because right away there are going to be people saying, well, we are going to close our plants and pull out. I really don't think they will, but we still don't advocate necessarily jamming the premiums. When I talked about the money that comes from the board for accident prevention, we have a strong business lobby, and it is not all business community, there are some very good people who are working for good health and safety in this province on both sides of the issue, but there are those that fight change. There are those that are trying to stop regulations.
I say that if you don't want good health and safety in the workplace, then be prepared to pay the premiums under workers' compensation. They can't have it both ways. By good health and safety laws, regulations and enforcement as well as universal coverage, I think that would go a long way to addressing the issue.
MR. FAGE: Thank you very much for your recommendations, I couldn't agree with you more. The only true way to protect workers and lower the compensation rate and the amount paid out over time is safety and training and prevention in the workplace. We have
a large unfunded liability, there is a number of reasons, they can be postulated, speculated and documented, unfortunately we are faced with a problem in this province of dealing with that liability from the 1970's and 1980's. We can all regret the source or belabour the source and attach blame, but we have to deal with it and we have to deal with it in a manner that protects our injured workers and protects our economy. I appreciate your recommendation on universality and some of your stronger approaches on funding. Thank you.
MR. CHAIRMAN: I believe that those are all the questions from the committee. I had one question that came to me after I spoke last, Mr. Clarke. I don't know if you have a sense of how long - from talking to the members of your organization that you would be dealing with - they feel is the maximum amount of time that it should take to clean up the backlog of appeals? Do you have any sense of that?
MR. RICK CLARKE: Not an actual time-frame, but I think, when I said it is a crisis, that is the message we are getting. There are families that are in destitute circumstances. I think we have to clear up some of this, before we can even actively address them. When I hear the reports that the WCAT calls decisions, and that is a denial of leave, that is not a decision on a worker's claim. I think we have to address the problems in here, and then if it is a flying squad that we strike, and I don't subscribe to the notion that you can't put in temporary groups to hear these matters, I think that could be done. I think there could be temporary tribunals given a mandate with time, that go out and hear some of these cases. They have to be heard.
MR. CHAIRMAN: You are preaching to the converted. That was in the bill I introduced. (Laughter)
MR. RICK CLARKE: I knew I read it somewhere.
MR. CHAIRMAN: You are not going to have a problem convincing me on that. That was in the bill I introduced.
MR. RICK CLARKE: Mr. Chairman, if I can, there is one issue, and I am not going to mention the employer, because I understand this may be on . . .
MR. CHAIRMAN: This could be on television, yes.
MR. RICK CLARKE: But I ran into a worker that had worked in heavy industry, construction, had injured his back, and I want to address deeming because we hadn't talked about in here. We do talk about it in our presentation on Bill No. 122, the fear we have with deeming. On Bill No. 122, our fear when we made our presentation had been that we are going to automatically deem that every injured worker is capable of making minimum wage, and then multiply that by 40 hours and eliminate that amount of money from any entitlement. We were told, no, that is not the intent of the legislation.
I ran into an individual who was a construction worker, received a back injury, not able to continue on in his industry, he was doing some work for us, as a matter of fact. He asked who the federation was, because he was thinking that we were the Department of Labour, and he had a gripe over his claim. He started to tell me, he went through rehabilitation, he went through retraining, and received his technician's certificate, electronic technician. He has a job. He couldn't get a job, applied all over the province, he is from outside the metro area, he is working in the metro area now. He is almost fresh out of school, he is getting $9.00-something or $10 an hour, whatever it is. When they were calculating his benefits, now this is his story to me, but in calculating his benefits, they did a check on similar workplaces, and skill level, and determined that he could be making more money than what he is making in this workplace, and had disallowed him at the higher rate.
When we talked about deeming before Bill No. 122, we said it should be based on an actual job, or refusal of a job offer, but not on, somebody across the street is paying more even though they are not hiring, and disallow the benefits to a worker because he wasn't fortunate enough to work for the employer who is paying a higher rate. I apologize for throwing that in late, but that was the note I was looking for, I had a little post-it note, and I lost it.
MR. CHAIRMAN: We have all done that before. Thank you very much, both of you, for taking the time. I forgot Mr. Erjavec in the back.
MR. ERJAVEC: Rick, this afternoon we had a presentation by the Ad Hoc Employers group who are representing a large group of employers, and as one of the main stakeholders in the whole system of WCAT and WCB, they expressed some real concerns about the information they receive about the system, be it key performance measures, financial information, just regular correspondence from the board or WCAT on actual numbers of appeals and any basic information.
Do you as a representative of the second major stakeholder in this system, do you share the same concerns, that you are not getting the information that you need to make some informed decisions, and to see exactly where the system stands?
MR. RICK CLARKE: Very concerned. Again, when I became aware of the monthly reports that go to the minister, I went from concerned to angry. We have been trying to get some of this information. If there is something wrong within the system, then that is one of the areas; that is supposed to be the tribunal that deals with it, and if there is a problem, that is where the problem should be flagged, and it gives a signal where maybe to address.
We get nothing. Absolutely nothing. I think that if it is impartial, if there is any reporting, then it should be public or to this House, but there has to be accessibility to that, without having to go through the freedom of information to get it.
MR. ERJAVEC: This is not what you get in your monthly updates from the board?
MR. RICK CLARKE: No.
MR. CHAIRMAN: Thank you. I believe those are all the questions from all the members of the committee, and again, I would thank you for taking the time to make your presentation to the committee. We look forward to any other material that you would have to forward to us, because we are certainly interested in the views of organized labour on this important issue.
Our next presenter is going to be Shirley Marryatt. Good evening, Ms. Marryatt.
MS. SHIRLEY MARRYATT: Thank you very much. I really appreciate the fact that I am allowed to speak. I don't, in any shape or form, represent labour, but in a way I do. I am not with any big organization but I have been, for 25 years, with what we called Halifax Welfare Rights. I would imagine a lot of people have heard it, because it was in effect for that long, and because of it being associated with welfare, compensation was a big factor. The thing was, because I made myself known and made a place for myself within the compensation with some people, I had a contact person. The thing was that I have really become angry the last few years, and it is even worse now because Halifax Welfare Rights, as you know, is no longer in operation.
We were sort of ground to the dust because somebody had taken a lot of money, so we couldn't keep our doors open. But that doesn't mean that people in the background haven't been doing things. Lots of times, people find somebody that has compensation problems, they say, oh well, call Shirley. That is why I get involved with these things. Sometimes, I used to be able to nab one of the ministers, if I couldn't get anywhere with the compensation.
The thing is that there are a lot of things wrong with compensation that have gotten really bad since this Bill No. 122. The thing this is, like Rick says, we all came down to the committees. At that time, I didn't make any presentation but I listened and I understood that some of the things that were wrong for years were going to be corrected. But they weren't corrected. We have gotten worse. You take that many workers on a backlog, you know who is footing the bill for them, they have to go on welfare in the meantime, and who is footing the bill? All you people who are taxpayers.
The taxpayer is footing the bill, also the worker has to pay compensation, the employer has to pay compensation. Rick had spoken on behalf of people who are not unionized. There are lots of times that I have had people that I had concerns about, and I would call Rick, or somebody like that, and get some information pertaining to the labour laws or how I could help them and things. The thing is that if you as a committee do not help
change things and make it better, then God forbid, we are still going to be back where we were.
If you go to three specialists and they say, this man can never work again, back at compensation, there is a GP on the board, he says, oh yes, this man can go to work. Okay. Why is he not a specialist? Why is he still a GP? Why pay these specialists the money to meet with these people, do the medical, write up the medical? I don't know how much money they get but I know they get damn good money, better than the poor GP, but the thing is, why ignore the report that comes before them?
This backlog, it used to be bad at one time, but I am talking maybe 100 or 150 people, now we are talking about thousands of people. What is the committee going to do with this? Are they going to make real strong recommendations? Are the recommendations going to be heard? Are they going to be dealt with? It takes time for people to come and do things and present themselves, people that have disabilities and things that come, and if they put forward their concerns, like the lady there that said that she was going to lose her home.
Now the thing is that if I had of gotten hold of the lady, I probably could have gotten her assistance that would have paid her mortgage, but unknowing to that lady, and you know as well as I do, that in reality there is a silent lien put on that house. But as far as I am concerned, I don't care about the silent lien, nobody ever tells them about it, I know it is there, and I usually caution about it, but the thing is, as long as they have a roof over their head and they can eat, I don't care about it. But I still caution them, because social workers aren't going to tell them.
Because we have amalgamated our social services into one pot now, it is a big different ball game. If somebody is going to be getting Canada Pension or compensation, to get them welfare, you get them a food voucher. The thing is, now it is a lot harder for me or anybody else working on somebody's behalf to get welfare for people. People have to eat, they have to have a roof over their head. In the meantime, some of these people have worked 20-odd years, and then they get hurt on the job, 9 times out of 10 through no fault of their own. A plank falls from up the top and hits them on the back and they are hurt.
It is a real broad kind of a problem. If you don't listen to what you have heard, and I was really angry this afternoon, I might as well tell you, I sat up there, I am a diabetic, I have very bad arthritis, and for me to sit up there in a chair that very straight backed, I will tell you, I was in agony. I was very doubtful if I was going to stay until tonight, but I said, I will stay, I don't care. When I saw some of you, I didn't know that you worked from 9:00 a.m. this morning, but as I told one gentleman, I was very angry to see, oh my, and somebody is here telling you their problem, and you didn't seem a bit concerned.
It seemed to me that I was really trying to figure out, what are we going to accomplish when we have a bunch of people downstairs that seem very unconcerned. I came up there, and I sat in that gallery, and I watch the members of the Legislature when I come, and sometimes they are sitting here reading a book and nobody is in this chair, they have their foot up like this.
The thing is, what you say is what you see is what you perceive. I perceived that you fellows were really not concerned. But then I learned that some of you have been here since 9:00 a.m. this morning, evidently didn't even stop very long for lunch, if you even stayed for lunch, I don't know. I have to apologize for the way I thought then. When I saw how you listened to some person like Rick tell you the way it is, and don't be amiss that he does not represent the people that are not on unions, because he does. If there are a lot of people saying we need to increase the minimum wage, he is the first one that will help people organize themselves to get that done. On the other hand, employers are hollering about what they have to pay for compensation.
Why can't we have a compensation that is the same as the Canada Pension, that all employers have to pay? Even if you have a small store and you employ a couple of people, you go in there and you could be lifting a case of pop, and the pop falls over on you. That person is not covered by compensation, because the man doesn't pay into it. Evidently the regulation doesn't state that if you have such a place, that you have to. Or if you have to, nobody is looking after it and seeing that it is done. Maybe that is what we have to do. If all employers had to pay into it, then maybe we would have a little bit more money in the pot.
Canada Pension, everybody has to pay into Canada Pension. You have to pay in, I have to pay in. Anybody has to pay into it. When you get to be 60, you can take it at that, if you have to stop working, you can take it at 60, if you don't work anymore. But that is exactly what you get. Canada Pension is there, it is a pension that we have all paid into, it is a guarantee. The compensation, to me, is the same as the unemployment. Unemployment insurance, when I became 16 years old and went to work, unemployment insurance, it might have only been 25 cents a week, I don't know, I only made $16, but the thing is you paid into it, and it was an insurance. To me, compensation is the same thing.
It is so complex, no wonder it is so costly to deal with. If we had more workers, that backlog wouldn't be there. If you hear the people that work at compensation, they say, my God, Shirley, look, we are so backed up. You can go over there, lots of times you go past that building, and that building is lit up, a lot of them are working overtime. When you get so overworked, some worker comes in and you have to deal with them. If we had more workers working in compensation and we didn't have such a restricted policy, the policies before always worked. A lot of people say, oh yeah, but I know Joe Blow down there is ripping off the system. But through the years, doctors derived a way. We derived a way how we can find out how many people actually are in pain. It is a thing that through medical history and everything, we have come a long way for things like that.
I don't really believe that there should be a GP debating to a couple of experts in their field that, I know better than you do. It is like, if you needed your leg cut off, would you let a fellow that might be able to take your appendix out, cut off your leg, or would you want a doctor that was a specialist to cut your leg off. It is unreal.
Through my learned years of experience mostly, I really can't believe how the system has gone from worse to worse. I am just hoping that you people here, going across Nova Scotia, will listen to the people that told you that this thing, since 1986 when they started changing it, and then 1996 when they changed it more, is really screwed up. And I hope you will tell them that they have to change it and bring in some better policies.
Why should a person that has worked 20-odd years, 25 years or so and gotten themselves a home, why should they lose it for the sake of having to wait not one year, not two years, but three years down the road or so to get anything?
I just hope that it was a worthwhile effort, my coming down and that it was worth your effort to go all around Nova Scotia. I hope that out of it, the recommendations that the government listens. Otherwise, I will tell you, it is money that was put to poor use if something doesn't come out of it. That is usually the way it goes. I will wait and see how it turns out.
MR. CHAIRMAN: Thank you very much, Ms. Marryatt. Any questions from the committee? Yes, Mr. MacDonald.
MR. CHARLES MACDONALD: Shirley, I guess, I enjoyed listening to you. You have seen all the problems associated with people on social assistance, on workers' compensation, on employment insurance, on Canada Pension and all the rest of it. I think we share the same concern, where we see that people have put 10 or 20 years into building a home, and building up some retirement nest egg, or whatever it may be, but because they get injured on the job, everything gets totally wiped out. To me, that is not proper, it should never happen to a person. When we look at all the programs that are there, the time for a guaranteed annual income, or something of that nature, maybe we don't call it that, but there should be some process in place that these people have an income to take care of the day-to-day operation and to keep their families together.
MS. MARRYATT: Well, I will tell you, that I have to say that in one more year I will be a senior. Right now, I lost my husband a couple of years ago, I get a spousal allowance and I get my own Canada Pension, which was very little, because I only ever worked at small jobs. They paid little but they were very heavy-loaded to tell you the truth. But the thing is that, if we keep on eroding the system, by the time some of these ladies and gentlemen get to be seniors, I don't think there is going to be any seniors' programs, because it is going to get so eroded it will be like the Canada Pension, and now they want to take the
unemployment. I guess Mr. Martin, I don't know whether he is taking it back or not, but he wanted to take the unemployment and do something with it.
People like you that have these committees, if you don't do something about it, then everything is going to go right down the drain, along with this kind of thing. I would like to see some kind of a guaranteed system for everybody that if you got hurt on the job - at one time if you got hurt on the job, I couldn't understand the gentleman this afternoon with the federal, because usually they have an insurance plan with Sun Life or something like that, that will give the person money for a certain length of time right up to the time they get their Canada Pension and their compensation. I am saying, that if like the Canada Pension gives the person their pension because they become disabled, then dammit, the compensation should come through. Why in heck would you say, here is a big body here saying, well, this man is disabled, but then on the other hand, you have the local one that is saying, oh no, he is not disabled. Thank you very much.
MR. CHAIRMAN: Thank you very much, Ms. Marryatt. Our next presenter is Jane Doane. Good evening.
MS. JANE DOANE: Good evening, Mr. Chairman. I am here to present my case on a personal matter tonight.
MR. CHAIRMAN: Sure, go ahead.
MS. DOANE: I work for a Crown Corporation here in Halifax. In October of last year, I sustained an injury while at work. I am here tonight, not only to voice my plight over workers' compensation benefits, but also to tell you how the health care system has failed to acknowledge my injury.
Ten days after I was injured and I had sustained an injury to my right shoulder, my chest, my ribs and side, X-rays were taken of my ribs and they showed that I had no fractures or broken bones.
I suffered acute pain to the right side of my body and I proceeded with physiotherapy, that included laser treatment, ultrasound and work hardening. This was done on a daily basis. I was also prescribed anti-inflammatory drugs to help with my internal soft tissue injury. All of this was at the request of the corporation's doctor. This was not my own MD who had diagnosed these things and recommended physio.
My claim with workers' compensation was for an injury I sustained as a result of a physical assault on me by a co-worker. The WCB paid my lost wages for six weeks. They stated I had a right flank injury and that it should heal within a six week time-frame.
To this point, I cannot perform my job functions. They require me to lift weight up to about 70 lbs., as well as drive a vehicle. I have been unable to do this since the day I was injured.
In the last 11 months since the injury I have earned approximately $5,000. When I had been able to work, I have done so. Normally, my earnings are around $20,000 a year and they had been prior to my injury. The fact that I was injured was acknowledged by the WCB. They gave me the benefit of the doubt with my claim. My doctors acknowledged my injury.
As a result of how I was injured, I was diagnosed and treated for post-traumatic stress disorder. My employer removed the co-worker from the section where we were both employed. Somehow even they acknowledge my injury and my claim.
It was also recommended at the time that I was seeking medical treatment that I continue with daily physiotherapy. I have lost movement in my spine. It was reduced to 40 per cent of my normal range. Because I only received six weeks pay or six weeks compensation and could not return to work to perform my duties, after two and one-half months of physio, I stopped. Workers' compensation never paid any of my physiotherapy. I apologize for being emotional but that is the way it is.
MR. CHAIRMAN: Yes, I understand.
MS. DOANE: I have been to a physical physician specialist who - I saw him six and nine months after my injury. It took that long for me to even see a specialist. That is part of my problem here, is that the health care system has not even acted quickly enough in order for me to seek out special medical assistance.
He was unable to diagnose me with anything other than chronic pain, I guess. I asked for a second referral and I see another specialist next week. He referred me to the second specialist. So I guess he really didn't have any conclusion as to why I still suffer from the injuries.
The only tests I have ever had done are the X-rays and all they can do is determine whether I have any broken bones. I have never been offered any other tests and I surely feel I deserve it and that I am entitled. I suffer daily. I have suffered greatly although my pain has reduced and I'm still looking for my treatment from the health field and I am looking for compensation for the work I have lost. I have also been released of my modified duties. I have been forced to use up my sick leave and that's it. Even my employer is not willing to put me in a modified position.
MR. CHAIRMAN: Sorry for interrupting you, I just had a question that came to me. You said you worked for a Crown Corporation. Was that a federal or a provincial Crown Corporation?
MS. DOANE: Federal.
MR. CHAIRMAN: You indicated that you had a difficulty getting in to see a specialist or you didn't get to see a specialist. Was that because one wasn't available to see you?
MS. DOANE: That was the waiting lists. I sought out medical treatment immediately after my injury and continued with it forthright all the way through. It was waiting lists. I guess my case was not urgent enough, is what I was told.
MR. CHAIRMAN: What kind of speciality was it that you ultimately saw?
MS. DOANE: A physical physician, specialist.
MR. CHAIRMAN: Thank you. Do any of the committee members have a question? Ms. Godin.
MS. GODIN: Yes, thank you, Ms. Doane, for coming forward tonight. I don't know if you're aware, I know that the wait for a specialist is very long, are you aware that most specialists have a cancellation list?
MS. DOANE: Yes.
MS. GODIN: Are you on the cancellation list?
MS. DOANE: I saw the specialist as a result of a cancellation after six months.
MS. GODIN: I just wanted to make sure you were aware of that. I found that out by accident one time and it enabled me to get in sooner as well.
MS. DOANE: Yes.
MR. CHAIRMAN: Just a question, ma'am, have you appealed the decision to terminate your benefits? Are you in the system somewhere at the present time?
MS. DOANE: The Workers' Advisers Program.
MR. CHAIRMAN: So they're handling your case at the moment?
MS. DOANE: Yes.
MR. CHAIRMAN: So you're just waiting to go through the system to try to get some resolution?
MS. DOANE: No. They have denied one reconsideration already based on some additional evidence that was submitted, which was basically the psychological aspect of the injury.
MR. CHAIRMAN: Stress-related injury, yes. So it is now under appeal. You have lost at the reconsideration phase and it is now on appeal in one of the internal appeal processes of the board, is that correct?
MS. DOANE: No. The procedure that was taken was that it was - I requested that it be reconsidered, that the case be re-looked at from day one, adding in that factor, and so now it will go to, my understanding is a formal reconsideration.
MR. CHAIRMAN: If there are no other questions from any members of the committee, I would like to thank you for coming here this evening, Ms. Doane, and sharing with us your obvious difficulties.
MS. DOANE: I would just like to point out that I really do feel that the medical profession should have offered some other tests. If I go to my doctor and my specialist, my physiotherapist, on a daily basis and complain about the extent of my injuries, you know, there are tests available that can rule out or acknowledge soft tissue damage or nerve damage and none of these things, even though I have suggested them to the medical professionals, no one has gone ahead and offered these tests to me. I don't understand why.
MR. CHAIRMAN: Thank you very much. Our next presenter is Mr. Randall Hallette. Good evening, Mr. Hallette.
MR. RANDALL HALLETTE: Good evening. Someone should have told that lady about the Government Employees' Compensation Act. She's entitled to full pay and benefits, to be followed by compensation, and that's in the collective bargaining agreement for PSAC. I have a long story to tell you.
MR. CHAIRMAN: Go ahead, sir.
MR. HALLETTE: In 1993 I went to work and I got ordered away from my place of employment and I did a job as a pipefitter when I'm only an HP1. I went to the hospital and two of the best doctors down at the QE II told me that they got this new program called light duties. You should go back to work and see about it. You've only got four broken ribs, a hyperextended arm. It was just about torn off your body but you should be able to do light duties over there. I went back and seen my employer. I asked him for light duties. I was put on light duties. I was told to drive a truck.
Well, then come downsizing and friends of friends wanted the easy jobs. So they took me off light duties, put me in with a wheelbarrow and shovel and I only had the use of one arm. I complained to the union vice-president, and he said if I filed any more grievances, he would have them destroyed. He has, since 1993. I went to my superior, the chief engineer at the central heating plant, Dockyard. He told me that if I didn't get back to work and mind my own business and be a good toby, he was going to have me fired and charged with harassment. I did as I was told and I went back to the incinerator. I was using one arm and a wheelbarrow. I had to put a sling on one arm of the wheelbarrow, hanging up over my shoulder.
Gentlemen, you sat upstairs and did nothing but laugh and go on when people were talking. I take it as an insult. If you don't want to hear what I've got to say, please, excuse yourself. I've had enough from the people in government. I was ordered back to work by the Workers' Compensation Board, Mr. David Crowley, in violation of my collective bargaining agreement and you're about to hear it. Where were we?
MR. CHAIRMAN: I think you were telling us about working at the incinerator.
MR. HALLETTE: I was in the incinerator. Now, at the incinerator my job was to burn drugs for the Royal Canadian Mounted Police. I burned all the secrets for the CSIS and anything for Customs Canada and the City Police of Halifax and Dartmouth. My integrity is beyond reproach. I had to be declared ultra top secret to do that job. Buddy, I don't like you and I do not like you one bit the way you're going on back there. You think this is funny? It's not. I'm about to tell you about criminal activity and you don't seem to want to hear it.
MR. CHAIRMAN: Mr. Hallette, if you could just address your remarks to the Chair because we're getting off topic.
MR. HALLETTE: No, sir, we're not getting off topic.
MR. CHAIRMAN: Well, we are. Continue, sir.
MR. HALLETTE: Okay, sir, I went in and I got hurt. A 400 pound ramp landed on my back. I reported that accident to the Workers' Compensation Board. I was given a bit of compensation and then I was cut off. I wondered why. I appealed it. I got to my hearing. I find out that the chief engineer falsified his accident reports. He said it only weighed 40 pounds. That is in the records. It weighed 400 pounds. The ramp is 16 feet long. It's three feet wide. It has five cross braces. It has 45 pounds of iron on it. If anyone knows what non-skid is, it's a sand-mixed paint so you don't slide on the decks of boats. I put three gallons on it and a gallon of non-skid weighs 29 pounds. They said it weighed 40. Well, it didn't. It weighed 400.
I was home recuperating. The senior utilities officer and the base formation construction engineer come up with a grand plan. Let's get Mr. Hallette to come back to work again on light duties. This is July 4, 5 and 6, 1994. My chief engineer phones me at home. I can barely walk. Well, we couldn't afford anyone to come in and clean our boilers for us this year but if you could at least get your doctor and therapist to - you know, come on in and help out. Well, I had already been there on light duties and they made me work with a wheelbarrow. How should I know anything else was going to be any different? It wasn't.
I reported to work on Tuesday morning, July 4, 1994, and lo and behold what am I told to do? Climb inside of a three-storey boiler and clean it. I did exactly as I was ordered to do because that's what you have to do when you work for the Department of National Defence. You must follow the direct order first and you must grieve it afterward. I grieved it, not in the system, gone. Ever since then I have been fighting the Workers' Compensation Board and people at work. On August 22, 1994, I receive another phone call. Of course, it was the 19th because it was a Friday. I happened to be sitting at my doctor's office when the call come in to my doctor. It is the Workers' Compensation Board. They're telling my doctor that I phoned them and asked them to get a light duties program. I'm sitting at my doctor's office in front of him and I don't know nothing about it.
I reported to work as I was told to do by the Workers' Compensation Board because he had a written agreement, and it is in the records down at the Workers' Compensation Board if you would like to go get it, the phone records are there, has agreement with Mr. John Lind that the DND will pay this man whether he can work or not. I reported to work on August 22, 1994, and while I was trying to locate Mr. John Lind I went ass over teakettle down a flight of stairs. I drove two steel rods through my spine. I don't take that as help. Mr. David Crowley ordered me back to work on Friday because he thought he had an agreement with the Department of National Defence. He did not. Ever since that day I've been fighting to receive my money.
The senior vice-president of the Public Service Alliance of Canada came to my lawyer's office early in 1995 and said, look, you win. If you will accept 70 per cent from us, we will give you 70 per cent back pay. The only thing you have to do is stop your case against the Workers' Compensation Board. I agreed to that because my wife wanted the fight over. I stopped my fight with the Workers' Compensation Board but lo and behold the DND didn't mean what they said because Sun Life don't want to pay you. I started my fight up against the Workers' Compensation Board again. At that time I won a partial victory. Well, Ms. Rita Melanson-Swan, at base personnel, Halifax, she didn't want to get me back on IOD because I'm supposed to be on injury on duty leave, to be followed by a compensation package. That's IOD and don't mistake it for injury off duty because that's what you get when you get your Sun Life. That's what they tried to use as one excuse. Oh, we thought you
were off the base when you got hurt. This is August 22nd, isn't it? You will just have to give me a second to compose myself.
MR. CHAIRMAN: Just take a second.
MR. HALLETTE: Yes. In 1995, like I said, I was told they would pay me off. Well, they didn't. I won my partial compensation victory. Ms. Melanson-Swan allowed me to cash in 15 weeks of annual leave credits which I received in October of that year but to protect herself, because she stole some of that money and sent it to Family Court in violation of a court order signed by a Supreme Court Justice, which she said that I forged in front of witnesses, the witness for the union was Mr. Ernie Williams. I stood on the picket lines with him and he has nothing to fear from the federal government anymore because he already has a package.
Back a bit, on August 23, 1994, we had a meeting with the senior utilities officer. The senior utilities officer and the present formation utilities officer ordered me to go home. That was witnessed by the vice-president of the union. I was ordered to stay at home until my doctors would allow me to come back. My doctors say I'll never return to work. I'm 70 per cent disabled. I have nerve damage, split discs, herniated discs, infused discs. When I went to the doctor, the specialist that the Workers' Compensation Board wanted me to go to, he didn't figure I needed any testing because they wouldn't show anything. I went to see Dr. Caldwell the following September. Dr. Caldwell found out all these things but his report isn't listened to. Dr. Erdogan's is. Dr. Erdogan said I didn't need any testing. The first words out of his mouth when we went in there, I went in with witnesses, he said I don't work for the compensation board. He asked me to do some things. He asked me to try to stand on my toes. Well, I had to lean against the wall because I couldn't straighten out my left leg. I had to sit on a chair to try to put my heels up for him. He told them I could run around and dance. I don't know where you find these people, I really don't. I just don't understand how this could go on year after year after year.
This would be shortly after the Sun Life detectives, it would be in the fall of 1995, my wife and I split up and I was living on Circle Drive. My wife was still living at 119 Drumdonald Road. At that time the Department of National Defence and the Sun Life detectives and the Workers' Compensation Board, because they didn't pay me my benefits, they had my wife stalked by their detectives. We had to have the police force in to take these people off her. I want the people that had my wife stalked arrested and I want them prosecuted within the fullest extent of the law. This is enough. It goes on day after day. They were up torturing us again, we stopped there, parked again, we had the cops up to remove them a couple weeks ago. My next-door neighbour is a military policewomen. She knows I can't do nothing and before she moved out there was a lieutenant living there. I can't get out of my own way. I used to have gardens. I can't take care of those no more.
Well, that's not the best because the minister phoned me on February 5, 1996, and told me this was over. I was going to get my pension. What a crock. I have been fighting with everybody ever since. The base commander was supposed to meet with me within five working days. It took the base commander 14 months. On March 28, 1998, I signed a memorandum of agreement with the base commander. I'm supposed to receive all my back pay and benefits because I've been deemed disabled. The base commander at CFB Halifax owes me $107,000 in back wages, not to mention damages for future wages. I want my money and if you don't think I can prove it, I have it right here. I have it here where they falsified their documents to the income tax so they wouldn't have to pay me my full package. Would you like to see the documentation? I was living on unemployment insurance and during that period they said that they didn't have to pay me, Sun Life did, because I was getting my money from the DND.
Well, I got a letter now from Sun Life that says I don't got to pay them back for that time period because I didn't get any money from DND. They falsified all the time lines. I filed grievances last week with the income tax people because of them. In 1995 I cashed in 14 weeks of annual leave and I got $7,100. I claimed it on my income tax. The DND went down and turned around and they sent a revised slip out that said I only made $2,000. I had a piece of paper saying that they're going to pay me full retroactive pay back to and they only want to pay me $2,100 for that year. I made $26,000 and that's before my on-call pay. I'm on call 365 days of the year because I take care of all the water, foreign and domestic. That means I hook up all the ships so they got drinking water and toilet water. That means if anyone wants to run a steamer, I produce the de-ionized water for them and the mineral water and everything else.
I worked as an HP3 for five years. I was paid as an HP1. I was told I was going to be upgraded. It didn't happen. I can't even get HP1 wages out of them. The Government Employees' Compensation Act clearly does state that injured employees are entitled to full pay and benefits, to be followed by a compensation package, and I want to know where mine is. You shouldn't have no trouble, gentlemen, reinstating me tomorrow morning to full pay and benefits, none, none whatsoever. Tony Bremner also told me that I would have to sell pencils on a street corner before I would ever receive any money from the Workers' Compensation Board and he said that in front of witnesses. I'm ready to sell pencils on a street corner but if I do, I will be standing right out in front of this door and I'll have a big placard on and I will say this is what injured workers have to do to make a living in Nova Scotia. Thank you. I'm sorry I ranted a bit but I got to vent. This is terrible.
MR. CHAIRMAN: I understand.
MR. HALLETTE: That poor woman upstairs was tortured and terrorized by detectives. She was living by herself. She parked her car. They parked in front of her. When she pulled out, they pulled out. When she pulled in, they pulled in and do you know what they said for an excuse? We weren't following her. We were only following the car. Well, I signed
a paper saying they could come over and follow me. I was sitting over at the top of Circle Drive with five members of the PSAC waiting for them. They wouldn't come over there. They went over and terrorized my wife. They picked on the wrong person. They picked on the wrong person when they picked on me and they picked on the wrong person when they picked on her because those things, gentlemen, are criminal acts. We want the Legislature of Nova Scotia to do something about it.
Mr. Tony Bremner also stated at the compensation board that he could write any report he wants because he has a room full of doctors upstairs that would back him up 100 per cent.
I invited the compensation people here tonight. I invited the Base Commander here tonight to repudiate himself. I also invited my boss and I invited my union. Again, my union has failed to show up after four years.
Out of my settlement that I am getting from the Minister of National Defence - I don't know if I will or not now because there is a part in there that says I am not allowed to publicize none of this. Too bad because I already got my first book written. It is called, Benefits Denied, How Senior Management Tells the Truth Even If They Have to Lie. Book two, I figure, should be, How I Stand Alone, My Fight Against the PSAC. I imagine Book three will be The Trials because I have every intention of taking this to the Supreme Court of Canada if you people don't do something about it.
If I have to sell the rest of my soul - I had to sell my wife's car; I sold my fine art collection; I sold my pocket watch collection, I sold over 350 pocket watches and that includes my great-grandfather's. I still wear my grandfather's, it is right here. I've got five of my key wines left and I will not sell those.
Before the bank takes my house from me, I will guard and arm it, and I will defend myself. That is my home and no one is taking it from me because the criminals running the compensation board failed to pay out the money they're supposed to. That is just what I feel about the compensation board. It should be disbanded.
You go down to the Supreme Court of Canada, you hire yourself three judges. When someone gets hurt, you give them a lawyer, they go down and hear it in front of a judge and jury of their peers because that is where it is going to end up anyway.
As for the lawyer that the province hired for me, in 1996, because I had no income I tried to get welfare for October, November, December 1996. She kept giving the welfare people false information by saying that I lived at another address than what I did. I finally contacted her in person in January after she finished her Christmas shopping and she said, well, where do you live? I said, would you kindly go get the hard copy? So she went and got the hard copy. She wasn't none too happy when she found out that it was signed for. I said,
well, read it. She said, well, okay. So she read it. She said, oh my God. She didn't read the correspondence. The correspondence had the new address in it and for three months she gave false information to the welfare department which denied me welfare benefits.
So did the compensation board. For three months the compensation board kept saying, we don't have any paperwork. Well, I have the signed 728's that says they do. The only reason why they even acknowledged having it now is because Mrs. Giselle Bernard is the one who signed for it. I played hockey with her father and her husband for 20 years. If it hadn't been someone I know that signed for that paperwork I would still be floating around in the land of limbo.
The first thing an injured employee has got to do is be given a lawyer and a whole handful of 728's so that every time he delivers a piece of paperwork it is signed for so people can't say, I never received it. It is so that they won't try to say that you forged the documents signed by Supreme Court Justices. I take a great deal of offence with that. That is the one that runs personnel.
Lieutenant Colonel Wojick is the one that caused this to me and I hope he rots in a prison cell out in Fort Saskatchewan because that is where he is headed.
I filed grievances last week with the Labour Relations Board, the Staff Relations Board in Ottawa and the Human Rights Commission. The Human Rights Commission asked DND for paperwork. They told me I had to get it from the minister. The reason DND won't provide this paperwork is because it doesn't exist. It is paperwork for November 7, 1994 to March 7, 1995 because I was on unemployment - pardon me, EIEIO - unemployment insurance.
This time here, I got my unemployment insurance again. I just got it. Do you know why I just got it? I had to fight for it because DND said I quit my job. They did. That is documented up in Cape Breton. You have to phone Cape Breton and then they will make an appointment for someone to phone you two days later. You aren't allowed to talk to a human being in Halifax, you have to phone someone in Cape Breton.
Now, I have laid charges of conduct prejudicial to the good order and discipline of the unit, negligence causing bodily harm, negligence causing permanent injury and negligence in the performance of duty but failing to give out new addresses and causing the stalking of Janice Valerie Hallette. I will expect that the people of this Legislature will see that things are done about this.
My telephone number is 475-1324. If anyone would like copies of this paperwork or wants to see anything, I have instructed my lawyer, Mr. Daniel Pust of the office of Daley, Black and Moreira to make it available for you. If anyone has any questions, I would be more than happy to answer them.
MR. CHAIRMAN: Do any members of the committee have any questions? Well, thank you very much, Mr. Hallette, for bringing this matter to our attention. We appreciate the fact that this is obviously a very serious matter. I believe there are no further presenters.
MR. HALLETTE: It is a tad more than serious, sir. It is a tad more than serious, you see, because I phoned the Provost Marshall, his name is Lieutenant Colonel Mark Callum. His phone number is 427-0550 and his local is 7515. As Major General Baril clearly stated, any officer in a position of command that has been told about illegal activities and stuff, he is supposed to investigate it. Lieutenant Colonel Callum has told my wife that he has no intention of doing any criminal investigations at all because those people are all above the law.
MR. CHAIRMAN: Thank you very much. Good night. I believe those are all our presenters so we stand adjourned until tomorrow at 1:00 p.m. Thank you.
[The committee adjourned at 9:45 p.m.]