SELECT COMMITTEE ON
THE WORKERS' COMPENSATION ACT
Mr. Michael Baker
[The committee members introduced themselves.]
MR. CHAIRMAN: Gordon Johnson.
[Mr. Gordon Johnson, Legislative Counsel, introduced himself.]
MR. CHAIRMAN: I would also ask our consultants to introduce themselves.
[The committee consultants introduced themselves.]
MR. CHAIRMAN: Thank you very much. The Select Committee on the Workers' Compensation Act was struck as a result of a unanimous resolution of the Legislature passed at the spring sitting in 1998. Our committee has been charged with the responsibility of holding hearings throughout the Province of Nova Scotia for the purpose of suggesting changes to the Nova Scotia Workers' Compensation Act to improve that system. As part of
this, our deliberations, we have been conducting hearings; in fact we have had one hearing already in Sydney. As I referred to earlier, we have been tremendously pleased by the level of public support from the Sydney area and, in fact, we have a very busy day ahead of us with a very great number of people interested in making presentations.
For the benefit of those of you who would not have been at our earlier meeting, our committee is particularly interested in hearing from those people who are injured workers and in particular hearing how the system has affected them and their suggestions on changes or improvements that can be made to make the system better. Of course we want to indicate to people that we are not part of the Workers' Compensation Board or, in fact, part of the workers' compensation. We are a select committee of the Legislature and, as such, we are not hearing an appeal or those kinds of things from any particular decision. Of course, any decision that we may make may certainly have a positive effect on an individual worker's claim; however, we are not hearing an appeal.
The other thing that I would like to mention is that in particular, because of our busy schedule this afternoon, we are going to be making a real effort to try to keep people's presentations within pretty strict time limits. That is certainly not out of any decision to want to restrict people's say, because the purpose we are here is so that we can hear from people, but in order so that we can hear everyone, we are going to ask people to keep their comments as short as possible, because otherwise we are going to run out of time. If someone gets close to their time, I will remind them, just so they will have a chance to conclude.
I should also indicate that once people are finished making their presentation, members of the committee or the consultants may have questions for them and we would appreciate it if people would stay for a few seconds to see if there are any questions.
The final thing I would also like to say is, for the benefit of anyone who may not realize this, of course our record is part of a public record; it is a public meeting. When people tell their stories, they should realize that it is a public meeting and that clearly we are going to be recording what they say for our deliberations. The reason I mention that is because if people have confidential medical information and those kinds of things, they may wish to make their presentation in a particular way.
Without any further ado, I would like to call on our first presenter. It is Mr. Murray Johnston, who is a municipal councillor.
MR. MURRAY JOHNSTON: Thank you very much for this opportunity to appear before the committee. This afternoon my comments will not focus on sections of legislation or on amendments or selected quotations from reports or plans or Acts which impact directly on the workers' compensation issue. Other presentations, both today and in the previous sessions, have been chock-full of statistics and numbers. Instead, Mr. Chairman, and members of the committee, I would like to focus on the human aspect of this matter from the
perspective of an elected representative of the people in the Cape Breton Regional Municipality.
The most gratifying part of my job, Mr. Chairman, as a municipal councillor is serving people, whether that be in procuring employment, assisting with regional housing, home repairs, being a spokesperson for others with municipal concerns, or simply trying to solve social problems. At the other end of the spectrum, there is the frustration of not being able to secure employment for people because of the depressed economy of metropolitan Cape Breton; there is the sadness of watching grown, mature men in my office breaking down in tears, devoid of any self-esteem, knowing that they cannot properly clothe or feed their families; and there is the heartache of witnessing marital disruption because of the financial pressure and the accompanying discord that wreaks on families unable to meet their obligations.
Mr. Chairman, and members of the committee, we are living in an area of Nova Scotia where economic opportunities are minimal compared to more affluent regions where economic indicators are strong and employment opportunities abound for those who show initiative. When this situation is compounded by factors which inhibit people from working, such as inadequate compensation payments or no payments, family disintegration does occur. As a municipally elected official, I personally, gentlemen and ladies, should not have to deal with this issue. It falls rightfully under the purview of the provincial government. Nevertheless, for the people I represent both within my district and beyond - because I am a regional councillor first and foremost, a district councillor secondly - I am their closest elected official, readily accessible within their community on a daily basis. I can lend an attentive ear, demonstrate compassion and, where necessary, intercede on their behalf, as I am trying to do here today.
What is alarming, Mr. Chairman - if you have the copy in front of you - is the growing number of individuals who visit my office or simply call me pleading for help with their compensation issues. The conclusion is very obvious - as it must be for this committee and the government that currently administers this province - that there is a serious problem before us that must be addressed. The issue of deserving compensation for affected workers has received extensive media coverage in the past year. The protests continue. The Injured Workers' Association has swelled its ranks because it seems as the final hope for decent, humane treatment.
Mr. Chairman, you and some members of your committee have been elected by the people to be sensitive to their needs. If you had the opportunity to spend one month here, in this building - at the Steelworkers' Hall where the Injured Workers' Association has its office - you would see an office transformed into a crisis centre; that is no hyperbole, and that is not exaggeration. You would hear the incessant ringing of the telephone and you would see the vast numbers of people who have walked through this building in search of someone, anyone, to take up their torch and run with it.
Mr. Chairman, the people of Nova Scotia - and I stress this paragraph - the people of this province have witnessed a government committee meeting in Halifax recently, at a considerable expense to the taxpayer, responding to the allegations of one man about the casino operations in Nova Scotia. We have legislation to proclaim that would never have seen the light of day had the voters of this province not created a minority government situation where fairness has replaced arrogance. Why have these developments occurred? Simply because politicians at the provincial level are super-sensitive now to the concerns of the citizens, the taxpayers, and so it is with the injured workers of Nova Scotia. They deserve your attention. Their concerns need to be addressed and appropriate, humane solutions defined and implemented.
There are three major categories, Mr. Chairman, and they are writ large on the souls of these people. You will see them on the bottom of Page 2: the pre-Hayden people; the chronic pain people; and older people mired in the system.
Your mission is clear, members of the committee: listen to these people and those who speak on their behalf. Where there is injustice, make an attempt to eliminate it. Where there is unfairness, rectify it. Where there is an opportunity to assist your fellow man, where it is justified, exercise it. To this day, whenever things go wrong, politicians generally respond with a blizzard of new rules, as these people who are sitting behind me know so well. A business would simply fire the individuals responsible, but federal and provincial governments keep the offenders on and punish everyone else by wrapping them in red tape. They close the barn door after the horse has escaped, locking in all the cowhands. The price people pay is staggering in misery, loss of esteem, frustration and eventually violence, and it has occurred here in Cape Breton.
I am asking you, gentlemen and ladies, to make your efforts mission-driven and not rule-driven. Mr. Chairman, and members of the committee, it is a privilege for you to be here today to speak with and listen to people who are turning to you for help. It is their right to expect you to accept your mission. Don't allow yourselves to be haunted by these words: The saddest words of tongue or pen are these, it might have been. History will record and judge you for your performance. If you never run again in this province for political office, this is your opportunity to do what is right. Thank you. (Applause)
MR. CHAIRMAN: Thank you very much, Mr. [Murray] Johnston, for that very eloquent statement. From the people who you run into, sir, as part of your job as an elected official, how has the Workers' Advisers Program with the Workers' Compensation Board been, in your view because, obviously, people are turning to you because they feel they need a representative - for lack of a better way of putting it - I guess my question is, what is your sense of their feelings and your own feelings about the Workers' Advisers Program?
MR. MURRAY JOHNSTON: Mr. Chairman, my particular reaction to the program and to the plight of the people has been simply, as I have mentioned in my report, an opportunity to listen to people who have probably exhausted all avenues which are available to them and their last resort, of course, is to go to the provincial officer in Sydney on the weekends or now to their Injured Workers Association but finally, members of the committee, to myself, as an elected person, who is the closest to the people. As Mr. [Hyland] Fraser knows, having been involved before as my colleague on the UNSM, municipal politics is the level where people are closest. So they feel that they have to have someone to whom they can respond, someone who will listen and I think that they feel a closeness to an individual like myself who offers that opportunity.
MR. CHAIRMAN: Thank you very much. You listed three particularly disadvantaged groups in your opinion. One of them is the pre-Hayden people. I take it that the concern that these people have is the inadequacy of their pensions, the fact that the pensions are so small, or is there another problem perhaps?
MR. MURRAY JOHNSTON: I think you have put your finger on the crux of the matter, Mr. Chairman. Essentially, there are people who feel that their concerns have not been dealt with, that measures have been put in place to deal with other individuals in another category but these particular people have no voice and have difficulty trying to get someone at the higher level to listen to what their problems are, what their concerns are and the kinds of difficulties that they are facing as individuals and as families. I want to stress that latter portion especially because with no hyperbole, gentlemen and ladies, there have been people in my office, as most recently as last Friday, grown men and in a couple of instances their wives with them, and one incident two weeks ago, two children who broke down in front of me and that is extremely difficult to deal with, as I am sure it must have been for the Swissair disaster for people like the Salvation Army and the clergy to counsel those people who were coming to grieve. But for me, it is difficult because my answers can only be given at the local level. I have to hope that people, like yourselves, at the provincial level can deal with the problem effectively and try to come up with some kind of solution.
MR. CHAIRMAN: Thank you very much. Mr. Fage has a question for you.
MR. ERNEST FAGE: Thank you, Mr. Chairman. Mr. [Murray] Johnston, the people who come to your office obviously are in dire straits. Many of these people, solely their concern is problems with the workers' compensation or are you outlining greater problems dealing with unemployment, dealing with EI, dealing with social programs or are in the main the programs dealing with workers' compensation problems?
MR. MURRAY JOHNSTON: That is an excellent question, Mr. Fage. I would be naive if I told you that indeed I was focusing merely on the compensation but many of the people who come to see me have problems in that particular area and naturally I am here today to address that because there are probably individuals who would say, well, if there are
other problems that fall under that umbrella, the ones that you outline, this is not the forum to deal with all of this, but I think that they fall into a general category and both compensation and people who have allied problems as well. So there is a broad range of them. I can tell you, Mr. Fage, that there are many who are in the category of the Injured Workers Association.
MR. FAGE: Not to put words in your mouth, certainly workers' compensation that is fair and reflective and treats individuals with some dignity and respect and also payments that represent reasonable amounts of money to replace income because of injury would be an integral part of the social fabric of providing those incomes in a community such as you have described here.
MR. MURRAY JOHNSTON: Exactly. It is very simple, Mr. Fage. You knew, I think, before you ran for office, sir, that there are people in your constituency who have difficulty trying to reach people at another level. Why does it always have to be adversarial, management versus union all the time in whatever workforce we are in? To me, you know, some day, hopefully, whether I am here or you are here, we might begin to see where people begin to form alliances and work together. I hope that will happen but for the most part, if people who have frustration and feel there is no one there to listen to them and you are hoping that by coming here, I think there was a headline in your advertisement across the province, Mr. Chairman, Nova Scotians, we want to hear your views. Well, gentlemen and ladies, we are here for that reason, you are here for that reason. Make sure when you leave here today that you go back with these transcripts and this information and make something happen because that is your responsibility.
MR. FAGE: I certainly can't speak for other members but cooperation and consultation, I believe, is what this committee would like to be involved in.
MR. MURRAY JOHNSTON: Thank you, Mr. Fage.
MR. CHAIRMAN: Mr. [Hyland] Fraser.
MR. HYLAND FRASER: Murray, it is good to see you again.
MR. MURRAY JOHNSTON: Thank you.
MR. HYLAND FRASER: I am just wondering, Murray I know you have been an elected official for I guess about four years now or so.
MR. MURRAY JOHNSTON: About 12 all together.
MR. HYLAND FRASER: About 12 all together. A number of the concerns we have heard over the past three or four weeks as we travel around are people who have been on workers' compensation for a long time. Are you finding more, is the crunch coming now, or has this been sort of a level thing over the last number of years that you have represented the area?
MR. MURRAY JOHNSTON: Hyland, that is a very good question. The crescendo is building. If we had a learning curve here, sir, we could certainly show everyone graphically. I find that the number of cases are growing in number and in intensity as well. From where they were years ago, they have certainly increased in number. I think, Hyland, if you could be here on Sunday afternoons when various meetings have been held in the hall down the road or here, downstairs, the ranks, as I said in my report, have swelled and halls that are filled with people. Certainly, as you and I both know, there are instances in all cases where people perhaps want to abuse the system or take advantage of it. That happens everywhere but at the same time I can tell you the greatest number I have to deal with are people who are genuinely in need, who have suffered through the system and who do need their problems to be redressed.
MR. HYLAND FRASER: Would these be people, Murray, who have been on compensation for a long time or would they be ones that happened a couple of years ago who are the problems today?
MR. MURRAY JOHNSTON: No, Hyland, most of the people with whom I deal are those individuals who have been in the system for a long time and have reached their zenith of their frustration.
MR. HYLAND FRASER: Thank you.
MR. CHAIRMAN: Ms. Godin.
MS. ROSEMARY GODIN: Hello, Mr. [Murray] Johnston.
MR. MURRAY JOHNSTON: Hello, Rosemary.
MS. GODIN: You say that there has been a growing number of individuals and I guess my question may be similar to Mr. [Hyland] Fraser's. You say you have been a councillor for 12 years?
MR. MURRAY JOHNSTON: Twelve years, the last four as a regional government representative, yes.
MS. GODIN: So over that time that you have been an elected official, was there a certain time, and what I guess I am looking for is I am wondering if the changes in the legislation may have caused more of a problem than was going to be realized. I am just wondering if in that 12 years, was there a time that people started coming to you much more than they had in the past?
MR. MURRAY JOHNSTON: I would say, Rosemary, that 1996 and 1997 were the periods where things began to change dramatically and from then, from that period until now, it has just increased, as I said before to Hyland, in intensity and numbers between late 1996 to now.
MS. GODIN: You say dramatically.
MR. MURRAY JOHNSTON: Yes, dramatically.
MS. GODIN: Thank you, Mr. [Murray] Johnston.
MR. CHAIRMAN: Thank you. I think those are all the questions of the committee. Do any of our consultants have any questions? Thank you, I think those are all the questions and thank you very much for taking the time to make the presentation.
MR. MURRAY JOHNSTON: Thank you for the opportunity. (Applause)
MR. CHAIRMAN: Our next presenter is Mr. Gideon F. Travis. Go ahead.
MR. GIDEON TRAVIS: Thank you, Mr. Chairman, and good afternoon ladies and gentlemen. Thank you for the opportunity to be able to be here and speak. First of all, I would like to give you just a little overview so you would understand. Sometimes when I am talking I might sound nervous or I might be tripping over my words. The fact is, since my accident, it has destroyed all the qualities and the skills that I had for public speaking and I have many courses in that, as well as I have a serious memory deficit and I am deaf in my right ear and I only have 50 per cent hearing in my left ear. So if you have any questions after I am finished, you will have to speak up, otherwise I will try to read your lips.
I will try to make this as brief as possible because it looks very lengthy. My name is Gideon Travis and my profession, for the last 29 years I was a police officer in Halifax. I was middle management. My rank, when I left, was sergeant, and I had worked in many capacities in police work, detective, criminal intelligence, you name it, I was manager of it. My present age is 57 years. At the time I had my accident, I was 51 years old. My accident was, I was at an intersection in Halifax, at Sackville and Brunswick Streets, facing east, when I was struck from behind by another vehicle.
My education, and I accumulated most of this education during my career as a police officer by working and going to university. I picked up a BA at Mount Saint Vincent. I have a diploma in senior police management science. I have a business college diploma and courses too numerous to mention.
I am married. My wife's name is Lunda. She's a homemaker. I have a son, Stewart, who is on the Halifax Regional Force; he has been there approximately 14 years. I have a daughter who is a registered nurse in Halifax.
My accident happened on November 13, 1992. Since that time I've been subjected to the bottoms of hell because of that accident. The effect was I had to come off work for several weeks, back and forth. I was trying to work. Eventually I was off work for six months. During this time I had to undergo surgery on my neck on the left side. I returned to work for six months and then eventually the doctors took me off work because I was unable to function.
My injuries are as follows: I have a whiplash which caused severe neck, back and cervical sprain; I have a permanent neck restriction by approximately 25 per cent on my left side; I have brain damage and to put it in laymen terms, it is called rattle of the brain which resulted in a visionary memory process deficit - I will explain that a little bit later - I also suffer from chronic pain. I was diagnosed by various specialists - not one, but at least three - who determined that I had what was called fibromyalgia. The reason why I ended up with three is because I wouldn't accept it myself. I have a Type A personality and I couldn't accept the fact that I could no longer work or I couldn't do what I used to do.
I have widespread pain all over my body, plus numerous other symptoms including: fatigue; non-restorative sleep; brain fog; irritated bowel syndrome; confusion; disorientation; physical limitations; and suicidal thoughts. I have had significant lifestyle changes which are physical, emotional, social, family, friends and so on. I suffer from severe migraines and I average approximately two to three migraines per week, which may last from several hours to several days.
I title this as Benefits. Halifax City continued to pay my salary and WCB paid benefits to the city for approximately 15 months. WCB paid just part of my physiotherapy while my private medical coverage paid the remainder. If I wasn't in a position to afford private medical coverage, I would have been just out of luck as far as prescriptions and treatments were concerned. My private medical plan as of approximately a month or so ago paid for the bulk of my prescription drugs, a total of approximately $14,000. I paid the remaining, which is $1,200, out of my pocket. WCB paid nothing towards my prescriptions arising from my accident, and WCB refused to pay for a particular type of bed that was recommended by an orthopaedic surgeon.
Halifax City continued to pay my salary until my long-term disability benefits began. This prevented me from going on welfare; otherwise, that's where I would have been. Sun Life, the LTD carrier, paid me a percentage of my salary, and when Canada Pension finally accepted me for a disability pension, my LTD was reduced accordingly.
The treatments and medications I've had as far as prescriptions. I take Fiorinal-C1/2, four to six capsules per day, for my migraines and body pain. Occasionally I have to use Demerol to reduce the intense pain. I also take Effexor, which is six pills a day at 37.5 milligrams. I also take Alprazolam, which is four pills a day and that's 0.5 milligrams. I also take an Amitriptyline when I go to bed at night and that's three pills per day at 25 milligrams. If you figure out the pills that I'm taking, I'm probably taking 16 or 17 pills a day.
As far as treatments, I've had physiotherapy. I have had extensive treatment. I've had acupuncture with no success. I've had four nerve blocks, and that is a treatment involving injection of a medication into the left side of my neck to impair the function of the occipital nerve, reducing pain from migraines. Because of my accident, the nerve in my neck on the left side was damaged.
I had surgery due to the relative success of the nerve blocks and my nerve is severed and I have no sensory feeling in the left rear portion of my head which means if I let my hair grow and I have to use a comb, it is like scratching a chalkboard if you put a comb on my head. I've had massage therapy, psychiatric and psychological consultations. If I intend to be in any physical or social activity, I must over-medicate so I may enjoy the activity, but I pay a dear price for it after it all wears off. I must also add I had to get my son-in-law to type this up for me and to help me with the diction because I no longer have those skills.
As far as the doctors' comments are concerned, according to the WCB doctors, a Dr. Boswell says my injury is not consistent with my accident. Dr. King, a neurologist, stated I had the symptoms of fibromyalgia. This is a neurologist that the WCB sent me to. At that time, fibromyalgia was not accepted by the WCB in any way at all. Dr. Rosemary Sampson, a psychologist and also a teacher at the Psychology Department at Mount Saint Vincent, stated my memory deficit is definitely consistent with my accident which contradicts what the WCB doctors are saying.
According to the independent doctors that I've been with, Dr. Gosse, a psychiatrist, who is a specialist, says my injuries are consistent with my accident. Dr. Westra and Dr. Fisk, both psychologists and who specialize in memory testing, state that my accident is definitely the cause of my memory deficit. Dr. Alexander, an orthopaedic surgeon in Halifax, states that I suffer from fibromyalgia and he concluded at one point that I was unable to work. Dr. Dave Malloy, a neurosurgeon, performed the four nerve blocks and the surgery to sever the nerve in my neck. Dr. Howard Conter, a general practitioner, my family doctor, states that I'm totally and permanently disabled. He stated this in a letter to the WCB on October 8, 1996. Dr. G.H. Colwell, who has more letters behind his name than the Chinese alphabet, he is an
MD, then there's CM and then there's FRCPC. He is the physical medicine doctor who states that I suffer from fibromyalgia.
The critical issues that I wish to bring to your attention is, number one, WCB doctors overruling specialists. This is completely ridiculous. It would be the same scenario if I was to have a recruit come in after 20 years on the force and tell me how to do a homicide investigation. There's no way you can compare the two. They have the special training and the extensive education to qualify them for where they're at.
The paper review versus the oral review. Bear in mind these are my personal opinions of what I feel. This amounts to an easy route to dismiss a claim. It prevents the credibility and qualifications of the board's doctors from being brought into question, particularly when comparing a GP against a specialist such as a psychiatrist or a neurosurgeon. You can't do anything like that if you're doing a paper review as opposed to an oral review.
Private investigators. Being a detective during much of my career, I would like to call into question the qualifications of the investigators utilized by the WCB. Their degree of training, do they hold a certificate from an accredited institution? Are they trained to operate camera video equipment? What experience do they possess? The degree of professionalism employed may be questionable. Further, a disability that prevents one from working does not strip him of the right to carry on some aspect of a normal life. Claimants are entitled to whatever quality of life they can attain.
Investigators lurking about to obtain evidence which can be used out of context to dismiss a claim cannot be aware of the extenuating symptoms. They cannot know what medications the subject may have in their system or the consistency of any actions they observe or the subject's mental state when the activity occurred. Exercising and socializing is often recommended to sufferers of fibromyalgia, depression and similar disorders by their doctors. Yet these investigators will video these activities and the board will use them to prove the subject is not disabled. The very activities recommended to help sufferers are used against them by the WCB. Clearly this is wrong.
The WCB uses private investigation firms, and I won't go into the name of them, but they do tender it out because I've seen them and I know them. Is there a chance for bias when a firm engaged for profit is paid by what they're producing? It would be to the firm's interest to help to dismiss claims. The more they dismiss, the more contracts they're going to get. What research has been done on any of these investigators; their courses, their qualifications and so on leave a lot to be desired.
I would like to mention about civil litigation because I, personally, was involved in one. The claimants should have the ability to sue in a third party injury case without requesting the permission of the WCB, provided that the employer, who is a WCB premium payer, is not affected. The WCB does not compensate for pain and suffering and a loss of
quality of life, a lawsuit will. A civil suit has little to do with the WCB benefit. The two should be separate. If such a suit does not provide sufficient award to replace lost income, the WCB should still provide benefits as workers' compensation was designed to do. If the suit provides a sum greater than that, if he is able to earn his salary, it should be deemed an award for pain, suffering, loss of quality of life and so on.
Under the current system an award under a civil suit must be used to reimburse the WCB for benefits they have paid to the claimant. This is grossly unfair. Since the award is a civil suit, it is not intended solely as a replacement for lost wages. WCB premiums are paid by an employer for protection against lawsuits and payment of wages to injured workers. The WCB doesn't contribute to the expense of a lawyer, yet the lawyer is compelled to represent the WCB's interests if you're involved in a civil litigation. The person that pays for all that is the claimant, not the WCB.
Claims based on physical or objective evidence should not be the only ones considered for benefits. Other non-physical losses springing from the injury may be valid too, including loss of quality of life, social life, family life, physical limitations, psychological state, loss of education, home and so on.
Another issue I would like to mention when we're talking about brain damage, whiplash in an injury accident, is the baby shaking syndrome which is brain damage. Severe whiplash caused my memory deficit. This is also classified by some people as rattling of the brain where the brain strikes the interior of the skull causing damage. This may be the same type of injury that a baby suffers when they are shaken by a person. When a person shakes a baby and causes death, they're charged with murder. Why is it that according to the WCB an adult cannot receive brain damage of this sort from severe whiplash? The Brain Injury Association states that severe whiplash, which is an external force, can definitely cause brain damage.
The cancellation of benefits should only occur in a manner that allows the claimant a reasonable period of time to make an arrangement. This could avoid some undue hardship, such as if he has to go on welfare - I'm sure there must be a waiting period for going on welfare - or whatever else there may be or that he may have in his background.
According to some of the doctors I have dealt with, MRIs or CAT Scans, do not necessarily pick up everything in a back or brain injury. So all things considered, an employee deserves to be given the benefit of the doubt.
A plan should be designed where employees also contribute to the WCB. This will alleviate the board's deficit. I say this on a very small scale in relation to it because the money people have is very little, but it always seems to be the money factor involved when we're talking about the WCB and the deficit and what went on years ago. This will help to alleviate the board's deficit and make employees feel as though they are contributing to a plan,
allowing them the knowledge that the plan will be there for them when they need it. The perception of the WCB as merely a plan on paper only will dissipate.
The WCB reminds me of the promotional routine that was in effect when I worked in Halifax. A promotional routine is the procedure used to select candidates to be promoted to higher ranks within the department. Different skills and tests were awarded points with an interview with management given a heavy weighting. This allowed management to use the interview to promote candidates according to its private agenda rather than strictly based on the merit of the candidates' performance. This made the decision to promote subjective, based on management's agenda rather than automatically selecting the best candidate. Similarly the board, through its medical board, has given itself the power to dismiss claims based on the subjective opinion of the board's doctors. Claims may not be decided purely on the validity of the case but on the opinion of the doctor. Even the mere appearance of bias is unacceptable if the board wishes to be trusted by the public.
Workers' advisers seem to have too large a caseload to deal with clients effectively. First, it does not seem necessary, and it is my opinion only, to hire lawyers for this role, given the salaries they command. Secondly, at least in my case, the lawyer claimed she had 230 cases and felt justified in waiting four to five days before bothering to return a telephone call. Given the time limits the board often imposes this is unreasonable. I requested a new workers' adviser and, fortunately, I got one and I got one that is very professional and very competent.
In relation to chronic pain, care must be taken when selecting medical staff and others to design and implement any sections of the WCB dealing with chronic pain. This is especially true of any persons assessing claims of this type. Some WCB doctors may be paid on a referral basis. They may tend to rule against such cases since they are more likely to get future referrals if they rule in favour of the board. Persons who have been appointed to boards in this province tend to have affiliations to get there, rather than specific qualifications. Persons so appointed must not be acting to secure their own positions, but in the interests of injured Nova Scotian workers. The persons acting in such roles must, therefore, do the job without personal agenda or bias.
Political ties, past WCB affiliations or previous experience with the board must not be factors in deciding cases. Even doctors who have done research should have no input into a process as they could have bias. The welfare of the injured worker should be the paramount and primary issue. Further to the reference above regarding the bias of board doctors, I feel it must be stressed that a doctor retained by the board is bound to lose his objectivity. His future income stream is based on making diagnoses which favour the WCB. A reasonable person would conclude that the WCB will continue to use the services of a doctor who tends to rule against claimants as this does save money. Similarly, the board would soon find a new doctor to tell it what it wanted to hear if the one they were using was allowing too many cases through.
It appears obvious to me that this system cannot yield fair unbiased results. Consider the case of the Calgary psychiatrist, Dr. Paul Darlington, whose services were used heavily by disability insurers and the Canada Pension Plan. He called chronic pain and fibromyalgia sufferers malingers and was responsible for the discontinuation of possibly hundreds of disability pensions. The World Health Organization and the Centre for Disease Control in the United States recognize fibromyalgia as a valid condition. Yet the insurance companies use this doctor, not to obtain a fair assessment, but because he was known to be biased. This particular doctor had 25 people picket his office. This is a unique opportunity for the Government of Nova Scotia to be seen by the rest of Canada as a leader and a defender of the injured worker. They have the chance to help employees maintain their dignity and self-respect by making the necessary changes to the Act. By so doing they will regain the trust and confidence of Nova Scotians. Government and the Workers' Compensation Board created the performance work with injured workers, must possess a degree of honesty, integrity and trust if they wish to be respected by the people they serve.
Dignity is important to us all. Injured workers are treated like criminals by the system, worse since even criminals are presumed to be innocent until proven guilty. The WCB should accept fibromyalgia as a legitimate condition, a painful debilitating disease which makes it difficult or impossible to carry on a regular occupation and lead a normal life. Nova Scotians are hardworking, honest people, who want to work but if they become disabled, yet they're still entitled to fair treatment. We all have a responsibility to each other.
I just have the few amendments and I will be finished. The recommended amendments, as I stated earlier, is my own personal opinion. Number one is to terminate all medical staff employed by the WCB; instead, accept the diagnosis and prognosis of independent doctors and specialists. These two measures will eliminate bias as a doctor would not jeopardize his license or credibility on behalf of one patient. Do not penalize independent doctors by failing to use them because the WCB doesn't like the diagnosis or recommendations they may make.
Claimants should decide the method of appeal, not the board. Allot money for independent medical witnesses during the appeal process. Do not ignore recommendations by specialists to pay for medical aids such as canes, beds, which can assist patients and improve their quality of life. Accept the evidence, whether it be physical, subjective, psychological, or significant lifestyle changes. Private investigators, determine a standard of professionalism, qualifications for investigative procedures, education, experience, accredited institutions, ID qualifications. Retired police officers are not automatically qualified to be good investigators. Not all police officers have extensive experience with investigations. Further, the reasons they are no longer police officers should be also considered. Perhaps the investigator should be given a polygraph test just the same as a police recruit.
The new Act should apply to all injured workers, not just those injured since 1990. The pain of an individual in 1988 or 1989 I'm sure is just as significant as the one in 1990. WCB should accept soft tissue damage as a compensable injury as it is a very debilitating
condition. The federal government emphasizes equal pay for equal work. Now, because they owe workers a significant amount of money, they are appealing the decision. They're preaching one thing and practising another.
The Government of Nova Scotia should set an example for the rest of Canada and be seen as a government that truly cares about its people and apply its laws to everyone. They should review the claimants' rights in civil litigations and consider as an example the Mutual Life Insurance Company versus Kevin Andrew Tucker. I gave the lady a copy of the case and she's going to make sure each one gets it, I understand, because it is too lengthy to even get involved in it.
Review the necessity of hiring lawyers to act as workers' advisers. It might be more cost effective to use paralegals or knowledgeable and experienced civilians without agendas performing the work. Few, if any, of these cases actually end up in court where a lawyer would become necessary. Caseworkers should have sensitivity training, public relation courses, and they should be reminded they are employed to assist the injured worker. Their role is not to be abrasive, arrogant, or high and mighty. Perhaps the staff of WCB and its entities associated with the board should be rotated throughout the various positions within the board, or even a broader government infrastructure, to prevent people from becoming stagnant within their positions. By moving people around their job is always new and challenging. This will result in people not becoming complacent and indifferent towards the people they serve. Thank you very much. (Applause)
MR. CHAIRMAN: Thank you very much, Mr. Travis. I just had one question for you. Where is your case in the system now?
MR. TRAVIS: Mine right now? It is in a paper review, the evidence has to be in by October 2nd and it will be in there, and then I was told it would take several months before a decision is made. Why? I don't know.
MR. CHAIRMAN: That is fine. Do any of the committee members have any questions? Well, thank you very much for taking the time to be with us here today. (Applause) Our next presenters are Mr. Gerald Toomey and Mr. Ron Burrows.
MR. GERALD TOOMEY: My name is Gerald Toomey and I would thank you all.
MR. RONALD BURROWS: Good afternoon, my name is Ronnie Burrows. I want to thank you for the opportunity to come here this afternoon. I came in as a support person for Gerry, an acquaintance of mine for many years. I think he is getting shafted and maybe we can get some consensus of agreement from the committee.
Gerry worked at the co-op store in Glace Bay for over 20 years. On a backshift one evening, he slipped, fell, hurt his back. He reported the incident. He went on compensation. He remained on compensation for almost two years. Then he was struck off, stranded for whatever reasons. He still had the disability, he still had the pain, he was still unable to work. He had medical documentation that could prove that, but compensation being what they are, and I have had personal experiences myself with them, seemed to accept the diagnosis of a medical practitioner over a specialist. I think that is what happened in his case.
Gerald also had a disability insurance. When he was discontinued by the compensation board, he went to the co-op management and made application for his disability insurance, only to find out that there was a time-frame and he didn't meet the requirements of the time-frame. Therefore he was ineligible to apply for his disability, which goes on to tell us that if there hadn't been any compensation in the Province of Nova Scotia, he would have had disability from the time he was hurt until the present time.
But now he is discontinued by the compensation board and ineligible by his medical insurance. The result, provincial social assistance. Who the hell wants that? The man provided for himself, he worked steady for over 20 years, he raised a family, he was a contributor to the community, he was beneficial to a lot of people. Then to be cast aside and told that, you are no longer useful to society, you are no longer a useful member of society, and we don't make any provisions to provide for you or your family, I think that is a hard pill to swallow and so does Mr. Toomey.
The medical evidence that he has strongly indicates that he has a bad back condition. Doctors state unequivocally that he is unable to work. He is permanently disabled. The compensation board says, you are not, because we have a doctor here that disputes the medical findings of the specialist whom we sent you to see. This is one of the other things that ticked me off. I like Murray, am a municipal councillor in the Town of Glace Bay, and I meet people every other day that come in with complaints about compensation. I find it appalling to hear that when they can prove their disability, when there is no question about how they obtained that disability, to be told that no, it is not a compensable injury. What is compensable and what is not?
I worked in the mines, I worked at the airport, I worked in quite a few places in my day, I always had the assumption that if you were hurt or disabled in your workplace then you should be covered by compensation. Apparently, those rules don't apply in Cape Breton. I don't know what they do elsewhere from here, but it doesn't apply here.
I think that Gerald is getting the short end of the stick, and we could sit down here and ramble all afternoon and tell you why and give you his medical facts and the whole bit but that is not going to do you any good and it is not going to do him any good. They are there, the compensation are aware of them, and they choose not to do anything about it. I am
hoping that you, as a group, will go back to Halifax and get some justice for people just like him.
MR. CHAIRMAN: When did Mr. Toomey have his injury? What was the date of his injury?
MR. TOOMEY: October 1994.
MR. CHAIRMAN: You are not receiving any benefits at the moment, Mr. Toomey?
MR. TOOMEY: Nothing. Last week I even got a phone call from the drugstore, they even cut off my medication. They won't pay for it anymore. That was embarrassing to get a phone call for it. I never got no recognition, they never called me. I never got a letter stating that they were going to cut off my medication.
MR. CHAIRMAN: Are you receiving Canada Pension benefits?
MR. TOOMEY: No. The only thing I am receiving right now is social assistance. I am in the system with Canada Pension.
MR. CHAIRMAN: You have an appeal on the Canada Pension?
MR. TOOMEY: Yes. But I won't hear anything from them for over a year.
MR. CHAIRMAN: It was indicated that you had long-term disability through your employment.
MR. TOOMEY: Right.
MR. CHAIRMAN: I take it that because you were on compensation for a certain period of time, of course you didn't apply for long-term disability, and when they cut you off, you were left in the lurch.
MR. TOOMEY: Right. That is exactly right.
MR. CHAIRMAN: Have you an appeal in the system at the moment, or have your appeals all been exhausted?
MR. TOOMEY: It is in the system. I thought it was under Special Services, I called last week, now they tell me I am back in internal appeals again. I don't know where I am at.
MR. CHAIRMAN: Is it fair to say, sir, that one of the problems you have had is you don't know where your case is in the appeals system? It is hard to figure . . .
MR. TOOMEY: I don't know where it is at now. I am serious, I don't. Peter Egan said he was going to get hold of Halifax and take my claim back down last week, to find out was I justified to receive my medication. He said he will call me, he hasn't called me. I called compensation in Halifax, I thought it was in Special Services, now they tell me it is in internal appeals. I don't know where it is at, maybe it is up on the Causeway.
MR. CHAIRMAN: Thank you. Do any of the committee members have any questions for either gentleman? Mr. Corbett.
MR. FRANK CORBETT: Hi, Gerald, I talked to you on the phone.
MR. TOOMEY: Yes.
MR. CORBETT: Have you applied under the new policy of chronic pain, since you fall under that umbrella?
MR. TOOMEY: Yes.
MR. CORBETT: Did you hear anything back yet at all, Gerald?
MR. TOOMEY: No.
MR. CORBETT: Not a thing?
MR. TOOMEY: No.
MR. CORBETT: And Peter Egan hasn't gotten back to you, as you stated, for medication either?
MR. TOOMEY: Not since I was talking to you there. I don't know what you heard back. I don't know if you heard anything.
MR. CORBETT: No. He hasn't called my office. Thank you.
MR. TOOMEY: Okay.
MR. CHAIRMAN: Go ahead sir.
MR. BURROWS: I just think that his biggest problem at this time is the ability to look after his wife and the family. He doesn't have it. He is at the mercy of social services, and that is not a nice place for anybody to be, especially somebody injured in the workplace. Thank you. (Applause)
MR. CHAIRMAN: Thank you very much. Our next presenter is Mr. Gordon Buchanan.
MR. GORDON BUCHANAN: I am going to make it short and sweet, if I can, Mr. Chairman. I have papers here. I am not going to go through them all, because you heard those stories many times. My name is Gordon Buchanan. I live out in Gardiner.
I worked in the coal mine for 45 years. In the 45 years, I was never on compensation. I never drew a cheque on compensation in 45 years. Anyhow, I went to work this evening and I was told to go on this job, one of the hydraulic big hammers, boring sandrock. In the contract, you do what you are told. So I done what I was told and I went on the job. The next evening I came out, he told me to go back there again. I said, I don't want to go back there again, because I got deaf last night and I'm going to be worse tonight if I go there.
He gave me stuff for my ears. He says, either go there or go out the gate. So, I went again, and the next night, I went back there again on the third shift. I went out again and they told me to go there again. I said, I can't go, because I have to have something for my ears. He said, go to the nurse's station and find something for your ears. I went to the nurse's station, and she said, we have nothing here for your ears, go to the warehouse. I went to the warehouse, they said, we have nothing for your ears.
I came back and I told the boss, the fellow in charge of me, I can't go there. He said, well, go home then. If you aren't going out, go out the gate, he said. Well, I couldn't afford to go out the gate, because I have six in the family at home, they are all going to high school. So I went again, and at 8:00 o'clock I was in pretty bad shape. I was sick, I was throwing up, I was in bad shape. I told him I had to go home because my head is ringing and I am sick. At 8:00 o'clock, I went home, and they didn't even bother - I got my four shifts.
Anyhow, I was off about, oh, two or three months and the family doctor, I told him the story and he sent me to Dr. Chokshi. Dr. Chokshi had me there for about eight months, back and forth with him. Finally he said, you're deaf. I said, yes, I know that. He said, well, all right. I said, what about the compensation. He said, no, I'm having nothing to do with the compensation. Nothing to do with it. I said, you mean to tell me, you have fooled around with me for eight months, and now you are telling me you are not going to the compensation? He said, yes, I have nothing to do with them.
I went back to my family doctor. He said, I will make an appointment with Dr. Curry for you. I went to see Dr. Curry and he examined me, same thing. He said, you're deaf. He said, dealing with the compensation board, you got to have one of those lawyers. So I went to Murray Hannem, he had it for a while, and he said, would you go to Halifax on your own and see a specialist, Dr. Walling? Go up and see Dr. Wallling, he says. So I went to Halifax on my own, and I seen Dr. Walling and he says, come on in and sit down. I sat down, and he says, I have a thing here that I am going to hit on my knee, and you tell me when it stops
ringing. So he hit it on his knee and I didn't hear a sound. I said, it stopped ringing. He said, it did, and that is good enough. They sent you all the way up here to tell you that you're deaf, he said, you're deaf. So he said, that's it.
I go back home to see Hannem again. In the meantime, I got a letter from the compensation, they wanted me to go to Halifax to see a specialist. So I went up; they paid my way up and back. I went up anyhow, I had to be there at 9:00 o'clock in the morning and they put me in a little room at 9:00 o'clock in the morning, they put suction cups all over my head and my chest and all over me. Anyhow, he said, I hope you have good patience because you are going to be here for a while in this room. We have six specialists out there, they are going to monitor your hearing, six of us are going to be out there.
I went out there anyhow, and I stayed. They came at 12:45 p.m., congratulating me for sitting there from 9:00 o'clock in the morning. The six specialists said to me, you're deaf, your nerves are damaged, and it will never come back again. That's it, he said, are you getting any of the compensation? I said, I got $57. Oh come on, he says. I said, that's right. He wouldn't believe me.
Anyhow, in the meantime, I came back to see Hannem again, and he lost his job then. So I took my file and went to MacCuish. I went to MacCuish for about two years. I went in to see Mr. MacCuish, back and forth, back and forth. When I went down to see him, he says, how old are you now? I said, I'm 65. Ah, he said, they won't touch you now, you're 65, they won't talk to you. I said, come on now, 65 and you're not supposed to hear nothing? Well, he said, that's it. I said, give me my files. He said, no, don't take your file, you're going to make things worse. I said, give me my files. So, he gave me my files.
I went to Gail Rudderham Chernin, she was, oh my God, she couldn't get over it. She had my files for a week or so, I went back to see her. Oh my, couldn't get over how deaf I was and what I was getting paid for it. So I fooled around with her for about a year. Every time I went in to see her, she had a letter to this person, and that person and the compensation, and she never got no answers back, and back and forth.
I went back to see her, and she says one day after a year or so, I can't do nothing for you. She said, they gave you a hearing aid, they gave you $57, can't do nothing for you. It's unbelievable. All the letters I have here now, they are saying that they aren't responsible for me because I am 65. They aren't responsible for this and that. It's unbelievable, the answers I'm getting, they are all here, I could you show some. It's unbelievable the answers I am getting from the compensation.
Mr. Neville there, and I got a letter here, he went to the compensation about a month ago for me. They said, if you are still working - now, I'm 72 years old - we will compensate you. Well, I'm not working at all. This is the stuff you get, that's the answer that I get. It's unbelievable. Like I said, all I want is to be treated equally with the rest of them. I know a lot
of people who did the work that I did in the mine, and they aren't as deaf as I am. They got more than I did, they got settled up no trouble. I've been chasing around now for 11 years and got nothing out of them, only these foolish answers.
That's all I have to say, Mr. Chairman. Thank you very much. As far as answering your questions, I won't be able to give you answers, because I can't hear you very good. That's true, I can't. (Applause) If anybody wants those papers, there are copies and you can have them.
MR. CHAIRMAN: I understand, Mr. Buchanan. I don't know if you can hear me or not, but I guess I had one question for you. How old were you when you first became deaf, that you went to the doctor, 11 years ago?
MR. BUCHANAN: When I got deaf first, I was about 59 or 58. I retired when I was 61. My doctor told me, I have to get out of there or I'm going to damage one of the other workers or myself. I was up to the company doctor at the time and he said, you have to get out of the mine, you can't work. He made arrangements and I got the pension. That was it.
MR. CHAIRMAN: That was 11 years ago? Yes. Thank you. I don't think there is anyone else who has any questions. No. Thank you very much.
MR. BUCHANAN: Thank you, Mr. Chairman. (Applause)
MR. CHAIRMAN: Our next presenter is Mr. Ross Sharples.
MR. ROSS SHARPLES: Gentlemen, my name is Ross Sharples. My problems started in 1991, and they are still continuing. I was hurt in 1991. I am a heavy-duty mechanic at the steel plant. At first it was treated as a sprain or a strain by my doctor. He had me on therapy. About September, he asked me, did I want to return to light duties. I said, I will try it. I went back to work at the steel plant, and I worked a couple of days. The leg got that bad, I had a job even driving home.
He put me back on therapy. The leg just kept getting worse and worse. He made an appointment with Dr. LeGay, but I couldn't see him until February 1992. In the meantime, they set me up to see Dr. Yabsley. I met Dr. Yabsley again this year. He was a real gentleman. At the time I met him in 1991, he wasn't. I found out later he was having his own personal problems, and he was very rude that day. We ended up in an argument in his office, and he told me to get dressed and get out and go home. Anyhow, his report came in. I was cut off in November 1991. I continued therapy at my own expense. I have all the receipts home. I spent $300 out of my own pocket to continue with therapy. So when I saw him, he wanted to scope it, which he did. He scoped that in April 1992.
Then the fight started with compensation. Appeals, appeals, appeals. Nothing seemed to work. My doctor steered me to Frank Gillis, a lawyer out in Glace Bay. That was another mistake. Anyhow, I did all the running around. I missed time from work, an hour or so at the end of a shift. I paid for some reports that Frank could have gotten by calling up. He was well paid by compensation. Anyhow, I did all the running around. I made all the appeals. Every appeal, I made. Frank Gillis never appealed anything on my behalf.
I got to the oral hearing with Madeleine Hearns. I explained to her the conditions we had to work under and the actions I had previous to the 1991 accident. Afterwards, Frank Gillis took exception to me explaining the conditions of the plant we had to work under. Anyhow, we had an argument in the lobby out there. He said, you are on your own, and he left.
More appeals, more appeals and more appeals. Finally he called me in 1995, he said, Ross, the oral hearing is over. He got his money, he got his $1,200. He is not getting any more out of me or out of the compensation. Once he signs off, that is it, he gets the rest of his money, his $400, whatever. He said, I don't think we can go any further with this, I can't see us going any further with this. I said, look Frank, I dug up new information, new medical evidence. He said, it is no good. I said, well, the oral hearing was rejected, my appeal was rejected, but it said I could produce new evidence. He said, no good, they won't accept it. I said, well, the letter didn't say that. He said, you are better off discontinuing the appeal, and appeal to the adjudicator with the new medical evidence.
Frank should have done that, he took his $1,200 on my behalf. He should have done that on my behalf. But he just cast me adrift. I went home and I filed an appeal for the oral hearing, with Madeline Hearns. Then I got a Form "C" from WCAT. I filled all that out, and sent it in. I got a letter back from Judith Ferguson's office stating that they received the form, it is all going to WCAT, all the information. It was going to be set up the following year, and it will be looked at at that time.
I figured fine. I am waiting and waiting. So the Doward decision came down. I asked Gary Penny, he was on the policy board, I don't want you to do any favours for me, but just take my number and see where I fit in the scheme of things. He came back and said, you don't fit in there at all. I went down and talked to Bev MacAulay. She was sympathetic, she told me to call up Judith Ferguson's office. I called Judith Ferguson's office, she sicced me on Ann Gordon. Ann Gordon set me up with Dorothy Hardy at the advisers' group. She was very sympathetic. A week later I got a letter from her saying, Frank Gillis discontinued your appeal. January 1997.
I was that mad. I went out to see Frank Gillis. Why did you do that? Well, he said, you weren't getting anywhere. I said, listen Frank, you didn't tell me you were going to do that. I didn't sign anything. Those appeals are mine. They are all my appeals. Form "C", all of them. They are all my appeals. You did nothing for me. You collected $1,200, you sit on
your butt all that time, and once in awhile I used to call you to see if you were still alive, and you would fax off a letter to Halifax. I would be waiting again, and I called you again, oh yeah, well, I have something here, come on out and see me. That went on there for awhile. I said, frig this.
I went after Paul MacEwan, another mistake. I said, how about doing me a favour? He said, well, you voted NDP last, I saw the sign in your yard. I said, yes, the first time in my life, Paul. I am sorry you got in. But anyhow, I said, look, do me a favour. I want some inter-department memos concerning my case. So, I got them. I am reading them.
The discrepancies are unreal. I whipped up another appeal here back in May, sent it to Carrie Kelly. I was talking to David Hoddinott and he said, send it through Carrie Kelly. I showed where David Hoddinott erred in 1992. When Dobson wrote to him, and asked him, did the accident of 1978 contribute to these problems of 1991. Hoddinott wrote back, his problems were insignificant. Insignificant, Mr. Chairman. I was off work for months. It got to the point where I went to Dr. White and said, I want to be sent to Halifax. My leg is getting worse, look at the size of it. It is hard to believe a leg would get that big, a knee, big as your head almost.
He took me in the hospital the next day, and he drew off two vials of fluid, and he put a stovepipe cast on it for a couple of weeks. Then I went back on therapy for three or four months. David Hoddinott figures that is insignificant. And he is classing that as a sprain. Form 7 shows, it was a trauma. It was hit directly. No doubt about it, how I felt, I fell right down, nothing to guide you, just bang and your knee was on it.
When I was filling in the foreman out there, I did up an accident report on one of the individuals, and put it in his file. I noticed there are other names in there that shouldn't be there. So I start rooting around, changing them around. I came across some of my own, 1980, 1984, that I didn't have access to before the oral hearing; none of us had access to. I took all that, and I wrote to Carrie Kelly. I got an answer back.
I whipped up another one in June and shipped it into her, I just got the answer back yesterday. They are going by the oral hearing decision. She said, you had your opportunity to present this stuff, but I said I didn't have this stuff to present. It tells you, you can present new evidence after the oral hearing, if it is new. Well, it was new.
Going back over the interdepartment memos, I find out, Dr. Yabsley - we get back to him again and this stuff, I didn't know about, but it is going back and forth to the office up there in Halifax - he says that it appears that my problems are idiopathic, not traumatic; in other words, pre-existing. In 1990, when I got hurt out there in the plant again, before the major one in 1991, I fell over the lunchroom stairs. The X-rays show - I got this all home - no signs of arthritis, nothing, not a thing.
In 1991, when I had it X-rayed after the accident in July, it shows mild changes, actually it says, minimal changes in the median department. They are saying, back years ago, it was degenerative, in bad shape, and the X-rays of 1990 and 1991 show it doesn't; it is not there. So the list goes on and on with this problem. But when I went back to work - I was off for almost 14 months - I ended up with nothing. No money. Great West wouldn't pay me anything. They said, you got hurt in the plant, compensation can look after you. We have too many problems now dealing with this; it is getting out of hand. You got hurt, they can look after you.
I went to UIC. The last time I was laid off was 1967, in the steel plant. A lousy 15 weeks sick benefits I am entitled to, but I couldn't get them, for who knows what reason at the time. So here I am with nothing. I never smoked for four or five years up to that point, but I took up smoking again. I ended up with professional help. I got my sister on the phone; I borrowed money from her on two occasions that year to keep me going. Finally, Dave Dingwall was in town, and I went to school with Dave. I told him my problems; he said, I will look after them.
So I got a call from UIC saying your screen has gone dead and we have to start the process all over again. This is after months with nothing. I called Dave up - he was heading for Ottawa - he said, Ross, give me your phone number and don't move. He called me back and he said, your cheque will be in the mail for 15 weeks, don't worry about it. It was there.
This is what you run into, Mr. Chairman. All these problems. But if you go back over those interdepartment memos, it shows where the inconsistencies are from every department, from Murray down to Dobson to Hoddinott to most of them. This is what goes on. That is since 1991. I got hurt last November. Same leg again, but this time, I got the two of them. I had two scopes this year in March and June from Dr. Collicutt. They didn't work out. He just got me a brace; I expect that this week or next week. He said, I don't know where to go from there. He doesn't want to do a total replacement because of my age. He said, if I give you HBO, I can't guarantee it is going to make you any better. It might; it might not. You might be in constant pain. I said, well, I am in chronic pain now. I am in constant pain now, it can't be any worse than what it is, but at least I am getting around now.
If I am forced to take my pension off that steel plant, I want to be able to get around. I don't want to be crippled. He said, Ross, I can't guarantee you anything. This is all I can do. I can give you the brace, wear it three or four weeks, we will talk again; that is all I can do for you.
Mr. Chairman, that 1991 claim should have been settled up a long time ago. I know people in that plant there had operations this year and last year. They have arthritis, and they were cut off; matter of fact, they went back to work, and they worked so many hours and had therapy so many hours. That opportunity wasn't given to me.
But my X-rays of 1990 show no signs of arthritis, none whatsoever. My reports, on Form 7, show it was traumatic. Dr. Roy wrote them the same thing. He said, this man should have the benefit of the doubt, he even used his own money, he said you know, to continue therapy. Dr. Reardon - I paid my way up to Halifax to see Reardon - he said, why were you cut off, it doesn't even make sense? It was traumatic, not idiopathic, he said. That is ridiculous to think that. He said I should have the benefit of the doubt, and he gave 12 per cent PMI. The board just said, that is his opinion. We are sticking by Dr. Yabsley's. But, I said, Dr. Yabsley erred, he said the X-rays shows there is no damage there in 1990 until 1991 after the accident, and then it was only mild.
Anyhow, right now, like I said to Jim this morning, I said, Jim, the only opportunities I have now is to go see a lawyer, take it to court. I said, this has been going on so long now, I have run out of things to appeal. They just won't listen. I am going to have to see a lawyer and pay out of my own pocket again to get this settled up one way or another. Thank you, Mr. Chairman. (Applause)
MR. CHAIRMAN: Thank you. Our next presenter is Mr. David Gillis.
MR. DAVID GILLIS: My name is David Gillis. I worked in the coal mines for 33 years. Over those 33 years, I had numerous accidents. I have them all written here in front of me. Medication for my back, I am taking Tylenol 3, Phenaphen 3, and Synflex 275 milligrams. That is what I am taking right now. I am receiving cortisone from Dr. Poulos on the Northside every two to three months.
I have a letter from Dr. Ibrahim, he says, chronic back pain which affects my legs. Over those years, I had 52 treatments for my back. That is about it I guess. I got a letter from Dr. Poulos, this is to certify that I am treating Mr. Gillis for chronic lower back pain. He has had this pain for 20 years, and has not been able to work for the last five years because of it. I have been treating him since 1997, Dr. Poulos. That is my medical information.
[2:32 p.m. Mr. Hyland Fraser took the Chair.]
MR. HYLAND FRASER (Mr. Chairman): Thank you, Mr. Gillis. What were your injuries, to your back mostly?
MR. GILLIS: I could start from 1976, if you want me to. I can go right down to 1990. I have nine of them written down here, I think. I twisted my back October 28, 1976. April 19, 1977, stepping from the rake, I fell and injured my back. November 17, 1987, I was putting in a steel sleeper, I strained my back, that is underground. I slipped on the ice on February 15, 1989; 1990 was my last one, I was stacking five foot hardwood and I lowered my back. That was my last injury, 1990.
MR. CHAIRMAN: You haven't worked since?
MR. GILLIS: I have been on pension since six years.
MR. CHAIRMAN: Okay. Thank you.
MR. GILLIS: I am retired since six years.
MR. CHAIRMAN: Thank you very much. Does anyone have any questions for Mr. Gillis? Any of our consultants? Thank you very much for coming up, Mr. Gillis. (Applause)
Our next presenter is Carmel Nugent. Is Carmel Nugent here? She may be in the building, so we are going to move on to the next one and we will come back to her.
Next on my list is Rod MacLean.
MR. ROD MACLEAN: I operate a small business in the area and I have an ongoing problem with the compensation. When you have to deal with the compensation people, you are almost under the impression that this is not an Act of the Nova Scotia Legislature, it is an act of God, as far as they are concerned. My firm operates from May 15th to the end of September. At close-down, we ask for, from the accounting firm, L.T. Short, and receive our wages for the year, at which time we put it on a compensation form and fax it immediately to their office with our total payroll for the year, which is usually done in early October. We then shut down the phones, have no staff in our office until the May 15th period.
In January, the compensation requires us to notify them what our wages will be for the following year. We have no way of knowing, in the construction industry, what our wages would be for the following year so what we have done, is we use our last year's wages as a base and go from there. If you are 20 per cent below your actual wage, or 20 per cent behind, they fine you. The fact that we don't answer their correspondence, even though we send in our figures in October, the fact we don't answer their correspondence in January, they fine us $135. Now we don't have an appeal, there is no one we can talk to but those people. If you argue with them long enough to get into the June and July period, they send one of their field representatives out who checks all your vehicles and tells you that if you don't pay up they can seize your vehicles and sell them.
Now you people, or the people before you, made this Act but you never made no provisions for us who had to deal with these people. Like we need an outside appeal process and we should also, if necessary, have a choice of going to a private insurance firm to buy coverage for our employees. That is all I have to say. Is there a secretary here that I can give a copy of this to?
MR. CHAIRMAN: Yes. If you would like to leave it with me, sir, I will look after it. We have a lady around here who will look after that. Are there any questions from anyone in the committee?
MR. CORBETT: I will probably work backwards on a couple of things. You said that you would prefer the option of having a private carrier, if you wished. Do you also then agree with the ability for your employees to have litigation against you should they get injured?
MR. ROD MACLEAN: Well, we have operated for 22 years and we haven't had a lost-time accident, yet our rates go up every year, $600 or $700. Like there comes a point, with all our other expenses, that we just can't go any further. Now for our six months, four employees, this year, they, in January - well, we open up in May, so we didn't know about it until May, they - informed us that we were going to be charged an extra $1,000 over last year. Last year was $2,500 plus penalties. This year would be $3,600 and change. I mean it is a matter of survival. If we deal with private insurance people, then we get the best rate to suit our needs. With these people, we don't even have an appeal process. They can tell us, put whatever they want on the letter and seize our equipment if we refuse to pay. Like they tore down the Berlin Wall but you people don't seem to understand that it is gone.
MR. CORBETT: Well, I had nothing to do with building or tearing down the Berlin Wall, I assure you. When you talk about representation, though, should there be a similar body for employers similar to the Workers' Advisers Program, should the employers have a representative group like that to defend them?
MR. ROD MACLEAN: Most of us belong to the Canadian Federation of Independent Business, Peter O'Brien, being our representative here in the Maritimes. All they do when you come to them with a problem like this is shake their head. Russell MacKinnon, who I addressed on this problem, probably in June, he can't touch it with a 10 foot pole, he would get slaughtered by it. He will admit, being a small-business man himself and having gone through this, that it is a problem but there is nothing he can do for you. Peter O'Brien is trying to get changes made. You people are our best hope.
MR. CORBETT: You said you do contracting. What type of business?
MR. ROD MACLEAN: Swimming pools. It is a recreational type of business. It depends on the weather, it depends on the economy. They ask us to tell them in January what our wage is going to be paid for the following year. God upstairs couldn't do that.
MR. CORBETT: We have run into this problem quite a few times on the road and one of the questions, I guess, for the record is, do you believe that it would be much better to pay your premiums as you do your Receiver General information and so on, on a quarterly basis after the fact?
MR. ROD MACLEAN: Well, let me just reword that a little bit. If, at the end of the year which, in our case is late September, we present from which the compensation have full access to, which is the L.T. Short accounting firm, they were in the same building locally here, so they just go upstairs to get our payroll. If at the end of the year, being late September, we put our payroll in, couldn't the compensation then charge us an extra fine for whatever we are over what we, say we say $100,000. If we are over that, couldn't they charge us the extra then instead of us having to assess it in January when we don't even have an idea what it is going to be?
MR. CORBETT: It makes sense. That is not something that goes hand in hand here a lot of times.
MR. CHAIRMAN: One more questioner. Ms. Godin.
MS. GODIN: Mr. [Rod] MacLean. You say you have been in business for 22 years. Has this been going on with workers' compensation for 22 years?
MR. ROD MACLEAN: No, really, I don't think this has become a problem since they revised it as much as, now we have had problems in early years but nothing that hasn't been straightened out. But like when you try to deal with them now, it is like you are wasting the cost of the phone call to call them. You are much better off for your health not to bother calling them.
MS. GODIN: That was my next question. I wanted to know how you were trying to contact them. Have you written letters or is it by phone call?
MR. ROD MACLEAN: I usually call them by phone. Sometimes I fax them. When they are looking for information, I would fax them, for our gross wage and that stuff for the year. But when you get them on the phone, there is no sense to them, let's put it that way. They talk as if this is an act of God.
MS. GODIN: Do you get the run-around from people you talk to on the phone or do they just tell you no?
MR. ROD MACLEAN: No, not so much run-around, just blunt refusal. This is the Act and you got to live by it. Do you know what I mean?
MS. GODIN: Okay, but you try and explain the situation where you are completely shut down?
MR. ROD MACLEAN: Yes, I wrote them letters and the letter I am leaving with the Chairman is one of the letters I wrote to the assessment office this spring and outlined some of our problems. All we got back, about two weeks later is more or less, tough luck.
MS. GODIN: Okay, thank you, Mr. [Rod] MacLean.
MR. CHAIRMAN: Mr. Fage.
MR. FAGE: Mr. [Rod] MacLean, I am not sure when you answered Mr. Corbett on your preferred method of remitting your workers' compensation.
MR. ROD MACLEAN: Yes, I would prefer, you are talking about the quarterly?
MR. FAGE: I won't put words in Mr. Corbett's mouth, but how you remit your EI once a month, your employers' and your employees', your Canada Pension, your income tax to the Receiver General, would you not prefer to remit your workers' compensation once a month after the work is completed, at the end of each month?
MR. ROD MACLEAN: Yes, we are paying for the actual payroll at that time. Yes, no problem with that.
MR. FAGE: That would be your preferred method, I take it.
MR. ROD MACLEAN: Yes, even on a three month basis, if you are paying after the fact, we are paying for what we did pay out, yes, no problem.
MR. CHAIRMAN: Thank you very much, Mr. [Rod] MacLean. (Applause) Has Carmel Nugent come into the hall?
Paul McChestney and Clarence Oliver. Welcome gentlemen. You can start whenever you wish.
MR. CLARENCE OLIVER: Okay, gentlemen, I am coming back in here again. I did a presentation a few weeks ago on the ADR process and this case that I am bringing forward here today in front of you people is something that has happened since and has been going on but this is the only person who is willing to come forward, in front of this committee here, and explain what the ADR process has done to him, his family and his wife. When you have heard this gentleman, I will give you some more facts on this ADR process. This is Mr. McChestney. This is very personal, this here, and this is something the man is coming forward in front of all of these people and in front of you and it is a personal matter. I hope you just bear with him if he has a hard time getting through it, okay?
MR. CHAIRMAN: Yes, we will certainly take all the time you wish, sir.
MR. PAUL MCCHESTNEY: My name is Paul McChestney and my wife is an injured worker. On Saturday night, just past, I almost lost my wife. If I didn't wake up, she would be dead right now. She took an overdose of pills, she cut her wrists. My wife suffers from
severe depression due to chronic pain caused by her injury. Her injury related to the work was done to her neck with her spine. C6, C7 and C8 vertebrae. She had a spinal fusion done. She has done everything that is possible from compensation that they asked her. She had nerve blocks done. She had numerous therapies just to keep her cheque going.
Then one of the workers that were there said to her, we also have a - I am jumping off the subject here - a six year old boy. He was born with pulmonary atresia. He has had five open hearts, two by-passes, his kidneys failed, his liver failed, he had a brain haemorrhage. He has one and a half lungs. I know about stress. This man tells my wife that if she doesn't return to work, you are going to lose your health plan and you have a sick baby. This is some way to be treated, eh. Every time you turn around, you didn't know what to expect, if you were going to get a cheque one week or not, or if you were going to be forced into something that you couldn't do.
Last year, in August, the pain got that bad, my wife did almost die. She did die on the table and they brought her back. She did the same thing. You don't know what it is like to be living there, live with this day to day. I pulled back them covers the other night. I am the one that seen the blood. My son usually crawls in bed with us at night. How bad do you think that is going to affect him. Daddy, where is mommy, why can't I see mommy? Well, I can't take him to the NTU. Things got to be changed. It has to be done now before you have more cases like this that go too far; lawyers telling you that they can't help you any more, we are washing our hands of you.
When is it going to stop? Are you going to come to my house and provide for me because I can't work no more, to take care of my son because my wife is gone? Are you? No, I don't think so because you will go on with your daily lives. I am the injured spouse and I have an injured family. They had her on Percocet which is a major painkiller next to morphine. She is on all kinds of types of pills to deal with depression. Nothing is working. My wife is going through shock therapy right now. When is it going to stop? When is she going to get some help? They keep on telling her that is she is going to, like, you know, you got to live with the pain. You got to live with the pain. Let me break your neck and then you guys live with the pain. You can sit up there and pass judgement when you are sitting in easy seats. Do some good for these people. Relieve them of their stress. You will never relieve them of their pain but you guys can give them a stress-free life because they have too much, because it is not only the person that has been injured that is involved, it is everybody that is around them.
I just want to know, when is it going to stop? I want a normal life. Ever since she has been hurt, it is nothing. She used to bowl, play sports, pick my son up. She can't pick my son up, she never could because of her injury. I go through more stuff in the house, her reflexes go. Can you imagine that, dropping your little boy? Explain that one, why she can't go out in the yard and play certain games with my son? Well, I gotta work for a living. This is denying my son a real proper upbringing but we give him the best we can. I just want it to stop but you guys are going to push people too far, and I mean too far, and you guys are
going to have to take the responsibility of this, not the injured worker. Changes got to be made. (Applause)
MR. OLIVER: Gentlemen, as you can see, this is only one of many cases that have came before the Injured Workers of Cape Breton and probably across the Province of Nova Scotia. Mr. Neville, who has been our president, ran into a few cases himself and at one point he had to go out that door and take a man back in that was going to go out and run in front of a transfer truck, which is only a few months ago. We are not paid psychologists or psychiatrists. We know nothing about intervention. It is beyond me how these people are getting away with what they are doing. Like he said, the ADR process is not working. It is evidenced here today that it is not working, it was evidenced two weeks ago when I told you. This has to stop. You have been asking questions of Mr. [Murray] Johnston here today, how the ADR process is working. It is not. All the evidence there, it is not.
I have more cases in front of me here today concerning Rick MacCuish that he turned around and said, we are denying you access to the advisory council because your case is unwinnable. This ADR appeal process where they said you got to sign a letter and state that any ongoing claims or that any ongoing appeals or appeals that are in the system, your case, that is it, won't have anything to do with this claim number, it is closed. you can't do nothing to it but in contradiction, on Page 101 of the report you had, the select committee, I believe Judith Ferguson, she is the lawyer representing the tribunal, I believe Mr. Baker, do you know her?
MR. CHAIRMAN: Yes.
MR. OLIVER: Yes, on Page 101 she made a statement that that is not the fact with the tribunal. You can appeal. This is not a one-shot deal at the ADR like Rick MacCuish and Anne Clark are letting people believe.
Now on another report here I have, gentlemen, back last year I done a report here on the findings within the Workers' Compensation Board. As you know, the $500 million unfunded liability was caused from 1983 to 1993. Now it stands today, stands I believe, Mr. Neville, I don't know, would it stand around $393 million? Somewhere around there, am I right? We are talking almost $1 million, gentlemen. That is the turnaround, $1 million. At whose expense? Not at the businessmen's expense, not at the Government of Nova Scotia, but at all these people behind me, their expense, $1 million taken from these people to slash and cuts that Dave Stuewe has put upon these people and the advisory council is doing the job that Dave Stuewe put them in there to do. He is the one that, they are doing his job. They are coming in and they are giving these people $5,000 and $10,000 settlements, $2,000 settlements with a gun to the back of their goddamn heads and they have no other choice but to take them because they have got sheriffs officers waiting for them at home to take their houses and their cars. This has to stop. This ADR process is not working and as I understand, this functional disorder program is as bad as the ADR process.
I mean I can't go into all of this here today but, gentlemen, I have given one of your members here - I don't know where he has gone, he is back here I guess in the kitchen - I gave him a report of one of these. I also, at election time, Ms. [Helen] MacDonald, I believe I sent one to your office. I sent one to Frank Corbett's. There is another one gone to John Hamm and one to Premier Russell MacLellan's office. Robert Chisholm has another one, hand-delivered. I mean here are all your findings.
I can't believe that here we are, we have a report compiled by Peat Marwick Stevenson & Kellogg in 1993 that concluded that years of mismanagement and outdated legislation helped to create the financial mess, the $500 million unfunded liability. All the stuff in the report before this will show you where the problems were, and how they got caused. On May 21, 1997, an Auditor General's Report submitted by Roy Salmon indicates these problems still exist today. Now you people have Roy Salmon doing another report which is a year later, I mean if things haven't changed in four years, what in the hell makes you think it is going to change in a year with Roy Salmon?
My point gentlemen, is that you people have to go forward. At the sitting of the House, you have to stand up and be accountable. Don't wait for Roy Salmon's report that is coming out in November - which I am well aware that it is coming out in November - you can't wait for that. You have to take these people, take their concerns and voice them now but don't let Dave Stuewe and Innis Christie run away with what they are running away with. We are talking $1 million taken off the backs of the injured workers. Do you realize what that could do for the people of Nova Scotia? Do you understand what I am saying here?
I know you people are doing a report and I have two questions for this select committee today and I wonder if I can ask them, Mr. Chairman? Are you still chairing this, Mr. Baker?
MR. CHAIRMAN: You can ask me, sir.
MR. OLIVER: I am going to ask them anyway, but I just thought I would be polite and ask you. My first question. Gentlemen, are you going to take the suggestions that were put forward to you today, and all the other reports that you have, and compile them and go over them and present them to the Legislature to have something dealt with at the sitting of the House?
MR. CHAIRMAN: Well, we will be reviewing all the presentations, everything that was presented to us through our tour through Nova Scotia. That information will all be assembled and we will be reviewing that in sessions of the whole committee.
MR. OLIVER: That is not the answer. That is not the question I asked you. I asked, are you going to take it to the Legislature when it sits on October 14th? Are you going to present the injured workers problems on October 14th? That is my question.
MR. MICHAEL BAKER: Perhaps I will refer to that, Mr. Chairman. The committee is charged with reporting back to the House. Now I can't give you the date, whether it is going to be October 15th or October 16th or whatever date. The House opens on October 15th. So I can't give you the exact date, but I can certainly tell you, without having given you a date, that it is our plan, the committee was struck for the purpose of reporting back to the House. I don't think, from my discussions with my fellow colleagues, that anybody has the desire to delay this process. I think that is a consensus. I don't think I am speaking out of turn there to say that we are planning to report back to the House in the fall sitting. So if that answers your question, I think it does. In other words, we are planning to come back with an answer as soon as possible.
The reason I am not going to tell you a date is because if I tell you a date - you have been told enough stuff that isn't true before - and say it is going to be on x day and it doesn't happen, then you would be legitimately upset with me. I am not going to do that because a lot of people have been told enough things that aren't true.
MR. OLIVER: Okay, my next question, gentlemen - I notice that a few seats are empty. Some of the men are standing around here, Mr. Corbett just moved over there, and another gentleman just walked over that way - my next question to this select committee. As representatives of the people of Nova Scotia, you are elected to represent the people of Nova Scotia, and I am asking you here today, will you people sitting in front of me today, all three members from all three different Parties, will you stand up and be heard in the Legislature on behalf of the injured workers? Will you bring it to the floor? That is where we need it, brought to the floor, and whether the report is put to the committee and they say yes, we are, I want to know if you guys will stand up and bring it to the floor as elected representatives?
MR. BAKER: Mr. Chairman, I will just address that, if I might. The process is that the committee as a whole would come forward with a report, and the committee would vote on that report. Obviously, my hope is that the report is going to be a consensus, i.e., that all the members of the committee would vote for the report, but obviously I can't tell you how people will vote for the report. Obviously, I can't tell you how people will vote until we have the report. I can simply say that the committee will report back to the House and obviously those members of the committee, hopefully every one of them, in favour of the report that is submitted, will support that in the House. I don't think there is any further answer I can say. I can't tell you if everybody is going to vote for the report. I don't know if I am going to vote for the report.
MR. OLIVER: Mr. Baker, I didn't ask you to vote for the report, I asked if there is anybody on the select committee who would stand up and bring our matters to the floor. It doesn't matter about you voting on the report here. Will one of you, as elected representatives, stand up and make sure that this issue is addressed at the next sitting of the
House? It can't go on for another two or three years. We can't wait for another election. We need it now. October is the month. Do something, gentlemen and ladies, do something.
Do you have any questions for me, gentlemen and ladies?
MR. CHAIRMAN: Are there any questions? Mr. Samson.
MR. MICHEL SAMSON: The presentation we heard before us, it was a very tough presentation to hear. I can't imagine how tough it was to have to live through. You mentioned the ADR process. I guess we didn't really see the link of how that went with the ADR process. How did that work in this case?
MR. OLIVER: . . . turned around and told this lady and her husband that she was out of the system. Now I have reports upstairs in her file from psychologists and psychiatrists indicating that her chronic pain is caused from her injuries. I have this. I believe Mr. Travis touched on this earlier. These are professional people. Now where does Rick MacCuish get off doing this? Then I turned around, and that is not the best of it gentlemen, now that you brought it up, that is not the best of it. I got a phone call to try to help these people, not only me, Mr. Neville was instrumental in helping us here. Another gentleman in our organization was instrumental. I won't say who - because he didn't want to be mentioned here because of his position - but he was instrumental in helping us.
The bottom line is that within 24 hours of this happening, we had this woman's claim reopened again. Now you explain how Rick MacCuish can say it was unwinnable when that gentleman sitting over there and myself and another injured worker, who have no legal profession whatsoever, got her reinstated? You tell me there is not a problem with the ADR system? Come on gentlemen, open up your eyes here today. Smell the roses. There is a problem. It all starts with Anne Clark right down the line and when Judith Ferguson turns around and overrules them on Page 101 and tells them that yes, they are wrong, then hey? That is my point about the ADR, Mr. Samson. Do you know where I am coming from?
I lived through this with this man. I have been with him every day since. I have been at the hospital with his wife and that is not the only case but other people wouldn't come forward today because they are embarrassed and humiliated. But this man, he was good enough to come here and state his case to show you this is only one of many cases. Now that blood of that lady or anybody else on that injured worker shouldn't lay on my hands or Jim Neville's or anybody else associated with the injured workers. You people are here today and if anybody's hands it should lay in, it should lay in your people's because you are the people that can make the changes .(Applause)
MR. CHAIRMAN: Thank you, Mr. Oliver. Are there any other questions?
Our next presenter is Francis Morrison. Is Francis Morrison here? I will go back up to Carmel Nugent. Has she returned?
I guess the next presenter, then, that I have on the list is Joseph Marchesen. I may not be saying that right.
MR. JOSEPH MARCHESEN: Thank you for coming, all of you. My name is Joseph Marcheson. My claim number is 1046674. I hurt my back in construction in 1979. While working, I was getting $9.21 an hour. In 1980, I was getting $202.50 per month compensation. That is an awful drop; scraps from the Workers' Compensation Board. Now I am getting $392.50 per month; again, scraps from the compensation board. Right now I am so depressed over talking about all this, that I could be a total risk to society. It seems that if I was rich, I'd be getting a lot more. It seems like we have to be rich on compensation to get anything because the poor don't get nothing, especially from Savage and his Liberals.
Then in 1991, I started getting 50 per cent. That's $673 per month. Things didn't add up there because 25 per cent of $392.50, if you add that twice, it comes to $785. Well, that's the Workers' Compensation Board figures. You know, we're stupid, they just throw anything at us. That's what they're doing with me anyway. That's 50 per cent to me, $785. Like I said, the Workers' Compensation Board don't seem to know how to add over several things, or pensions, or anything else. They give you what they feel like giving you, what they're told to give you.
Then in 1993, I got cut 25 per cent again with a stupid excuse from the Workers' Compensation Board. That was when the rich Savage beast was in power, in 1993. As far as I'm concerned, things were never so bad as it is right now with the Workers' Compensation Board. I believe if this Liberal Government doesn't change the Act for the good of the injured workers, the Tories should kick them the hell out for being so miserable to us poor injured workers.
Now, I'll talk about this supplementary benefit that the Savage beast invented. I was cut off this benefit because, according to the Workers' Compensation Board's lies I'm making too much money. Then they come up with a stupid excuse. I'm making right now, between Canada Pension and compensation, $11,190.60 per year. I am below what the compensation says about supplementary benefit of $11,551.99 average. These Grade 2 people at the Workers' Compensation Board, like I said, lied to me, that I am making too much money with some stupid excuse that I'm not supposed to understand with their big words. I'm making $361.39 cents below the $11,551.99, okay.
They owe me all this money and I think I should get paid for when they cut me off on September 24, 1996. That was their excuse, I'm making too much money. So I was cut off then and I'm not getting anything since. I don't know where they get their figures. If they put $11,500, or whatever it is, and I'm below it, why didn't they bring it up to the $5,550 and
give me the money to be able to live on, because I can't live on this. I'm on compensation for 20 years; fighting for compensation for 20 years. I can't understand it at all. We're talking about Rick MacCuish and Gillis and all them, they were paying them for nothing; they were getting $1,200, or whatever, for each one and they were just putting the money in their pocket and sitting down and laughing at us, especially Rick MacCuish. There has to be something done, I mean I can't live on this.
I am wearing a back brace and everything else and fighting for 20-odd years. My nerves are shot from fighting. There must be something that somebody can do or somebody here can do, a committee, or somebody else. I go to see different people. I went and seen John MacEachern. He wouldn't do nothing for me because he was told by Savage not to do nothing. That is the way I figure it because John MacEachern was a good head, I thought, a long time ago but once he became an MLA he wouldn't do nothing for me, nothing at all. So I hope you people can do something for me, bring it up at the Legislature and hope something happens to help all of us. There are a lot of us. Like this fellow here, his wife was dealing with a problem like that, you know, it is sad to see things like that happen but nobody seems to care. The government doesn't seem to care and we are talking about workers' compensation. It is not workers' compensation doing this, it is the government that is doing this. The government is telling them what to do. So why don't the government tell them to do the right thing and help us injured workers. That is all I got to say.
[Mr. Michael Baker resumed the Chair.]
MR. CHAIRMAN: Mr. Marchesen, I have a question. I don't know if you have it with you or not but if you could provide it to the committee, it will be very useful. You indicated that in your particular case, although your income is less than the $11,500 figure, that they still won't pay you the difference on the supplementary benefit. If you could provide us with some of that material, that would be very useful to us because that is the kind of things we are very interested in hearing about. If you have a letter from them, or something, any kind of paper at all, that you could provide us with copies of that material, it would be very useful to us.
MR. MARCHESEN: I can give all that stuff to Jim Neville over here. He is the one that is helping us.
MR. CHAIRMAN: Fine. That would be perfect and then he can provide it to the committee because I can appreciate how frustrating it is. Many people have indicated that, you know, $11,500 in this day and age is not very much money to live on and then to not even be able to get the money that you are entitled to must be incredibly frustrating.
MR. MARCHESEN: Not even to get $61 and some cents that . . .
MR. CHAIRMAN: That you should be getting, yes, I understand.
MR. MARCHESEN: You would think they would have a heart.
MR. CHAIRMAN: I understand completely and I can, obviously, appreciate if I were in your shoes, I would be a lot more frustrated than you are.
MR. MARCHESEN: I am frustrated for 20 years.
MR. CHAIRMAN: I am sure you are.
MR. MARCHESEN: And other people around me are frustrated too.
MR. CHAIRMAN: I take it that your experience has been that the Cape Breton Injured Workers' group has been of more assistance to you than the workers' advisers. You referred to lawyers and workers' advisers, I take it they haven't done a lot of good for you in your particular case?
MR. MARCHESEN: A lot of good, better than the lawyers or anybody else.
MR. CHAIRMAN: The Cape Breton Injured Workers have helped?
MR. MARCHESEN: Mr. Neville, yes, and his colleagues.
MR. CHAIRMAN: Thank you. Are there any other committee members who have any questions of Mr. Marchesen? Thank you very much, Mr. Marchesen, for taking the time to be with us and I would appreciate it if you could provide that material to Mr. Neville and he will provide it to the committee because I am quite interested in seeing those documents.
MR. MARCHESEN: Thank you very much.
MR. CHAIRMAN: Thank you. Our next presenter is Francis Morrison.
MR. FRANCIS MORRISON: Good evening, ladies and gentlemen. I guess I am here to explain my case. I am not here to offer any ways that the compensation can be fixed, but Jimmy more or less talked me into coming here because he figured my case was pretty unique in the way I have been dealt with by the Workers' Compensation Board.
In 1995 I had an injury with Devco. I was examined by the Devco doctor and my own doctor and he recommended I go to Halifax. So I walked into Dr. Langille's office in October 1995. As I walked in the door, Dr. Langille said, Mr. Morrison, you need an operation. So he put me down on the table and he examined me. It was about 4:30 p.m., I believe, and he said to my wife, can you go get the car right away and take him over to the IWK. He said, I will make a call and see if the nurse will stay out late. So, good enough, I went over and the nurse was there. She done the MRI on me.
So I went home and about a week later I got a call from Dr. Langille's secretary. She said, Mr. Morrison, you are scheduled for October 10th to have surgery. So I went up and I had my surgery. I got along great. Then come December 6th something let go in my back. I got in the car and I drove down to Dr. MacDonald's house, who was my personal doctor. He looked at me and he said, Frankie, can you make it home? I said, yes. He said, well, I will go right to your house. So I went home. I can remember I was falling off the steering wheel trying to make it home but, anyway, I made it home. The next morning he gave me two Percodans and he sent me in an ambulance. I went right to the IWK and they done a CAT scan again. They couldn't really do it because I was in too much pain but, anyway, they operated on me again the next morning.
That was on December 6th. So I was getting along great and that was on the same side of my back, the operation. Then my back started going on the other side. They couldn't understand it, the Workers' Compensation Board. They said, no, it can't be. I said, yes, but it is. Well, she said, we can't recognize this because you never got hurt at work. I said, well, I didn't go back to work. I couldn't go back to work.
Anyway, to make a long story short, I was cut off benefits in June 1996. After that I went on my own to see Dr. Morgan Sinclair. Dr. Langille was retired and Dr. Morgan Sinclair was in his place. Dr. Morgan Sinclair did a myelogram and a CAT scan on me and he said, I will get back to you within three days. He got back to me, and sure enough, he said, Frank, I'm going to have to operate on you but he said I would like to see you again. I said, okay. So I went up, I said, listen, doctor, I am not being covered with compensation and I am really nervous about getting operated on. I said, besides that, I got a son up in TUNS and I got a daughter in St. F.X. and the money is tight.
I said, will you put a letter together for me and them fellows are that busy they don't like getting into that. The compensation, they kind of want to wash their hands away from it but he said I will put something together. So he put it together in September 1996. He wrote down the letter that this man was in terrible pain and he is to have an operation to alleviate the pain. So, I said, okay, that sounds good. So I come home and I waited for about three or four days and I called Sandra Verner at the Workers' Compensation Board over in Sydney. I said, Sandra, did you get the new medical evidence. She said, yes, Frankie, but we don't pay for pain. I said, Jesus, that is why they are going to operate on me, to relieve the pain. She said, no, we are not going to cover you. I said, Holy God, what a mess I am in.
So I went to Halifax on December 6th again. The head surgeon came in my room at 10:00 p.m. and I was after having my pyjamas on. I was in the VG. He introduced himself. I forget his name. He said, Mr. Morrison, do you realize what could happen to you this time with your third operation? I said, no, not really. He said, well, you could end up with a dropped leg and the first thing that came to my mind, I said, Jesus, if the compensation won't cover me before I had a dropped leg, they won't look at me afterwards and I don't curse in
front of them people but I said I have got to get my pants and get out of here. I said I can't be operated on.
Anyway, I settled down and I had the operation. Two months went by and Dr. Dobson, after going to see Jimmy - and he was doing a lot of work for me - Dr. Dobson wrote back that they were going to cover the operation. So they covered it and I was getting along good but this pain was still in my leg and it wasn't leaving. I went down to Dr. MacDonald and I said, doctor, is that got to be like that when I scrunch and I can shoot pain down my leg and that. He said, Frankie, you are only 42. He said, you are too young to live like that. He said, there has got to be more done for you. I went back to work. I said I am going to try work and see if I can live with it. So I went to work and I lasted seven shifts. On June 11, 1997, I laid off. I applied for compensation. I went to my family doctor and I applied for compensation and I was denied.
So he said, Frankie, I'm going to send you to Dr. Malik. So I went to Dr. Malik and I took my X-rays in and he examined me. He said, Mr. Morrison, your vertebra are closing. One is closed off and the other one is closing. He said, the only thing that would help you, if we put two rods down your spine to stabilize your spine. He said, I won't do it. He said, you've had your three operations up at the VG. You let them go and do it.
I said, well, yes. So I took this evidence and I brought it to Sandra Verner. I said, how about it, are you going to cover me? No, she said, I'm not going to cover you. There's not enough medical evidence. I said, yes, okay. So I went back to my family doctor. Pardon me, I got hold of Jimmy. I said, Jimmy, will you do me a favour. I said, will you come out to see Sandra Verner with me because I don't know what's going on and I said he told me I wasn't allowed to bend. I wasn't allowed to lift and I wasn't allowed to twist until I had this operation. That wasn't enough evidence so I went and I got Jimmy. I said, Jimmy, how about coming out with me.
So he went out with me and Mr. Hoddinott and Sandra Verner were in the room. It wasn't a discussion that we had. It was a fight. I was asking her, she was telling me I could go back to work. I said, hold it, now, you just got a letter three days ago stating I wasn't allowed to lift, bend, twist. Oh, she said, no, Dr. Smith was talking to Dr. Malik on the phone and you can go back to work now. Well, I said, what am I supposed to make of the letter I got. I said, one minute he tells me I can't do nothing and the next minute you are telling me I can go back to work. I said there's something wrong.
So we left the office and we went upstairs to Dr. Malik's room. Dr. Malik wasn't in. So we left there. I went back to my family doctor. I made an appointment. I said, Dr. MacDonald was after leaving and I got a new doctor, Dr. Azar. I said, Dr. Azar, can you get me an appointment with a specialist up in Halifax because they're not buying into what Dr. Malik said. So he said, yes, Frank, I will get you an appointment. I got an appointment with Dr. David Clarke. He gave me an examination and he said, yes, Frankie, there's a problem
there in your back and he said I really don't know what it is, he said, but I'm going to recommend that you have an MRI. I said okay, no problem. So I went home and about one month later I got a call for the MRI. I waited for the results and when I got the results of the MRI, it looked like in his report he said there were two more protruding discs in my back. I got the report and I drove into Jimmy's office and I said, Jimmy, there's new medical evidence. I said there are two more discs protruding in my back.
He said, well, that's all you need for your new evidence so you can get the money that they owe you. So I brought it over to Sandra Verner and I said you read that, Sandra. So I sat back. I said, what do you think of it? She said, well, everybody has that. I said, everybody has it? Holy jumpings, I said, I'm not making no headway. So I left and I don't want to lose too much of the story. I left there and I, what the hell, I just let it go. I let it go. There's nothing more I could do about it. So I went back to Dr. Clarke and he said, Frankie, I want you to have an EMG. So I just had an EMG this past week, this Thursday, but since then, before he recommended this EMG, something let go in my back and it is twisted beyond and some days it doesn't twist. Some days you go bent over and when you're not bent over, when you straighten up, that's when all the pain goes down your legs but when you're bent over like this, when you walk, it is not too bad but it plays hell on your hip when it lets go. I said to my wife, the next thing you know my hip will be gone.
I will just give you an example of how it works. I was in bed this morning, probably around 5:00 a.m., and I sneezed. I woke my wife up because when I sneezed, I let go a big holler on account of the nerve down there but, anyway, that's getting away from the point. I went in, and this has probably got nothing to do with it either, but I went to Devco and I told them, I went back to work for 10 weeks this summer, and I still had the pain down my leg but I said I'm going to give it a try because I don't think any more can be done. So I was in getting a shower and I kind of slipped on my sandal. So, I knew something happened. I put a report into compensation and, first of all, I got a call to go over to see Dr. Cohen. I went to see Dr. Cohen and he told me to take my shirt off. I took my shirt off. He said, oh my God, you're as crooked as a corkscrew. So I left his office.
In the meantime, I wasn't receiving papers from workers' compensation. I called up workers' compensation, I asked, why aren't I receiving papers? She said, well, Frank, there is something about you playing soccer. Playing soccer? I couldn't believe it. Anyway, I said, my God, I took my little one to a skills competition over in Point Edward. I was laying on the grass and the little buddy that was playing, he was missing the net and as he missed the net, I got off the ground and I scooped the ball back to him like that. It just so happened, Aaron Graham from Devco was there, the safety coordinator, watching me. He wrote up a big letter to the Workers' Compensation Board stating that Mr. Morrison came out of Dr. Cohen's office and it wasn't the same person that he saw over on the soccer field, he looked like he had a sore neck. They wrote this in the Devco, and I said, well, I am frigged, because you can't beat City Hall in this.
I didn't know what to do. So, if Jimmy would like to comment on what he did, I leave that up to him; I got the report, this is the only thing I brought in with me. When they tried to deny me compensation benefits, they put two letters into the Workers' Compensation Board: Mr. Morrison was playing soccer, and he doesn't deserve benefits. This was done by Aaron Graham. The workers' adviser, Anne Gordon, she called Devco, and here is what Danny Gallagher told her, and what Dr. Cohen said. Danny Gallagher subsequently contacted the board and stated that Dr. Cohen had advised that he would not be submitting a medical report to the Workers' Compensation Board, and he did not have a problem with Mr. Morrison's claim. He is the Devco doctor, and this fellow is just the safety officer saying I had a stiff neck.
It is unbelievable, what you have to go through. When I got the decision, I got the benefit of the doubt from Dr. Malik's report, but last year when I was laid off in June, I got the same report from Dr. Malik, to put the two rods down my spine. Then I got the report from Dr. Clarke, and I didn't get the benefit of the doubt. I got the benefit of the doubt this time on account of that man there. He called Mr. Stuewe on me. That is how I got the benefit of the doubt.
It is unbelievable. You put a man up on an operation, after having three operations, and the doctor comes in the room and he says that you could end up with a dropped foot, you say I have three kids at home, what am I going to do? They won't cover you in the beginning, are they going to cover you after you have a dropped foot?
MR. CHAIRMAN: Mr. Morrison, are you receiving benefits now?
MR. MORRISON: Yes.
MR. CHAIRMAN: You are back on?
MR. MORRISON: Yes.
MR. CHAIRMAN: And your World Cup Soccer career is off again? (Laughter) I don't want to make light of it. It is not funny, because you certainly have had to endure a lot of problems. I just didn't catch that the surgery that was recommended, the rods in your spine, is that on hold at the moment?
MR. MORRISON: I just went to my doctor this afternoon, Dr. Azar, and he is making arrangements for me. I left this letter from Dr. Malik that I got done last week - I was up in Halifax Thursday - and I left it with Dr. Clarke so he could see when Dr. Azar is making my appointment, so he will know what Malik had to say when he gets me up there. By the way, I did this on my own, when my back kicked out on the 18th. I didn't wait for compensation. I drove up to the QE II to see Dr. Clarke, and he was on vacation and, when I got home, I had to go up to the New Waterford Hospital. This is all documented, I am not
lying to you. I had to go up there and he gave me a needle that night, the doctor, so I could go home and sleep, from driving to Halifax. Once you are getting into a fourth operation, you don't know what you are getting into. It was bad enough when he told me about the third.
MR. CHAIRMAN: Have you been paid all your benefits, the . . .
MR. MORRISON: No.
MR. CHAIRMAN: Are there periods of time when you didn't get any compensation benefits?
MR. MORRISON: Yes. I didn't get compensation benefits some part of 1996, from June 1997 until November 1997, and at the end of it, I said that I had to go back to work because I have two kids in college. When I went for this medical assessment - one of you, Jimmy, told me there is a doctor on the board - they gave me 15 per cent, and Jimmy told me to appeal it. He said, Frank, you had three surgeries, and you get 10 per cent for no surgeries, you only got 15 per cent, appeal it. So I appealed it. Dr. Smith's report, in his appeal to me, was I was a counsellor and I was overweight. I don't think I am overweight, but that is all documented. It is not me just shooting off.
MR. CHAIRMAN: Do any of the other committee members have any questions for Mr. Morrison? Any of the consultants have any questions for Mr. Morrison? Well, thank you very much, Mr. Morrison, for taking the time to be here and make your presentation. Best of luck. (Applause)
Is Carmel Nugent here? Okay. Our next presenter then would be Brian Smith.
MR. BRIAN SMITH: I am a little bit nervous, so just bear with me please.
MR. CHAIRMAN: Take your time, there is nothing to be in a hurry about.
MR. BRIAN SMITH: I am here on behalf of my wife. Back in early 1991, she got hurt. She went through all the processes of appeals and whatever. On March 24th of this year, she went for an ADR hearing here in Sydney, represented by Dorothy Harding. Ms. Harding also is with Gail Rudderham Chernin. So she was also with Gail Rudderham Chernin before she went with the advisory program. She was well aware of my wife's case, Dorothy was there with her.
On March 24th before the ADR hearing, we talked to Dorothy at the Civic Centre. She wanted a meeting with my wife. We went there and we had the meeting with Dorothy, and she said, okay, we will proceed on to the Delta where they were being heard. Before my
wife's case was heard, Dorothy went in and she talked to all the other people that were doing up the hearings or whatever they are called. Before my wife had a chance to even say two words, Dorothy came out and said they are going to offer you $2,000 medical, before my wife even had a chance to say anything to any of the other people that were involved with this hearing that day.
We were very upset. You may laugh at this, but I said to Dorothy, my wife makes more than that at bingo a year. It is not funny, but that is the way it is. There is no way we are looking at that. My wife worked up until three weeks ago, which at that time, she suffers from pain all the time. I am permanently disabled. She was the breadwinner of our family. She went as long as she could. It is embarrassing to say, she has a drug addiction to codeine. It is very hard for me to speak about this, like most other people.
One of the things today, is that she did take a settlement, but like other people say, the gun was to her head, because of our situation moneywise - four years of agony, going through all these appeals and whatever, basically just having a lot of children at home and needing the money. Like I said, my wife worked, she was just minimum wage. She went constantly. She tried her best, but only because she was on medication. Now she not only has chronic pain, but she has a drug addiction too.
Right now as it stands, she is seeing a psychologist, which is going to be paid through this ADR settlement. She is going to see another specialist next month. The only thing about this is that before we signed those papers, we asked Ms. Harding on that day, is there anything coming up for chronic pain? At the time she answered to both me and my wife - because I was with her through the whole thing, every hearing that she had, anybody she ever saw, I was there with her, so there would be no mistakes - Dorothy said no.
I find out three months, three and a half months later that the WCB are bringing down a policy for chronic pain people. I got on the phone to the WCB in Halifax with the special unit up there for chronic pain, and my wife's name is on the list up there, but that doesn't mean anything because she already accepted the ADR settlement. They said it is just going to be a procedure for her, she is not going to go any further with this because she signed the paper, it is a legal paper, binding that she had nothing else to do with any kind of appeals or whatever. I asked the lady, I said, this is not fair to her because one of the questions we asked was, is there anything coming up, is there going to be legislation, whatever, I don't know how it works through compensation, but Dorothy said no.
My wife didn't take the settlement that day. We came back two weeks later, and we signed the papers. The last thing, before my wife signed the papers, I asked Dorothy again, is there anything coming up for chronic pain patients, no again. That is what I heard, no, again. She said, if you don't take this, you are not going to get anything. So there once again, like I said, it is like most other people, the gun is to your head, if you don't take $4,000, you
are not going to get anything. We make less than $20,000 a year, so $4,000 looks pretty nice. It helps with the children.
Now that I think about it, somebody should have known something, either the advisory committee, somebody from who was representing workers' compensation that day should have let my wife know that these policies were going to come into place about chronic pain. Nobody bothered to tell her.
MR. CHAIRMAN: That you very much, Mr. [Brian] Smith. Did your lawyer or your adviser, when she spoke with you and your wife, mention anything about a Doward decision?
MR. BRIAN SMITH: No, she didn't, but I found out just the last couple of days talking to people from the workers' compensation and whatever, and one of the ladies that I spoke to at the compensation told me that since the Doward decision has come down, I think, now bear with me, sometime in April 1997, that they have been working on a chronic pain portfolio for people like my wife. Through the injured workers, I also found that, yes, there was something in place probably in November to the same effect, they were working on it. We had no idea, and we asked the questions. We asked the question more than once, and we were lied to. As far as I am concerned, we were lied to.
We took the settlement, and like I said, right now what I want to ask the committee is, when you people make this presentation to the Legislature, can you get these people back in on this chronic pain thing, or is she going to lose out because she wasn't given the right information or she was lied to? Basically that is what it is. Dorothy Harding is being paid by the provincial government, if I am not mistaken, to represent my wife, and she didn't do a very good job of it. I got on the phone to her this morning, and her and I had it out on the phone because I am telling her the same thing I am telling you people, she wasn't told in advance. She said, oh yes, you were. No, she wasn't. My wife is a witness to that.
MR. CHAIRMAN: The reason I was asking about the Doward decision is because, although the Workers' Compensation Board only announced their policy on chronic pain, I think it was July, but in point of fact, the Doward decision which indicated that chronic pain was compensable was passed before your wife would have accepted the ADR settlement.
MR. BRIAN SMITH: Exactly, sir. That is my point today. I made that quite clear to Dorothy this morning, that she should have been told of this. It was put on the table for us very clearly, you either take this settlement or you are going to be shit out of luck. You will get nothing.
MR. CHAIRMAN: I guess that is my question, your wife was led to believe that if she didn't take the ADR settlement, that she would be getting nothing?
MR. BRIAN SMITH: Yes, sir.
MR. CHAIRMAN: Not that she would have to wait a long time, but that she would get nothing?
MR. BRIAN SMITH: No. No. She would get nothing. It was either shit or get off the pot right now. You either have to sign this or you are not getting anything. Like I said, having a large family, we have small children, like I said, $20,000 a year is not much for a family with five children. This looked pretty good to us.
MR. CHAIRMAN: When you get 20 per cent of your income for a year in one cheque, yes, that looks very good. Those are all my questions. Do any of the other consultants or the committee members have any questions for Mr. [Brian] Smith? Well, thank you very much. I appreciate you taking the time to come down here today.
MR. BRIAN SMITH: Thank you very much, sir. (Applause)
MR. CHAIRMAN: I am going to call one last time to see if Carmel Nugent is here. I take it that is all the presenters that are scheduled for this afternoon, unless there is someone who has been missed. Yes, ma'am. Just have a seat, ma'am.
MS. BETTY BAUMAN: My name is Betty Bauman, I'm with the widows' group. We have done up a letter for all the MLAs, we have sent out letters to everyone in the House, and I thought it would be a good opportunity to deliver these today, to you guys.
MR. CHAIRMAN: Thank you very much. (Applause) At this point, we would be adjourning until 7:00 p.m. this evening. We would encourage members of the public who are present this afternoon to be available for our evening meetings. We appreciate people taking the time to be with us, and we look forward to seeing you this evening at 7:00 p.m. Thank you.
[4:39 p.m. The committee recessed.]
[7:05 p.m. The committee reconvened.]
MR. CHAIRMAN: On behalf of the Select Committee on Workers' Compensation, I would like to welcome all the members of the public who are able to be here with us this evening for our evening session in Sydney. I would begin by asking the members of the committee to introduce themselves.
[The committee members introduced themselves.]
[The committee consultants introduced themselves.]
MR. CHAIRMAN: Thank you very much. Again, for the benefit of those of you who may not have been able to be with us earlier today, the Select Committee on Workers' Compensation was struck as a result of a unanimous resolution of the House of Assembly, passed at the spring sitting of the Legislature. At that time, this committee was struck with the responsibility of coming in with a report on changes to improve the Nova Scotia workers' compensation system. As a result of that, this committee has been holding many meetings all over Nova Scotia to give members of the public an opportunity to make presentations on how the system can be improved. We have been fortunate that many injured workers have come forward and have described, for the benefit of the committee, the difficulties they have faced in dealing with the Workers' Compensation system.
As I indicated earlier today, for the benefit of injured workers who may wish to make presentations, this is obviously not a committee associated with the Workers' Compensation Board, we are not hearing appeals. Obviously, any changes we make to the system may be beneficial in their particular case, but we are not able to actually review their particular case.
Also, for the benefit of members of the public who weren't here this afternoon, I would like to indicate that as a result of the large amount of interest that has been shown in Sydney and area, we have a very busy evening scheduled. As a result of that, I would ask that all the presenters try to keep their presentations as short as possible, so that everyone has a chance to make their presentation this evening. We certainly want to hear from everybody, and we don't want to cut anyone off, but we have to ask people to make sure that they try to keep their remarks as short as possible. If someone begins to run out of time, I will give them a two-minute warning to let them know that they need to wrap up.
With that, I would call on our first group or individual, and that is Mr. Wilfred Herridge on behalf of the victims of interim wage loss.
MR. WILFRED HERRIDGE: Thank you, Mr. Chairman. First of all, I would like to welcome yourself and your committee back to Cape Breton again. My name is Wilfred Herridge. I am the secretary of the Cape Breton Injured Workers Association. My submission here tonight is mainly due to some of the questions that were asked of me by the committee at my last presentation.
Mr. Chairman, members of the committee, when I last appeared before you on September 1, 1998, the purpose of my brief was to address the injustices of a major group of injured workers, namely the group known as pre-Hayden. The group of injured workers I am speaking here for today are a smaller group, but equally as important and equally as abused or even more so by the board policies. This group, of which I am one, are the 440 injured workers from the pre-Hayden era who qualified for and then were denied interim wage loss by the Workers' Compensation Board.
Mr. Chairman, after making my presentation and sitting in the audience, I was very moved by some of the presentations presented to the committee by individuals who had received interim wage loss and then had it taken away from them. I don't think they, yourself or your committee members realize how this event came about or the devastation it caused to the injured workers and their families.
Mr. Chairman, if you will allow me, I will attempt to explain the circumstances that brought these events to light. As it has no doubt been mentioned many times in these hearings over the last couple of weeks, wage loss was brought about by the decisions of the independent Appeals Board on Compensation and also by the Nova Scotia Court of Appeal in their decisions regarding the appellant, Mr. Stephen Hayden. This decision specifically stated that under Section 45 of the former Act, an injured worker who could not return to work because of a workplace accident, he or she was entitled to 75 per cent of gross earnings for life. This required the setting up of a wage loss system by the Workers' Compensation Board.
Mr. Chairman, on November 25, 1992, the Workers' Compensation Board brought forward proposed scenarios of how injured workers with and without PMIs were to be paid interim wage loss and approved them. Part of this was the criteria needed to qualify, this is spelled out in Policy 7.3.2., and I quote from that policy:
"To be eligible for consideration under the Amended Interim Earnings Loss policies, a worker must: (a) have been granted an initial award for permanent disability on, or after, March 23, 1990; or (b) be in receipt of an award granted under the interim earnings-loss policy (which became effective on November 26, 1992), with respect to an initial award for permanent disability granted on, or after, March 23, 1990.".
Those are the pertinent paragraphs. Mr. Chairman, this policy clearly points out how 440 pre-Hayden injured workers qualified for wage loss. However, Policy 7.3.3. by changing only a few words, took away what injured workers thought they had won. I quote from this policy also:
"Effective October 13, 1994, only workers whose accidents occurred on or after March 23, 1990 will be eligible for consideration under the Amended Interim Earnings Loss policies.".
As you can see, the words changed here were specifically from awards to accidents. Mr. Chairman, we qualified for this benefit from November 25, 1993 to February 1, 1996, approximately two and a half years. All of a sudden, we don't qualify anymore. This decision by the Workers' Compensation Board was illegal and immoral. The devastation it caused to this group of people is unprecedented, and I am sure it wouldn't happen in any other department of government. Injured workers, on the strength of these benefits, went out and bought new homes or mortgaged their old ones to make renovations, bought new or newer
vehicles, or borrowed for vacations that they hadn't had in years. In short, Mr. Chairman, most put themselves heavily into debt thinking that their future was financially secure. This all came crashing down on August 1995. This is when we started receiving letters that we were no longer qualified for wage loss and these benefits would discontinue as of February 1, 1996.
Mr. Chairman, I can tell you that our reaction was one of shock and disbelief. How could we qualify and receive benefits for up to two and a half years, and then not qualify. Many were totally devastated. Many were financially ruined and will never recover. Some were forced into bankruptcy or OPD. Some went into depression or developed other medical problems. These problems, more than likely, were stomach ulcers, high blood pressure or heart problems. Some decided they just could not cope anymore and became alcoholics or had drug dependencies. This eventually led to some taking their own lives. The total impact on these people will never be known.
Mr. Chairman, as I mentioned in my previous brief, this is one of the cruelest things that the Workers' Compensation Board inflicted on any group of injured workers since the inception of the Act. This shouldn't have happened and shouldn't have been allowed to happen. The devastation of these injured workers and their families should weigh heavily on the Board of Directors and the Workers' Compensation Board officials who passed these policies and persuaded government to make them law.
Mr. Chairman, the intent of these policies was purely monetary, with no regard to the impact they would have on the lives of these injured workers. We conclude the reasons for these policies were as follows:
1. The board grossly underestimated the number of injured workers that would qualify for wage loss.
2. There was no provision in the Act to allow the board to deduct 50 per cent of our Canada Pension disability payments from wage loss to be received.
3. Probably most important, the $400 million unfunded liability was staring the board in the face.
The answer to solve these problems facing them, change the policies and eliminate thousands from their rightful benefits.
Mr. Chairman and members of this committee, I am sure you have heard this many times throughout these hearings, but I feel compelled to say it again. Ladies and gentlemen of the committee, if you have any compassion in your hearts for injured workers and their families, you must find a way to restore these benefits to them. It is simply the humane thing to do.
Mr. Chairman, as I have stated in my previous brief, I and other members of this group will never give up our claim that we are entitled to these benefits. We will never accept the fact that this date of March 23, 1990 was anything but a manipulative policy adopted by the board because they were forced to comply to the ruling of the Nova Scotia Court of Appeal.
It was not the court's intention to use the date of this decision to deny injured workers previous to this date from wage loss, because simply, the appellant in this case, Mr. Stephen Hayden was injured prior to this date. Ironically, he himself was given wage loss and denied it as well. I don't think that was the intention of the court. The board, in their wisdom, after this decision created policy, presented it to government, and presumed that it was law. Whether this presumption of law was legal or not still remains a question in our minds.
Mr. Chairman, in closing I would like to impress on the committee that injured workers and their families have lost all faith and trust in their elected officials. Most of you on this committee are new to political life. I urge you to join those who are not to try to regain this faith and trust in yourselves. Injured workers have obtained commitments and promises from almost every person of political importance in this province and, for the most part, these commitments and promises have yet to be honoured, so we call on the good judgement of this committee to render a right and just decision. Make your recommendation to government to restore these benefits to this group of injured workers who rightfully deserve to receive them. Most of all, don't let this process fail to address the concerns of injured workers as a whole. You can end this nightmare and bring closure for us all. Thank you. (Applause)
MR. CHAIRMAN: Thank you very much, Mr. Herridge. I guess I had one question. You said it was August 1995 . . .
MR. HERRIDGE: Approximately.
MR. CHAIRMAN: . . . when the Dear John letters went out to people telling them that their benefits were going to cease as of February 1, 1996.
MR. HERRIDGE: Yes.
MR. CHAIRMAN: When did people start to receive their interim wage loss awards, approximately when did they start getting those awards?
MR. HERRIDGE: I would say somewhere in 1993. I can't give you a specific date because each person, each case would be a little bit different. I would say somewhere in 1993, they started receiving them.
MR. CHAIRMAN: So these pre-Hayden claims, somewhere in 1993 they would have received notification that they were going to be assessed under the interim wage loss program.
MR. HERRIDGE: Oh yes. We all were, yes.
MR. CHAIRMAN: That's right. Now did that pay the full 75 per cent interim wage loss, or it was only half, was it not?
MR. HERRIDGE: No, at that time, we received the amount of 50 per cent, and the letter that came that told us we had qualified for it gave the indication that there would probably be another increase of approximately 25 per cent, which would take it up to the 75 per cent.
MR. CHAIRMAN: I see, so you are getting 50 per cent of your lost wages, not 50 per cent of your claim, but 50 per cent of lost wages.
MR. HERRIDGE: Fifty per cent of lost wages, but Canada Pension, 50 per cent of Canada Pension was deducted from that total.
MR. CHAIRMAN: So if somebody was in receipt of Canada Pension long-term disability benefits, 50 per cent of that amount was deducted off of your award.
MR. HERRIDGE: Yes, and, as I stated, there was no provision in the Act at that time to make that deduction, and the compensation board stated that themselves in their own policy paper or their own discussion paper that they sent out to injured workers.
MR. CHAIRMAN: Were you or anyone you know of, did they make representations about the interim wage loss to the Legislature at the time they were passing the amendments to the Workers' Compensation Act?
MR. HERRIDGE: Do I know anyone personally, myself?
MR. CHAIRMAN: Yes.
MR. HERRIDGE: At that time I wasn't involved with the injured workers groups.
MR. CHAIRMAN: I was just wondering if you were. Thank you. Are there any other questions from committee members? Thank you very much, Mr. Herridge, for fleshing out this issue which were talking about at the last occasion. Thank you very much, I think you have given a very concise explanation of the problem.
MR. HERRIDGE: Thank you very much. (Applause)
MR. CHAIRMAN: Our next presenter is Sharon MacIntyre.
MS. SHARON MACINTYRE: My name is Sharon MacIntyre and I am a registered nurse. I went back to school in 1989 to obtain my RN, 10 years after graduating from high school. My husband is a miner, so you know what kind of state his employment was in at the time and, as far as we were concerned, I was going back to school to become the main breadwinner if anything happened to his employment.
I was injured at work on June 17, 1995, therefore I fall within the window period with workers' compensation, between March 23, 1990 and February 1, 1996. My diagnosis after my accident was a herniated disc of the spine with an S-1 nerve root irritation and bursitis in both my hips. Within a year of the accident I was diagnosed with fibromyalgia. I don't know if you're familiar with that.
MR. CHAIRMAN: We have heard lots about fibromyalgia.
MS. MACINTYRE: Well, I lived that. That's called chronic pain. For over three years now I have been living with chronic pain. How do I cram all that time and suffering into a few minutes?
The events that followed the accident will deal with some of the new policies that are in place in the Workers' Compensation Act now. First of all, I would like to read to you the mission of the Workers' Compensation Board as it is written on the Workers' Compensation Board's web page for all of us to see: to coordinate the workers' compensation system; to assist injured workers and their employers by providing timely medical and rehabilitative support, to facilitate the efforts of injured workers to return to work; and by providing appropriate compensation for work-related disabilities.
As an injured worker in 1995 I was involved with the Ease-Back-To-Work Program that is now in place. Although I do believe this is a good program and the idea behind it is to assist the worker to ease back to the work they were performing prior to their accident, it is the caseworker at the Workers' Compensation Board Office who determines when it is appropriate for the worker to return to work and the injured worker has no say in the process. This is not right. When I was sent back to work, I could not stand for 20 minutes let alone work while standing. If the client does not follow what the Workers' Compensation Board's recommends, their benefits are cut off. I was in no position to argue. I went back to work. I took part in this program for approximately three months, going home from work nauseated from pain and exhausted every day. I continued with the ease-back program until my symptoms were so severe I had lost the feeling in my right foot and couldn't tell if my toes were still attached. I was losing the feeling of balance and was afraid I was going to fall down if I let go of the furniture around me. At this point I refused to go back to work and requested a second opinion.
It took six months for an appointment to see a specialist in Halifax and the CAT scan showed no objective findings. That's something that somebody else can see besides myself. In other words, the scan didn't show the damage so they told me there was no damage there. Therefore, according to them, my injury should be healed and I no longer qualified for workers' compensation benefits.
I received benefits for my injury from June 17, 1995, up to May 12, 1996, at which time the Workers' Compensation Board terminated my claim for benefits. I was then allowed to take part in the new functional restoration program for a period of four weeks and then I would no longer be compensated for my injury. Under the new Workers' Compensation Board policy on chronic pain this is what they have to offer. Nothing more. What could I do after this? I don't know because they didn't even give me a chance to find out what this functional restoration program was all about. I wanted to see my family doctor first before I made any decisions. Part of being in severe chronic pain is an inability to make decisions. I guess I took too long because while my caseworker was home on the weekend, before I could get back to her, she had written her report and my claim was terminated.
She did inform me I could appeal this decision and so I did. I won my appeal, but the thing was my appeal took so long I no longer qualified for the program because the guidelines to take part in the functional restoration program is that you have to take part within 12 months after your injury. It was now well over 12 months. Therefore, I was paid the financial portion and then left disabled with no avenue to follow.
Now it is three years, three months and six days since my whole life changed and it's not for the better. I now live day to day not knowing if I will have to go to bed because I can't hold my head up because the muscles in my neck hurt and they're so tired, or that my jaws ache when I chew my food, or even worse, that the pain in my ribs will be so bad that it hurts with every breath I take. With the new Workers' Compensation Board policies, people like myself having developed fibromyalgia after an injury will be left disabled and will not be compensated for their injuries. Is that what this system is there for?
My understanding of the Workers' Compensation Board, prior to my accident, was that this system was there to protect the employer against being sued for damages by the employee and it would alleviate the financial burden of the employee along with helping the employee with the medical aspects of recovering from their injuries, something like what the car insurance industry does for people who own cars. Boy, was I wrong.
Why is it so difficult to charge the businesses that use the system more often more money. The more you use it, the more you pay. Maybe if this was the way it was, these businesses would be more eager to protect their employees from accidents that may be
avoidable. Maybe the employees might be of some assistance in this regard. They are the people in the workplace and they see what goes on from experience.
Getting back to where I find myself now, I'm an injured worker with chronic pain within the window period between the old Act and the new. The system has become so complicated that the ordinary person can't make heads or tails of it. I need a lawyer to help me fight my case because things are that screwed up. We, the injured workers, don't know what the Act or the new policies mean anymore.
I recently read the article on chronic pain and what is going to happen to the people like me who fall in the window period. The Workers' Compensation Board has now developed new policies to take care of this problem. Now they have a marked life disruption assessment. This marked life disruption assessment will include a series of scientifically validated psychological tests and a structured interview with a registered psychologist specifically trained in this area. The testing will take approximately two days for each injured worker, and this takes place in Halifax by the way. As a result of this process, a worker will be noted as having mild, moderate, severe or extreme marked life disruption.
Please, tell me how a person who speaks to me for two days decides if my chronic pain is affecting my life mildly or severely. I'll tell you who could decide this and it wouldn't cost them a cent: my family, who are there for me on my good days and my bad days; my husband, who has been by my side for the past three years and sees me crying with pain and not being able to alleviate any of my suffering that I'm going through, he could tell you; my 18 year old daughter who goes for the groceries and runs most of my errands because this is the third day I've spent in bed and there is no food in the house; or my 14 year old daughter that can't buy a new pair of sneakers for school this year because we can't afford it. My family suffers along with me. I may have the physical disability but they suffer the financial and the emotional aspects of chronic pain.
I do not believe this marked life disruption assessment is worth the paper it is written on. Why is the Workers' Compensation Board paying out more money for another assessment of people who have chronic pain? I, myself, have more doctors' assessments written than I care to think about. We are injured workers who are entitled to compensation benefits appropriate to the wages we were receiving prior to our accidents. We deserve to be treated fairly; no more policies, give us our benefits. Instead of hiring all these people for the appeal processes and lawyers to fight the cases that shouldn't even be in the appeal courts, pay the injured worker according to the mission statement of the Workers' Compensation Board.
I would like to thank you for allowing me to present my views on this matter and I eagerly await the outcome of this select committee's findings and I hope I will find that this was not just a place to air out our frustrations but that something fair will come out of all this. Thank you. (Applause)
MR. CHAIRMAN: Ms. MacIntryre, your claim, where is it, in the appeal process? I assume you have one in the appeal process.
MS. MACINTYRE: Yes, I do.
MR. CHAIRMAN: That is pretty typical, yes. Where are you?
MS. MACINTYRE: Right now I am in the leave for appeal, which I applied for in March 1997. I called last week to see where I was and they are just looking at, I think it was April 1996, so it is going to be another little while before I hear anything.
MR. CHAIRMAN: And that is just your leave application?
MS. MACINTYRE: Yes.
MR. CHAIRMAN: You indicated that you had an appeal of the decision to terminate your functional restoration benefits. How long did it take for that appeal to be heard and to get a successful ruling?
MS. MACINTYRE: I think at least six months.
MR. CHAIRMAN: And that is how come you ended up over the year and, therefore, didn't qualify for the program?
MS. MACINTYRE: Yes.
MR. CHAIRMAN: For the other part of the program, the non-monetary part of the program?
MS. MACINTYRE: Yes.
MR. CHAIRMAN: So they had an appeal process that was set up that would take longer to deal with than the actual benefits?
MS. MACINTYRE: Well, as far as I am concerned, they have policies in place now so less and less people can apply for compensation. If that's the case, like my understanding of this compensation is that it was put in place so that the employers would not be sued and we wouldn't have to go through all this but, I don't know, you accept a cheque from the Workers' Compensation Board, that's it, you're not allowed to sue your employer anymore, and they got us going both ways and that's not fair.
MR. CHAIRMAN: What kind of nursing were you doing at the time you were injured?
MS. MACINTYRE: I was working relief, so I don't come under any union.
MR. CHAIRMAN: That is what I was asking.
MS. MACINTYRE: That's right.
MR. CHAIRMAN: You were working in a hospital, were you, or a nursing home?
MS. MACINTYRE: I was working in a hospital. I went back. I took courses. I could work in recovery rooms; I was in the OR; I was in Outpatients, and I loved my job. I only went back to school. I didn't go and become an RN. I have student loan people on my back because the government won't pay me the benefits. They're on the phone once a week to me looking for their money, but it is a different thing when I am on the phone looking for mine. It is not fair.
MR. CHAIRMAN: You indicated that you were working relief or casual at the time. Was that your choice or was that the choice of your employer? In other words, could you get a permanent position?
MS. MACINTYRE: There was no full-time job, but I was working 40 to 48 hours a week.
MR. CHAIRMAN: Yes. It is just that they wouldn't give you a permanent position which had the benefits?
MS. MACINTYRE: That's right. I worked relief, yes.
MR. CHAIRMAN: I understand. Do any of the other committee members have any questions, or any of the consultants? Thank you very much for taking the time. You have, obviously, put a lot of thought into that.
MS. MACINTYRE: Yes, I did.
MR. CHAIRMAN: We appreciate that and thank you very much for taking the time.
Our next presenter is William Gerard Taylor.
MR. GERARD TAYLOR: I am Gerard Taylor. I am here to present something to you people, suggestions for maybe how the new Act should be done, if there is one. I was hoping to have some answer, as I appeared in front of the Supreme Court last week and apparently the judges - I don't know if I am allowed to talk about this - the judges overruled the board, where the chief medical officer had claimed that my case was not valid. She had judged me on Dr. Holm's report and apparently the error that I found, and Mrs. Taylor, in the chief
medical officer's report was that they based my case on Dr. Holm's report where he wasn't sure and he didn't know exactly and maybe there might have been, but then he kind of apologized if he didn't reach the right answer on this. So they had used that to throw my case out. This was a tribunal last year. So the judge overruled this but, up to now, I haven't received any other information. I thought that maybe I would have received something where I could have brought this to this meeting this evening.
I was hurt in 1973. I was compensated for my back after fighting with the law and then I wasn't compensated for my leg that was damaged. I had four operations on it and the board failed to recognize that my leg was hurt in the accident, but Dr. Stanish has proved that and has said that my problem with my knee came from my accident in 1973. They have not paid me. They have not paid for my expenses. They have not paid for my braces. It leaves a person to think that, you wonder if these people that are there are hired to make sure that a person doesn't get paid. From what I see and hear around me, it seems that nobody is getting paid. I am sure there are some of the people in here that have been to Halifax and there is no way that you can speak to one of the medical chief officers, or commissioner, or anyone of these lawyers. You are not allowed to talk to any one of them. It almost tells a person that they're either scared to talk to anyone or there is something else that is definitely wrong.
I believe that it is time that these people are removed from that and I have something in there that will be of some value, I hope. If the politicians, the government and the board can't come to any conclusion, there is only one option where we will have to have the RCMP sit at every board that would be in each county because it seems to be impossible to try to find honesty here in Nova Scotia. It is not on our part. I would have to put the blame on the government's part because the government is responsible for a lot of this stuff that is going on. I am not taking sides on politics by any means but there was a time when the Tories were in, at least they would give you a lawyer, but when Savage come in there, along with Anne Clark, they finally got rid of the lawyers and put in another board which is not of very much value to the ones that are having problems out there. This is why something has to be done.
I don't know how you would put this but this is unbelievable since 1973 that I have to be fighting for something I believe is mine and I know that everybody that is on the outside has the same problem. These people that work for the Workers' Compensation Board, I don't know if the board is that bad, but they have made the board the scum of the earth. Nobody has an equal right and if you have evidence to prove that you're right, they have the power, which was given by the government, to overrule this. So how in the name of God can we win when the board has the power to overrule our doctors. So that leaves us with nowhere to turn. We couldn't even get a lawyer to go to the Supreme Court. My wife had to do the work herself in order to go there and appeal this case. This is unfair. They talk about these things, there's crime and that, and they're on the verge of committing crimes.
I certainly hope with all the money that probably gets spent for having you people doing this survey, I hope that something good will come out of this because, if not, we are in trouble in this province. I am so grateful for the Tory Government to have stuck with the Liberals to try to make this government work for awhile and I hope that it is going to work. You will have to excuse my English because I am French and I don't speak very good English but I hope that they will come up with something good because if they don't, these two Parties, it will almost tell the people of Nova Scotia that they have to go to another Party. The evidence is there for you people and I hope that something will be done about this.
I am not here to take too much time because I know there are people like me that have their problems to bring up but what I have here, I am going to pass it on to you people. I want to thank you for listening to me and giving me this opportunity to come here. (Applause)
MR. CHAIRMAN: Mr. [Gerard] Taylor, thank you very much. I just had a couple of questions and I think some of the other committee members have. You said that you couldn't get a lawyer to take your case to the Nova Scotia Court of Appeal and that your wife assisted you in doing that?
MR. GERARD TAYLOR: Yes.
MR. CHAIRMAN: You said that you have a decision in your case?
MR. GERARD TAYLOR: Yes.
MR. CHAIRMAN: How recently was the decision handed down?
MR. GERARD TAYLOR: This would be on September 16th.
MR. CHAIRMAN: We have a legal consultant with the committee and we can ask him to obtain a copy of the decision for us, because we're interested . . .
MR. GERARD TAYLOR: This is how it sounded to me when the judge spoke to the lawyer for the Workers' Compensation Board but I am not a lawyer, I want to remind you of that.
MR. CHAIRMAN: I understand that and I appreciate how difficult it must have been to try to represent yourself in the court process. You indicated that you had been in the system since 1973?
MR. GERARD TAYLOR: Yes.
MR. CHAIRMAN: And that you had been through the entire appeal process including the WCAT?
MR. GERARD TAYLOR: Yes.
MR. CHAIRMAN: Had you been represented by a lawyer or a workers' adviser at the WCAT?
MR. GERARD TAYLOR: Yes.
MR. CHAIRMAN: How did you find that program worked from your point of view?
MR. GERARD TAYLOR: They probably tried to do the best that they could but I don't think that the advisory board is the answer to the injured worker out here because there are too many papers, red tape, appeal boards, tribunals and judges. I'm not saying anything wrong about judges or anybody else that is trying, but everybody that I've met in the 25 years were all people getting paid and I haven't found too many people that were saying, Gerard, we're on your side. Nobody ever said that to me in 25 years. So I think that it is time that somebody gives in. I mean I don't want anybody to say they're on my side. I am willing to fight for what I think is mine but at least let the board and the people recognize when the person is right.
We don't have to be lawyers to know what's wrong with us. We don't have to come here for you people to hear our problems. You've got enough problems trying to run Nova Scotia but we know what's wrong with us. We can tell you what's wrong but when you walk out of here, you'll probably go get drunk or laugh and say, oh, forget about them fellows. This is only a suggestion but, of course, I have no education or . . .
MR. CHAIRMAN: Perhaps at least we won't laugh at you.
MR. GERARD TAYLOR: If you do get drunk, get drunk for me because I don't drink myself. (Laughter)
MR. CHAIRMAN: We will keep that in mind. Mr. Samson had a question for you.
MR. SAMSON: Mr. Chairman, more of a point than a question. I have worked with Mr. [Gerard] Taylor and I can only imagine how challenging it must have been for Mr. Taylor and Mrs. Taylor. I know their daughter worked with them also. As Mr. Taylor already alluded, his first language is French and he is not a lawyer by trade. They are fishermen and I can only imagine how challenging it must be for injured workers who have to appear. As a recent law graduate, I know how intimidating it is to go before a justice of the Court of Appeal and I can only imagine how challenging it was for Mr. and Mrs. Taylor.
I certainly do hope that the decision was favourable but I think - and you, Mr. Chairman, would appreciate this - it is not just appearing before a judge. One of the most difficult things that Mr. and Mrs. Taylor were also required to do was actually prepare a list of documents for the court. This means that every piece of paper and every piece of correspondence that Mr. [Gerard] Taylor has received since 1973 had to be recorded and put in an organized fashion. I remember when I first met with Mr. and Mrs. Taylor, they came in with about four Co-op bags filled with papers and I can only imagine how difficult this must have been.
It should certainly be pointed out that they were offered absolutely zero services from workers' compensation or from anyone else in doing this. I think that is a testament to their hard work in having accomplished this. Certainly, without a doubt, there needs to be improvement in that system for private individuals like that having to go to represent themselves before the Court of Appeal but certainly, Mr. [Gerard] Taylor, congratulations. I do hope it was successful. It is certainly a credit to yourself and Mrs. Taylor for having accomplished that.
MR. GERARD TAYLOR: Only one more word before I leave. Even if the judge rules in my favour, that still doesn't mean that I am entitled to anything. So, it defeats the purpose. What am I really here for? Is there an end to this or do I carry this to my grave and other people that are out there?
MR. CHAIRMAN: You didn't start the process as a way to avoid law school, to take the quick way, I am sure. As Mr. Samson said, you and Mrs. Taylor should be very proud of your persistence and certainly we are going to be getting a copy of the decision in your case because we are very interested in hearing what the Court of Appeal had to say. Thank you.
Our next presenter is Mr. Kenneth White.
MR. KENNETH WHITE: Mr. Chairman, members of the committee and members of the public, the focus of the WCB has to be first and foremost the injured worker and not the bottom line. The place to save money is at the workplace where safety is first and always. More litigation and specialists are a sure way to increase the costs with little benefit to those for whom the system was designed for.
When the focus is on money, the little fellow will certainly be left with skim milk and I need not tell you who gets the cream. With the bottom line attitude, the sense of any humanity or compassion is totally irrelevant. So it all comes down to numbers. When the number crunchers start chewing, it flows downhill like any well-designed sewer pipe, putting pressure on the lower subordinates to clear the line. It also is an invitation for suppliers of services to slant their report so that they can be a favourable supplier but, again, it is all about numbers and not about people.
The Act as it is administered now gives too much abusive power to the board and management while restricting the injured workers' rights and freedoms. I refer to the part of the Act which protects any WCB employee's or MD's document as privileged information. This section allows the above-mentioned immunity for their actions. This section only fosters lies, deceits and innuendoes in order to save bucks and make them look like they are performing as expected.
Policy should not be a substitute for the Act. This is a bottom line Act. Take, for example, the chronic pain policy. The power of the board to insist on certain medical procedures or else payment can be denied is akin to putting the gun to one's own head. The choice is yours. You don't have much choice, do you? The power of the board to insist on diagnostic or medical treatment without the advice or the assistance of one's own primary treating physician is totally unacceptable. The power of the board to ignore reports that would allow for continuance of payment for the injured worker must be stopped. The power of the board to pay only the flat rate of the Point Pleasant Lodge and say anyone having an appointment or waiting for transportation may hang around the lobby of the lodge, while employees of the board are put up at the Cambridge Suites, this is to suggest a class difference.
The power of the board to be lawmaker, police, justice and custodian cannot, and should not, be allowed to continue. The power of the board to hire medical advisors who, in turn, make decisions on eligibility without an interview or without an examination is totally negligent of proper medical care. This reminds me of a time and a fellow named Hitler.
The board and management would like you to believe that they are doing a great job saving money, just like they have been told to do by their political masters. I, for one, can tell you a different story, one devoid of any human compassion, dignity, integrity or honesty.
It is almost three years since I fell and became injured, and almost two years since benefits were paid. Prior to my accident, I worked 60 hours a week as a construction electrician. I have not been able to return to work since. I applied for Canada Pension Plan benefits in late February, early March 1997, after I was further refused benefits by the Workers' Compensation Board on December 2, 1996. I received payment from the Canada Pension Plan in April 1997. I did not choose to have this accident on that day, nor do I assign fault to anybody. My problem now is to get my rightful compensation benefits, wrongfully withheld by the Workers' Compensation Board.
I have some recommendations here, Mr. Chairman, members of the committee.
The wage loss benefits should be based on the daily wage received on the day the person was injured, with a minimum and maximum set rate. Where there is a difference in rates of benefits to be paid, the highest rate shall be paid.
Any payment that is owed to an injured worker beyond 30 days shall include interest at prime plus 3 per cent. The intent of this is to prevent any tardiness or unwillingness of the board to make payment, and to reflect the hardships caused for non-payment of benefits.
The evidence shall be based on such factors as type of injury, illness, disease or cause, as well as the age and occupation of the person. Pre-existing conditions shall not be a cause for reduction or denial of benefits, but with the cumulative factors mentioned above, they shall be taken as evidence in consideration for compensability.
In keeping with the above-mentioned, medical evidence shall not be the sole determination for granting or denying benefits. The primary or treating physician of an injured worker's choice shall have the final word in determination of compensability. The board shall act as a facilitator between the primary or treating physician for any diagnostic or treatment procedure that may be requested by the primary physician. The right to alternate treatment, procedures, physicians or other health care providers shall be the sole right of the injured.
The Act shall incorporate an ombudsman's department, fully independent of the board or minister, that shall hear any disputes or allegations and with the power of remedial action. They shall report back within 45 days to the injured worker. Failure to report back in the allotted time shall find in favour of the injured worker.
The right of the injured worker to seek court action against the board shall not be dependent on permission from the board, WCAT or the minister. It shall be affirmed as a right of all Canadians to seek recourse through the courts if they so choose.
Members of the appeal committee, tribunals, et cetera, shall be drawn from ordinary Nova Scotians, who understand and feel the needs of the average injured worker.
Members of the board and its employees shall be required to take an oath of honesty, secrecy and integrity, based on the need for human compassion towards the injured worker.
Thank you, Mr. Chairman, members of the committee, and may I just add, one of the speakers before, he was losing faith in the political system, so am I. I think there has to be honesty here. Like I said, I didn't choose to go out and get injured, and I don't need to be - I don't know, pardon the expression - screwed around every time you turn around. I know I lost a lot of good money up in Hawkesbury this year and last year.
I think it is time we got back to honesty, and get back to honest government. That is what it is all about. It is the politicians, it is you people, you people who passed the last Act, and it is up to you to change it. You have pit person upon person, you heard their misery, pouring their hearts out. Do something about it. Do it. I will say this much, either you do
something or don't come knocking on my door looking for support, because I am just fed up with it. I want some honesty here in government. I want some action. Don't tell me you can't do it, you got 47,000 postal workers back to work in two days, and you tell me you can't get people that are injured something so they can live. It is terrible.
Mr. Chairman, I have a copy of this. I will leave it with somebody on your committee. I will entertain any questions you may ask.
MR. CHAIRMAN: I have a question, sir. My question would be, have you an appeal in the system at the moment?
MR. KENNETH WHITE: Yes, I do.
MR. CHAIRMAN: Where is your appeal in the system, what level in the system?
MR. KENNETH WHITE: I have a brief that is supposed to go up before the WCAT. I don't understand where that is right yet, but I went through an appeals process, I went through a hearing officer, and I went through an appeal officer, and now we are going before the WCAT.
MR. CHAIRMAN: Is your case one of the cases that you have to get leave to appeal?
MR. KENNETH WHITE: I am not sure on that. That is far beyond me.
MR. CHAIRMAN: I am talking jargon now, forgive me. The reason I was asking, but you are held up at the WCAT right now, your case is not going forward.
MR. KENNETH WHITE: I called my workers' adviser over two months ago, asked him with this chronic pain, where I would fit in that. I haven't heard back from him yet. I am still waiting. I wrote a letter to the workers' compensation two weeks ago, in fact it was two weeks ago yesterday, I faxed them, and two weeks ago the following day that I mailed the letter asking that my case be put under the chronic pain conditions. I have not heard anything from them yet. How long does one have to wait? What does one have to do?
You look at the news, or you go down in the States with somebody that comes in with an assault rifle and they clean the place, I understand and I can sympathize with that. This is bad. This shouldn't be like this. We are supposed to be the oldest democracy in the world, we have here in North America, and we have this kind of situation developing. You see people going into an office and occupying an office, that is a big step for a common person to take, to go up there and sit in the Premier's Office, risking arrest and God knows what else.
MR. CHAIRMAN: I certainly appreciate what you are saying. I don't know if any other members of the committee have any questions, or consultants. Mr. Neville.
MR. JAMES NEVILLE: Are you saying, Kenny, that the rate of pay for construction workers should be calculated by what he is getting per hour when he gets hurt?
MR. KENNETH WHITE: Yes. But what I am saying is minimum and maximum. You have somebody flipping a burger somewhere getting $4.00 or $5.00 an hour, and you get into this here 70 per cent, 60 per cent, 30 per cent and by the time you get it cut down, you are not going to give him enough to live on. That is not right either. Pay him something so a person can live.
MR. NEVILLE: That was one of the recommendations that Cliff Murphy brought before this committee, the hourly rate at the time . . .
MR. KENNETH WHITE: I might add, Jimmy, in the State of Florida, this is what they do, it is based on their hourly or their daily rate. If you get into rates, I think Ontario, they pay 90 per cent.
MR. NEVILLE: Yes, 90 per cent of the net. There is a state in the United States, Kenny, that whatever hourly rate you receive, they multiply it by 2,080 hours, 40 hours a week for 52 weeks a year, and they give you a percentage of that. I think 90 per cent of the net is paid to the workers. Thank you, Kenny.
MR. CHAIRMAN: Thank you very much. Are there any other questions from the committee? Yes, Mr. Corbett.
MR. CORBETT: Mr. [Kenneth] White, something you said in response to Mr. Neville's question, you got into talking about the person flipping the burgers, do you see that there should be a minimum rate that they don't go below? If you look at 75 per cent of net of somebody making minimum wage, that isn't very much money. Do you think - I am just going to grab a figure - they shouldn't pay wage loss any less than $250 a week?
MR. KENNETH WHITE: Yes, or no lower than what he is making now, give him, in a sense, a way to earn a living, to have something. The compensation, where was the compensation, where did it come from? Some compassion? That fits in there somewhere.
MR. CORBETT: Okay. Thanks.
MR. CHAIRMAN: Thank you very much for taking the time to make your presentation. (Applause) Mr. [Kenneth] White, I believe there were some papers you had that you wanted to give to us. Mr. Hadley, with the white shirt, is coming forward and he will get them from you.
Our next presenter is Ms. Margaret MacSween. Go ahead, ma'am.
MS. MARGARET MACSWEEN: I am trying to catch my breath.
MR. CHAIRMAN: Take your time.
MS. MACSWEEN: I am really nervous, it has been a long time. I work with home care. In 1988, I had a back injury. I was lifting a patient. I was off for eight months and I returned to work. Then, I was re-injured in 1990.
I did everything the workers' compensation had ordered me to do. I was sent to Halifax to the Canadian Back Institute. The first day I was there, they told me I had to lift weights that were the weight of my body, which was 110 pounds. Now, I had two back injuries, and I was supposed to lift weights? From the first day, I was in unbearable pain, and I told them, but they said no, I had to keep going. I was there for three weeks and I ended up at the VG Hospital, three times. They told me not to go back. I told the Workers' Compensation Board this, and they said no, go back.
I have tried everything and anything to get relief from my injury so I could return to work. I love my job. It was something I always wanted to do, to work with seniors. After the third week, I collapsed and ended up at the VG, and I came home. I just couldn't take it anymore. They said they would set me up in physiotherapy in Sydney.
I was there two weeks, and my claim was closed. I called my adjudicator. I have never talked to such an ignorant, arrogant man in all my life. He told me, your case is closed. He wanted a report from a specialist I had seen. My family doctor had the report for a month, that had come from Halifax. I argued with him on the phone, and he said some nasty things to me and I said some back. I hung up the phone, and never in my life have I ever written a letter to the Cape Breton Post. I did. I took it in, and I asked the editor to put it in word for word, and put this man's name in it. If he couldn't put his name in, I didn't want the letter in. He said yes, every word was going in, and the next day the letter was in.
That morning, the phone started ringing. It was CBC News, they wanted an interview. I started vibrating. I had never in my life, that is the first time I put a letter in, let alone, there was no way I thought I could through with an interview, but what I was put through with the workers' compensation, I said, I am going to do it. Well, I did, and it was on the news that evening. They went to the Workers' Compensation Board and wanted a comment. I think his name was Bruce Collins, he was the spokesman or whatever, there was no comment either from him or the adjudicator. Within a week, I was reinstated. Pretty sad, when the power of the press had to do that, what? Anyway, for two months I was in physiotherapy. In Sydney, half of the patients that were there were from this Back Institute. They said it was nothing but a weightlifting gym, which I had seen for myself.
Anyway, my claim was closed finally, and the fight began. I tried everything. I had my appeals. My last two appeals were done by two brothers. When I went in for the second appeal, which I waited two years for, got in there - this was in 1996 - 10 minutes into the appeal he said, I have to tell you, I have to stop the meeting because my brother did your other appeal. Well, I thought, Mother of God, what do we have here, a little Mafia? You know, a crook system like I had never seen in my life.
I went out in the hall with my lawyer and I said, what am I going to do? She said, it's up to you, but it's going to be five years before you will get to another appeal. I said, what choice do I have? I have nothing to lose now anyway after all these years. So, I went back in, ended up breaking down. You don't even have to ask, it came back. Do you think he was going to overrule his brother? No. So after that, I gave up. I didn't put in another appeal.
I had fought for six years. What it took out of me and my children, my family, nobody will ever know. I don't think in a society today - a system that is put in place to help an injured worker is doing the complete opposite. How many thousands are out there, and they are in between in the cracks and going through hell and back and have to put up with this? Are you our only hope, here today? I hope to God you are. That is all I have to say. (Applause)
MR. CHAIRMAN: Thank you very much, Ms. MacSween. Our next presenter is Graham Simms. Is Mr. Simms here? Okay. Our next presenter then would be Charles MacLean. We are probably getting ahead of when people might have been asked to come. The next one would be Raymond MacLean. Barbara Lewis? I think we are running ahead of time. I am going to just see if there is anybody else here. Murray Johnson? Larry Oravecy? Mr. Oravecy.
MR. LARRY ORAVECY: Thank you, gentlemen, for the time given to me to make a presentation here. I just want to stipulate, I will be short and brief. The major problem in the compensation system and hurting the injured workers is compiled all into the policies. Those policies are all in that new Act, where they all overruled the former Act. That Section 183 should be thrown out along with the policies. That is all I have to say. (Applause)
MR. CHAIRMAN: Thank you. Mr. Oravecy. I just had a question for you. Have you a claim in the system, or have you had a claim in the . . .
MR. ORAVECY: I am on compensation benefits now for some injuries; other injuries, I couldn't collect on account of policy.
MR. CHAIRMAN: When were your injuries?
MR. ORAVECY: In 1992, sir . . .
MR. CHAIRMAN: So you had injuries in 1992 . . .
MR. ORAVECY: . . . and in 1966.
MR. CHAIRMAN: Are you receiving payment for the 1966 injuries? Are you receiving any money for the injuries you had in 1966?
MR. ORAVECY: In 1966, no.
MR. CHAIRMAN: No. But you are getting . . .
MR. ORAVECY: No. I was told there was a policy in place there, that there was no way I could go back to 1966.
MR. CHAIRMAN: Okay, but you are receiving some payment for the 1992 injury?
MR. ORAVECY: From 1992, yes, only partial payment, because there are other injuries I had that they wouldn't even recognize, because of the policies. The said the policy and the evidence that was presented to them was kicked down by policies under the new Act. It is ruining the former Act. The former Act was the one and only policy in the Province of Nova Scotia. It is the one and only Act that the Supreme Court of Canada or the Supreme Court of Nova Scotia recognizes, but that new policy and the new Act, it seems to be that the court doesn't recognize that at all. They don't recognize policy.
MR. CHAIRMAN: Thank you. I don't know if there are any further questions from any other members. Thank you very much, Mr. Oravecy.
Is Paul Burrell here? Paul Burrell? Don Brown? And finally, Bernie Larusic? No.
If that is the case, we are going to have a 10 minute break to give everybody a chance to stretch our legs and, hopefully, by that point, some of our other presenters will be here.
[8:17 p.m. The committee recessed.]
[8:32 p.m. The committee reconvened.]
MR. CHAIRMAN: The next witness is going to be Graham Simms. Mr. Simms, have a seat. Go ahead, sir.
MR. GRAHAM SIMMS: I have got two different perspectives that I would like to . . .
MR. CHAIRMAN: Could I ask everybody to be a little quiet so we can hear the presentation? Go ahead, sir.
MR. SIMMS: I have two different perspectives that I would like to speak about: one as an employee, and one as an employer.
In my case, I have been in the workforce 33 years. I moved away; I was gone 10 years, then I came home. I took my lifesavings and I started a company. I worked for 14 years, kept a couple of people employed and then I fell. When I fell, I had damage to my knee, to my shoulder, thumb and I have been off work now 21 months.
I am the injured worker and I am the employer. I am the one who pays the rates. The rates for my particular job - which is the overhead door business - are higher than the rates for a coal miner. The rates per $100 paid to compensation for my business, I pay a higher rate than what you pay the rate for a coal miner. If anybody has a rate book, take it out to any page they want, pick 10 divided by 10 and tell me what rate you get. The average rate is $2.24. Because of one accident, my rate is $9.28. I am the injured worker. I am off work. I am losing my business because I am not there to run it. Nobody takes care of a business like somebody who owns one. Now, what is going to happen to me? Where am I at? I quit school, I got no education, all I ever did was work with my hands. I want to go back to work. What am I going to do? What can I do?
Meanwhile, while I lose my business, my wife loses her job, so now neither one of us has got a job. My life savings are gone. I put it in the business. What is left for me? Where do I stand in here? I paid the rates every year since I got the business. The compensation rates were paid. Where am I at? I am sitting out in the cold. I got turned down for Canada Pension. What is the answer? Somebody give me an answer. Can anybody possibly give me an answer to what is going to happen to the rest of my life? I'm pretty well in a nutshell.
The other things, RRSPs, take care of yourself, right? Put some money away. You are going to be older someday. You can't put any money in an RRSP if you're on compensation. You don't have an income.
Another question. Somebody answer this one for me too, please. Who is almighty Doctor Smith? (Laughter) (Applause) This man, my understanding, and I got it - I wrote to the board, I said, I wouldn't call him a man because he lied to me right to my face and I have no respect for anyone who lies to me.
He told me he couldn't do an assessment on me because I was on a claim. I can't do an assessment. Six weeks later, I got a letter, denied, and that is as true as I sit at this table, if not God take the breath out of me.
MR. CHAIRMAN: He did the assessment for the Workers' Compensation Board on you, I take it?
MR. SIMMS: Exactly, and told me I can't do it because you're on the claim. I was after falling. I had an operation in 1994 on my wrist. He was to do the assessment but I fell in 1996 and I was on this claim. That is when the assessment came up. He said, oh, you're on a claim, I can't assess your wrist while you're on a claim. Six weeks later, I got a letter, nothing wrong with your wrist. The man out and out lied right to my face.
MR. CHAIRMAN: Is your claim in the system? Are you receiving any benefits?
MR. SIMMS: Yes, I am.
MR. CHAIRMAN: So you are receiving benefits at the present time?
MR. SIMMS: Yes, I am. For how long? When do you get one of these? It just says, see ya Graham, have a nice life, party's over. I'm hanging out there. I'm a different case. I'm an employer and an employee. What am I going to do? I don't want me back. (Laughter) You laugh, okay, you know what I mean.
MR. CHAIRMAN: We were making a joke. That was the only reason why we laughed.
MR. SIMMS: No, no. No problem there. Like, think about it. I run the business. No, get me back with my shoulder, my knee and what I had before I fell, and I will take him back in the morning, tell him to show up for work. I need him, he can make me some money. I don't have that guy anymore. I don't have him to depend on, I don't have him to go talk to customers, to make sure everything is done right because you do it yourself and you know it, slowly it starts to slide. The next thing, I don't have a business. Like I said, my wife doesn't have a job, I don't have a job. What is the next thing?
I'm taking RRSPs out to live on. Now it is all over. Now the dream that was put together for a certain age is poof, gone. I'm just hanging out there in the wind and nobody can give me any answers. It's really hard to sleep.
MR. CHAIRMAN: Have you been assessed for permanent disability or are you still on temporary disability?
MR. SIMMS: If you want an honest answer, I'm that confused, I don't know.
MR. CHAIRMAN: Okay, that's an honest answer. No, I was just wondering whether or not - so as far as you know, you haven't been assessed for a permanent injury at this point?
MR. SIMMS: No, they're telling me that I can go back to work and then, whatever, if I get a job making so much, the Workers' Compensation Board will pay so much up to a certain amount, or whatever. Just give me the job and tomorrow morning, what time do you want me? I will be there. I want to go back to work and I can't because I've got a letter that says I can't go back to work. I'm liable to hurt somebody, I'm liable to drop something. If I don't fall off myself, I may drop something on somebody else.
MR. CHAIRMAN: Yes. So your business is not operating at the present time?
MR. SIMMS: It is but not the way it should be.
MR. CHAIRMAN: Not profitably.
MR. SIMMS: Exactly. We know how long that takes before closed is on the front door and you don't have to turn it around again. That's where I'm left. Myself, I'm sure I'm going to end up losing my business. What is left for me? I've got a wife without a job, I've got no job; the roof over my head, that's it. Only for sheer luck, the house is paid for. That's all that's saving me, that's all that's keeping the rain off my head. I don't know where I sit. I don't expect you to come up with an answer right away or anyone else but that's what I've got to go and put on the pillow every night.
MR. CHAIRMAN: I guess a question for you, Mr. Simms, is that, with respect to the program where you're supposed to go back to work, which I think is the program you alluded to, where you're supposed to go out and get this other job that's going to pay you, perhaps, less than you were making before and then they would bridge the difference and all that kind of thing. Have you received any training or assistance in finding that other line of work or that other job? Have you gotten any help in that regard?
MR. SIMMS: The fellow that I'm working with now is a good guy and he's trying - there is no doubt about it, he's trying - no doubt in my mind, anyway. It's just, my age, my education, my physical disability, everything is against me. I'm fighting total odds here. I'm out of the imperial system and I couldn't tell you if a litre could fit in this room or if it could fit in that glass. I'm way out of whack here. I just don't fit the norm, especially the same deal, being the employer and the employee. That's where I'm sitting and I'm losing big time here, going downhill fast.
That's all I'd like to find out, like I said, is, what's going to happen to me because I don't fit in with everybody else and I don't have any answers.
MR. CHAIRMAN: I take it that you have been getting, Mr. Simms, notification - both in your capacity as employer and employee - with respect to your claim. Do they send you stuff as an employer? Do you get notification from the Workers' Compensation Board?
MR. SIMMS: Anything that is sent to me is sent to the company also. But as I explained it, if you want to talk to the president, go right ahead. If you want to talk to Graham Simms, go ahead. (Laughter) You're getting the same answer. I can sit in one chair or the other chair and, yes, I would take him back if he's the same; no, I'm not taking him back because he's not the same. (Laughter)
MR. CHAIRMAN: He's a good employee and we think he should get his benefit money, right?
MR. SIMMS: Yes, okay, good one, thanks.(Laughter)
MR. CHAIRMAN: You can say that honestly, can't you?
MR. SIMMS: Yes, no problem, I can say that. But seriously, no problem, I can say that because I put 14 hard years in. It was not an 8:00 a.m. to 4:00 p.m. job, or whatever; it was 24 hours a day, 365 days a year is when we are open. Fire stations, ambulances, it's that kind of business, that's the way it is, so it wasn't just an 8:00 a.m. to 4:00 p.m., 9:00 a.m. to 5:00 p.m. or whatever, a night shift or back shift. It was all the time. It is your whole life, with an office in your house and your wife works in the office and, poof, one slip off a ladder and you're gone.
Kevin Orrell did my wrist. He said to me, three months, your kind of work, climbing up in steel, whatever, lifting, your kind of work. Dr. Smith said, six weeks. The reason I fell off that ladder was because of that hand right there. Now I've got a rotator cuff - I understand somebody is a doctor - that's kaput, a knee that's gone. If he had of left me alone with my wrist, I probably would still be working.
MR. CHAIRMAN: You were cut off? You were told you were going to be cut off if you didn't go back to work?
MR. SIMMS: He told me, you're going back to work in six weeks, that's it, cut and dried. But hold it, you don't realize what I've - six weeks is what you've got. Well, Dr. Orrell said three months. Is that that much more time to let it heal up and whatever? Six weeks.
Kevin Orrell told me that I would be back in five years with the work I do; it is a lot of physical work. He said, within five years, it wouldn't surprise me that I would have you back to do your wrist again. Dr. Smith sends me back to work in six weeks.
Two years later, no feeling in the hand, I'm laying on my back, I've got an operation on my shoulder. When I walked in to see the orthopaedic surgeon, he took my arm. He said, lift up, so I lifted up. He said, if it was up to me I would operate on you this afternoon. Eight months after, I fell; four months for my knee; a year to get an X-ray on my thumb. Then they
told me, your thumb is broke. Oh, really? (Laughter) What can you do for it now? Nothing, it heals.
What can I tell you? That's what happened, that's the way it happened, that's the way it is. I would just like to know where I stand. I controlled my life all my life. I controlled my own business. Now, my hands are tied. I don't control my own life anymore. The Workers' Compensation Board does.
MR. CHAIRMAN: Do any of the other committee members have any questions for Mr. Simms? Mr. Corbett.
MR. CORBETT: Graham, how are you doing?
MR. SIMMS: Good, Frank, yourself?
MR. CORBETT: Good. Mr. Simms and I are known to each other. One thing he had talked to me about, and didn't mention it tonight, was when you got someone to go to this meeting about ADR. Could you tell the panel what happened when you got there?
MR. SIMMS: Your meeting was the next day and I thought I was going to your meeting but this one is to employers. Right at the top, the date is on it, whatever, addressed to my company. I go downstairs in the Delta and there is a lawyer, a woman who knows me and a guy who set the rates. There are two little couches there. A lady is standing up and two guys are around the couches. Boom! They got up like the FBI. Graham, how are ya? You're in the wrong place. What do you mean? You're in the wrong place. You're looking for the place where the MLAs are, whatever, eh? I said, yes, I think that's what I'm looking for. You're in the wrong place. Okay. I leave, go to a restaurant. I'm sitting down. This is in my pocket. I take it out, put my glasses on and look at it, right date, right place. They talked me out of the meeting. They invited me and talked me out of it. (Laughter)
MR. CHAIRMAN: They didn't want Graham Simms, the employee, there. You should have been Graham Simms, the President. It's not funny but . . .
MR. SIMMS: It's a fact. I mean, he knows and here it is, it is a fact. I get back to the same question for me, like, what am I going to do? What is going to happen to me? It's really a scary thought. Especially when you get something like this, your heart skips a beat when you see the envelope. Oh, man, this is it, you know, Dr. Smith got hold of me again. Somehow I ended up in his file. I don't think that will ever happen again. (Laughter)
Just as a human being, that bothers me, that really bothers me, when you have two of the best orthopaedic surgeons on this island, Kevin Orrell and James Collicutt, now, where does Dr. Stewart get off overruling these guys? I can't understand that. I just cannot grasp
that thought, when their orthopaedic surgeon - and he is just a general practitioner, is he not? I can't see it.
I had my shoulder done. Dr. Collicutt said to me, you will get 80 per cent of your shoulder back after the operation. I said, I'm going to make a liar out of you. What? I said, you watch and see. I went back and he told me I am the greatest recovery from a rotator cuff operation that he ever saw. I got 95 per cent of my arm back but I still can't go to work. They will not let me go to work.
This is what I get for all my efforts, trying to make something on my own, find my own job, start a business, whatever. Now I lose everything because of what? An accident? I will go for that, an accident. Does this mean my life is over? No, I didn't get killed but my life is over, as far as I know it? I'm telling you, that is a hard thing to deal with.
MR. CHAIRMAN: Thank you very much, Mr. Simms, for taking the time to share your plight. As you said, you are a very unique situation where you are both the owner of the company that employed the injured worker and the injured worker, yourself. You are certainly in a double bind because of that. We appreciate you sharing your insights with us.
MR. SIMMS: Well, I figure the old saying, you only have one kick at the cat, you know, so here I am.
MR. CHAIRMAN: I guess we are the cat. Thank you. (Applause)
Is Charles MacLean here? Mr. MacLean, go ahead, sir.
MR. CHARLES MACLEAN: My name is Charles MacLean. I am 57 years old and I am an injured worker. I guess you wouldn't have time to digest all this but it is incomprehensible at the WCB. From day one, I have rapped my head against the wall. I have letters from specialists like the other gentlemen was just discussing, and they have thrown them in the garbage. Mr. Smith seems to be God Almighty, judge, jury, and prosecutor.
I have one letter here to Gloria Samson, Workers' Compensation Board, Attention: Ms. Bev MacCaulay, 1992. Charles MacLean, Re: WCB Claim No. 5018107. Please be advised that I represent the above-named claimant as workers' counsellor. Would you kindly advise me if the board would consider assessing Mr. [Charles] MacLean for his PPD now, as the medical information clearly demonstrates he will never work again. Yours truly, J. Michael Kuna, Barrister and Solicitor.
That was five years ago. They didn't even respond. I have more, but it would take too much time to go into them.
Dr. Hugh N. MacDonald, he is a renowned neurologist in Halifax. I have six different injuries to my head - Mr. Corbett can testify to this - I have seen umpteen specialists, and I am sick of seeing specialists. The only reason I am here tonight, I just got from the hospital, I got a shot of liquid Demerol and that is why I am able to walk tonight. But everything falls on deaf ears. Now Bev MacCaulay has been one of the, I don't know who trains her, but, boy, she makes a dandy trained seal, anyway, because when I was here the last time, Russell MacLellan was here, Bev MacCaulay, Innis, David Stuewe, the whole shooting match and I guess I was kind of vocal, and they tried to take me aside, and they said, look you are not going to get all these claims, please come to the office, and you may be eligible for one, two, maybe three.
Now this is a year and one-half ago. I have been phoning that office ever since. Every time, she is in Halifax, she is out of the country, she is in Ontario, she is somewhere else. I just don't get anywhere. Now they are trying to turn the doctors against the patients. I went to my doctor, and he wrote a letter to them. They wanted more information, and the doctor said to me, Mr. [Charles] MacLean, we are two orthopaedic surgeons here, a psychiatric report and another one, what can I possibly add to your claim to defend your case than these specialists who went to school for seven or eight extra years.
They just don't listen to me. Dr. Smith throws it in the garbage. It is just that they don't want to. I am in danger of losing my home; as a matter of fact, next Friday, foreclosure proceedings will start. I spoke to Gary over here, I think he has already gone through the procedure. I have never gone through it before, but it looks like it is going to happen, unless a miracle should happen between now and next Wednesday. I am not only going to lose that, I am going to lose the down payment, plus all the payments I made for the last five years on it. But compensation, they just are totally in another world.
MR. CHAIRMAN: Are you receiving any compensation at all, now?
MR. CHARLES MACLEAN: I don't get one iota, not one quarter.
MR. CHAIRMAN: Do you have appeals in the system?
MR. CHARLES MACLEAN: I appealed it, they turned me down, and that workers' advisory thing they have in Sydney is the biggest sham since the flimflam man (Laughter) I am telling you. Now, Dorothy Harding, I like her as a person, but Paul MacEwan, the Liberal MLA here, he said, Charlie, I hate to tell you this, but I have had correspondence with several people, and Gail Chernin was looking after my case. They got $1,400 from the Nova Scotia Department of Labour. When they wouldn't pay them anymore, she dropped me like a hot potato. It is like a legal aid lawyer, if you are convicted of an offence. I haven't had a board in 18 years, not one.
If I was leaving here tonight and I was drinking and driving, and I know in my heart because I am trying to act like a Christian, and the police stopped me, they give you a record, you are .08 whatever - I don't know if any of you gentlemen are attorneys or whatever - they read this out, they say, well, in court it is going to look worse if you go in there and plead not guilty, because you know you are drunk. So you go in there, but at least you know what you are facing.
When you get this back, they just say, you don't fit under our Act. Canada Pension, I paid into that for 36 years, I don't get it. I don't fit under the Act. I have four head injuries, three back injuries, four knee injuries, the other guy mentioned Dr. Collicutt, he is going to operate on me again in October here. They won't even believe him. It's like my doctor says, if they don't believe these guys, do you really think I have a chance? It's just totally, totally frustrating.
MR. CHAIRMAN: So you have had problems with the particular family doctor overruling your specialist as well, as many other people have had, I take it?
MR. CHARLES MACLEAN: Yes. What is happening, I don't know about the Halifax, Dartmouth and Pictou areas, but in Cape Breton, you are lucky to have a doctor. Glace Bay, I think they are just getting on track. A lot of people say, oh, fire your doctor, get a new one. Yeah, that would be great after 10 years, and he has all your files, you just take your papers and walk away. Well, my doctor put it bluntly to me, he said, I have 22 patients out there waiting to see me. I have four babies to deliver tonight. He has correspondence this high. He said, I don't need any more papers to fill out, I don't.
Mr. Corbett, haven't I got a path down to your office for the last few months?
MR. CORBETT: I don't know if that is your persistence or my lack of ability.
MR. CHARLES MACLEAN: I don't know if he is glad to see me or he shuts the door when he knows I am on the way but, you know, even if I had my case addressed, I would feel at least a little fulfilled, win, lose or draw. I would be willing tomorrow or whenever you guys make your report public to the WCB in Halifax and the government saying, look, I don't think you gave this guy a fair break. Now, you are a Tory MLA aren't you?
MR. CHAIRMAN: I am.
MR. CHARLES MACLEAN: John Holm is a registered doctor, isn't he?
MR. CHAIRMAN: Dr. Hamm, John Hamm.
MR. CHARLES MACLEAN: Well, you know, if you said to him, you are a doctor, and I have listened to this guy from Cape Breton. We all can't be right; we all can't be wrong, also. What I am saying is two of my doctors have died already, two have moved to the United States, I am running out of doctors rapidly. (Laughter)
MR. CHAIRMAN: No wonder no one wants to have you as a patient. (Laughter) It is not funny, Mr. [Charles] MacLean, I can . . .
MR. CHARLES MACLEAN: I'm surprised, if I didn't have that shot of liquid Demerol tonight, I wouldn't be here, because my leg sometimes, my wife only weighs a little over 100 pounds and she has to pull me out of bed in the morning. Once I get mobile, I'm not too bad, but I seize up. It has never been addressed by the WCB, and they are the most arrogant - it seems like they answer to no one.
MR. CHAIRMAN: Do you have a workers' adviser at the present time? Is there anybody representing you?
MR. CHARLES MACLEAN: No. I'll tell you what, two weeks ago, I went to Manning MacDonald, he has a guy named Fred Green over here who is supposed to be a former Devco worker. I told him, but it's the same old bunk: don't call us, we'll call you.
MR. CHAIRMAN: And they don't call you?
MR. CHARLES MACLEAN: No. As a matter of fact, you know the company that is going to foreclose on me, they said, I'm sure now, if we got a letter from the minister, Russell MacKinnon, that said your hearing was going to be updated or there was something here, I mean, you can't pay your bills on an empty promise. Come on. Be real. I don't have any animosity or hate or malice to the mortgage company, because I thought they had been pretty good to me the last year, but when you don't have it, you certainly don't have it.
MR. CHAIRMAN: Do any of the other committee members have any questions for Mr. [Charles] MacLean? Thank you very much, Mr. MacLean, for sharing. (Applause)
Our next presenter would be Barbara Lewis, and I understand that Pat Doyle and John Doyle are coming forward at the same time.
MS. BARBARA LEWIS: I just wanted to show you how thick my husband's file is. This is getting through the system, part two. I already did part one. Re: standard submissions issued to WCAT by WCB on September 9, 1998.
I have serious questions to why the WCB would bring a document such as this into the public domain when a three-Party, nine-man committee is questioning their actions and policies. What an absolute waste of money. From a personal standpoint, it is obvious that the
WCB thinks of itself as an omnipotent power. I was advised that my late husband's claim would be heard under the WCB Act of 1990 to January 31, 1996, and not by the new Act.
After all my endeavours they changed this ruling on a whim. They continued to make me and my family relive Al's death over and over. I was given eight days to peruse the latest document and formulate a rebuttal. This is nothing short of psychological warfare, as my husband died fighting his never-ending battle of changing rules. Now the WCB continues with the tactic in the hopes that I will give up. Well, they can keep hoping.
It is stated in this document that family doctors diagnoses should be given less weight in evidence, as they are advocates for the workers. A family doctor would have absolutely nothing to gain by giving findings which would show good for the worker. However, the same cannot be said of doctors who were advocates for the WCB. They have more to lose by finding for the worker, such as retainer fees, salaries, expense accounts and future earnings. Yet in my husband's case, a doctor who is a WCB doctor found my husband did in fact have respiratory problems related to his work. The doctor's findings were dismissed because in this case, the doctor was not recognized by the board. Here we see another convenient deviation from the norm.
The only reasons I can see for the latest document is to curtail the authority of the WCAT adjudicators to the point of uselessness, elimination of as many chronic pain claims as possible and to protect WCB general practitioners who are overruling specialists under the guise of interpreting the findings. I have proof of that. In a letter that came from Dr. Merv Shaw regarding my late husband's case, he says, in my opinion, he did not have sufficient exposure to cause chronic bronchitis. When he got into difficulties later in life, it would be hard to relate it back to his exposure. Yet he worked in the coke ovens where the toxic levels were 2,800 to 6,000 times above the acceptable levels. Here is a GP that works for WCB giving an opinion on my husband and he never saw my husband in his life. This was over a year after my husband died that he made this comment. That proves that they are getting paid to find in favour of WCB.
In speaking to an employee of the Workers' Advisers Program, I was told that there would be dozens of claimants across this province which would require rebuttals to this document be made on their behalf. A further stall tactic wasting both the money the WCB feels it has to keep from the injured workers and the time of all involved. If the WCB is allowed to continue destroying people, I am afraid of what will happen.
Last week in this area alone, there was one attempted suicide and several people were ready to go to the WCB office and start shooting. Is it going to take a calamity in this province to make the powers that be sit up and take notice? Has the almighty dollar driven the WCB to this level of prostitution?
I would like to introduce you to a gentleman that has been suffering from chronic pain. He will enlighten you on a program that WCB has made mandatory to teach the injured worker to forget his pain. This gentleman has had four one-hour sessions, and you can see how well the treatment has gone for him. All that WCB cares about is, this is another injured person they will not have to pay. I am pleased to introduce to you, Patty Doyle.
MR. PATTY DOYLE: Folks, I want to make it perfectly clear, I did not want to be here tonight but I happened to be in Jimmy Neville's injured workers office last week, and I heard a story that made me want to come here. It was a story on the same fellow that had to go through this pain clinic I went through. If it wasn't so funny and ludicrous, I wouldn't be here to tell my side of it.
Before I get to the fantasy of all this, I would like to give a brief history on my work history. I am a hoist operator at the Phalen Colliery, at least I was. For anybody not familiar with mining, I am the man that takes the men up and down at the mine. I go in the building and I go up 10 flights of stairs into another building, and I sit in a cockpit, more or less, like an airplane with all the controls around me. At any given time, I have 200 or 300 men in my hands, and if my mind is there, capable of taking them up and down, or doing whatever I am supposed to do in the run of a day.
All my trouble started in 1995. I was leaving my workplace, which consists of going up 10 flights of stairs and I slipped and I fell down. The following week, the company doctor took me in to find out what my problem was. I explained to him what happened. He said, there is nothing wrong with you, you will be back to work within a week. He also made an appointment for me to see Dr. Malik the following week. He also said, that man will say the exact same thing I am telling you.
I saw Dr. Malik the following week. I went in his office, and he told me to lay on the couch, or whatever you want to call it. He lifted one leg and one arm. He said, go back to work within a week. In the meantime, my own doctor was after making an appointment to see Dr. Buhr. I saw him three weeks later. He kept me off six weeks, because it showed on the X-ray, I had disc problems and he wanted Dr. Watt in North Sydney to look at these X-rays.
Dr. Watt's opinion of them was that they should be clinically corrected. You will have to excuse me, I am kind of nervous, and my vocabulary is only two and three letter words. Anyway, he said they should be clinically corrected. They sent me back to work. After I saw him, Dr. Buhr said, what is your job? I said, hoist operator. He said, what does it consist of? I explained to him. He said, it is only a soft tissue injury, I am clearing you to go back to work. So I went back to work.
I worked all of 1996, and in 1997, I had another accident. I was leaving work, and I fell and injured my neck and my upper back again. So I went off again. Lo and behold, they sent me back to Dr. Malik again. He said he was going to operate on me. Before the week he was going to operate on me, he changed his mind, he said there was too much nerve damage there. He said, I want you to see somebody else. He referred me to Halifax to see Dr. Reardon. He said, you definitely have trouble there, and he referred me to Dr. Holness, who operated on me within two weeks. He said, you have severe disc damage.
I was off a year with the operation. They fused two discs in my neck. After the operation, the compensation sent me to what they call work hardening. Sandra Verner sent me there. She said, he will whip you back to shape, you will be able to go back on your job. Her whipping back to shape consisted of him putting hot packs on my neck for three months, because I was in that bad a shape that I couldn't do the full program. I couldn't bend, lift, or do whatever he wanted me to do; I tried and I couldn't do it.
After the three months they sent me back to work. I lasted eight days. I was getting out of my chair - the chair we work in as a hoist operator is not the chair I am sitting in now - it is what you call a pedestal. It weighs about 150 pounds so you just can't move it around. The position it is in, it stays in it, but it will swivel a little bit to the left and the right and you have a lever to your left and to your right. So the two men I work with on the other end of it, they come in one morning and they said, come on down, Pat, we will show you the work we've got to do today. So I went to get out of the chair and I tripped on the cable, fell against the air-conditioner that was on the wall, knocked that off the wall, cut my head open, fell back on the levers and injured my back.
Within three weeks after that, the Workers' Compensation Board tried to get me to go to work hardening again, to go to a physiotherapist, whatever you want to call it, but my own doctor advised me against it. He said it would only put me in more pain because we don't know what the problem with these discs are and it could re-injure your neck. So I didn't go to physiotherapy. This went on for four or five months. Then Sandra called me one day - and I am getting to the good part, the fantasy party - and she said we've got a new program. So I thought they were going to retrain me, being naive as I was. She said you've got to go into the work hardening and see a therapist. Well, I didn't even know what that was. I thought it was a school-teacher.
So I went into the work hardening. I went in the office, and it was only me and her there. I said, well, where are the rest of my classmates? She said, oh, it is only me and you. I said, me and you? She said, I am going to teach you how to deal with your pain. I said, okay, I'll try anything; I am game. Now, how are we going to do this? Well, she said, you have got to let your mind relax and pretend you're somewhere else. I said, okay, I'll give that a whirl. She said, pretend you're at the beach. I said, okay. Close your eyes, she said, pretend you're sitting on a rock and the waves are splashing back and forth. I said, okay. I can't get up too quick on account of my injury, so I stood up and she said, what's wrong? I said I am
going to have to go home. She said, why? Well, I said, that last wave just came in and splashed me. I am soaking wet; I got to go home and change my clothes. (Applause)
Not being too smart, the next day I said I am going to outfox this lady, so I came the next day with a pair of rubber boots on and rain gear. I said that I'd be ready for the wave this time, but she had me out picking blueberries. So I said, again, I am going to have to go home, and she said, why? Well, I said, the woods are too hot for me with all this rain gear on; I am going to have to go home and change clothes. Now, if it wasn't so funny, she give me this tape and she said go home - I am going to make $1 million on this tape - and play this tape, and before I am through my presentation I am going to give this to Jimmy, so when he's going around complaining about no doctors in Port Hawkesbury, they won't need them once they get these tapes. All they'll have to do is play these and your pain just goes away.
In the meantime what is not so funny about all this is my compensation is cut off because after the four sessions of this my pain is gone. I still wear a neck brace. I wear a TENS unit. I wear a back brace and I use a cane to catch myself when my back gives out but they cut me off compensation. But every time I listen to this, my pain disappears. (Laughter) I don't have this. That's all I have to say, folks. That's the peril I am in. I got no compensation but they don't need any doctors. All they need is this tape and, Jimmy, I would like you to have this to play. That's my presentation. (Applause)
MR. CHAIRMAN: Thank you.
MR. CORBETT: Again, Mr. [Patty] Doyle and I are familiar to each other. One of the times you were in my office you told me this story about your employer's doctor examining you and he had you confused with somebody else. He sent off a report, isn't that correct?
MR. PATTY DOYLE: That's when I went to Dr. Malik, was it?
MR. CORBETT: Well, he diagnosed you with a dropped foot.
MR. PATTY DOYLE: Oh, that was the company doctor. That's when I originally got hurt, the company doctor, the famous Dr. Ryan, he's almost as good as Sandra Verner, or Sandra MacLeod, or whatever she goes by. His initial report was that I completely out and out lied. He said the man walked in without a dropped foot. He had no gait. He had no cane and he walked out without a dropped foot. Well, I went in with my neck problem. Why would I have a sore leg? Why would I have a dropped foot? I never had one in my life and not only that, he wrote that to the Workers' Compensation Board Office who also turned it over to Dr. Malik because he seemed to know about it when I went in. Add all that to this, none of these doctors looked at my X-rays that showed I had disc problems. The same disc problems I had in 1995 he said weren't there, that's the two discs they took out in 1997. So that's our
doctors but we don't need them now I have that tape. Jimmy, I would like to have this. This is going to be worth a lot of money.
MR. CHAIRMAN: Thank you very much. And you never know if Mr. Neville might be in pain and need some help.
MR. PATTY DOYLE: That's for sure.
MR. JOHN DOYLE: Good day. My name is John Doyle. I got hurt in 1993. I had a torn rotator cuff. Dr. Reardon operated in Halifax. He said it was one of the worst he ever seen. So he said, you're not going to have a very good out-turn on the operation and that's what happened. Apparently the Workers' Compensation Board don't take his word to heart very much. So he sent me to a résumé school, four weeks of going to résumé school and there's what is on the résumé, one page of nothing.
They sent me out with 150 of these résumés, to go to 150 places looking for work. There's no work. You're not allowed to put on this if you have anything physically wrong with you. So then they cut my compensation off in May. Then they sent me a letter. They said, we've got to have all your information, anything you have, has to be in by September 2nd. I have to see a specialist in October and I have to have my shoulder scoped in December. So it was pretty hard to have anything in by September but the Workers' Compensation Board don't want to hear a word of that. They sent me to Halifax on another trip. Four days I was up there. Two hours each morning I was at the Gladstone Building, climbing up stairs and crawling on the floor. Now, what in God's name does any of that have to do with work - crawling on the floor, climbing the stairs? I don't know. Then they say, after this four glorious days, that man can work eight hours a day. They determine this in four days, two hours a day, that's eight hours. That's the kind of thing the Workers' Compensation Board is putting you through.
MR. CHAIRMAN: You said you were crawling on the floor. Can you describe . . .
MR. JOHN DOYLE: Hands and knees, crawling.
MR. CHAIRMAN: Okay, that is crawling.
MR. JOHN DOYLE: That's crawling to me.
MR. CHAIRMAN: That is crawling to me.
MR. JOHN DOYLE: Yes, hands and knees, and if it wasn't bad crawling frontwards, they wanted you to crawl backwards.
MR. CHAIRMAN: I think this is the lobster crawl.
MR. JOHN DOYLE: A lot of this is funny but it is not funny, you know, whatever that has to do with anything in this world I would like to know it, or somebody tell me that. Just, you're cut off, that's it, have your information in, but you can't have it in because your two appointments are months after the deadline. Four weeks I was going out there and there's the résumé, look, one page with nothing on it. I could have told anybody that in two seconds. It is a work record that has nothing to do with anything and you're not allowed to put your injuries on it. I think that's lying myself. If I go to you with a résumé, I am saying I am 100 per cent in shape and I can go to work, right?
Then they sent me another letter. Now, here's three people hiring on in their company. So, I said, that's pretty good of them, a really important letter, you know. So I said I would like to have their names. She said, what? Well, I said, you put one, two, three employers down. Give me their names. So she give me their names. One employer is in New Brunswick; one is the owner-operator, and is the dispatcher; and the other one never hired a dispatcher since 20 years and they're not going to hire one for another 20 years. Now, that's the three job interviews, guaranteed you're going to get a job and $600 a week; that's not bad.
MR. CHAIRMAN: That is good money, isn't it?
MR. JOHN DOYLE: I would say it wasn't bad. That's all I have to say. That is the way they're treating me. They just cut you off point-blank and they don't give you a chance for nothing. Who knows what's going to happen when that man scopes my shoulder in December? It could mean another operation or it could mean a lot of things. I have got a lump on my shoulder as big as a baseball. Who knows what's going to come out of it? You know, that's the way they're treating people.
MR. CHAIRMAN: Have you got an appeal in the system, Mr. [John] Doyle?
MR. JOHN DOYLE: I have an appeal in, but it would be just as well if I had of thown it out that door there. Nobody is going to look at it. It gets lost in the paperwork. They've got enough paperwork over there now to sink the Titanic if it was floating. What's all this paperwork? It doesn't do anything. Something has got to be done to straighten this mess out; that's all I have to say. Thank you very much. (Applause)
MR. CHAIRMAN: Thank you.
MS. LEWIS: I have one thing I would like to say. I would like to ask the PCs and the NDP, please, don't bring down the Liberal Government until these changes get Royal Assent, and to the Liberal MLAs, don't let Russell MacLellan call an election. I will tell you, we'll be up there in force. We're not giving up and you're going to see a revolt if these changes don't go through and I will be the first one to lead it. You better take a look at my face, because you will see it again if these don't get through. So does anybody have any questions?
MR. CHAIRMAN: I take it that from your point of view, Ms. Lewis, that the last two gentlemen, the Messrs. Doyle, illustrate some examples of the problems that you see in the workers' compensation system and, in particular, the assessment of medical injuries, that problem?
MS. LEWIS: I see them as a great problem. Another thing I see, the injured workers' office upstairs, all along have been there. I know Jim has done a lot of work to help people and it has been there for moral support of people but, last week when I was up there, it became a crisis centre. I don't think many of us are educated to work with this type of crisis, but you're forced to do it or you're going to have deaths in this city.
I know of one man, it took another man three and one-half hours to talk him out of letting him take the shells out of his gun, because he was ready to go to the Workers' Compensation Board and start shooting. You know, when they have to send tenders out - and I know they have a tender out now for security on their offices - doesn't this enlighten them that they have to be doing something wrong? I mean even politicians don't have to have security on their doors. So that tells them what level they're on. It is beyond.
A lot of us, this is the last kick at the can, and you have people like Dr. Merv Shaw, who aren't familiar with cases, saying they're interpreting other doctors' findings. No, I am sorry. In my letter he did not mention Dr. Landrigan's diagnosis and he didn't mention Dr. Murdoch Smith's diagnosis, who was also a WCB doctor. As long as he's turning people down, they take his diagnosis, but when he makes a diagnosis of one of his patients, they can't take that because he is an advocate for the worker. Dr. Murdoch Smith has never been an advocate for anybody, but Dr. Murdoch Smith - and I know him well - doesn't lie for people. So are there any other questions?
MR. CHAIRMAN: No. I will just make the observation that you made a comment about the injured workers' groups and I think it is one thing that we all have heard, the valuable work that various injured workers' groups in this province - both in Cape Breton and in other areas of the province - have done as volunteers to help people who, in many cases, would have nowhere else to turn. There is no question they deserve a lot of thanks for the many hours they have put in. Obviously, you have a very active injured workers' group in this area, but there are other injured workers' groups in this province and they've done a remarkable job and we thank them.
MS. LEWIS: I know Jim has asked me to contact a couple of people who have had fathers and husbands die on the plant, the same as my husband, from exposure to toxic chemicals. They really don't know where to turn. They think they can play on the sympathy of these adjudicators. I told one girl, I said, listen, dear, they don't care that that father left 8 children and 15 grandchildren. Stick to the facts; get real. I think you could send them to
all the sensitivity classes in the world - I worked in social work for years - and if you are not, within yourself, sensitive to people's needs, you can't teach people to be sensitive to people's needs. They have to be able to understand it.
When I see somebody like Innis Christie get up there - who probably has more spending money in one week than most people have to live on in a month - and he says, I empathize, how the hell could he empathize? From watching him, he seemed like a cold-hearted son of a bitch, in plain English. That's exactly how I felt about him. He was cold and calculating and he was telling people what he thought they wanted to hear. I think it is time, you have to take the power away from him. You have to, and you have to get rid of those board doctors, they're destroying people.
Why bother sending me to a specialist if you're going to have somebody like Dr. Dobson and Merv Shaw? I can speak out, what can they take from me? Nothing, because they're not giving me anything. I know they're angry with me already because somebody told me, because I proved some of their evidence wrong. So that's all I have to say.
MR. CHAIRMAN: Thank you very much, Ms. Lewis. (Applause)
Is Raymond MacLean here? Good evening, sir.
MR. RAYMOND MACLEAN: Good evening, how are you tonight? I am not sure but I think I may be a little out of my element, but I am going to try to get a few points across here. I would have to say right off the bat that I am going to have to be cooperative here, like I am going to be a cooperative person. If you have questions, feel free to ask. If there is something that you're not sure about, you could stop me but, if I am really involved with something, you may have to wait until I finish the page or something.
I am going to begin with the introduction and, right off the bat, since we deal with human beings, I am going to have to talk about dehumanization. My definition of dehumanization would be described as the willful destruction of one human being by other human beings. That's just my opinion. It is not that it is entered into law or anything, but I have a question after that, which is: What could be done immediately to rectify this situation? The answer - and this is my opinion - is to learn the appropriate use of effective empathy, and this could only be achieved after long-term de-programming and introductory, intermediate and advanced sensitivity training.
The second issue that I would like to discuss would be that the Workers' Compensation Board has a tendency to use the war of attrition to wear down claimants through appeals. It would appear in several cases to cause a claimant to give up, and the question in this situation is: Is this statement true or false? The answer is most certainly true. Based on the amount of documentation needed just to prove an accident actually occurred,
it would be recommended that an investigator be dispatched to the place of injury and examine the area in which the accident occurred thoroughly.
That would mean taking statements from both the employer and the employee at their soonest convenience, and to get to a site to actually record that injury, how it took place, take pictures of the area, so that they can determine as it is harder to determine if you don't see what happened, you might not know exactly what 10 feet is and what was on the ground when they hit, or something like that, unless they actually had documentation of what the extent of the injury could have been based on what was there.
Chronic pain syndrome is the third item on the table of contents there. It starts off something like this, that the 1996 Act eliminated provisions in the former Act which required that the Workers' Compensation Board give a worker the benefit of the doubt in considering his or her claim. Strict proof is required in practice. This provision should be eliminated and the previous provision restored, which permits the worker to be compensated without conclusive proof of all the elements, but permitting the board to draw all reasonable inferences in favour of the worker.
Question: Would it be correct to assume that legal issues arise from this statement? Answer: Accidents are preventable in accordance with the Occupational Health and Safety Act. I firmly believe this, based alone on an employee's right of refusal to participate in a work situation deemed to be inappropriate or a potentially dangerous work situation.
It also seems that employers and employees have a totally different perspective of what really happens when an accident occurs. It is here that litigation occurs. It would be at this point that several criminal charges could be levied against the employer, or fraud charges against the employee. The following statement represents the legal areas an employer should always be aware of: culpable negligence; negligence; negligence 2; human rights; vicarious liability. Two areas employees should focus on are: collusion and mitigation.
Occupational legalities. The definition of negligence is the act of doing something improperly, or failing to do something which one has a duty to do, which results in the damage or injury to another person or the property of another person. Negligence 2, an employer has the right to expect from an employee, the quality of work of a reasonably diligent and careful person who normally performs services under similar circumstances. The employee has a duty to the employer to live up to the standard of an average, careful employee.
The employer must provide safe equipment and a safe place to work, otherwise the employee has the right to refuse to attend work until the dangerous situation has been remedied. The employer does not have any claim on the employees after work time has been completed. The employer is required to make available work of all the type for which the employee was hired. The employee is required to perform the services contracted for without
negligence, comply with lawful orders, conform with the system, act honestly, be truthful and loyal, come to work on time and as often as required by the contract. If the employee consistently fails to do these things, the employer has the right to dismiss for cause.
Human rights. The rights of all human beings, which have been established by the common consent of western civilization and which are legally established in Canada by federal or provincial legislation, are designed to outlaw discrimination on grounds of sex, marital status, age, national origin, persons with disabilities, race, or religion, by establishing commissions with investigative powers. Employers do not have to give reasons for rejecting an applicant. In spite of the best laws in the country, there may always be discrimination based on personal feelings. Only employers who are open about their prejudices run the risk of being penalized by the law.
Occupational legalities continued, culpable negligence is deserving blame in the act of committing negligence. Vicarious liability is the employers' legal responsibility for damages or loss suffered by a third party as a result of negligence of an employee. Collusion is a secret agreement for a fraudulent purpose, especially in legal proceedings. Mitigation is the legal duty of a person to lessen the amount of a loss through prudent steps of self-help before claiming damages for loss from another party.
Compensation workplace mitigation. This is a case. Attention my family doctor. I left his name out.
This is an official note stating that all forms of mitigation available to myself - Raymond MacLean - other than surgery were exercised. They include physiotherapy, orthopaedic treatment, CAT scans, X-rays, chiropractic treatment, reflexology, application to Canada Pension Plan - application denied - Obus lumbar chair pads. Every ways and means had been explored with regard to medical intervention. The medical evidence does indicate a complete avoidance with reference to the workers' compensation process.
This is my own little, I don't know what you would call it, it is a syndrome that I made up. It just started as a joke but, actually when you break it down, it is not very much of a joke. It is called the Post-Traumatic Compensation Board Syndrome.
Psychological Perspective. Trauma is the overwhelming condition connected to extreme adverse conditions. The humanistic-existential theorists believe that scientific psychology is missing the mark when it dwells only on observable behaviour and neglects the inner life of the person. This would be from Ronald E. Smith, Irwin G. Sarason, Barbara R. Sarason, the authors of Psychology, The Frontiers of Behavior. This particular theory would remind me of how the Workers' Compensation Board treats chronic pain syndrome, adversely. People who are affected by Post-Traumatic Compensation Board Syndrome are known to be experiencing a high threshold of physical pain and an abnormal degree of anxiety, thus reducing one's quality of life by over 40 per cent in either sector.
It is the summation of the writer of this document that in accordance with the Act, that being the Workers' Compensation Act of 1996, this leads to the following recommendations:
With regard to WCAT and the Workers' Advisers Program, the units would reintegrate, forming an adversary from within those confines, forcing themselves to administer a fair solution. This system should be administered in the New Glasgow region, as it is heavily industrialized. This would alleviate the hardship of travelling from Sydney or Halifax. This proposal makes perfect geographical sense as well as the industrial strength of the area.
The Workers' Compensation Board has to take full responsibility for their fiscal mismanagement and bad corporate investments on behalf of employers and the injured and non-injured employees of Nova Scotia.
To the plight of the injured worker, famous quotes from a noble man: Men stumble over the truth from time to time, but most pick themselves up and hurry off as if nothing happened; Success is going from failure to failure without losing enthusiasm; The greatest lesson in life is to know that even fools are right sometimes. Those are from Winston Spencer Churchill.
That is all I have to say based on my proposal. I will take a few questions, if you would like.
MR. CHAIRMAN: Do any of the committee members have any questions they would like to ask at this time? Any consultants? Well, thank you very much. (Applause)
Our next presenter is Mr. Paul Burrell.
MR. PAUL BURRELL: This is going to be tough, especially with all these people here. In 1980, I worked for the Cape Breton Development Corporation, and I suffered an injury. In that injury, nobody knew what I had. The doctors told me I had lumbago, back sprain. I continued to work. That went on for a couple of years. Then one specialist said to me, you have retrosponelylosis, disc degeneration. I said, what is that? Oh, he said, you have disc degeneration. It is going to get worse, and I have to send a letter to the company, Cape Breton Development Corporation, and have you put on light duty, if possible. They did that, then they took the light duty away from me.
In the meantime, I was taking painkillers prescribed by the family doctor. I started having nerve problems, I was sick, turned yellow from chemical hepatitis, from the painkillers. I went down to 122 pounds. I weigh 165 pounds now. I was in the Halifax Infirmary for a couple of months. During this time, I got threatening letters from Devco. We are going to fire you. You are off work, we don't know why. That continued. They wouldn't pay me benefits
for those 10 months. I didn't receive one cent from Devco until about the ninth month that I was off. All this time, my family was left to fend for themselves.
From that point on, I kept having problems, lifting. Anything I lifted, I would be in excruciating pain. I kept going to the specialists. The specialists didn't do an MRI, no CAT scan was available at that time, here. Anyway, the bottom line of it was Devco fired me. They call it innocent absenteeism. It is the federal law which permits a company, the employer-employee relationship to dismiss you if you do not live up to that obligation. That is condoned by the union, by the way, the UMW, they signed it in the contract, they permitted it. What gives any company, corporation the right to mess with federal labour laws? I don't think anybody has that right, because who suffers for it? The injured worker.
The ultimate outcome of that was, I was fired. I had taken a letter in from my doctor one week prior to them firing me, telling them the reason I was off work, and at that time, Mr. Ross was the underground manager. He says, what do you want me to do with this piece of paper? I said, put it on my file. Oh, I will do that. A week later, I got a letter stating that I was off work with no known cause, they sent me an eight-day letter out, and dismissed me, and fired me, and it stuck.
If I wanted to appeal this, do you know how much it would cost me, at that time? $10,000 to get a lawyer to take my case to take it to court. I didn't have that. The people who take your cases, Legal Aid, don't take civil cases. That avenue is out to an injured worker. An injured worker has no recourse, they don't have any money. They are chastised for their injury, they are blacklisted. They are humiliated, there is no other word for it. It is criminal, what has been done to injured workers in this province, it is actually criminal. Somebody has to account for that. What gives the government or anybody in the government the right to do that to an injured worker is beyond me.
So, there is the file. I could write a movie on it. I am ready to throw that in the garbage and move on with my life, even though I have chronic pain. There is a letter in there that states that I am unable to work. I just took it to Canada Pension. But the compensation board will not pay me 5 cents and it is a work-related injury. I am pre-Hayden. In 1980, I was injured, and I had five other compensable injuries after that accident, and they still will not acknowledge the fact that I have an injury.
This is tough to get up here. You people shouldn't be here, by the way. I don't feel you should be here, because there are people who are getting paid good money to do the job they should be doing. You shouldn't have to be here. It is very frustrating, and I sympathize. I never realized that this was as bad as it was until I came to Mr. Neville's office and seen the humiliation and the despise they have for people. There is nothing, the dictionary doesn't have enough words to describe what has been done to people here.
I am not going to elaborate on this whole file. I could but I would be here until 3:00 o'clock tomorrow morning on not only what was done to me by doctors in the Province of Nova Scotia, but employers, there is so much to talk about. You just couldn't possibly bring it all up. I heard one gentleman today, he was a police officer. This shows no boundaries for social class, white-collar, blue-collar, whatever collar you may be. It has no boundaries, does it? We have seen that today. There is a police officer who spent many years on the force and he is treated with disrespect. He was there for the people when they needed him, and yet, all society turned on him through this system. That is just one example. There is just nothing but contempt. It is very hard to take.
MR. CHAIRMAN: Do you have an appeal in the system now, sir?
MR. BURRELL: Yes, I do.
MR. CHAIRMAN: My curiosity, where is it in the system?
MR. BURRELL: The last stage.
MR. CHAIRMAN: WCAT.
MR. BURRELL: Yes.
MR. CHAIRMAN: Is that relative to the Devco injury or another injury that you suffered after?
MR. BURRELL: Devco injury, yes. It is the Devco injury. By the way, Devco pays 115 per cent back to the compensation board. The compensation board gets every penny from the federal corporation. This board writes its own rules and regulations. They write the rules, obviously. One other point I want to make before I wrap it up here, because I get too emotional over this. I am just at the point where I don't even want to talk about it.
One thing I did find out though, I went to Rick MacCuish down here at the workers' advisers. He sent me to have a legal-medical, they call it. I had the legal-medical done by Dr. Collicutt. Dr. Collicutt examined me, it took him three minutes to examine me. He put in the report that it took him one hour to do his report. Well, he got well paid for three minutes. He examined me, and the examination was just unbelievable. I made a complaint to the College of Physicians and Surgeons. It came back, nothing you can do.
Dr. Collicutt wrote a letter to the College of Physicians and Surgeons rebutting what I had said, and said that I was the type of person that fell between the cracks of the system, and that there was a new system that was going to be put in place to deal with chronic pain. Dr. Collicutt was unaware that it is only going to deal with 1990 people onward, he didn't
realize that they were going to segregate that entity of people. Dr. Collicutt also said that I had a percentage of maybe 2 per cent disability on his rating of 0 to 10.
MR. CHAIRMAN: PMI.
MR. BURRELL: Yes, PMI. But what about the other part of the chronic pain? He said my chronic pain symptoms outweighed that by much more. When a person has chronic pain on a daily basis, little by little it chips away your life. It takes your thoughts, it takes your enjoyment, it takes a lot. And yet, you keep trying to keep sucking the oxygen, trying to be normal, trying to be upbeat, trying to be - I guess normal is the word. It is tough. It is tough, because you have pain on your mind.
I went to the Canada Pension people here, and they have a new definition for chronic pain. They are saying it is not even psychological anymore, it is not even in the realm of psychiatry, and that is just their way of not paying people. I just read that report tonight that they had but I had applied for Canada Pension because of the injury.
MR. CHAIRMAN: You weren't successful getting your Canada Pension?
MR. BURRELL: As of yet, no. I had an appeal yesterday. I met with the committee.
MR. CHAIRMAN: The review tribunal?
MR. BURRELL: Yes. I don't know where this is going to stop. I heard a few people today, they were pretty frustrated. They are sick of it. An injured worker should not have to go through that. An injured worker, through no fault of his own was injured, he should not have to fight tooth and nail to get something that he is entitled to. I guess that is the bottom line.
It seems like this system is self-serving, it only serves the people that are within the compensation employee realm. They look after their own very well. The injured worker is the one that is paying the shot.
One more thing, what I was talking about there, I think they call it ADR, the new system.
MR. CHAIRMAN: Alternate dispute resolution.
MR. BURRELL: That is through Rick MacCuish, is that not true?
MR. CHAIRMAN: Well, the ADR process is through WCAT, but there are lawyers that come from the Workers' Advisers Program sometimes.
MR. BURRELL: Well, anyway, Rick MacCuish advised me when I made my complaint to the College of Physicians and Surgeons, if I did not submit the legal-medical report that I had that I would be kicked out of the system and I would no longer have representation. They pay for one legal-medical only. If you go in and have that legal-medical done and if you have a problem with any particular doctor, whoever they send you to, by their choice they send you to a particular doctor, if you have any problem with that legal-medical, you are forced to submit it, whether it be true or fictional. If something goes adrift in that, you are left with that regardless; I found that out the hard way.
The only reason I came back into the system is because after I made my complaint to the College of Physicians and Surgeons, the report, at that point I felt like I had done whatever I could to rebut what had taken place in that meeting. They advised me that there was no other legal-medical that was going to take place. So that is a problem you have with that in particular. Nobody should have that shoved down their throat. If you go to a lawyer, you should have that right, to either refuse it or not use it, use it or not use it. You should not be forced. I believe that is your democratic right, isn't it? To use what you feel is appropriate, not what somebody else feels is appropriate. We do live in a democracy, by the way.
I could go on a lot further, but I am just going to wrap it up because I am getting a little frustrated here.
MR. CHAIRMAN: I understand that. You are not alone. I think there are lots of other people that are very frustrated.
MR. BURRELL: It is beyond that. I hope to God that you guys do something right here. It is a tough job, and the bottom line here is the money. Where is the money going to come from? Is the federal government going to have to bail it out? Somebody has made a mistake in the past, obviously. But anyway. Thank you very much for listening to me.
MR. CHAIRMAN: Thank you very much for taking the time to make your presentation. (Applause) Our next presenter is Bernie Larusic. Is Bernie here? Ah, there you are, Bernie.
MR. BERNIE LARUSIC: My name is Bernie Larusic, and first of all I would like to apologize for the typing and any errors that are in there. I just came home the other day from a retirees' convention and I wanted to be able to put something on paper, on some thoughts that I had. I will read my report.
I want to congratulate the committee's resolve to make itself available for the second round in Cape Breton. The task which I will address is not related to the workers' compensation per se, but my view as to why compensation cases with decisions made from
the appeal board were never written, resulting in a backlog. How could such information be available? Was it something one could request through the Freedom of Information Act? The answer is no. My information, which I will present to the committee, is based on my observations of the Workers' Compensation Appeal Board. These observations come from my three years of sitting on the appeal board as an employee representative.
Before going further, I want to speak on the history of the appeal board. The appeal board, prior to 1990, was made up of one chairman and four board members. The composition of the appeal board would consist of the chairman and two board members. One member would be an employee representative, the other board member would be an employer representative. In addition, an employee of the board was present. The duty of this person, when at a hearing, was to set up the hearing room, set up recorders, take notes and any other related duties. When not attending hearings, which included the whole province, duties included running the office, scheduling hearings, write decision, confer with the chair, mail decisions, liaison with appropriate people, for example, the Workers' Compensation Board specialists. You will note the function of this person was quite full. You will also note that the decision writing was assigned to this individual, but it was the board's decision.
The issue which I stated in my opening remarks was the time required to have decisions of the board committed to paper, reviewed, signed and mailed out. The decisions were written on legal-sized paper. During this period, appeal boards sat approximately every three weeks. They would sit for two days and hear anywhere from 12 to 15 cases. The employee, I will call him the CEO, would then transcribe the tapes, check the notes, and finally write the decision which was reviewed, signed and mailed out. You will recall that because of the complement of the appeal board, one chairman and two members, therefore there were two boards serving Nova Scotia, because there was four members. Even with this demanding schedule, the CEO was consistently getting decisions out in three to five weeks. The decision usually involved two to three legal-sized pages.
It sounds like a better system than what we have as a continuing problem - backlog. Although a large number of decisions were rendered and mailed out, there are ones which may require additional medical information. This job fell to the CEO to write letters and await a reply. I am not fully aware of all the difficulties which could impact on requesting information, but one is time and the other is cost. I am not privy to the rates charged by medical or legal people, but I know no one works for nothing. Pre-1990, there were two boards, decisions were short, turnaround time was three to five weeks.
Backlogs were the result of only one person writing decisions and requests for additional information. Another criticism was when a decision of the appeal board was appealed to a higher court. Part of the comments would be on the method of writing court decisions. This meant the decision did not satisfy court decision-writing methods, but it did not impact on the decision made by the appeal board. In other words, they just talked about, you didn't write enough.
In the early 1990's, because of the need to address the backlog, the appeal board was enlarged. The CEO was replaced by the chairman of the appeal board, in addition there were two other chairs and six board members, me being one of them. A board still consisted of a chairperson and two board members. One member an employee rep, and the other an employer rep. Now there were three boards, which increased the boards by one. The plus, it would now be the responsibility of each board chair to write their board's decision. Given the increase in decision writers, it would certainly appear to address that backlog situation. We now have three writers for decisions.
During the first part of my three year term, and speaking only on my experience, decisions were being rendered and mailed out. Decisions were a little longer and turnaround time was two months. Although I voiced my concerns at our board meetings, even this amount of time would be more acceptable than what was to come. I was certainly a very frustrated member of the appeal board, as I saw the turnaround time climb into and pass the 12 month period.
What happened? In my opinion, which was often stated at our board meetings, it was the determination of the board chair to be legally correct. Decisions went from four, to 12, to 18, to 42, to 68 legal-sized papers. The emphasis went to writing Supreme-Court-decision-type decisions. The rationale was that this appeal board's decisions would be in the best courtroom decision-writing procedure. The time necessary to write decisions of this correctness and magnitude was time-consuming. Some chairs, I believe, were so taken aback by these guidelines that decisions which were not up to that standard were not being written or, if so, at a very slow rate. All these decision writers, the chairs, were lawyers. In the previous scenario the CEO was not a lawyer but he did have a great deal of legal experience.
Was it possible to have any corrective action? I, for one, questioned that if you wish to write such informed decisions, does it have to apply to all decisions? If the decision is favourable, a shorter form would suffice; if the decision is one of denial, then a more informed one would be appropriate. Board members supported this view and as an employee representative I felt it to be fair. Unfortunately, it was not the decision that was carried.
In a two year period we went from something like 1,200 backlog cases to double that number. This was with an increase, when we had three people writing decisions, and we know why they couldn't write decisions faster.
When I speak of the backlog, these are the cases heard by the board, a decision made but never put to paper. The method of operating by the appeal boards was quite simple. The three members - the chair and two members - would hear an appeal; the appellant would give evidence, a presentation by their counsel, a question and answer period, adjourn. This could take maybe 30 minutes. Once the appellant and counsel left, if there was no need of additional information, the board made a decision right then and there. It was then up to the chair to
write the decision and send it out. Now, here, we have already made the decision and nothing is happening and it will not happen for over 12 months.
As there were delays in getting our previous decisions out due to time spent in judicial decision writing, our schedule for addressing the original backlog was changed.
In our initial meeting of the full board, a decision was agreed to on how the three boards would be scheduled to address the backlog. It was early on when it was quite apparent the cases we were hearing would not receive our decisions for months. To solve the problem, have less hearings. It certainly reduced the backlog on cases heard with no decisions rendered, but now a backlog on cases not heard begins to grow. Of course, it goes without saying that the time spent on not hearing cases was spent in writing appropriate decisions.
Where do we go from here? I believe that in the first option there was not enough writers and in the second option, writing was more important than the decision. If this backlog is an issue which is causing undue hardship to the appellants, through no fault of their own, I believe the second model appears okay. What has been detrimental to the process was a lack of leadership in addressing the problem. Having not only seen the process but been part of it, I don't want the good thrown out and a new process put in place and say the problem has been addressed. We might have addressed it, yes, but have we corrected it? I don't know.
I am not here to discuss the pros and cons of the legislation. Many of those of whom I speak are making those arguments. I am speaking about a process that had promise and it failed those to whom it was intended. I believe the solution of having three appeal boards, with a chair being a lawyer, and members who represent the employer and the employee, is the most fair. My understanding of the policy now is a chair, a lawyer, hears the case and writes the decision. The solution, to me, resembles a legalized approach which was adapted to address the problem of backlog and not the essence of fair representation. If the duties of each tribunal board is clear as to decision rendering, decision writing with aspects to time-frame, the backlog would begin to be looked upon as something manageable.
When speaking of time-frame, an understanding as to what and how much decision writing is necessary when doing a favourable one to one which is denied. Having said that, what is a realistic period of time to have elapsed from the hearing date to the decision being sent out? The time I would suggest would be two months. If a board has problems in meeting that time line, then some form of corrective action should be available to address the situation. If there is leadership and the will to address these in-house problems, then I believe one of the problems with backlogs is being addressed. Therefore, although simple in design, the concept of three appeal boards with a complement of one chair and two members has more than merit, it is workable.
Mr. Chairman, I want to thank you and your committee for your time and your attention. (Applause)
MR. CHAIRMAN: Thank you very much, Mr. Larusic. It is very helpful and interesting to have the experience of somebody who was involved in the external appeal board give their perspective on what happened with the backlog because we have all heard so much about the backlog; it is nice to see somebody who was on the inside when that started to grow. Do any of the committee members have any questions for Mr. Larusic? Mr. [Charles] MacDonald.
MR. CHARLES MACDONALD: Just a question on timing, Mr. Larusic, when did you finish with the board?
MR. LARUSIC: 1995.
MR. CHARLES MACDONALD: In 1995, so you were there in that period when . . .
MR. LARUSIC: Yes, when there was a change-around. We came in and a new Act came in and that's when they expanded the board to address the backlog. The view of the board at that time was that, gee, we have something that is manageable but the decision that was carried on writing such large decisions expanded and the time consumed in writing them just delayed getting them out. What was annoying to many members of the board, I don't know if it was annoying to the chairs who were writing the decisions, but it was certainly annoying to members of the board that we had made those decisions. That very day when we talked to that person, the decision was made. It was months, when we started, two months was the maximum but eventually it just grew out of proportion and very, very annoying is a mild term.
MR. CHARLES MACDONALD: That was only because of transcribing that decision rendered that day?
MR. LARUSIC: That's right. Like I said, they went from two to three pages to 24, 68, they went up dramatically.
MR. CHARLES MACDONALD: Thank you.
MR. CHAIRMAN: I had one question as well. There were three people writing decisions at the end of it, correct, those are the three chairs?
MR. LARUSIC: There were three boards and each board had a chair and each chair wrote the decisions.
MR. CHAIRMAN: It would seem obvious that at the end of it, and I want to just confirm that's the case, what was obviously happening was that there wasn't enough writers to produce decisions, at least if they were going to be of that length?
MR. LARUSIC: Yes.
MR. CHAIRMAN: If you subscribe to the theory, and I know that you don't, that you have to have long decisions, and I tend to agree with you, but if you subscribe to the theory that you have to have long decisions, then obviously there wasn't enough people writing decisions to get them out in the time-frame?
MR. LARUSIC: That's correct. That's right, and the mandate was that only the chairs could write the decisions. We could write a dissenting decision if we so wished, but the way that it was usually handled in the group that I worked is that the employer and the employee representative, if they were in agreement, what did the chair have to have a decision on? All he had to do was write it because if the two of us were in agreement, then he could write a dissenting decision if he so wished or he could say, yes, I agree with you and usually that's the way we did it, that it was the employer and the employee representatives discuss the pros and cons of the case, said okay, it looked like it was something that the person should get and the chair said, yes, I agree, and away we went.
MR. CHAIRMAN: The other question I had for you was were these long decisions being written even in cases where the claimant was successful, so they were writing long decisions, you know, whether the decisions were favourable to the claimant or to the board?
MR. LARUSIC: Yes, they were always long decisions and that was a suggestion that was made very early on, that if it was a favourable one, make it shorter. If it was one we were going to deny, then put a lot of meat into it if you so wished but that wasn't the decision that carried the day. I even spoke to the minister about it.
MR. CHAIRMAN: Was it the minister who made that decision?
MR. LARUSIC: No, the minister didn't make that decision. The chairman carried that decision. It never came to a vote. It came to a lot of discussion but it never came to a vote because I think we could have carried the day if it came to a vote because there were six of us and only three of them but it never came to a vote.
MR. CHAIRMAN: But that didn't matter because it didn't come to a vote?
MR. LARUSIC: That's right. They wouldn't let it come to a vote. So that was annoying. I couldn't get it to come to a vote.
MR. CHAIRMAN: Not very democratic, was it?
MR. LARUSIC: So I even approached the minister of the day on the subject and the decision carried.
MR. CHAIRMAN: I will just make an observation that it seems that the process was a bit flawed in the sense that you had consensus among the employer and employee representatives who "own the system" and no matter what happened, it didn't matter.
MR. LARUSIC: You're in the ballpark.
MR. CHAIRMAN: Thank you very much. Mr. Erjavec.
MR. LUC ERJAVEC: Just one quick question. On the days when you were on the board, in those days an injured worker, if they had new medical evidence, did not necessarily have to go back to the board with the new evidence. They could go directly to the external appeal board. In a new process they must go back to the board with the new medical evidence and then go through reconsideration and the hearing officer. Do you think those stages are useful, that they should go back through the board first or are there any steps, like maybe reconsideration, that should be eliminated? What do you feel about going automatically to the appeal board with new evidence?
MR. LARUSIC: Well, if the person is there at the appeal procedure, you might as well hear it there. That's my opinion. Now, not having been around under the new guidelines, I am not fully versed in them. The only thing that I was versed in is that my understanding is that to get a leave to appeal, you have to ask the board, the fellow who already denied it. So I don't think that's very fair. If you're going to ask the guy who said no, what do you expect him to say? I mean if I said no to my children and then they came and appealed to me, what am I going to say?
MR. ERJAVEC: But I mean more like, particularly, the hearing officer level, it seems that a lot of cases are being diverted from the appeal board because of the hearing officer level. In your opinion do you think that was a good thing to add, the hearing officer level, and follow that process first?
MR. LARUSIC: If it is moving the thing forward but if it is just to mark time type of aspect, no, I don't agree with it. Move it on. Get a decision made and from my perspective once a decision is made let's get it written up and put out because we have a lot of people out there who are waiting for these decisions. They have been coming to their legal representative saying, we were in before those guys quite a while ago and they were saying we'll have that out in due course. Well, due course became, phooey. I didn't want to use the term anymore. I didn't feel I was doing a job. I was doing the job for the person who came in and seen me and as an employee representative I did what I thought was proper and fair according to the Act, but the other part was that the damn thing never got out.
I was annoyed at our chairman and I was annoyed at the chairman of the board; more than annoyed, eh, James?
MR. NEVILLE: Under the old system, Bernie, the old appeal board, O'Brien, Scaravelli and them fellows, they were having 100 appeals a month and 45 days was late and you had one page. It denied or awarded. That was it. They didn't write any books, 20 and 30 pages to tell you no. It was a good system.
MR. LARUSIC: I believe so. I wasn't on that board. That was a board prior to me. I just came in when that change was going on.
MR. NEVILLE: That was the board that I was on.
MR. LARUSIC: That's right. Then they were having some backlog difficulties, whatever they were, and they said writers are the problem. Writers are still the problem. They want to write too much and that's my opinion.
MR. CHAIRMAN: Thank you very much for your time.
MR. LARUSIC: Thank you very much. (Applause)
MR. CHAIRMAN: I believe our last presenter this evening is Kim Horne.
MS. KIM HORNE: This is all new to me. I am not prepared for this tonight. This is my first time here.
MR. CHAIRMAN: Just take your time and tell us your story.
MS. HORNE: I worked at Seaview Manor in Glace Bay for the last 17 years. On March 17, 1997, I injured my left wrist. I applied for compensation. I received it. On July 31st, they cut me off. During that time, I was in physiotherapy and I went back on the work hardening program. Then I appealed my claim and I was denied. I called my workers' adviser and he told me, well, why don't you go back to work for a half hour, try it. If you can't lift, then refile another claim. So I called my employer and she wouldn't take me back. I called my specialist and he told me not to go. So then I appealed my claim again and I was denied. I just had my oral hearing for the tribunal but I am receiving IV treatments every Thursday morning over at the North Sydney hospital. Right now my employer won't take me back, as long as the injury is still there but compensation cut me off and according to the board, they said it is not work-related but I was injured . . .
MR. CHAIRMAN: Just a couple of questions about your claim, ma'am, and other members may have some questions for you. You said you injured your wrist at work. What kind of work were you doing at Seaview Manor?
MS. HORNE: PCW.
MR. CHAIRMAN: So how long have you been a PCW?
MS. HORNE: For 17 years.
MR. CHAIRMAN: It is a long time. So you knew a lot about that job and you were lifting a patient, were you, when you injured your wrist?
MS. HORNE: No, I had a patient in the washroom and she was agitated and another resident came in and she got really agitated and she grabbed my wrist and as she was twisting it and pulling it, I kind of yanked back and when she let go, I came back and hit the sink. So I tore all the ligaments and tendons.
MR. CHAIRMAN: You had surgery, you say?
MS. HORNE: No, I was in a cast for eight weeks and a half cast for six weeks.
MR. CHAIRMAN: Was the difficulty that the board said that you should have gotten better faster? Was that your first problem, was they said you should have gotten better faster? Is that what the problem was?
MS. HORNE: They just told me that I should be able to work with it. I have one child and he has cerebral palsy and I can't even bath him. I dropped him in the tub because my wrist gave out.
MR. CHAIRMAN: So your specialist was saying you couldn't go back to work?
MS. HORNE: Right.
MR. CHAIRMAN: But the board doctor, I take it, was saying that you could go back to work. Have I got it right?
MS. HORNE: Yes.
MR. CHAIRMAN: So the board doctor said that you could go back to work and because you weren't back to work, you were cut off. Then when you went to your employer, your employer wouldn't take you back to work?
MS. HORNE: She even sent a letter to the board.
MR. CHAIRMAN: Saying because your injury was . . .
MS. HORNE: Due to the injury, I was a liability at work.
MR. CHAIRMAN: That's right, she was scared that you would do something, drop a patient or something?
MS. HORNE: Right.
MR. CHAIRMAN: Your specialist agrees with that assessment?
MS. HORNE: Yes.
MR. CHAIRMAN: So the doctor doesn't disagree with what the employer had to say?
MS. HORNE: No. He told me not to go back there myself because it has got worse. He just received a new machine from Pittsburgh and he does pictures of the injury. He even sent the injury, like it is gone up into my shoulder and into my neck, and asked if they would just pay for the laser treatment to see if that would do anything but they said no. They told me to go back to work.
MR. CHAIRMAN: So there is no question of them providing medical treatment or anything of that kind to help you get better. Now, have they changed their tune? Is that what they have done? Now they are saying it wasn't a work-related injury? Is that what they are saying?
MS. HORNE: My workers' adviser said what we have to prove to the board is that it is work-related but in my file, I mean I never had an injury to my wrist before.
MR. CHAIRMAN: So you are left without any workers' compensation benefits because they have cut you off and there is no medical treatment because they have cut you off and you are waiting for your appeal. It is not an unfamiliar sounding story, I must say. Unfortunately, it is not. Are there any other members of the committee who would like to ask Ms. Horne a question? Just one last question, then, Ms. Horne. You have been dealing with a workers' adviser here in Sydney?
MS. HORNE: Yes.
MR. CHAIRMAN: How has that worked for you? Have you been satisfied with that program or do you have some reservations?
MS. HORNE: Well, I don't know. I don't think I am getting satisfaction out of him. Like he says one thing and you call and you wait weeks, weeks, weeks, for him to call back and then finally I just called him and asked him if I could go in. So I go in and I am only there not even two minutes and I am out the door. Well, like you have to wait and see. Well, I'll
wait and see. I mean he told me to go back to work just for a half hour and try and then close that claim and go back to work and then reopen another one for the same injury.
MR. CHAIRMAN: But of course you can't do that because your employer won't take you back.
MS. HORNE: My employer won't take me back so now I am out of a job.
MR. CHAIRMAN: Well, thank you very much for taking the time to be here.
MS. HORNE: Thanks. (Applause)
MR. CHAIRMAN: On behalf of the Select Committee on the Workers' Compensation Act, I would like to thank the members of the public who were here with us all day - some of you have been here all day - for taking the time and being interested in this important subject. I believe there is a list for people who want a copy of our report that is available and we thank you for coming and hopefully our report will be out very shortly. Thank you very much.
[The committee adjourned at 10:27 p.m.]