HALIFAX, THURSDAY, SEPTEMBER 10, 1998
SELECT COMMITTEE ON
THE WORKERS' COMPENSATION ACT
Mr. Michael Baker
MR. CHAIRMAN: Ladies and gentlemen, I would ask you to take your seats please. On behalf of the Select Committee on Workers' Compensation, I would like to welcome all the members of the public that are able to be with us here this afternoon. This, of course, is one in a series of meetings that the select committee has held throughout the Province of Nova Scotia. The first thing on the agenda today would be to ask the members of the select committee to introduce themselves, starting with Mr. Delefes.
[The committee members introduced themselves.]
MR. CHAIRMAN: Thank you very much. I would now ask our consultants and staff to introduce themselves, starting with Mr. Johnson.
[The committee consultants and staff introduced themselves.]
MR. CHAIRMAN: Thank you very much. Again, for the benefit of the members of the public, the Select Committee on Workers' Compensation was struck as a result of a resolution of the House of Assembly passed in the spring sitting of the Legislature. The duties of the select committee were and are to conduct public hearings and to recommend to the House of Assembly changes to the Workers' Compensation Act to ensure that the Workers' Compensation Act better serves all Nova Scotians, both employers and employees, and of course, the injured workers.
As part of that process, we have been hearing from Nova Scotians from all walks of life, and in particular we have heard from a number of injured workers. For the benefit of injured workers, again, we appreciate them taking the time, and their injured workers' groups taking the time to be with us here. I have been asked to indicate, of course, that with respect to individual cases of injured workers, their cases are of great help to us in determining what changes we should look at with respect to legislation. We obviously are not hearing an appeal, and are not able to make recommendations in their individual cases; however, any changes that are made to the legislation or the policy or the regulations certainly may very well positively affect their particular situation.
Without any further ado, it is time for the Halifax Regional Municipality and District Injured Workers Association. We have three representatives here from that group today, and I would ask them to introduce themselves.
MR. RUSSELL GALLANT: I am Russell Gallant, I am President of the Halifax Regional Municipality and District Injured Workers.
MR. ALLAN COMEAU: My name is Allan Comeau.
MS. JOAN LANDRY: I am Joan Landry, I am with Communications for the Halifax Regional Municipality and District Injured Workers.
MR. CHAIRMAN: Thank you very much. Gentlemen and lady, if you would like to commence your presentation.
MR. GALLANT: Allan Comeau is my assistant. He has a few things he would like to read off to you.
MR. COMEAU: I am very nervous. I have talked to some of you in the past. I put together the package, the submissions. I am not going to read right from this. I am going to just go right into chronic pain. I will talk a bit about that.
The old workers' compensation system, I think it was back in 1996, used to have an independent appeal board. This is a bit intimidating for me, I apologize. I wasn't expecting the television cameras.
MR. CHAIRMAN: Just pretend they are not there. (Interruptions)
MR. GALLANT: I think what Allan is trying to say is when we had the independent internal appeal board, most of the cases, I think it was around 93 per cent of the cases at the external appeal board used to win. Now at the internal appeal board, what is happening is there is around 86 per cent of the cases that are losing.
My idea here was a summary of what I wanted to say about the Workers' Compensation Board. The Act has been put together over a number of years, and there is no lawyer that can't find a hole in the Act to put the injured worker in jeopardy of losing his case. What happens is that that is the reason why most of the injured workers lose their cases. Basically what I am saying is, this Act should be revamped, and as far as I am concerned, it should be thrown out.
The Act should be revised and brought together in layman's terms so that it is understandable. The medical observations or opinions that the Workers' Compensation Board gives, in my opinion, are ludicrous. They overrule three specialists' reports with one report that they say is adequate to overrule the medical evidence that has been brought forward. If you are dealing with these situations, I think that these people have to be looked at. A claims adjudicator can be working at the Workers' Compensation Board, she can be trained and work there for two days, she can overrule a report sent in by three specialists. If a person was injured on the job and they have made notation of this, that person's injury is documented and a specialist's report is taken in, they should observe that medical report that is brought in.
The person should be given the benefit of the doubt. The other thing is that the benefit of the doubt has been taken out. When they took the benefit of the doubt out, most of the cases fell through the cracks.
The chronic pain syndrome, it goes along with what the medical report is about. If the medical report designates that the person has had chronic pain and is having a problem with this, and the causation is from the work-related injury, then they should acknowledge that and they should accept that.
The other thing is the Workers' Compensation Board had no problem giving themselves raises, they jacked their own monies up from 30 per cent to 35 per cent raises over the past five years, because of the cutbacks. Now the cost of living allowance raises for people that were injured before 1990, they haven't raised those at all.
These are other areas that I think they have to look at. The bottom line is that the medical department at the Workers' Compensation Board, if we don't have enough faith in our own doctors here to deal with these issues and we are paying these doctors, why do we need a medical board at the Workers' Compensation Board. This is just another area.
The Workers' Compensation Board, as far as I am concerned, should be broken down. It should be half as many people running it. It is a big business now, is what it is. The compensation board is big business. Look at the amount of people who are working down there. The Department of Labour hires that many lawyers and it is the second or third highest law firm in Nova Scotia. This is ridiculous. I would like Mr. Comeau to read some of the notations here.
MR. COMEAU: I will read right from the submission, so maybe something will come to me while I am reading. We figure caseworkers should not be able to overrule the opinions of the health care professionals for obvious reasons. The opinions of non-treating doctors should be considered secondary to those of treating doctors and their specialists.
Right now, and it has happened a lot in the past, if an injured worker runs into a problem on a return-to-work program and it is a medical problem, they don't get the benefit of the doubt. Right away, they are looked at as uncooperative or non-compliant.
The caseworkers, they can go ahead and make any decisions they want to, and there is no accountability. They don't have to answer for what they are doing. It is probably encouraged from management to treat injured workers that way. It would seem that way, anyway. Right now, when a claim is reconsidered, it is done by the person that made the decision in the first place.
Right now, the WCB, WCAT and the Workers' Advisers Program are all part of the Department of Labour. I think that creates a conflict of interest, because Russell MacKinnon, of course, is the boss of all three organizations. If WCAT is to be kept as an appeal body, they should be given some independence from the Workers' Compensation Board, and they shouldn't have to abide by the board policies that can be created by the board any time they want, and they can. The Workers' Compensation Board can write policies and regulations for anything they want to.
The backlog of injured workers right now is, I think most of it has to do with chronic pain. With the old appeal board, chronic pain was compensated. It was never called chronic pain, I don't think, it is ongoing pain. It was like carpal tunnel syndrome, overuse, repetitive strain syndrome. When the new Act came out in 1996 and the FRP regulations, they put in a clause on Page 2 of Schedule "A" that, ". . . no compensation is payable in connection with chronic pain except in accordance with these regulations.". So when the FRP regulations are being used, of course, they wipe out anybody from ever receiving compensation for chronic pain.
[1:30 p.m.]
Board statistics. On Page 43 of The Road Ahead, the Workers' Compensation Board's 1996 Annual Report, out of 3,997 internal appeals filed, and the Workers' Compensation Board is quite proud of this, 3,227 were denied by the board in 1996. They pride themselves on the fact that 82.5 per cent were turned down. I think that number is a little high.
Vocational. At the present time the WCB delivers what they claim is a fair vocational component to injured workers. Our opinion is somewhat different than theirs. We feel that their vocational contracts amount to no less than blackmail, and they are about as empathetic
as prison guards. In fairness, the injured workers should be treated with the respect they deserve. They, along with their health care professionals and vocational counsellors, should be the ones to choose their trade or profession in keeping with the abilities and wage requirements.
I think right now the biggest problem with the backlog is the FRP regulations. Everybody here has heard about the Doward decision, and now the Muise decision, I think, eliminates anybody in the window period from receiving compensation, except for the FRP regulations. What the court of appeal has said in that, Philip Muise applied for temporary, total disability benefits from March 31, 1994 to August 31, 1994, that is about five months. He won his case and the Workers' Compensation Board appealed that to the Appeals Board of Nova Scotia. He won his case and he was going to be compensated under the old Act.
What the Appeals Board has said is that no, even though he is in the window period, he is going to be compensated under the new Act. The FRP regulations would therefore intervene. If I referred back to Schedule "A", Page 2, Number 3, it says nobody will ever receive compensation for chronic pain except as set out in these regulations. That was what the Minister of Labour was also asking for. I have a copy of the minister's draft legislation, and it is dated June 25, 1998. In it, he asks for the FRP regulations to apply to pre-February 1, 1996 injuries, people in the window period.
The FRP regulations are supposed to be put in place to help people within six months to one year of their injury. To apply these regulations and say that they are going to help people, for people that were injured two years prior to June 25, 1998, the only reason he wants to get the regulations in there is so that people will be looked at through Schedule "A", Page 2 and I think there is a cap on it, $2,000 is all that can be received.
I will just conclude. What we think anyway is that, if you were driving down the street today and you smashed your car, the sun got in your eyes, and your insurance company made you wait, say six months, a year, and then they wrote some laws and policies saying that this is no longer covered under collision, but it is an act of God and therefore we don't pay, we are not going to fix your car. That is the same thing the WCB is trying to do, write a retroactive law after the fact. It is not fair to write that law at all, because it is discrimination, I think, against people with chronic pain to exclude them from ever receiving compensation, where they have in the past. That is it, I guess, a bit mixed up, from me.
MR. CHAIRMAN: Go ahead, Mr. Gallant.
MR. GALLANT: I would like to say, in all the compiling of the notes that we brought forward here, the Ombudsman's Office has been involved in a lot of these things. They have done absolutely nothing. Where does Human Rights come in in these issues? They tramp all over injured workers. You don't have an injury and are disabled in this province, what you do is you have an injury and you go on trial. This has to stop. This isn't what the
compensation board was designed to do. The compensation board was designed in its simplicity, just to help injured workers to try and get back into the workforce, if that was possible, and if it was not possible, then to pay them and their families, not to put them in positions where they are about to lose their homes, their wives are leaving, people that are injured are taking anti-depressants because they are treated so unfairly by the Workers' Compensation Board.
Something has to be looked at with these. The reason why there aren't so many people in these groups up here is because most of these people are so distraught from working with the Workers' Compensation Board and mentally and physically torn down that they don't even show up for any of these meetings. What happens is, you don't have a whole lot of professional people over here dealing with situations. Nothing started with a big problem, in the scope of the whole compensation board until after 1990, pre-1990 wasn't too bad, and that is since a new CEO came on, David Stuewe.
You have to take a good look at what is going on here. Management, as far as I am concerned, leaves a lot to be desired at the Workers' Compensation Board. If you want somebody to run the Workers' Compensation Board and save you money, let me run it. I can tell you how to cut it in two right off the bat, just fire half the management that is in there. When they do something wrong, have those people accountable for what they have done wrong. In any other position or any other job, when people do something wrong, they are held accountable. If you people sat in here every day and did the wrong thing, you would be held accountable and people wouldn't vote for you the next time when an election came up.
Now the bottom line is, these people aren't held accountable for anything they do. The medical part of the Workers' Compensation Board comes up under the umbrella that, if you try and take them to the Medical Society of Nova Scotia, Code of Ethics, they can't be charged with malpractice. But the other doctors that we are talking about, the specialists and those other reports that we are talking about, those doctors can be. Those doctors outside are about to write bad medical reports. So who is giving the right medical report and who is giving the wrong medical report? These people aren't qualified to give those medical reports anyway.
As far as I am concerned, it is a waste of time. The whole damn thing is a waste of time. It is frustrating and very embarrassing for people to have to stand up here and tell you people, like when the chairman was saying about your personal ventures, if I told you some of the personal things that happened to me, it would scare you, and this has gone over a period of years and if you think I am inadequate and I am unuseful right now, you better take a look because I think I am just as useful as any one of you are or I wouldn't be here doing what I am doing right now. I mean the bottom line is that these people have locked me out. That is what they do to everyone.
The kind of mental anguish that people have to go through dealing with the Workers' Compensation Board, nobody should be, a dog shouldn't even have to go through that. The CEO of the Workers' Compensation Board knows me personally and he knows about a lot of these cases personally because I gave them to him and he has done absolutely nothing about them and he has done nothing to change any of the things that we brought to his attention.
When he brought by-laws in and new laws and new parts of the policies that they were reading through, I mean this is a joke. Come on, this is as simple as falling off a log. A person is injured. They see a specialist. The specialist says the person was injured. The injury is causing a problem, let's pay it. What is so complicated about that? It doesn't take a rocket scientist to figure out that this isn't a big, complicated issue. Let's just do away with the Act the way it is and rewrite it. It should take somebody about three or four days to do that. With a little help, I can do it and I can make it right. We are paying those guys $20 million a year to run the Workers' Compensation Board. It is big business and their overseas investments, from what I understand, are over $200 million. We are talking about unfunded liability. I heard them mention that the other day.
I remember when Dr. Elgie was brought up on the mat here at Province House and Jay Abbass had brought him in. Dr. Elgie said, well, I guess the only thing we are going to have to do, you guys were talking about the unfunded liability, he said, is sue Sydney Steel. Sydney Steel owes us over $200 million. So I mean if that is not blackmail, what is it? They are going to sue Sydney Steel for the unfunded liability? I mean, we all know what happened after that. After that a knock came on the door and he said, what exactly is it that you want? I could probably tell you the conversation word for word and the conversation went down like this, you just do whatever you want with the Workers' Compensation Board because Dr. Elgie was brought down from Ontario after he ran the compensation board in Ontario and knew all the ins and outs.
They got the window almost closed now where a person can receive workers' compensation. If you are an 85 per cent or 86 per cent level of losing the case, what is the point? What is the point of the Workers' Compensation Board at all? Let's just dismantle the whole thing, hire a private insurance company and forget about the compensation board because it is not doing its job. I mean you can look at it whichever way you want to look at it but the bottom line is, let's shake the crap out of the blanket and it is time to go. Let's get rid of them.
If you have got any questions that you want to ask me in any areas of the Workers' Compensation Board, I will try and answer them the best way I can. The only thing I can tell you is, there is an answer for everything in there and it is a simple one. It is not a complicated one like they are writing up in this Act. The Act is only designed to stop the injured worker from getting his fair due. Now something has to be done about this and if people can't speak up for what they believe in, there is something wrong with the system. This is supposed to be
a democratic society. The compensation board breaks every issue of the democratic society. Democracy is gone as far as the compensation board is concerned and somebody should charge these people because the injured workers don't have enough monies to do those things themselves.
MR. COMEAU: No disrespect to the Liberal Party, but I have a letter here from Anne Clark and it is to David Stuewe from Judith Ferguson and it is to Anne Clark and David Stuewe in response to the minister's request to WCAT to delay chronic appeals. In it, she tells why she is going to do it. I think it is clear that the Minister of Labour, by looking at the amendments of Clause 3, the objective of the amendment and what he says is, the amendment will allow the WCB to make payments and provide functional restoration services to certain workers with chronic pain injured prior to February 1, 1996. So it is very clear that the minister wants to exclude - and I have talked to lawyers about this and they say the same thing - anybody with chronic pain from receiving compensation for their workplace accidents, for their injuries. I think it is up to the PC and the NDP of the select committee to make the right recommendations that would allow these people to be compensated fairly.
MR. CHAIRMAN: Is there anything further to add? I have some questions but I want to make sure you . . .
MR. GALLANT: Well, I would like to have a few questions from the floor pertaining to the compensation board. I know there may be a few things that I missed. I am just shooting at you people from the top of my head here. What I am saying is that I am not that nervous anymore so anything you want to say or throw at me, go ahead and do it. It just takes me about five minutes to get in the same position that you guys are and I can really shoot my mouth off.
MR. CHAIRMAN: Maybe it is the room, Mr. Gallant.
MR. COMEAU: I think it is the chair. It is Russell MacLellan's chair.
MR. CHAIRMAN: I have a question, I guess, for any one of the members of your panel and it has to do with the deeming provision. As part of the restoration initiatives in the Act, there is a provision where a worker can be, after having completed courses, deemed to have received a certain amount of income. Have you and your group found any difficulty with that particular process?
MR. GALLANT: I was on a training program with Drug Dependency. I was re-injured. I had an appeal, I had to appeal this. They signed an agreement saying that they would take all responsibility for anything that happened to me. I fell down the hold on a ship. I tore the ligaments and cartilages in both knees in 1964. This came back on me. Arthritis set in. I got floating pieces of material in both knees. I have disc problems in my back and I injured my cervical spine. I had to take this to appeal.
See, with the Workers' Compensation Board, appeals really don't mean anything. What an appeal means is that you won a case, means to you. What it means to the compensation board is, we will pay what we feel like and that is exactly what they did. I won an appeal, it is like Rick Clarke mentioned yesterday. What they do is, they cross the street to find the job where that person was working rather than the actual job where that person was working at. Now in my case what they did is, they pulled some number out of the air, I don't know where they got it, but they paid me a year's back wages which was $13,000. I was working as a counsellor at Drug Dependency. I think each and every one of you will agree that $13,000 - now according to the Act, it goes under learner and under learner the Act states that they have to pay the same amount of money that that person that worked at that same job that you worked at was making. Now where did they get the $13,000? In this case, it is misappropriation of funds and that is the only reason why I bring it up. I am not going to get personal with you but that is what they are doing. This is misappropriation of funding. If they stole my money, this is money that I was supposed to get and I won the appeal. In the appeal I won a PMI. I was assessed at 10 per cent but they said it was pre-existing. The doctor's report said, this would have been asymptomatic had I not had this last accident.
Now I was 49 years old and my left arm went numb on me. If you are 49 years old and your left arm goes numb on you, you quickly report it to a doctor. The first thing you think of is your old ticker. Well, what happened was, I had this injury and my arm went numb from the injury and I knew what it was about. I brought in a report stating that I never had this problem ever before. Dr. Reardon had been my doctor for the past 15 years and knew I didn't. The bottom line was is that they still didn't acknowledge the fact that I had won this appeal and pay this in. So they can literally do what they want to do with whatever they want to do. There is a little clause in the Act, if you read it, that covers every loophole that you try and go through.
MR. COMEAU: If there is not one there, they will write one.
MR. GALLANT: And if there isn't one there, they will make their own decision on it or some policy will come up and they will stop you. This stall tactic with the waiting periods, when a Supreme Court order is in, think about this. It takes five years or six years before they make a decision on whatever they are going to implement into the process, right? After that period of time when they are implementing this process, that five years is gone by that they are not paying any of these claims. Then after that period, these people have to appeal this issue and then they have to win the claims. Now the amount of claims that are winning, think about the monies that are coming in from the funding from companies and businesses in this province that are giving these people money and where this money is going. It is certainly not going to the injured workers. Instead of being part and parcel of what it is supposed to be doing, it is detrimental to the injured workers' health, his mental capabilities and his mental health. I don't think this is right.
Somebody said how long - last night, I think you mentioned - should this go on? This has gone on long enough. These people have suffered enough mental anguish with these cases. All of these cases that they have left go by the wayside, they should be all turned over right now and all these people should be awarded their claims. None of them should lose because the bottom line is, if they have the medical evidence to back them up, then that is the way it should go. As far as I am concerned, it is just ridiculous to leave these people waiting for a period. My first accident was in 1992. I am still in the appeal process and he is looking it over to find out if it is not over $500, then he won't appeal my case. If it is not over $500? I said listen, if it is not over $500, you jam it. Tell them to because it is ridiculous.
MR. COMEAU: Mr. Muise died November 15, 1994 of unrelated causes. That is the court of appeal decision I was talking about earlier, and that is going on. He has been dead for four years. A lot of people, I think, die of natural causes before they would ever get finished with the WCB.
MR. CHAIRMAN: I believe Mr. Power has a question for you.
MR. MICHAEL POWER: Yes, I think I have to stand up. You started to answer my question. You have been in the system since 1992 and you have a present appeal?
MR. GALLANT: Yes.
MR. POWER: You are not represented, I gather, because . . .
MR. GALLANT: No, I am represented.
MR. POWER: You are? Through the?
MR. GALLANT: I am being represented now.
MR. POWER: Is that through a private lawyer?
MR. GALLANT: No, through the Department of Labour.
MR. POWER: Through the Workers' Advisers Program?
MR. GALLANT: Through the Workers' Advisers Program. Just where it is going at, I don't know.
MR. POWER: And in your appeal, Mr. Gallant, you are owed back time or arrears, would that be the case?
MR. GALLANT: I am owed an amount of money. The amount of money that they paid me wasn't the amount of money that I was earning on the job that I was on. Basically, what that means is, if you had an accident here and you fell, they would have to pay you the maximum benefits that are allowable at the Workers' Compensation Board but you wouldn't have a problem with that but in cases where other people that don't speak out for themselves, they have a problem with these issues and what they do is, they walk all over them. The fact is that I am who I am and I am one of those guys, I speak up and I speak up for the injured workers in this province and in this area right now.
MR. POWER: That was my second question. Mr. Gallant, in your association, how many are in your association?
MR. GALLANT: In the association right now, there are probably 47. We have only had one meeting in the past four or five years but there has been like another 300 in my area that I have helped with compensation issues. So we probably have about 500 members.
MR. CHAIRMAN: Thank you very much. Mr. Corbett.
MR. FRANK CORBETT: Mr. Gallant, I would like to ask you something. I know it wasn't in your presentation and many groups, especially injured workers groups have spoken about it and I am probably looking more for an opinion from your group on the ADR process, the process itself. What is the collective opinion, I guess, of your group on ADR?
MR. GALLANT: Well, I would ask Allan Comeau to answer that for you. He is more up on that than I am.
MR. CHAIRMAN: Allan.
MR. COMEAU: If the FRP regulations are done away with, then the FRP will not be a good idea. I mean people will be (Interruption) The ADR, I am sorry. People waiting five, six, seven years, if you offer them a little something and they are able to pay a few bills, they are probably going to take it and that is what the WCB is counting on. They have starved these people out. People are on welfare, they have lost (Interruption) Go ahead.
MR. GALLANT: They have lost everything dealing with these situations and basically what happens is they become distraught, mentally torn apart. I have just watched the whole scenario go down. You would never believe some of the things that I see. If I took you with me and showed you a few of the people that I know that have been dealing with workers' compensation, you would never believe it. You just wouldn't believe it.
MR. CORBETT: I think I would, actually.
MR. GALLANT: No, no, no. You would not believe it. Believe what I am saying. I will give you one case in particular. One case in particular, the guy worked, he was a paraplegic. He is paralysed from the waist down, had a report in because his work station had caused him severe trauma to his cervical spine. He brought the report in from his doctor and his doctor sent the report in that the work station caused his trauma. This was presented to David Stuewe, he knew all about it, and he rejected this man's compensation. The only thing the man had left was this. Now he is in chronic pain. He can't get up for more than an hour without getting chronic headaches and he has to take pain relievers to relieve the chronic pain that he has. Nothing has happened and his claim hasn't opened. This is like two and a half, three years ago now. This is the kind of situations that they treat people in. Like this poor guy has to lay down there and probably half of this thing is caused from this trauma that the Workers' Compensation Board has put him through.
If he had his money going through and things were kosher, he probably would be feeling a lot better about himself, mentally. I mean physically, there his no way that you can pick this guy up but I mean when you are almost down and out and something else happens to you, half of your body is gone and another part of your body goes and they don't want to take responsibility for you, you have to take a good look at that. This was handed right to him. So what is he going to do with the average guy with a knee injury or a hand injury or a leg injury? If he has done that, you have to take a good look at what this man is made of.
MR. CORBETT: Keeping on the line of the ADR process and something that you folks had put in your brief, you talked about, basically a polite way of putting it, the blurring of the lines between the WCAT, Workers' Advisers Program and WCB, it seems to all fall under one umbrella. At the ADR process, do you find that there is enough separation of those three bodies? We have been told by those groups that on more occasions than not that they have advised workers not to take what was offered and indeed when asked if you low-ball your offer, the board does and then you try to negotiate up, they said, no, no, no, that is not what we do. We make an offer and it is what we assume is a fair and equitable offer and there is really no negotiation at that point. It is, here is a fair offer. If you don't think this is where it is at, you can move on to the next process and indeed, we have been told by all the players in there, except for the injured workers, that they have often said to the people, no, this is inadequate for you and you should move on. Has that been your group's experience with ADR?
MR. GALLANT: That is my point exactly. My point exactly is what I am saying to you is that the Workers' Compensation Board does whatever they want to do. So basically it doesn't make any difference. Those things should be taken out of there. All those things should be taken out of there. There is simplicity in this. If you see the simplicity in it and how easy it is to run across, all you need is a medical report from a specialist. If they need two, then get two but we don't need a medical board at the Workers' Compensation Board. That medical board was only there to deter injured workers from what is going on. That doesn't need to be in place down there. It doesn't need to be there. Those claims adjudicators should
be working in reverse of what they are doing. They should be working for the injured workers rather than against them. Then we wouldn't have these problems we are having.
[2:00 p.m.]
MR. COMEAU: If I am not mistaken, I think it is offered at WCAT level, is it, the ADR process?
MR. CHAIRMAN: Yes.
MR. CORBETT: It is at that level but I believe it is administered and put forward by WCB.
MR. COMEAU: But I think it is inappropriate for WCAT to delay claims, which they have done, and then offer a settlement, or this type of package, in order the speed up the process. It is a contradiction, I think.
MR. CHAIRMAN: Yes, ma'am.
MS. LANDRY: May I ask a question? I may seem stupid but what is ADR?
MR. CORBETT: Alternate Dispute Resolution.
MS. LANDRY: Okay, Alternate Dispute Resolution. It has nothing to do with coming from appeals hearings, say when you come from a hearing officer and there is like an appeal and then taking the next step to go to the tribunal hearing?
MR. CORBETT: It is before the tribunal stage. As explained to us, and I don't know whether I should be the one to answer this or not.
MR. CHAIRMAN: You are doing a good job, Mr. Corbett, go ahead.
MR. CORBETT: It is given as an informal offer by the board and at this hearing the injured worker is there and I think representatives of WCAT and if you have a workers' adviser, they are present at this informal hearing. It is a without prejudice offer. They may make you a lump sum payment. They have abilities to maybe offer (Interruption) Yes, right now. Or they may do something in the way of an ongoing pension. I guess what I was trying to ferret out with my question on the ADR process was, we are hearing two stories, one from the board that these offers are a fair and adequate offer and that the injured worker is given proper counsel on whether to accept or not and we are hearing from the injured workers, saying, no, as Mr. Comeau said, they are in a vulnerable position and given the lump sum payment and knowing that they are behind on bills that they accept this money and run.
MS. LANDRY: I was at the Workers' Compensation Board last week and while I was there waiting to see somebody, two people came out. One person received a lump sum of $80,000 and another person received a lump sum of $60,000 for chronic pain. I believe that is what you are talking about.
MR. CORBETT: It is not necessarily chronic pain, it is across the board.
MR. COMEAU: Has the Workers' Compensation Board talked about the MLDA that next month, I think, they are putting it into use at the special services unit?
MR. CORBETT: Well, we have had conversations with the board about that, they have put it forward to us.
MR. COMEAU: I don't know if legislation is needed to pass something like this but we have spoken with injured workers groups in Alberta where it is being used and that is the same people who put it together for them. What it does is it is minimizing people's disabilities, injured workers' disabilities.
MR. GALLANT: No disrespect to your people, but the bottom line is that I don't think that anything that you implement at the Workers' Compensation Board in six months time that they won't find a loophole to get out of it. There is only one way to change the Workers' Compensation Board and management has to go because the bottom line is that nothing is going to change down there unless that management leaves. These guys have ringers that will find a loophole in anything. They have ringers that they hire there that know the Act inside out and upside down and they can argue with any lawyer down there about the Act and they can show the lawyer where the lawyer is wrong and they are right. Every time you impose one problem, they can show you another area that shows you that that problem can be adjusted over here. You turn to this page and that page, when they don't even know and they don't even bother checking on an appeal award.
My appeal award was won by the external appeal board on its way out. I had already had my appeal with the Workers' Compensation Appeal Board. Listen to this one. I had an appeal. They had two representatives from the Workers' Compensation Board, two judges, and myself with no representation. They said because I was qualified and knowledgable in the Workers' Compensation Act, that they would deal with me in that process. So they scrutinized me there and they turned me down. At the external appeal board, I had five medical reports from five different specialists. They said that I had the pre-existing injury only nobody bothered looking into the records and found out that on my way into the rehab, while I was on compensation, I slipped and caught all my weight on my left arm and was being treated by Dr. Colwell at the rehab for this pre-existing injury that they kept kicking on. Nobody bothered to go through my file.
So what they did is they just went from the basic file that they had and they made a judgement on my case. That is what they do in most cases. It doesn't make any difference what you people are going to say and it doesn't make any difference what laws you are going to implement in there, the only way to do it is get rid of management and get rid of that Act. That Act has to go. Management isn't going to change their minds about how they are dealing with people. The workers' compensation has set itself up to be a business-like forum. Its biggest deal is to have a laugh about how many people they turn down. Obviously that is what they are doing. I mean you can't justify anything that they are doing down there. Anybody who justifies anything that they are doing down there doesn't have any respect for man or womenkind because these people certainly don't have any respect for them and you can't go to Human Rights, you can't go to the Ombudsman's office and get anything done. That is what they are designated and their jobs are there for. Why can't you go there?
Now I would like to ask you all a question. Why can't I go there and have things done? The Premier gave the Ombudsman the power to deal with this situation. Why didn't he deal with it? He had my case down there and he didn't like the way I talked to him. Well, I am sorry but I am a human being, the same as he is and I am due the same rights that he is and he is no better, I am no better and he is no worse and I am no worse. The bottom line is that when he talks to me with disrespect, he is going to get the same thing from me. When you walk in with your nose cocked up in the air and he thinks he is better than me, I got news for him. I might be disabled but on a playing level basis, he is no better than I am and the bottom line is, if he don't want to deal with my case, that is up to him but the frustration and the anguish that I was going through dealing with this case, he should have understood that and if he didn't understand that, then he doesn't understand anybody that is dealing with the Workers' Compensation Board because that is the frustration they go through and it is just ludicrous the way the province lets this keep going on.
You know we don't have to take a lead from Alberta or hire an executive director from Alberta to do this thing. You know those guys, they got ringers out there, they bring one down here and they hire him as executive director, Jim McKitterick. You know what I mean? When you are taking these people down here from out-of-province deals and then you bring them into this area and this guy is supposed to deal with the situation, he has already learned the loopholes out in Alberta. Check the records in Alberta and find out how many, exactly, that these people with chronic pain out there won and then they bring a guy down here who just happens to be experienced with chronic pain and knows every aspect about it. That is what we deal with. I mean this is ridiculous. We got nobody here that is qualified to do that?
MR. COMEAU: I would like to say thank you for letting us make our concerns known. We don't have legal representation representing us so, I don't know, the format might not come across so well. One suggestion I could make and Linda Zambolin or any of the workers' advisers know the problems the injured workers are having. They know the legal aspect of it and they know what is being done and what is not being done right. Their advice might be helpful for you in making your recommendations to the Legislature. Thanks again.
MR. CHAIRMAN: Thank you very much. I don't know if there are any other members . . .
MR. GALLANT: I would like to thank you all and peace.
MR. CHAIRMAN: Yes, go ahead ma'am.
MS. LANDRY: I would like to make a comment. I never made a submission or anything but in regard to the staff at the Workers' Compensation Board, I personally dealt with a member of their staff back in 1994 who was a rehabilitation counsellor. To make a long story short, in my case, I never met the gentleman. I had a brief conversation with him in regard to rehabilitation programs. Several months went by and this gentleman who worked in Sydney was under an investigation because of the way he was handling cases and with the clients in rehab. He was also giving out money illegally to some people. He was also blackmailing people, injured workers.
An investigation was taking place at that period of time. The person who was involved with me made statements in my files that I was unwilling and uncooperative to meet or to have anything to do with vocational rehab. I have never met the person. I don't even know what he looks like. I was supposed to meet him on a particular day and he never showed up.
Now, this particular person has been investigated by Workers' Compensation Board and has also been deemed for an early retirement package. Nothing has been resolved on that matter. That goes to show you one person can be crooked within the Workers' Compensation Board, such as this person, and let go with an early retirement package. Everything was hush hush. Yet, today, I am still investigating for this investigation to be resolved. It has not yet been resolved.
That goes to show you, when staff members at workers' compensation can help each other in that category, can you imagine what else has taken place? Thank you.
MR. CHAIRMAN: Thank you very much for being here with us. I would like to thank your group for being here today. We have heard from a number of injured workers' groups throughout the province. I can tell you, on behalf of the committee, it has been truly useful, particularly when you have a group like yours because they deal with a wide range of problems for all sorts of injured workers. Thank you, again.
MS. LANDRY: Thank you very much. You have to excuse them. They are very nervous and they have been through a lot over the period of years. Things are very hectic.
MR. CHAIRMAN: No, no, thank you. Bye-bye, now. Our next presenter is Mr. Richard MacDonald. Is Mr. MacDonald coming? Good day, Mr. MacDonald. Just have a seat.
MR. RICHARD MACDONALD: I would like to thank you for listening to me today. I have a few things that I would like to address. One of them, I have a letter here I would like to read first. It says:
Under the former Workers' Compensation Act, workers' pensions would receive a 2 per cent increase for every 2 per cent increase in the Consumer Price Index. The last year in which there was a Consumer Price Index increase of 2 per cent or greater was 1993.
The current Workers' Compensation Act which went into effect February 1, 1996 does not provide for cost of living increases until the year 2000. Commencing January 1, 2000, the Board shall, as of the first day of January in each year, determine an indexing factor based on one-half of the percentage change in the Consumer Price Index for the preceding year and adjust the amount of compensation payable as permanent pensions payable pursuant to the former Act, as in my case.
What that is saying is, anybody living on pension, which are generally very low pensions, have not had an increased cost of living clause since 1993. During that same period of time, government workers had their wages froze.
Now, any government worker during this time that was making under $25,000 per year did not have their wages froze. I am getting a compensation pension in the area of $5,000 a year. I have this froze. I see quite a bit of an inequity there. I don't think it is fair at all.
Beforehand, before 1993, if it went up 3.9 per cent, we got a 2 per cent increase, we did not keep up with the cost of living. I have some figures here to show, over the years, the inequities. I have a 20 per cent disability, is what they base, on one leg. That gives me $328 a month. The average worker doing the job that I was doing when I was injured makes between $36,000 to $40,000 a year now. At 20 per cent, I would be getting a lot more than $328 a month. I am working on, actually, about a 10 per cent pension that should be a 20 per cent. This is supposed to be based on what I have lost, wages. Well, they are not basing it on that because I am only getting half of what I am supposed to, according to that.
I believe this has to be changed and it has to be changed immediately. There are a lot of people out there in my position who are getting very low pensions, plus their Canada Pension, and just scraping to get by. To lose the cost of living protection that we did have, even though it was inadequate, it was something. I think that has to be dealt with as soon as possible.
Now, this was not done through the Workers' Compensation Board, this was done in this building, in the Legislature and I think it is very unfair. The government workers who have had their wages frozen have got that back. Many of them during this time have had quite good increases also through their labour - right here, nice article. Workers' compensation
raises rile of NDP. We are talking about people in the Workers' Compensation Board, themselves, getting $5,000 a year increases. I only make $5,000 a year, yet, you took the little bit of protection for inflation away from me that I had, the only type of protection. When you are living on under $12,000 a year and you lose that, you are losing a lot. I think this has to be dealt with as fast as possible.
That is my main point that I wanted to make today.
MR. CHAIRMAN: Well, thank you very much.
MR. RICHARD MACDONALD: I have a few others that I would like to speak to.
MR. CHAIRMAN: Go ahead.
MR. RICHARD MACDONALD: Number one, we are looking at the meat chart. As I said, I get 20 per cent for one leg. I have two legs injured.
MR. CHAIRMAN: What was the date of your injury?
MR. RICHARD MACDONALD: I have had two injuries. My first injury was February 1977; the second was November 1980. I got 20 per cent for one; I got 15 per cent for another. What they did, it was actually 17.5 per cent on one leg and 15 per cent on the other and they gave me an extra 2.5 per cent where it is the bilateral problem because of two legs.
MR. CHAIRMAN: So your total percentage, PMI, is 35 per cent?
MR. RICHARD MACDONALD: Well, that is what they say but it isn't actually 35 per cent because I was at a different job when I hurt my first leg, making a little less money.
MR. CHAIRMAN: What was your line of work, sir?
MR. RICHARD MACDONALD: Well, any type of work I ever did was always heavy manual labour.
MR. CHAIRMAN: Okay. Were you working in the construction industry?
MR. RICHARD MACDONALD: No, I was working at a warehouse on the first one. I was working at the Ministry of Transport, federal government, second.
MR. CHAIRMAN: Okay, so you were working with the federal government when you were injured the first time?
MR. RICHARD MACDONALD: No, the second time, the second injury. One of the problems there, I was sent back to work too early and trying to protect the bad leg, I ended up injuring the other.
The problem I have with the percentages, I thought the meat chart was supposed to be done away with a few years back. It was in the papers. They were talking about how the meat chart is gone. You know, we are going to work on a better basis, the whole shot. Well, I haven't seen any better basis. I have not been able to return to work since I have been injured a second time, yet, I am receiving a 35 per cent instead of a full.
I have just recently been reassessed through Canada Pension. They're trying to get people back to work now, causing headaches, causing people to worry, et cetera.
I went through the process and they agreed, no, there is no way I can possibly be retrained or go back to work. They agree I am 100 per cent disabled. The Workers' Compensation Board looks up at it as 35 per cent. I think there are a lot of inequities in that.
I am in for an appeal. It is over two years, now, since I first tried to appeal to have my pension upped. During this time, I have been told by the Workers' Advisory Board, well, we don't know if we have a very good chance of winning your case so we don't think we can take it. I have argued with them, they want to take it and now I don't hear back. I don't know, really, what is going on with it. I hear a lot of garbage.
The fact is, they don't want to really take it because they don't think they are going to have a good chance of appeal. The reason, he says, he doesn't think I would have a good chance of appeal - instead of going to an outside board, we will go to the person who originally turned it down in the first place. So you're not getting a fair look at it. If you are having the same person look at an appeal that originally turned you down, where is the appeal?
I have another problem, also, when they are dealing with people who have older claims like mine. Any time something new comes in the Act, they will use it when it suits them but it is against me. If it suits them they will use it. If is the other way around, or if it will help me, it doesn't seem to work that way.
I have three letters here that can show that. This one here, these changes to our current appeal policies come in effect March 1st so I have to follow the new changes there, according to that. This one here from the Workers' Advisory Board, under the current compensation law which came into effect February, 1996, there I have to follow new laws. But here from the Workers' Compensation Board, themselves, the compensation award is deemed to be in accordance with the provisions of the Workers' Compensation Act, R.S.N.S. (1989) C 508 (the former Act). They use the Act when and how they want to make it fit to the best of their way of things, not to the best of the worker.
I also heard Mr. Peter O'Brien speaking yesterday. I was watching it on TV. Mr. O'Brien had mentioned on chronic pain, that it would be opening the floodgates. Well, what I had just said on what they will be doing, they look at one part of the Act or the other to make it fit where they want and let you fall in the category where you don't have to be paid. I think the floodgates have been opened the wrong way. People are being severely hurt because they are not being compensated for pain, for their injury.
He also mentioned that this Act started in 1917 to give workers a chance to be looked after for their injury, rather than going through the court process. Well, I think if I had a chance to go through the court process, rather than go through the Workers' Compensation Board, I would have done much better for myself. I would have been compensated for pain, I would have been compensated for the full injury and I would have been a lot better off today. If they want to open the floodgates, they are letting it run the wrong way. People are getting very upset and it is going to have to change. You are going to have an uproar with the injured workers on this. There are many problems that have to be dealt with.
Chronic pain, I don't care if you were injured in 1966, 1976, 1986, 1996, if it is there, it is there and you should be compensated for it. It is not right that one person can get it and another can't. We are both workers in this province. We should both be covered the same way.
I also have another thing and it is the last point. This is, Work Accidents Up, Law Stays Down. On the end of it, it says, the Annual Report of the Workers' Compensation Board concludes new Act passed in February, 1996 has been effective in approving benefits for those most in need. I would like to know where they get that. The ones most in need I see are the ones trying to live on very small pensions. They have not improved mine at all. They have made it a lot harder. Thank you very much.
MR. CHAIRMAN: Thank you. I just have a question for you. Are you in receipt of the Canada Pension disability benefit?
MR. RICHARD MACDONALD: Yes, I am.
MR. CHAIRMAN: So is your pension subject to the so-called top-up to the $11,500?
MR. RICHARD MACDONALD: Well, because I have a child and they take into account the money that I receive for that child, I am just over the amount that I am eligible for so, therefore, I don't get the top-up.
I receive - I forget how much it is - $170-some a month, my Canada Pension, for my child and that puts me over. Although, that should not even be considered into it, that money that is there for the child. That puts me over the top-up.
MR. CHAIRMAN: So they are deducting, not only the Canada Pension that you get . . .
MR. RICHARD MACDONALD: They're deducting what I receive for my child, also.
MR. CHAIRMAN: I take it you feel that that is very unfair?
MR. RICHARD MACDONALD: Yes, I do.
MR. CHAIRMAN: Yes.
MR. RICHARD MACDONALD: That is there to help my child through school.
MR. CHAIRMAN: The PMI assessment that you have of 35 per cent, I take it that is not under appeal. What is under appeal - I'm just trying to understand what your appeal relates to.
MR. RICHARD MACDONALD: What I am appealing is the fact that I am getting 35 per cent for an injury that has left me 100 per cent disabled.
MR. CHAIRMAN: Okay, I understand. Yes, Mr. Parker?
MR. CHARLES PARKER: Mr. [Richard] MacDonald, your story is all too familiar, I'm afraid, and we have heard from dozens of people over the last couple of weeks.
MR. RICHARD MACDONALD: Yes.
MR. PARKER: Everything you are telling us is not surprising. We have heard it too often, unfortunately. I just had a couple of questions for you. You are getting 35 per cent PMI or 20 per cent? I wasn't clear on that.
MR. RICHARD MACDONALD: I have two claim numbers, a claim number for my left leg, I get 15 per cent and a claim number for my right leg, I get 20 per cent.
MR. PARKER: So you get two separate cheques?
MR. RICHARD MACDONALD: Yes.
MR. PARKER: Okay. Does it add up to 35 per cent or are they based on different amounts?
MR. RICHARD MACDONALD: Well, actually, like I explained earlier, the 20 per cent is not even 10 per cent of what I would be getting if I was working.
MR. PARKER: They are based on two different incomes so . . .
MR. RICHARD MACDONALD: Yes, they are based on two different incomes. I don't know what I would be getting at the job that I did when I was working.
MR. PARKER: So they may not necessarily add up to 35.
MR. RICHARD MACDONALD: It would be well under that.
MR. PARKER: It is 15 per cent of one amount and 20 per cent of another amount.
MR. RICHARD MACDONALD: Yes, but it would be definitely well under the 35 per cent.
MR. PARKER: Okay. The other thing you mentioned there is that your Workers' Advisers Program, you felt you were having trouble getting somebody to represent you because they thought you couldn't win your case?
MR. RICHARD MACDONALD: Well, basically, that is what I was told. I do have a letter, basically, to that effect from them, yes.
MR. PARKER: Do you have a workers' adviser at this time?
MR. RICHARD MACDONALD: Yes, I have talked to him on the phone a few times. I'm supposed to have a hearing sometime this month yet, I haven't heard when it is going to be.
MR. PARKER: Under the old system, there used to be the opportunity to have a private lawyer. Have you ever had that system?
MR. RICHARD MACDONALD: Yes, I've actually gone through appeal twice. I started out with a very low pension and then was up to, I believe, 8 per cent and 7 per cent, each leg. The last time I had appealed was when it went up to the . . .
MR. PARKER: Of the two systems . . .
MR. RICHARD MACDONALD: Well, that is what I was just going to get to.
MR. PARKER: Okay, go ahead.
MR. RICHARD MACDONALD: What had happened before, I would go to see a lawyer, if you knew which lawyers were working on these things, you phoned them, made an appointment and saw them. They took control of you from there. They made appointments with you to see specialists. They did everything that was necessary.
Now you can't do that. I couldn't get in to see a specialist on this. I can't afford to go myself. My doctor had actually made an appointment for me to go see him and put it under MSI just so I could see him beforehand. I didn't get all the work-up done that I should have had, everything done that should be needed to go through an appeal process.
MR. PARKER: So of the two systems, the old private lawyer system, or the new . . .
MR. RICHARD MACDONALD: I found it much better, yes.
MR. PARKER: You liked the old system better?
MR. RICHARD MACDONALD: Yes, well it is much easier to deal with. Now they are expecting you to do so much more and many injured workers, like myself, we don't have a lot of education. We worked at manual labour. We did a job that required our body, our strength and we didn't work with our minds, basically. We don't know a lot about going through this on our own.
MR. PARKER: Okay, thanks very much.
MR. CHAIRMAN: Thank you. I believe there are no further questions from the committee. Thank you very much for taking your time, Mr. [Richard] MacDonald, to be with us here today. We certainly appreciate when injured workers can do that to share their problems so that we can see what we can do. Thank you.
MR. RICHARD MACDONALD: Thank you very much.
MR. CHAIRMAN: Mr. Wallace Peters. Have a seat, Mr. Peters. Start whenever you're ready, sir.
MR. WALLACE PETERS: Okay. Hello everybody, I'm Wally Peters. While working at the steel plant in Sydney, I injured my back in 1978. Now, that is when hell broke out on me. I was sent up here to the old Civic Hospital to see Dr. Howe, Dr. Huestis and Holness. At the time they told me I had four discs gone. They sat at the foot of my bed and they said to me right there, well, what you did yesterday, you can't do today. They said, you've got to change your lifestyle completely.
[2:30 p.m.]
MR. CHAIRMAN: You hurt your back. Was that the kind of injury?
MR. WALLACE PETERS: I had injured my back, the discs, L3, 4, 5, and S1. They told me, what you did yesterday, you can't do anymore, no matter - I couldn't bend anymore, I couldn't lift anything. So now, I was 39 years old and he said, that's it. He said, you've got to change all your lifestyle, no matter what, because you've got to be careful.
So I said, well, what about getting an operation? They said . . .
MR. CHAIRMAN: You should probably lean forward a little more to your right.
MR. WALLACE PETERS: Lean forward, okay.
MR. CHAIRMAN: Yes, just a little closer. That would be great, thank you.
MR. WALLACE PETERS: They should have this a little higher for a guy with a bad back. (Laughter) Anyway, then they . . .
MR. CHAIRMAN: They're not very comfortable for a guy with a good back, I can tell you that.
MR. WALLACE PETERS: No. I said to them, what about an operation? Well, he said, listen, I could operate but there is a 5 per cent chance you walk. I'll get rid of your pain but you maybe won't be able to walk. So that's fine. So I said, well, I didn't fall off the turnip truck and land on my head, we're not operating.
So then I had to go to compensation and they said, well, we'll pay you so long and then we'll put you in appeal to see if you can get a pension. I think that is in 1978. In 1979, I went into the appeal process. In 1980, I went in front of the board and got 10 per cent.
MR. CHAIRMAN: You got a 10 per cent PMI?
MR. WALLACE PETERS: That's what I got. That is a wonderful amount now. I said, well, gee, I can't live on this. I said, I want to try to go back to work. Okay. I went to the company and I said, can I come back to work? They said, you can try, so that is what I did. I lasted, maybe, three weeks. The back just wouldn't hold up. No matter what I did, I just couldn't do it.
I came back and I went to see - at that time you had lawyers - the lawyer and, he said, yes, we'll put an appeal in and see if you can get more. Okay.
By this time, now, I can't work. Compensation - the last time I worked, I got hurt but they said that it wasn't as bad as the first time so I could get up around. Like, I can walk around. As long as I don't do anything, I can walk a bit, eh? I'm doing all right. To you, it would look all right but my back looks terrible.
So they said to me, well, we'll pay you compensation for three months. That's what I get. Now, after that, all I get is the small pension. At the time it was $81 and I'm not getting any more. I have a wife and three children and I'm getting $81. Now, you call that workers' compensation, I call it crazy. What they should do, workers' compensation and I will tell you right now, is get rid of it. If you get injured on the job, let the company be liable for whatever happens because most of them are liable. They put us through, doing jobs that we should not be doing and we get hurt there, doing their work. Let them pay us or let their insurance company because we sure are not getting them when we go in front of your board.
I had to go on welfare. Now, that was a wonderful thing for a man that was working all his life. Now, I was told that what you did yesterday, you can't do today and now you go on welfare. I went there.
Now, I'm just getting the bare amount. This is awful trying on anybody's nerves and almost drove me crazy. As it was, I was fighting with myself, trying to do things that I shouldn't have been doing and I was in more pain than I should have been.
Anyway, I somehow got through this, through trials and tribulations and I said, no, I'm going back to work. So I went back to the plant and I said put me to work. They gave me a job in the coke ovens. Now, that's a nice spot. You want to work there sometime.
MR. CHAIRMAN: We've heard about the coke ovens. It is not a nice spot.
MR. WALLACE PETERS: You should have been there. Even your lunch tastes good but anyway I went to the coke ovens and the guys in the coke ovens that I worked with, they were good, I got to admit, because they had put me on what they call a stacker and the other fellows did the work and I just stood around. Now, that's the men that were there looked after me. It wasn't the company. It was the guys that were working. The guy that worked the machine, he would get off the machine and go down, if I had to move a cable, he would move it for me, okay. So I worked there for almost a year in the coke ovens. How I survived that I don't know but I probably got cancer anyway. Then one night we were out there and something happened and I had to move the cable myself and I just moved it a little bit and my back went. That's the last time I worked. So then I went on workers' compensation at this time. They give me three more months. Then away you go. That's it. You're cut off.
Now, at this time I had an appeal in so I went to the appeal board and I got another 10 per cent from the Workers' Compensation Board.
MR. CHAIRMAN: So you got a 20 per cent . . .
MR. WALLACE PETERS: So now I'm up to 20 per cent. I have got four discs gone. I can't do nothing but I got 20 per cent. I should be God's gift to the world with this, eh, all this money I'm getting. Now, that's $81 the first time. The cost of living bonus, I think it was up to $100 at that time, you know, you were getting a couple of cents every year at that time. So I was in no better off shape than I was. So I filed for Canada Pension and once I filed for Canada Pension I got it.
Now, according to Canada Pension I'm 100 per cent disabled. According to the Workers' Compensation Board I'm only 20 per cent, you know. So I say to myself who's the fool here? So I've been fighting with the compensation people ever since then and all they keep saying is the injury that you got is worth so much. The first time I got hurt, Dr. Holness said, when I was in Halifax, the first report, was 25 per cent to 30 per cent. After that there's doctors that said it was well over 50 per cent, okay, but I just get that 20 per cent. I can't get it up because this foolish thing they call the meat chart, and you don't believe that they still got it, I got one here that they just sent me in June. I'll give it to you so you can look at it and read how wonderful it is and do you know what it says on here? If I go and get this operation, which will cripple me altogether, right, I get an extra 10 per cent. Now, wouldn't I be a rocket scientist to figure that one out, what? You get me 10 per cent more of $316. It is $108 to be crippled and so you could push me around in a wheelchair. This don't make any sense.
Whoever is making the rules over there, I think they should be all taken out and shot because it is crazy. It is a terrible system. It is not for the worker. It is to protect the company for their own liabilities, the men getting injured on the work, you know. So I have been still fighting over this. Now, in 1994 I woke up, 1994, I started getting headaches and every day I seemed like I was getting headaches. It was here and in the back of my head. So after about six months I went to my family doctor and I just found this paper today when I was going through my papers looking for this. The only reason why I know about there was anything wrong with taking myelograms, is it, for your back was because I was down in Sydney and heard the people down there talk about it.
Well, I got a report here from 1995 when I went to the specialist and he said he couldn't find nothing wrong with my head or the back of my neck, the curve of the spine on the back of my neck, that's all right. There was X-rays and everything taken. That's all right. He said it has got to come from the injury. Yet I get nothing for it but I didn't know. Maybe I got this disease that they're talking about which I got to get the name of from one of you fine members before I leave here so I can go to the Workers' Compensation Board and say how do you do again. So they can tell me, now, go on back out, you know. It's a terrible thing when you go down to visit them. You're just not a person. You get treated just like
you're a piece of dirt. They don't care what predicament you're in. They got it set out that he's supposed to get x and he's not going to y no matter what. You're at x and you stay there.
Now, chronic pain, I got papers here that said in 1978 that I got to live with chronic pain. Do I get anything for it? I get chronic pain. That's what I get but why? And who is it to say that chronic pain should stop in - it only started in 1990, did it? How come my papers say that I got to live with pains. I tried them steroids and they almost killed me because the discs are squashed and when you put the needle in between them, they get entangled in the nerves. I almost went crazy. It wasn't my fault but this is what I had to do to try to get more money but I wasn't. Every time I went I wasn't getting no more money because you got your limit. You've got your 20 per cent. Twenty per cent is no good; $316, you try living on it. You probably get more than that in a day. This doesn't make any sense. Why should we be harmed because we got injured?
When we get to 65, our Canada Pension only goes from the years that we worked, right, so we lose all them years. Who is going to compensate us for that? Not the Workers' Compensation Board. The compensation, they only give to you a little amount. There's what you got. Well, what do you have - a little bit of workers' compensation, a little bit of Canada Pension, and your old age, and thank you. Now, isn't that a nice way to treat somebody because they were injured? It has got to be a fool's system. I mean throw the whole thing out and start over again and make it so that whatever the doctor says, if the doctor says to you, okay, buddy, you are 40 per cent disabled, give him 40 per cent. He's a specialist telling you but, no, you got a doctor down here that says, oh, we can't do that. Why can't you do that because the specialist - no, he's only a general practitioner. He might be able to fix a cold and he probably can't even do that, but look at your back, he wouldn't even know what he's looking at, you know. Why would they have these people there overruling the specialists.
There's no rhyme nor reason to the way this is run and you guys got a chance to change it but, like that other gentleman said today, if you want to change it, you get rid of the top, you know. You go with a knife and you skim the cream off the top, fire it out, because you've got to start with somebody that will listen to how the system works. It is there for the injured worker. It is not there for these people to make big money. It is there for us to try to get something so we can live with a little bit of dignity, you know. You would like to go through your life with a little bit of dignity and not begging for everything you get and why should I, or any other injured worker, have to beg to get a few cents out of somebody. It is stupid. It is not right.
If you don't fix it, I swear that there's going to be a revolution among the injured workers against whoever sets this thing up wrong because it is wrong. You got to protect them. That's what it was set out for. If the companies hate to pay the money, forget it, let them pay the next guy that gets hurt out of their insurance and see how much their insurance will cost. It will be a bigger amount than what they're paying for the compensation. Then
they'll shut their mouth but they got to do something to help us because we're just not getting enough to live on. We didn't ask to get injured.
MR. CHAIRMAN: Thank you very much, Mr. [Wallace] Peters. I'm not sure if any members of the committee have a question for you? One question that I had was, I believe you said that you have a workers' adviser that's representing you now, a lawyer?
MR. WALLACE PETERS: No, I had one. They got them advisers - listen, why would I get somebody that's working for somebody else, they're working in sequence, to try to help me? They can't. I went through this in 1978 and I know how the system works. As soon as they put in, they'll come to you and say, oh, well, you're only allowed 20 per cent because that's what the limit is, because this here meat chart, that's what it tells them and they say, oh, I can't help you. What do you mean you can't help me? I'm injured. I can't work. The doctors state that. Why don't I get paid? Why do I only get $300? If the limit is $1,500, give me the $1,500 then because I know when, the guys I work with, when they go on pension, they'll get around $2,000 or $2,500. What will I get? I'll work out to maybe $700. So where did the rest of the money go? I got to beg for something. Now, the other guy is going to enjoy a little bit of life but I won't because I got injured. Now, it is wrong. The system is wrong. Fix it but fix it right. Give us something. Like I live with chronic pain, give me something for it. I got to live with it. That's fine and if I've got this dye in my head, I got to live with it. Give me something for it. I didn't put it there, they did, you know, it is the injury. My injured back, if it is more than 50 per cent, give me the 50 per cent. I'm not asking you for something that I don't deserve. I'm asking for what belongs to me rightfully.
MR. CHAIRMAN: Thank you very much, Mr. [Wallace] Peters. Mr. Corbett, do you have a question?
MR. CORBETT: Yes. He had talked about the disease related to myelograms and I'm not going to attempt to name it. I will leave it to my good friend, the physician back here, if he wishes to, but we've come across this a few times and apparently in myelograms there's been a change in the composition of the dye but I'll give this to Mr. [Wallace] Peters when he's finished giving testimony.
MR. CHAIRMAN: Thank you very much, Mr. [Wallace] Peters, again, for being with us here today. Our next presenter is, again, it is Mr. Peters but it is a Mr. David Peters on behalf of the Nova Scotia Government Employees Union. Just have a seat, Mr. [David] Peters. Good day, gentlemen, whenever you want to start, go ahead.
MR. DAVID PETERS: Yes, thank you, Mr. Chairman. My name is David Peters and also with me is our policy analyst researcher, Ian Johnson.
MR. CHAIRMAN: Good day, Mr. [Ian] Johnson.
MR. DAVID PETERS: We're representing the Nova Scotia Government Employees Union and the 19,000 working men and women that we represent. We do appreciate the opportunity to appear before the committee and to offer what ideas and wisdom we can to improve the wording of the Workers' Compensation Act and the workers' compensation system.
As you may know, we are the single largest union in the province with 19,000 members, working in a wide variety of public services, such as health care, public schools, universities, community colleges, correctional facilities, provincial government departments, agencies and liquor stores. In particular, we are pleased to be able to say that we have the privilege of representing the 220 unionized employees who are the support staff and front line workers for the Workers' Compensation Board. As with other public services in the province, our members at the Workers' Compensation Board have been working very hard to offer the highest quality services they can under very challenging circumstances and as front line workers they often bear the brunt of injured workers dissatisfaction.
We incorporated their major insights and observations into our general comments and recommendations to the committee. We would like to note that it is unfortunate that it took an eight day sit-in of injured workers from Pictou County in order to have this committee set up to look further and delve into the problems with the Workers' Compensation Act. It was an action of last resort. We would suggest that the backlog which they were protesting should never have been allowed to build up and persist in the first place. An injured worker should never have had to put their health and their claims at a risk to draw attention to this longstanding problem. With the appointment of this committee and the resumption of the Legislature set for October 15th, all possible steps should be taken in the near future to resolve it once and for all.
Unfortunately, your committee meetings are held prior to the release of the independent audit of all aspects of workers' compensation by the Auditor General. If the mandate of this committee is, as stated in Resolution No. 844, to review changes to the Act and, in particular, to review the recommendations of the Auditor General, these hearings should have been delayed to allow for public comment to the committee with the benefit of knowing what the Auditor General might have to say.
At the same time, we understand the urgency of preparing the proposed legislative amendments for the fall sitting of the Legislature and we think it is timely to conduct an overall review of the impacts of the new Act. For such a review, it is vital to remember that the original purpose of workers' compensation, consistent with the Meredith principles - and we have attached to our brief, which is available for everyone, a copy of those for the convenience of the committee members - was to ensure all workers have protection and security through a publicly administered system in return for giving up the right to sue their employers. Anyone suggesting a move away from this purpose and those principles ought to
pause to reflect upon the tremendous human and financial costs of returning to workers suing employers about compensation for workplace accidents.
Our members at the Workers' Compensation Board stress how much the board has changed in recent years. The board of today is not the same as that of 10, or even five years ago. The appointment of a joint labour-management board in 1992 and the coming into force of the new Act in 1996 has led to a major internal reorganization of the board and how our members work together and deliver services. Many of our members have undergone extensive training and committed a great deal of their time and energy to learn and assume new responsibilities as quickly as possible. They are rightly proud of many accomplishments such as major reductions in the average time spent in processing claims and in issuing first cheques to injured workers. They generally feel the new Act has helped them operate under a clearer framework than was the case earlier, although they recognize that the system as a whole has become much more complex than it used to be.
At the same time, even with the recent improvements in the internal operations, our members agree that there is a serious problem with the resolution of older claims. While this issue only directly affects a relatively small number of our members in their day-to-day work, they want to see this problem sorted out as quickly as possible. While they feel more time and experience should help to make the new system more effective, they agree that a number of amendments may be needed to the Act to address persistent concerns of injured workers and the labour movement as a whole.
In helping to resolve the backlog, the major reason for the establishment of this committee and the major focus of public and media attention to workers' compensation seems to be the long-standing backlog of a sizeable number of appeals for the older claims. Everyone agrees that this situation must not be allowed to continue. Various remedies have been suggested by the minister and Opposition critics, such as: increasing the number of appeal commissioners for the Workers' Compensation Appeals Tribunal; establishing a medical review commission; setting up temporary one-person tribunals; and implementing alternative dispute resolution mechanism.
Our members tell us that increased staff resources or additional hearings may actually be counter-productive in a rushed effort in dealing with the backlog. They support more training for the commissioners, and better communication and coordination between the Workers' Compensation Board and the Workers' Compensation Appeals Tribunal.
The Workers' Compensation Appeals Tribunal has had to deal with a number of legislative and policy constraints that have prevented it from operating more independently and from being able to make decisions in a timely manner; in fact, a number of these constraints were identified by the labour movement and injured workers prior to Bill No. 122 being passed. The minister's request of July 20, 1998, to the Workers' Compensation Appeals Tribunal to delay rendering decisions on chronic pain appeals is one of the latest examples of
unwanted interference in the their operations and one of the reasons why there is an unnecessary backlog of appeals to be heard.
The NSGEU supports a combination of legislative and policy measures as proposed by the Nova Scotia Federation of Labour that seem needed to free up the Workers' Compensation Appeals Tribunal and to reduce the backlog. These measures include: amending the Act to allow the Workers' Compensation Appeals Tribunal to apply the Act to the facts of each case; establishing a broad right of appeal for workers to be able to appeal unfavourable decisions of the Workers' Compensation Board to the Workers' Compensation Appeals Tribunal; permitting workers to be able to present their case in writing or in short hearings; allowing workers to present new evidence to the Workers' Compensation Appeals Tribunal without referral back to the Workers' Compensation Board; mandating the Workers' Compensation Appeals Tribunal to give workers the benefit of the doubt rather than strict legal proof; requiring simple, one-page decisions with brief reasons instead of elaborate decisions with lengthy reasons; ending the possibility of employer participation before the Workers' Compensation Appeals Tribunal; eliminating the Alternate Dispute Resolution process since it has meant that workers are faced with a choice of giving up benefits in order to get a timely decision; and allowing injured workers to have access to independent legal counsel in addition to workers' advisers.
Regarding the levels of benefit, the new Act reduced many long-standing benefits to injured workers to the point where Nova Scotia has the lowest compensation benefits in Canada. In particular, we want to see the basic compensation formula changed from 75 per cent of net pay to 90 per cent of net pay which is the level of benefit received by injured workers in five other provinces.
We also recommend that legislative provisions denying benefits to injured workers for two days and disallowing the top-up of the difference between lost earnings and workers' compensation benefits by employers be eliminated. There appears to be some confusion around that. It is not very clear. At the very least, unions should be able to negotiate these two provisions in their collective agreements.
Regarding the powers of the Workers' Compensation Board, we are concerned that the new Act makes it possible for the Workers' Compensation Board, and even the Cabinet, to adopt policies and regulations that actually reduce or eliminate the statutory rights of injured workers to benefits. We believe the entitlement of workers should be based on the application of the Act to the facts of each case and not on the powers of the Workers' Compensation Board or Cabinet.
Two examples of specific injuries and diseases where the board has acted to arbitrarily limit the compensation to injured workers are chronic pain and environmental illness. Nova Scotia has the most restrictive policy of compensation for chronic pain in the country which is generally available to workers elsewhere. In Nova Scotia compensation is only available to
workers with chronic pain from accidents that have occurred between March 23, 1990, and February 1, 1996.
In a similar manner, the Workers' Compensation Board is very restrictive in allowing compensation for environmental illness despite the 1996 Supreme Court decision that ordered the Workers' Compensation Board to pay the medical treatment costs of a nurse at the QE II Health Sciences Centre. To discredit and undermine legitimate claims to compensation and other forms of government assistance, we remain concerned that the Workers' Compensation Board played a major role in re-establishing the so-called Langley Committee on Environmental Hypersensitivity which went out of its way to challenge the possibility of chemical exposure having anything to do with literally hundreds of Camp Hill workers becoming sick. That committee's so-called clinical guidelines are dangerously misleading and will make it much more difficult for patients to receive proper care and support. In addition, no other jurisdiction in Canada excludes stress in the definition of accident. Reference to stress being limited to acute reaction to a traumatic event should be deleted.
Still another arbitrary restriction on compensation is that associated with pre-existing condition. The Act should be amended to ensure that no reduction or denial of benefits takes place unless a pre-existing condition actually causes a disability before the injury and not just that it existed but created no disability.
We understand that Nova Scotia's Act is the only one that assumes a type or class of worker are excluded from benefits unless they are explicitly listed as being covered. Most other provinces do the reverse by assuming a given type or class of worker is covered unless explicitly excluded. We think it is long overdue that there be universal coverage for all workers regardless of where they work which has been recommended by at least two earlier select committees.
During the past year we went through a frustrating experience of pressing for coverage for paramedics who were excluded because most of them worked for funeral homes which are excluded unless individual application is made for coverage. With most paramedics now working for a health service called Emergency Medical Care Incorporated, the board determined that coverage with the board was mandatory for firms with three or more paramedics as of April 1, 1998. The whole process of pressuring the government and the board to provide this coverage would have been unnecessary if there had been universal coverage and we use that by example. We would certainly like to know why any worker should be denied coverage.
[3:00 p.m.]
Similarly, we think all employers should be assessed for workers' compensation. Only 45 per cent are presently assessed accounting for approximately 75 per cent of workers. The notable exceptions are banks, insurance companies and educational institutions. While
universal assessment would only marginally increase the revenues of the board, we think all employers should be assessed as part of the related move to universal coverage.
Regarding privatization, during the past few months the Insurance Bureau of Canada has been actively lobbying provincial governments, including the Nova Scotia Government in June, to consider various options for the private delivery of workers' compensation on the way to full privatization. Any such moves would significantly add to the costs of worker's compensation, not improve service or coverage, and create much more tension between workers and employers. In fact, they would be in violation of the basic Meredith principle of state administration. For all these reasons, we urge the committee to soundly reject any moves to private delivery or privatization. If there were such an actual move in that direction, we would have a lot more to say on that with examples of, you know, to back up some of these statements that we make here.
In conclusion, we welcome the establishment of this select committee but we still deplore the way in which it came to be established as a result of a sit-in of injured workers that put their health and claims at risk. We urge the committee to become more aware of the major changes that have taken place at the board and the improvements that have resulted largely to the credit of the dedicated staff who work there.
At the same time, we call upon the committee to recommend the following: a combination of legislative and policy measures to enable the Workers' Compensation Appeals Board to clear up the lengthy and unnecessary backlog of appeals for older claims as soon as possible; long overdue changes to improve the level of benefits; no more arbitrary limitations on the statutory rights of injured workers to benefits in general and to more recent types of occupational injuries and diseases such as chronic pain, environmental illness and stress in particular; universal coverage and assessment; and the clear rejection of any moves to privatization of workers' compensation or the operations of the board.
We would urge that it be possible for public comment on any specific amendments to the Act before they are tabled in the Legislature, especially after the report of the recommendations of the Auditor General is released. We would finally propose that the committee consider seeking an extension of its mandate in order to be able to monitor and receive public input on any legislative and other changes over the next few months after they are passed and put into effect.
I appreciate being able to address this committee. I would welcome any questions or comments.
MR. CHAIRMAN: Thank you very much. I guess I have one question, on behalf of your members, in particular. There has been much discussion about the very long length of waits of people for hearing of appeals, particularly at the WCAT level. One of the concerns that has been expressed is, obviously, about the length of those appeals. Have you any sense,
from talking with your members or otherwise, of what length of period of time would be the maximum that you would think would be appropriate before all those appeals, I'm talking about the old appeals, in particular, are resolved?
MR. DAVID PETERS: If you were to adopt, like one of the suggestions in here are these lengthy decisions which are written by lawyers, a lot in legalese, with long reasons attached to it and so on, we don't believe that that is necessary to make a decision, whoever would be sitting before the Appeals Tribunal. You base it on the facts, a short decision with the reasons for that, would greatly hasten the work of the Appeals Tribunal. Obviously, they have to take time out from hearings to write these decisions up, review them, have they covered all of the bases, you know when you involve lawyers into a process, and I don't say this to discredit the profession, but when you involve lawyers into the process, then they are putting their legal expertise training and credibility on the line, they have to make sure that every t is crossed and every i is dotted. In this case, we are dealing with people who are going without income, who have already suffered, not only physically but are suffering a great financial loss to themselves and their families.
The decision won't be any different than these long briefs that are presented as reasons for the decision, and that would certainly speed them up. To be quite honest, I am not sure what it takes now to hear 10 cases and write up those decisions. We are told that just that one move would move through the backlog quite speedily, but you have to set the procedures, policies and if legislation is required to be changed to make that happen, that would greatly speed up these cases.
Also, part of the reason, which everybody understands, and especially the injured workers, was because of new legislation that threw a lot of things into question. That was part of the reason in the early stages, but as they are trying to wander through the backlog, we are told that just the process and the decisions, the length of them, it is taking so much time to write them up, it is taking up too much time of the Appeals Tribunal.
MR. CHAIRMAN: Okay. Your members would obviously include the support staff at WCAT, do they include the commissioners as well?
MR. DAVID PETERS: No.
MR. CHAIRMAN: Just the support staff, the administrative staff?
MR. DAVID PETERS: Administrative, technical and clerical.
MR. CHAIRMAN: Staff that would be involved at the WCAT?
MR. DAVID PETERS: Yes.
MR. CHAIRMAN: The commissioners would not be unionized.
MR. DAVID PETERS: No.
MR. CHAIRMAN: Thank you. Mr. Corbett.
MR. CORBETT: Good afternoon, Dave. Probably the only question I have for you is basically when you talk about the privatization, can you bring any experience to that, we know that some states in the U.S. have private plans and from information coming to us, it seems to be that they have a desire to cherry pick industries which they represent. Can you give us any kind of indication of what this would mean in Nova Scotia, and particularly, I would appreciate there would be an impact on your membership, but I guess I am looking for direction on how you think it would adversely, possibly, affect the claimants?
MR. DAVID PETERS: Our position on that goes much deeper than just any adverse effect directly on the employees that now do that work. The impact goes on to the whole fundamentals of the workers' compensation and it will not be cheaper, and it may be harder in some cases, our information and research shows us that some states are having a problem getting insurance companies to cover it now. They have gone private, they have dismantled their own Workers' Compensation Board, and now they are having trouble getting an insurance company to follow up on it.
You are absolutely right, attached to our brief is also the presentation made to this province by the Insurance Bureau of Canada. If you read that, you may have to read it twice, but if you read through that, obviously they want to cherry pick. They want to deal with the easy claims, the ones that don't create any problems, and therefore that is what they can make their profit off of. The ones that are a problem to deal with, they want the government to remain responsible for those. Well, that is certainly cherry picking. It will cost employers in the long run more, we don't know how injured workers, who I think we all have a responsibility to, as a community, we don't know how they will be treated, if it is strictly an insurance scheme, rather than sort of a government administered public insurance plan. We have all kinds of reports which of course we are not able to verify but they are reports that if injured workers think that the system has treated them badly here, wait until they get into that confrontational system with insurance companies, and if anybody has had a claim, a car accident or anything like that, you don't have to have personal injury, sometimes an insurance company can hold you off for seven years or whatever. Really all they are doing is at the end settlement, you are getting the interest off the money that they should have paid you up front. It is very scary.
If there appeared to be a move in that direction, we would want to counsel and do more factual research and counsel those who were considering it about the cautions that we see in that. Thank you.
MR. CHAIRMAN: Are there any other members with questions? Mr. [Hyland] Fraser.
MR. HYLAND FRASER: Mr. Peters, I am interested in the discussions you are having there with Mr. Corbett. I am a licensed insurance agent, in another life. I concur with you in what you are saying in that, because in that business, when we go out and do group benefits for health and dental and long-term disability, there are industries that the insurance industry won't touch now. That is only for off the job basic sickness and accident off the job, so those risks are high. I can think of industries, and we have had people come to us in some of those industries that are very dangerous that I guess we wouldn't touch.
My question to you though is on the universal coverage that you had mentioned. It was mentioned, I guess last week at a group, where some industries are exempt, banks and stuff, I have no problem, I think they should be included. Let's say a family-owned dairy farm and those sorts of things, those are gray areas, they are exempt now. Do you have an opinion on those?
MR. DAVID PETERS: I would have to sit down and discuss each of those, and the reasons why not. The situations we have looked at are exactly what you mentioned, the bigger industries, like banking for example. As a Canadian community, they were perhaps exempted because they are a low-risk industry. I can only draw the comparison that at a point in time, public sector workers weren't required to be covered by unemployment insurance. Again, at one time, it was a very low-risk industry to lay off. Recent times have shown that it has changed. Even the employees themselves at the time resented being covered by it, because it was a job for life, you were never going to access the program and so on.
I think, even my own personal opinion over time has changed, that I think as a community, be it Nova Scotia or Canada, that we have a responsibility to each other. That means that if we are going to have the coverage, then we are all in, rather than make the exceptions to be out. I guess that is an answer to your question. Just let me add, in no way was I trying to slight the insurance industry. We take a very strong position that there is a role for private industry and there is a role for public industry and mixing the two can be very dangerous because of the profit motive and there is no shame in that. Businesses have to make a profit to exist.
MR. HYLAND FRASER: Just to what you are saying, in the industries that perhaps should be covered, like in the spread of risk, in order to keep claim experience reasonable, you have to have the low risk in with the high risk, if not, your spread of risk is limited, and then the high risk are always in and claims are there, we know where they are, and the low risk, there may not be many claims and the premiums not be great, I think, over the long haul the spread of risk and the premiums will come down for everyone. When you put more into it, eventually it comes out that the higher risks are sometimes subsidized, even minimally, by
low risk industries. I think in the social type of thing, I think these big industries should be covered.
MR. DAVID PETERS: I couldn't have said it any better myself.
MR. CHAIRMAN: Yes. Mr. Power.
MR. POWER: I just had one question along the lines of Mr. Baker's question. On Page 5 of your report, you indicate that you would like to establish a broad right of appeal to WCAT, from the board to WCAT. Do you really mean an automatic right of appeal, would you go that far?
MR. DAVID PETERS: I believe we all should have the right to appeal. It doesn't have to be a lengthy appeal process, but mistakes can be made. The system is run by human beings, and we are all subject to judgemental error, error in fact, so I think there has to be review process for somebody who is not satisfied, but not as we see now with the hundreds and hundreds that are backlogged in the appeal process. But I think every individual has the right to at least question the decision, which would be an appeal process.
MR. CHAIRMAN: Thank you. Do any other committee members have a question? I had one last question I thought of after the discussion about universal coverage. Has your organization or you given any thought, besides the obvious example of banks and trust companies, financial institutions generally, have you given any thought to particular classifications of industries that you felt should be covered that aren't covered now? The classic example of course seems to be the banks and financial institutions which everybody, I don't think we have had one person who spoke against inclusion of those industries.
MR. DAVID PETERS: I believe in addition to those that we have mentioned in here, that the high-tech sector would be another one. It is an emerging industry, and we would believe that that should also be included. I would be concerned, I would want to review before I would give an emphatic answer to Mr. [Hyland] Fraser's question, because the intention is not to impair what I would consider the family farm type of situation, certainly not intended to put any handicap or financial burden onto them. I view them as individuals, the same as myself as a working person.
MR. CHAIRMAN: Yes. I understand. I certainly would indicate that in the event that before our process concludes, if you or anyone from your organization had any submissions, written submissions fro example, that you wanted to make on the issue of universal coverage, we would be glad to receive that as any other submissions.
MR. IAN JOHNSON: It comes about, Mr. Chairman, because of this experience we had with paramedics.
MR. CHAIRMAN: That is why I said that.
MR. IAN JOHNSON: Small companies, basically becoming part of a larger operation. It was a very frustrating experience to go through, and I worked with paramedics to go through that process. It seemed, it took literally months before the board actually made a decision, and the only change they really made was how they interpreted the exclusions or the inclusions, because of the change in where our members worked. It seemed to be, why couldn't that have been done early, and if it was universal, we wouldn't have to go through this process.
Our basic position is that workers automatically should be covered. We are talking about a risk to anybody, whether it is low risk or high risk to be injured on the job.
MR. CHAIRMAN: I thank you and I appreciate, and I know that Mr. [Hyland] Fraser has a question. Just before I go to Mr. [Hyland] Fraser, the reason I had asked that was because obviously you had looked at the question of universality and I thought in the course of looking at that issue with respect to emergency medical care workers, you may have also had some other observations of other industries. Thank you. Mr. [Hyland] Fraser.
MR. DAVID PETERS: We would welcome the opportunity to make a further submission, if we have other points to make. We appreciate that.
MR. CHAIRMAN: Thank you. Mr. [Hyland] Fraser.
MR. HYLAND FRASER: Just one other comment, Mr. Chairman, when we are talking about universality, I think the one thing we have to consider, and I agree, that banks and other things like that, we have to start including those because the workforce is changing, where more people have home-based business that really don't fit in anymore, so they are coming out of the system, and I think we have to fill in that gap by employer-employee, where there is a place to take some revenues from, I think we have to take that opportunity. Other people who decide to work at home, no matter if it is in the computer business or whatever they are doing, they are not going to be part of it, because they are their own risk, I guess, and they really don't fit in. Anyway, I just wanted to make that comment.
MR. CHAIRMAN: Any further questions from members? Again, thank you very much gentlemen for taking the time to be with us here today. We appreciate your time, and look forward, if you have anything further as far as submissions.
MR. DAVID PETERS: Thank you Mr. Chairman and members of the committee.
MR. CHAIRMAN (Mr. Hyland Fraser): Our next presenter is Ms. Vickie Huston. I think I would like you to either stand or sit at one of those. You can stand, if you wish, because it is being recorded and the only way we can pick it up is if you speak into the mike.
You are allowed to stand there because these mikes, you will find that they are pointed because, when the House is in session, we all stand to speak, so they are kind of directed that way. Thank you, and I would like to welcome you.
MS. VICKIE HUSTON: Thank you for having me here. I don't know who the select committee members are.
MR. CHAIRMAN: Perhaps we can have them introduce themselves. Some of them are just out for a drink of water or the other way.
[The committee members introduced themselves.]
MS. VICKIE HUSTON: I am Vickie Huston. I was really wanting to have Ernest Fage in because he is the member . . .
MR. CHAIRMAN: Do you want to wait a minute? You can wait. He is probably just in the hallway out there. He could be in the washroom or somewhere, if you would care to wait.
Do you want to see where he is, Charlie? Was he here all along?
MS. VICKIE HUSTON: Would you just give these to the committee members for me? This is just a folder, a short briefing of my life, a few of the accomplishments I have made, before we get into this.
Well, I think I will start.
MR. CHAIRMAN: Yes, I was going to say that Mr. Fage apparently has been absent for about an hour. He must have gone to a meeting or something. So you can start if you wish.
MS. VICKIE HUSTON: My name is Vickie Huston. I am a tractor-trailer operator. I was injured in August 1988 when a crack in the fifth wheel of my rig caused the trailer to break free of the truck, locking on the air-brake system. The truck stayed upright but, as the brakes came on, the truck literally bounced down the road before it came to a stop. The jerky motion of the truck, as it bounced, caused my head to be thrust back and forth quite forcefully, resulting in a whiplash injury.
Just recently, I watched the movie, The Rainmaker, and I wonder if the similarities between the big insurance companies' policies and those of the Workers' Compensation Board are mere coincidence. For the past eight years, I have been ignored, rejected, patronized, embarrassed and, more often than not, neglected. My case has been approved at different levels for only specific medical aid associated with an on-the-job injury I received
in 1988. At this point, I do not know where I stand in relation to financial aid regarding my claim. I am told I do not qualify for a pension or any financial assistance although the board had agreed my injury was compensable. It seems to make no difference that I have been unable to work for the past two years.
I have had to deal with the same case manager for most of the eight years I have been involved with the board. This case manager has done nothing for my morale, my health or my pocketbook. I think it would be to everyone's advantage if these case managers would take a serious look at how their attitudes affect their clients.
During one phone conversation, my case manager told me most people would take the initiative and get educated or find another job. Having initiative has always been one of my stronger traits, for example: I successfully completed a personal care workers' course in July 1973; in March 1979, I received a certificate of achievement covering various areas of mental health care; in November 1985, I completed an introduction to trades training for women, being chosen best all-around student; in February 1986, I completed a straight-truck driving course, receiving the top straight-truck driver award; and in January 1987, I completed the tractor-trailer driving course.
I have been a single parent most of my life and have seen my two oldest children graduate from Acadia University in 1995: one with a psychology degree and a teaching diploma, and the other graduated with a degree in recreation and is presently employed as recreation director at the Tim Horton's camp in Tatamagouche. My oldest son is a freshman at St. Francis Xavier University in Antigonish; he is enrolled in the Information Systems Program. My youngest daughter and son are Grade 10 academic students. The above achievements came about by initiative, dedication and perseverance.
One can achieve many goals when our physical and mental health is good. When our health is compromised, other aspects of our lives are compromised as well. Outside forces, such as dealing with the Workers' Compensation Board for eight years, for example, can have devastating effects on our lives, both professionally and personally. I am unable to work because of the work-related accident and I wonder how much more stress my personal life can endure.
On Tuesday of this week, the last specialist to treat me phoned and asked if I would contact the board about payments for the treatments they had previously agreed to cover. It is amazing to me the number of doctors, therapists and specialists who refuse to accept workers' compensation clients and no doubt one of those reasons is stated above.
From the time I first contacted the Workers' Compensation Board, my life has been on a downhill slide. I wonder why, after so much time has passed, I am still fighting for help from a source dedicated to helping injured workers. I would like to read the text of the mission of the Workers' Compensation Board:
"1. To coordinate the workers' compensation system
2. To assist injured workers and their employers by providing timely medical and rehabilitative support
3. to facilitate the efforts of injured workers to work; and by
4. providing appropriate compensation for work-related disabilities.".
None of the above attributes have been applied to my case, especially by my case manager. The only attribute to me has been more stress, resulting in more pain, resulting in more severe depression. I can hardly recognize the woman I see in the mirror every morning. How I wish I could operate a truck again. How I wish I still had the stamina to participate in everyday life. My children do not understand what is happening to me and why no one is willing to help. They do realize, however, the financial crisis we find ourselves in is very serious.
I keep being told that I am capable of doing some type of work. Maybe the board could supply me with a list of employers who don't mind if I need to go home at 10:00 a.m. because I am too tired to work any longer, or an employer who doesn't mind if I am so depressed that I can't concentrate on any one thing because the pain I am experiencing is all-encompassing.
Dr. Greg Gass had this to say in a report he prepared for the board in March 1992, "The circumstances of this case may be somewhat unusual to the patient's late submission of an accident form, although it would be decidedly out of character for Ms. [Vickie] Huston to file a medical claim unless she was acutely injured. She would be much more upset at being involved in an accident involving potential damage to her employer's truck and she would expect to be stiff and sore and to suffer minor lacerations, haematomas, contusions and abrasions. She would neither consult a physician nor file a 'form of record' with the W.C.B. following her accident unless she perceived herself to have sustained a specific injury.".
Further on in the report he says, "I certainly agree with Dr. Delorey that Ms. [Vickie] Huston's T.M.J. Syndrome is the result of 'Traumatic' or Secondary Degenerative Arthritis and Cervical Disc Disease sustained as a result of the accident of August 18, 1988. In conclusion it would appear to me that it is in the best interests of all parties concerned to get this patient back into the workforce and a productive member of society. Failure of the Workers' Compensation Board to honor her claim is merely going to prolong her suffering as well as her anxiety with regards to her inability to work, increase her indebtedness and perhaps inadvertently increase the stress under which she functions to the point where she becomes permanently disabled due to some form of Chronic Anxiety Depressive Disorder. This lady has been a patient of this office since prior to my arrival as a physician in 1976. She is an energetic, cheerful and hard-working, dependable person and an ideal patient.".
[3:30 p.m.]
So what is Chronic Anxiety Depressive Disorder? Here are some signs of depression: depression of mood; loss of interest or pleasure in normal activity; significant weight change or change in appetite; changes in sleep patterns; changes in activity, you either slow down or become nervous and anxious; loss of energy; feelings of worthlessness or excessive guilt; inability to think, concentrate or make decisions; and recurrent thoughts of death or suicide.
No one needs to ask which apply to me, all of the above. After reading the report from Dr. Gass, it is obvious his predictions are true. Reading from his report of March 1992, "Failure of the Workers' Compensation Board to honor her claim is merely going to prolong her suffering as well as her anxiety with regards to her inability to work, increase her indebtedness and perhaps inadvertently increase the stress under which she functions to the point where she becomes permanently disabled due to some form of Chronic Anxiety Depressive Disorder.".
My question is, where do I go from here? Who do I call for some straight answers to my questions? How am I to provide emotional and financial support for my family when I am so mentally and physically impaired? I did the best I could for my family and myself. I followed the rules set down by the board. Year after year I continued to work while I waited for the board to make a decision on my appeals. The effects of working have had devastating consequences on my physical well-being. Now I sit and wait, old before my time, for someone to decide my fate. I have very low self-esteem. I am considered by some to be anti-social or reclusive. If people could understand how much pain I endure on a daily basis, perhaps they would not be so judgemental.
In order for me to be as comfortable as possible, I wear an oral appliance at night or when the T.M.J. Syndrome pain is extreme, regardless of the time of day - and it is such an attractive appliance to wear. I wear a back brace and have orthotics in my shoes. If someone were to ask to describe myself, I would have to say, I am but a shell of the woman I used to be. In that shell is a woman who has forgotten how to have fun, how to socialize, how to relax and how to smile. All that is left is someone who is guilt-ridden, sad, and chronically depressed. I have lost weight. At times I am unable to concentrate, to think clearly or to make decisions. At times of high stress, my body will completely shut down and I have to go to bed because I can't stay awake.
I have worked hard all my life to provide for my family, taking several government courses to improve my work skills and my financial situation. I'm sorry.
MR. CHAIRMAN: That is fine. Just relax. We are in no hurry.
MS. VICKIE HUSTON: I feel that my claim meets the criteria to affect another decision from the board. Just how to get that accomplished is a mystery to me. I have read numerous newspaper articles from people who are in the same predicament as myself. I feel the ship is sinking and taking the lot of us down with it. I often wonder what the suicide rate is for people who have dealt with the Workers' Compensation Board and its rejection system. Rejection again and again, obnoxious case managers, no assistance in getting the proper and/or appropriate help, patronizing to clients who are doing their best to keep their calm, even when their lives are being torn apart because of escalating financial woes and deteriorating physical and mental health. The toll this ongoing battle has taken on my life is inexcusable. I wonder how many Davids it will take to bring down this modern-day Goliath, the Workers' Compensation Board.
I would like to thank you for listening to my presentation and hopefully it has enlightened you to just some of the problems we, as clients, are forced to endure. Thank you.
MR. CHAIRMAN: Thank you very much, Ms. [Vickie] Huston. When was your accident?
MS. VICKIE HUSTON: August 17, 1988.
MR. CHAIRMAN: Do any of the committee members have any questions? Mr. Parker.
MR. PARKER: Ms. [Vickie] Huston, I was going to ask, have you ever been offered retraining of any type or do you feel you are capable of doing other types of work?
MS. VICKIE HUSTON: There was a point when I probably could have been rehabilitated but after eight years of driving a dump truck down a dirt road and not having someone say stop, Vickie, now is the time you have to take some time off to get help, get fixed up before you continue on. I think maybe the last thing I heard from my case manager was, yes, there was going to be some kind of an educational thing or rehabilitation thing but that was it. When they did that, that was the end of the line. They didn't help me no more. A lot of good that is going to do me when I am not physically able to do the work they are going to train me for.
MR. PARKER: So do you feel there is anything out there that you could do at this point in time? Any other type of work, anything different?
MS. VICKIE HUSTON: At this point in time? No, I don't. I am doing well to get to Halifax for this meeting. We won't even go into all that stuff because you have heard it before.
MR. PARKER: Okay, I just wanted your opinion on it. Thanks.
MS. VICKIE HUSTON: If I could work, you can tell from the little thing I sent around. This is my file from workers' compensation that I kept myself over the past eight years. I don't think there is any need of that. I shouldn't have to keep a file and keep track of what people are telling me. When you are feeling so bad, there is no need for that. I don't think as many people have come to this committee to make a presentation, we all can't be just chameleons and trying to pull your leg. I am sure that some of us must seriously be sick. I don't know what we have to do to convey that to you people at the Workers' Compensation Board.
MR. PARKER: Okay, thank you.
MR. CHAIRMAN: Thank you, Mr. Parker. Mr. Power.
MR. POWER: Ms. [Vickie] Huston, do you currently have an active case before the WCB or before WCAT?
MS. VICKIE HUSTON: Yes, I have a representative at the Workers' Advisers Program. Is that what you are talking about?
MR. POWER: Yes.
MS. VICKIE HUSTON: Yes.
MR. POWER: And you have an appeal presently in the system?
MS. VICKIE HUSTON: That is what I am saying. I have been trying to phone that place for the last two weeks and I can't get a return call. I don't know if you would call it appeal. I am just waiting to find out what I can do with this claim.
MR. CHAIRMAN: I would like to thank you very much for coming and telling us your story. Again, as was indicated, and I understand that you weren't here when we started, we are not dealing with individual cases but hopefully some of the recommendations we will come forward with will help in a broad range of cases. We thank you very much for coming.
Our next presenter is Robert McKelvie from Energetic Foods.
[Mr. Michael Baker resumed the Chair.]
MR. CHAIRMAN: Is Mr. McKelvie here? If Mr. McKelvie is not here, our next presenter is Heather Henderson from the Nova Scotia Nurses' Union. So I guess we will start with Ms. Henderson. If you could sit there. Good day, Ms. Henderson.
MS. HEATHER HENDERSON: Thank you. I would like to try to sit to do my presentation. On my way here I was hit by a car, in my car, and I chased the car to try to stop him or her, I don't know. So my back is a little bit sore but it might be just nerves from that experience.
MR. CHAIRMAN: Well, certainly, if you wanted to do your presentation at another time.
MS. HENDERSON: No, no. I think now is probably a good time but it certainly got my mind off some other things. (Interruption) Well, the sitting, I think, is okay right now but if I move around, that might be the reason. I think I better go get checked out after I am finished.
MR. CHAIRMAN: I think that is fine and you may have a claim yourself under the workers' compensation.
MS. HENDERSON: Hard to say, now I don't know if we are covered. I will have to check that out.
MR. CHAIRMAN: I think we heard evidence yesterday that you are covered, whether you want to be or not.
MS. HENDERSON: Okay, that is good news. Anyway, if you see me moving around, you will understand why.
MR. CHAIRMAN: Well, go ahead.
MS. HENDERSON: I faxed a copy of our submission yesterday so I'm hoping you have copies there.
MR. CHAIRMAN: We have, thank you.
MS. HENDERSON: So what I would like to do is do a little bit of an introduction and, perhaps, just highlight some of the points we would like to make.
MR. CHAIRMAN: Fine, thank you.
MS. HENDERSON: Mr. Chairperson, members of the committee, my name is Heather Henderson and I am the President of the Nova Scotia Nurses' Union. I am also a General Vice-President of the Nova Scotia Federation of Labour.
I would also like to add to you that I am still a registered nurse and I work, as well as being the President at the IWK-Grace Health Centre here in Halifax. In fact, I was working all weekend, including Labour Day, in labour and delivery, so I deal with labour relations in several avenues.
MR. CHAIRMAN: Yes, you do. (Laughter)
MS. HENDERSON: We were very busy on Labour Day, you will be happy to know. (Laughter) (Interruption) Well, someone does a lot of labour-intensive work, that's for sure. (Laughter)
Our union represents over 4,900 registered nurses, licensed practical nurses and certified graduate nurses throughout the Province of Nova Scotia. These members of the Nova Scotia Nurses' Union provide health care to Nova Scotians in a variety of settings: in acute care as nurses employed by the four regional health boards, the Cape Breton Health Care Complex and the IWK-Grace Health Centre; in long term care in over 30 homes for special care; and in community care through the VON and the Red Cross.
Nurses throughout Nova Scotia who comprise our membership had very grave concerns about the provisions in the Workers' Compensation Act, Bill No. 122, when it was introduced by the Liberal Government several years ago.
Prior to Bill No. 122 becoming law, the Nova Scotia Nurses' Union, in partnership with the Federation of Labour, the Nova Scotia Council of Labour, the Police Association of Nova Scotia and the Municipal Association of Police Personnel made a submission to the Law Amendments Committee regarding our concerns. What was even more powerful, I believe, was the fact that over 1,000 nurses throughout the province contacted their MLAs and expressed their opposition to the Act; in fact, I am told that we jammed up the phone lines here.
Nurses visited the Legislature - I was one of those people - and we were able to ask our own individual MLAs to come out. We spoke to them about our concerns. Even one local here in metro sent a petition to the House, which was read into the record. We were not alone in our action. Other workers' groups also exerted similar pressures.
Unfortunately, Bill No. 122 was passed with minimal modifications, producing what we believe is an Act that was not what the injured and diseased workers of Nova Scotia deserve in terms of fairness and justice.
Unfortunately, it seems like the predictions and concerns we had, that we made, seem to have come true. We understand that the Workers' Compensation Board has saved more financial resources than anticipated, but we believe that the Act has disadvantaged workers all throughout Nova Scotia and, in some respects, they are penalized by being injured at work.
We believe that the Act must be changed to provide better protection and coverage for the workers of Nova Scotia; therefore, we are going to propose the following changes, and I suspect that you may have heard some of these before.
As you all know, the level of benefits was changed. It was done so that they could reduce the unfunded liability of the Workers' Compensation Board. The cuts in benefits had the dramatic result of reducing the unfunded liability of the board much faster than anticipated. Meanwhile, injured workers have had to accept, virtually, the lowest compensation benefits in Canada. We believe it is time to fix that and that the loss benefit should be restored.
We would like to ask the select committee to consider each of the benefits that were cut in 1996 and, at a minimum, we would like you to recommend the following.
As you know, the basic compensation formula was changed. It was reducing the weekly benefits by 25 per cent by changing the benefits from 75 per cent of gross to 75 per cent of net pay. We believe it should now be changed to 90 per cent of net pay, which is the level of benefit enjoyed by most Canadian workers.
The two day waiting period is another example. The 1996 Act penalizes all workers by denying benefits until two days of wages lost due to an injury. This two day penalty should be eliminated. At a minimum, the employer should be free to pay an injured worker during the waiting period and unions - and we have just gone through this with our negotiations - should be free to negotiate payment for those two days in collective agreements.
Top-up. That was also reduced so that an employer couldn't pay the employee an amount to make up for the difference between their lost earnings and workers' compensation benefits. We believe that that restriction should be eliminated.
Permanent impairment injuries. I am not going to read all the way through that, but we believe that the restoration of permanent partial disability benefits should include the cases that I have listed here of automatic assumption, hearing loss and other occupational diseases.
Indexing. Again, workers who are on permanent partial disability pensions from the old Act have received no indexing. The 1996 Act banned any indexing for a period of five years. The indexing formula in the old Act should be restored to protect the value of these pensions.
Now, I haven't been following the hearings because I have been, as you know, working. I understand and I am sure people have addressed to you their concerns about the appeal backlog.
The 1996 Act introduced an elaborate system of appeals which has created an enormous backlog of unresolved cases. The Workers' Compensation Appeals Tribunal has been held up by an array of time-wasting procedures and restrictions. There is a huge bottleneck created by that. We would like to recommend that certain things happen to help speed that up and to eradicate that bottleneck.
(a) There should be a fully independent appeal tribunal, with the authority and mandate to apply the Act to the facts of each case without limitation by board procedures or policies.
I think I came in just when Mr. Peters was speaking. I heard you ask him questions about broad right of appeal.
(b) We believe that the requirement of leave to appeal should be eliminated and you should establish a broad right of workers to appeal unfavourable decisions by the Workers' Compensation Board.
(c) No adversarial proceedings. Eliminate time-wasting participation by employers, and employees should be able to present their case in writing.
(d) Technical delays, that is another example that should be addressed.
(e) Benefit of the doubt. It used to be that there could be that workers would have the benefit of the doubt, rather than to be required to have strict, legal proof.
(f) Limit the length of decisions. Again, it seems that a lot of the reason why things are taking so long is that the decisions are very lengthy. I must confess, I am a nurse, I am not a lawyer and sometimes when I read some of the decisions, quite frankly, I don't really know what they are saying. For the workers, I think it would be much fairer to have a simple, one page decision with very brief reasons and then people would understand where their status is.
(g) Eliminate the ADR process. Ensure that workers receive the benefits to which they are entitled under the Act without being forced to give up benefits to get a timely decision.
I have another section here that talks about the retroactivity nightmare. The Act instituted a confusing array of retroactive changes to reduce or eliminate benefits payable. We believe and we would like to ask the select committee to recommend the elimination of retroactivity in the Act entirely, except for the extended earnings loss benefits which must be made retroactive to March 23, 1990 to implement the Hayden court decision of that date.
Let's talk a little bit about the Workers' Compensation Board. We are very concerned about the power that that board now has. The 1996 Act contains provisions which make it possible for the provincial Cabinet or the Workers' Compensation Board to eliminate statutory rights to benefits by the adoption of regulations and policies. We believe that these provisions should be eliminated so that a workers' entitlement to workers' compensation benefits depends on the application of the Act to the facts of his or her case, not on the powers of the Cabinet or the board.
No binding effective board policies. The 1996 Act contained provisions for the issuance of policies by the Workers' Compensation Board which are binding on its own employees. I have listed other groups here. We believe that the broad policy-making powers of the Workers' Compensation Board should be eliminated to ensure that there was a genuinely independent Appeals Tribunal.
No regulations exempting the application of the Act. The 1996 Act permits the provincial Cabinet to adopt regulations which, at the stroke of a pen, in secret, eliminates benefits payable to workers under the Act. No longer is it necessary to amend the Workers' Compensation Act to deal with benefits payable to workers. These provisions should be eliminated.
You know, as I have been the President of the Nova Scotia Nurses Union, I am gradually understanding how laws work and how the province is governed. When I was reviewing this area, as a Nova Scotian, I was concerned that we had a process - and this is one of them here today, the same as I have participated in Law Amendments - but to be able to make changes without people being aware seems very unfair.
The next section talks about chronic pain and I am not going to go through it all the way but it is an example of how the abuse of power can make it so that the policies dealing with chronic pain have been changed.
I found it very interesting to discover that every province in Canada, except Nova Scotia, compensates chronic pain where it can be shown to have resulted from an industrial accident. In Nova Scotia, however, a regulation was adopted in 1997 without public discussion or debate, in secret by the provincial Cabinet, which eliminates compensation for chronic pain. No other province has taken such an approach. The workers' rights to benefits under the Act have been wiped out arbitrarily. We would like to see that changed. These powers should be eliminated and workers should be entitled to receive benefits by applying the statutory provisions adopted by the Legislature to the facts of their case.
Now, I told you before that we represent over 4,900 nurses. You may wonder, well, what can happen to a nurse in the workplace but you can appreciate that the kind of work that we do in many cases is very physical.
I don't have any statistics here before me to present to you but I suspect that probably one of the highest degrees of injury for nurses has to do with back injury which can then result in chronic pain. I know that even in my line of work, when I am dealing with patients in labour, I can remember when I worked at the Infirmary years and years ago, I had a lady who was about to give birth but she was standing. I somehow managed to get her into that bed. I still don't remember. She was a very healthy lady who weighed close to 300 pounds. I didn't even think about what I was doing but I needed to do my work.
The benefit of the doubt. The 1996 Act eliminated provisions in the former Act which required that the Workers' Compensation Board give a worker the benefit of the doubt. Strict proof is required in practice. This provision should also be eliminated and the previous provision restored.
Pre-existing conditions. Two Select Committees of the Legislature recommended that the Act be amended to ensure that a worker would have benefits reduced only if the worker had a pre-existing disability before an injury. The former Progressive Conservative Government, supported by all Parties in the Legislature, introduced amendments to the Workers' Compensation Act to implement this change. However, like many other provisions that were in the old Act that were favourable, it was swept away by the 1996 Act. We would also ask that the Act be amended to ensure that no reduction in benefits should take place unless a pre-existing condition actually caused a disability before the injury.
I heard a little bit of discussion when I came in about universal coverage. At least two Select Committees of the Legislature have previously recommended that the Workers' Compensation Act include universal coverage of all workers and employers in the province. In fact, Bill No. 122 initially provided for that. However, it has been changed. Universal coverage would permit all workers to be protected by the Act and would ensure that the average rate of assessment in the province be set at a level which is consistent with other provinces. The committee should recommend universal coverage.
Workers' advisers. Now, the Act also eliminated the successful Workers' Counsellor Program and replaced it with a system of workers' advisers. There is a little bit of concern there because those workers are perceived to be an employee of the Workers' Compensation Board. There is also a huge backload of cases - we have talked about that - and it has made it difficult for workers to obtain the representation that they desire.
Now, we are not critiquing or criticizing the work that the workers' advisers, themselves, are doing but we would like to see, without eliminating the workers' advisers group, a provision made for the workers who are injured to access independent legal representation where the worker so desires.
Now, I have gone fairly quickly because I suspect you have heard this all before and I want you to take under advisement the things I have said. I understand that other labour groups, I believe, either made or will make the same presentations with the same kind of concerns.
The Nova Scotia Nurses Union and the other workers' groups in Nova Scotia, as I said before, had grave concerns about the impact of the bill several years ago. Our concern about the Act continues.
Nurses, in providing health care to Nova Scotians, are at risk. I talked to nurses around the province when I was preparing this and I heard many stories. I know that you are not really looking at individual cases but it struck me that it is very ironic that when you are providing health care, you are also at risk for yourself to be injured and in some cases where the Act has been changed, as we see it, in a bad way, that the person is penalized for being injured at work and disadvantaged. In fact, when the Act came through many of us said, you are better off getting hurt at home because then you could at least access your sick time. Now that our sick time has changed in our collective agreement, that is not necessarily the case.
I just wanted to add that prior to the change in the Act, I, myself, was injured. I was simply pushing a stretcher, something went wrong and I hurt my back. After a long, drawn-out process and being off work for four months, I was able to get back with physiotherapy covered by the workers' compensation. But I was the main wage earner in our family at that time and I have to tell you, if my accident had occurred now we would have been seriously disadvantaged.
There were all kinds of different things; the waiting period, I wouldn't have been covered; the actual amount of money that I would be compensated. It seems very unfair that I or any other nurse be penalized because I happen to be injured.
We believe very strongly that the Workers' Compensation Act must be changed so that nurses are protected if they do become injured in the workplace. I am very happy that this process is taking place and I want to thank you for listening to my presentation on behalf of the nurses of Nova Scotia.
MR. CHAIRMAN: Thank you very much, Ms. Henderson. Particularly, I would like to thank you for being with us in light of your car difficulties today. I think I would be remiss if I didn't mention to you that we have had individual nurses and people doing nursing kind of work, make presentations where they have been injured and suffered serious injuries in the course of their employment. So your concern on behalf of your individual members, I think, is justified because it certainly does impact them as it does other Nova Scotians.
I guess I had one particular question that came as a result of your presentation and that was the independent appeal. I take it that there is a perception among your members that the existing Workers' Compensation Appeal Tribunal is not independent?
MS. HENDERSON: There is that sense, yes.
MR. CHAIRMAN: The same sense, I take it, exists with respect to the Workers' Advisers Program?
MS. HENDERSON: Exactly. Again, I want to be very cautious that we are not particularly criticizing the work that those people are doing but there is a sense that there may well be some - there is an undercurrent of the sense that there is possibly some conflict because of the fact that they are employees.
MR. CHAIRMAN: Yes, I understand exactly what the concern is.
MS. HENDERSON: Yes.
MR. CHAIRMAN: We have heard that before but I was just trying to make sure that I understood you correctly. Do we have any questions? Mr. Corbett.
MR. CORBETT: Good afternoon, Ms. Henderson. I guess, because of both your union position and your profession, it is interesting to have you here today because of your medical background.
Something you touched on before about the back injury, because of a lot of lifting - and, you know, we won't go too far into service cutbacks in the medical field and so on - but I guess what I want to talk to you about is, you mentioned chronic pain and it seems a lot of chronic pain is associated with back injuries because it becomes a soft tissue injury. Does your union see that as a large problem for your membership, the chronic pain issue, and a proper resolve to it?
MS. HENDERSON: I think so. Now, I can't give you stats on that but I know that we do recognize that we do have a high incidence of back injuries. As you have already correctly identified, sometimes even in spite of physiotherapy or whatever other treatments people obtain so that they can actually get back at work, if they are able to get back to work they are left with some degree of pain. That is why we sort of focused on that in the presentation as one of the areas where we have some concerns. I don't have specific numbers that show me that that is what nurses are telling me. There are more talking about injuries at work and the first thing they mention is back injuries.
MR. CORBETT: One other item and then I will be moving on. In part of your brief, you mentioned not only - most people kind of cut it out as injured worker, but you phrase this as injured and diseased workers. That was an interesting word to use. When you use the word, diseased, I guess I am asking you for your interpretation of why you would use that word, diseased?
MS. HENDERSON: That is a good question. I don't really know why I used that word. I was just putting it in and I felt that it also identified with the fact that some of our workers - I was thinking, I guess, about some of the conditions that have happened as a consequence of - and I mean you are familiar with environmental concerns that we have. Although I think I was remiss in not pulling that out independently, I might have been thinking of that. I don't know, other than that, why I put that word in.
MR. CORBETT: Okay, thank you.
MR. CHAIRMAN: Thank you very much. Any other committee members have any questions? Well, thank you very much again for taking the time to be with us here.
MS. HENDERSON: Oh, you're welcome.
MR. CHAIRMAN: Again, we appreciate the fact that you and your members took the time to make a submission and if you have any further information that comes to you or your members before our process is completed, we would invite you to make submissions to the committee. Thank you very much.
[4:00 p.m.]
MS. HENDERSON: I certainly welcome this opportunity. I know that I did encourage members to make individual submissions, if possible, so I am encouraged to hear that they have been doing that. Thank you very much.
MR. CHAIRMAN: Thank you. We are going to have a brief adjournment to, perhaps, 4:05 p.m. to allow the members to stretch their legs.
[4:01 p.m. The committee recessed]
[4:12 p.m. The committee reconvened.]
MR. CHAIRMAN: Our next presenter is going to be Ms. Marie Welton of the Camp Hill Environmental Victims Society. Ladies, if you could sit in the front row, please. If you have something you would like to say, that way you can say it. Our technical people prefer that. Thank you.
MS. MARIE WELTON: There may be a couple of others joining this presentation, but I will go ahead and get started.
MR. CHAIRMAN: Thank you very much. You can start your presentation whenever you like.
MS. WELTON: My name is Marie Welton. I am Chair of the Camp Hill Environmental Victims Society that we call CHEVS. Hundreds of us, as staff, were made ill by our workplace, a new Halifax hospital. From 1988 to 1992, there were over 330 people put off full time by 1992. We do not know all the mistakes that were made in building this hospital, in constructing this building that made us sick. It was a building that was supposed to be a state-of-the-art new hospital. We do know that approximately $3 million went into repairs after 330 of us were put off work full time and over 500 others reported ill effects of the building.
We, who worked for the care of the health of other Nova Scotians, developed what is called environmental illness or environmental sensitivities. We don't care what our illness is called, we just know that our workplace, a new hospital, made us sick. It damaged our ability to do meaningful work, work that we had been trained for and worked successfully in for many years. It has had a devastating effect on our personal lives and on our financial futures. We have had to fight every step of the way, from initially forcing the hospital administration to recognize the problems of the building, to fighting to find ways to regain our health.
Some of us were covered by workers' compensation for one to one and one-half years, some up to two - and I think there is a rare case of one who continued longer - but we were cut off then for reasons, it appears in most cases, because major repairs were made to the building. Doctors affected, such as Dr. Roy Fox, could sue the hospital and of course, as you know, those of us who are covered as staff by workers' compensation can't sue. Workers' compensation should be covering us as we try to find ways of regaining as much of our health as possible.
Workers' compensation presently are able to overrule workers' doctors. In fact, Workers' Compensation Board overruled, ignored or rejected the very specialists that they first selected as the most competent doctors to view us, once these very doctors supported our claims. This is patently unjust. Years of delays by the Workers' Compensation Board's seemingly meaningless piles of paper files for appeal processes, wasted taxpayers' money on sending us to good doctors that workers' compensation then ignores, or doctors ignorant of our illness that workers' compensation then sends us to, and they in turn get huge fees for their meaningless words. The workers' compensation system provides nothing for us as injured workers due to environmental illness.
Justice Minister Allan Rock said, when agreeing to compensation for those affected by errors made in the Canadian blood system, "There was fault, in running the system; negligence by those responsible for the system . . . some people didn't do their job. We are paying compensation . . .", Rock said, ". . . because of fault." People shouldn't have to go to court to get what they deserve, Rock concluded.
Likewise, somebody responsible for building a new hospital didn't do their job. Somebody is at fault for the errors made when this hospital was built, the hospital that made hundreds of us sick.
We, the environmental victims of the Camp Hill disaster, deserved to be treated justly, with dignity and respect by the Workers' Compensation Board. We, in keeping with the principles stated by Justice Minister Allan Rock, should not have to fight a workers' compensation appeal system for years and years to be treated justly.
Thank you for this opportunity to present our case.
MR. CHAIRMAN: Thank you very much. I obviously have a number of questions. Certainly the plight of Camp Hill workers is, I think, quite famous, is the best description of it, because it is probably, to my knowledge, the largest example of environmental illness in the province, certainly by a large group at a single time.
MS. WELTON: I think even in the world, it is considered as the one single incident, aside from the Chernobyl and some of these things, but as a workplace injury.
MR. CHAIRMAN: Have you ever been told what kinds of factors were affecting the environment in that facility, that were at least identified as triggering factors?
MS. WELTON: We were told a number of things. As a matter of fact, there is a relatively new book out that has some of the Camp Hill history in it. This new book is called, Chemical Exposures: Low Levels and High Stakes, a second edition.
MR. CHAIRMAN: Chemical Exposures is the name of that?
MS. WELTON: It is called Chemical Exposures: Low Levels and High Stakes. In it, a reference is made, "Between 1988 and 1993, up to several hundred Camp Hill employees became sick. Contemporaneous with onset of their symptoms, a corrosion inhibitor (a blend of amines including cyclohexylamine and morpholine) was added to the boiler to prevent scale buildup at ten times the recommended concentration.". I had actually heard it was five times, and this is the first time, I just got this book recently, that says 10 times.
Of course, there was a lot of other factors, there was a fire in the building before it was completed. We don't know if that had any effect. We do know that plans were changed from the original design. I know, initially I was in middle management, I was to go into the new Veterans Memorial building, and then it was changed that this space was going to be used for something else, and then at the last minute, I was told I was going to be moved. I found out that the room that I had been in for years, after I was getting sicker and sicker, was in fact designed to be a storage closet. It was never designed for anybody to have an office in it.
In fact, I then was pressured to return to work, after I was making some significant progress, and I was promised all kinds of things as to what the new building was going to be like. I was then pressured by hospital administration to be moved into this new high-profile office, and I then got sick again. It had all kinds of new things in it, and I was told it met all these new standards. Well, in fact there weren't any new standards for many of the things that were done, and I got sick again. I have now, only after four years, recuperated. Whereas, had I not been pressured by the hospital, I might have made a fuller recovery. Anyhow, that is just one. But I certainly know of many other incidents.
There were many reasons that went into making us sick, depending on the area that we were in. Of course, we do know the kitchen staff, of which we have a number of people here today, had a dishwasher, this state-of-the-art dishwasher that would deal with the huge numbers that were supposed to include the new Infirmary, that was vented out one vent and then got drawn back in by the other vent.
As a matter of fact, I ended up at a dinner party sitting next to the woman engineer who designed this building. She said, it wasn't my fault, it was the wind. I thought, but aren't engineers supposed to deal with the wind, if it came back in? Meanwhile, these kitchen staff workers were getting sicker and sicker, rashes from head to toe. In fact, when I ended up having reported problems, I was told initially, when they finally acknowledged the kitchen problem, that it couldn't be, because I am not hooked up to the kitchen. Later they found out there were even more ventilation problems.
When I saw this particular dermatologist, my face was swollen, my skin was like it was scalded, and he said, do you know, Marie, it is a good thing that people like you in middle management are getting sick, because up until now, the kitchen staff has been considered their poorly educated quota. This view by some, they are not important, therefore they are dismissed. The more middle management people that get sick or acknowledge it, and then particularly when Roy Fox got sick, then it was finally acknowledged.
We had been complaining from within three months of being in that building to occupational health. In fact, a memo went around within three months saying to management, which I got, to get tough on staff, because here we have this state-of-the-art building and sick time had gone up by 33 per cent. Still it was ignored until kitchen staff, in fact, walked out.
MR. CHAIRMAN: A question from me, because obviously occupational health and safety is a major issue for many people. From the time that a report went to occupational health and safety about your difficulties and those of other workers, how long was it before they investigated the problem?
MS. WELTON: There had been many reports, and it wasn't until the summer of 1991 that they did a larger number. I think 380 people were selected to sort of do a general computerized testing. Out of that, later in 1991, 20 people, of which I was one, were selected for an intense, in-depth testing of us and out of that, from what I understood, two people were put in - because it was men, women, different ages - that were not considered to be very ill and, in fact, that's what the tests showed.
All of us that were considered really ill had 7 out of a 10 range of symptoms. It was only then that the hospital acknowledged that they really had to do something but prior to that, even health and safety, and fire and safety staff did not know. We're not told by administration this was happening. In fact, people were repeatedly told when they went to occupational health and safety, not to say anything because it might cause people to panic or various other things. So there was very much a lid kept on what was happening.
MR. CHAIRMAN: The reason I express the concern is because I think many presenters have, obviously, identified the fact that prevention of illness and prevention of injury is the best way of reducing costs to the system.
MS. WELTON: Absolutely.
MR. CHAIRMAN: And I guess the Camp Hill situation is a case study on what shouldn't happen. Particularly, I guess one last question before I open it up to other members of the committee, with respect to your situation at Camp Hill, how many workers, or former workers, at the Camp Hill facility are presently still off work, have not been able to return to their job and do not have other employment elsewhere?
MS. WELTON: As far as I know there are 95 of the 330 but there are many of that 330 who have just given up and said, they've done other kinds of work, but they just got fed up with the system and signed forms that said they were well. So, as I said, as far as I know up until about six weeks ago there were 95 people still off, but the fact is that there are other people in the system working four hours, six hours, eight hours, 10 hours a week, so we can't get accurate numbers.
MR. CHAIRMAN: But as far as you know, there are those 95 people who are still off work, have no income, and would not be receiving workers' compensation benefits?
MS. WELTON: It is not that we have no income, the government did step in, because it was happening at the same time there was the Westray mining disaster, and said we would get 70 per cent of our wages because this happened at the time where the Workers' Compensation Board were cutting all people off "once the building was fixed", but at any time, and it is what's already happening now, we can be cut off because there are no guarantees and we've had no help other than what we fought for to try and get this environmental health centre and even that has not followed the direction that many of us have fought for. So we are better off than others but what's happening right now is we're having to fill out all these forms and basically saying are you ready to go back to work because if not, they want this thing ended within a year. Some of us have attempted, as I did, to go back to work. Others have not been able to attempt to go back to work.
MR. CHAIRMAN: Thank you. Yes, Ms. Godin.
MS. ROSEMARY GODIN: Hello, Ms. Welton. I'm glad to see that your group is here today. How many members are there in this society? Did you say that?
MS. WELTON: We had 68 members. Not everybody who is off work is an active member of our group.
MS. GODIN: Are those 68 members, or the members of the CHEVS, have they all been diagnosed with environmental illness?
MS. WELTON: Yes, they have.
MS. GODIN: And that's the term that's being used in the diagnosis is environmental illness?
MS. WELTON: Or environmental sensitivities or multiple chemical sensitivities.
MS. GODIN: And the diagnosis was made by fully accredited MDs licenced to practise in the Province of Nova Scotia?
MS. WELTON: Well, as I said, initially there was a huge number of us that were sent, and I don't have the doctor's name, an internist who has now gone to the States, who the Workers' Compensation Board thought was the best doctor, and approximately 60 people went to this doctor. He then concluded that there is no other explanation other than a workplace injury that he would call environment, I think it was called environmental irritant syndrome at that time. Then the Workers' Compensation Board changed to another doctor and this doctor in turn had another 30 or 40 patients. She concluded the same.
[4:30 p.m.]
Then we started getting sent to other doctors. For instance, I was sent to a doctor who is involved in the military and who dealt with people who had the bends from diving and, I'm thinking, what on earth does this have to do with my particular problem? In fact, this doctor's receptionist had told me when I got a report back that neglected, she even mentioned that I had attempted to return to work. So my whole history was completely gobbledegook and she said, well, you know, he's just so busy. He's doing hundreds and hundreds of extra cases and extra hours and he has got his sister-in-law writing reports and he's got this and so yours has just gotten lost. I thought, oh, wonderful, you know, this doctor who knows nothing and nobody could, I mean someone like him could tell us nothing, I mean, all he did was write down what I said and even that got mixed up. It took me three visits to him before he could even get it straight.
So, yes, we all have been diagnosed in one way or another as being sick and whatever they call it, but . . .
MS. GODIN: However, even though you've been diagnosed, what do the Workers' Compensation Board doctors say? Is this illness something that is recognized by the Workers' Compensation Board?
MS. WELTON: As far as I know, the last changes there were a limited number, and environmental illness wasn't listed as something that is covered but, you know, I frankly don't have the time and energy or the ability to go through all the technical stuff, but that's what I was told.
MS. GODIN: That was going to be one of my next questions, that I do know that some people are covered in getting benefits or you said they did anyway up until two years . . .
MS. WELTON: Well, I was covered until I was cut off after a year and one-half, saying the building is fixed and, therefore, we should be able to go back to work.
MS. GODIN: But the people who are covered at this point are not being covered for environmental illness, they are being covered for something else.
MS. WELTON: Yes. I don't know if there's anybody still - and I could be wrong - I knew there was one person, who appeared to have certain connections, that was covered for a very long time, but I don't think there's anybody at Camp Hill that is being covered by workers' compensation. I know there are people at the VG. Now it is all part of the one, the QE II, but I don't know of anybody that's covered.
MS. GODIN: But the people who are being covered, who are former employees, are being covered, but they're being covered for something else - I don't want to put words into your mouth - probably in your estimation is actually environmental illness but they're using different terms for it, but they will not cover anybody for environmental illness . . .
MS. WELTON: That could be.
MS. GODIN: . . . but if you have a lung disease or some other kind of problem, they'll cover you.
MS. WELTON: Well, yes. I know someone who was the major person who won with workers' compensation was then cut off because she was not compliant. She moved because her husband took a job in Winnipeg, then she was suddenly told that she had to find her own work and get back to work in three months and, if she didn't, she was considered non-compliant. I mean it is just completely irrational.
MS. GODIN: Thank you, Ms. Welton.
MR. CHAIRMAN: Thank you. Next would be Dr. Lamplugh.
DR. ANTHONY LAMPLUGH: Could you tell us, ma'am, when the last new cases of this environmental problem started?
MS. WELTON: The last new one, well, I would say . . .
DR. LAMPLUGH: You had mentioned just now that the hospital is now fixed.
MS. WELTON: Well, yes. In 1993 it was considered the building was fixed. I don't know, I know if people did get sick after that, and I certainly know personally of one case of a woman who has her Master's Degree in Nursing, who was not following this as close - in fact, her thesis got the top award in her graduating class - she then had been ill, but she didn't feel she was ill enough to go back off work. It had been reported. Without realizing it and buying a brand new house, it pushed her over the edge. So she is continuing to work, in a very incapacitated condition I might add, but feels otherwise they'll lose their house. So she's not off, but is still ill. If anybody is going off, they certainly aren't going off under this government package of environmental illness.
DR. LAMPLUGH: Thank you, ma'am.
MR. CHAIRMAN: Thank you. Mr. Parker, I believe, was next.
MR. PARKER: Thank you, Mr. Chairman. Mary, I guess I just want to ask you a little bit about the disease itself and maybe it is different for everybody.
MS. WELTON: There are a lot of similarities.
MR. PARKER: I'm just wondering what are the symptoms or how does it affect you day-to-day?
MS. WELTON: Well, fatigue is a major thing and being in this building; in fact, two people came in and were only in here for about a half hour and said I am getting groggy, I can't stay. I suggested they go outside and maybe come back in at 4:00 p.m., but they're still not here. So how does it affect you? Depending on the degree of your health, you get a grogginess. I will describe personally what I get. I end up getting numbness and tingling in my left arm and my left leg and memory loss, that was severe at the time, difficulty breathing, a sort of heavy chest thing, and rashes. Some people break out in various types of skin disorders depending on if that affected them to start with. Things like migraine headaches, digestive disorders, and these are all triggered by things that are often found in sealed buildings, petrochemicals being particularly a problem.
MR. PARKER: So you think it all started, or a good possibility that the cause of it was from the boiler, the additives that were made to the boiler, I think you mentioned earlier?
MS. WELTON: I can only assume. Those who are dealing with this said that this is a major thing, but also the sodium hydroxide out of the dishwasher. While it was worse for the kitchen staff, I mean this went into a mist and you couldn't see it, but when looked at under a microscope, although I understood in some areas of the kitchen there was a fine film; in fact, I was told by Dr. Nancy Morrison, the respiratologist I saw, that was what happened to my face, which I was given steroids for, my face was swollen more on one side than the other and this scalded thing, and she said basically what happened to your face is what happened to your chest.
So I went from being a very healthy person, able to do all kinds of things as wife, mother of three kids, being involved in my neighbourhood, to not being able to read a newspaper, read a new book, participate in any of my social activities, unable to dance, falling off my bicycle - I still have scars - not knowing what was happening to me. One of my daughters, who was then a teenager, and as 16 year olds are prone to be - we were coming from the Waegwoltic Club where we were swimming and, of course, there is chlorine in the water, even though it was filtered saltwater, and I had this new bike and I fell off it. She said, Mom, you act as though you're retarded. Well, I was feeling like I was retarded - teenage kids get embarrassed when there's no obvious reason and I certainly had no idea what was happening to me.
MR. PARKER: So do other members have similar symptoms or anybody any different?
MS. WELTON: I think they could all tell their own stories.
MR. CHAIRMAN: Sure, go ahead. Just introduce yourselves, who you are and speak into the mike. That is all we would ask.
MS. LORETTA O'NEIL: My name is Loretta O'Neil. I've been off for six and one-half years. The reason I went off was I got a chemical dusting. There was a power outage and I was under a vent when it came back on and I got dusted. I had an asthma attack that lasted almost a year. That's what put me off and going to occupational health, I found out about a year later that what I had was an environmental illness. They tended to isolate us and not talk to us very much about anything because maybe it would be easier on them to keep us more ignorant of what we had.
For me, I get memory loss, and easily confused. If I'm behind a diesel bus, it is like you've had a bottle of wine or something, you get drunk, or you get very angry and watch out traffic. So you have mood swings from one way to the other, joint pains, muscle pains. You feel like you've had a couple of drinks of wine, you're getting the flu, and you don't know what's happening. We're at the stage now, if we do nothing, we're in a clean environment and we've done nothing, we can feel fairly decent, but then we have to go get groceries, go pay bills, go to our children's concerts at school, and then it starts all over again. It may put you in bed for a week, a day, depending on how bad the exposure was or how dirty the air was.
MR. CHAIRMAN: Thank you. Do any of the other folks? Is that Mr. Struthers? Yes, Mr. Struthers, I had a note that you wanted to have some comments and this would be as good a time as any so go ahead, sir. I'm going to have to ask you to stand up, if you could, because of the television cameras. They have a difficult time with the back row. So if you could stand up, it would be greatly appreciated.
MR. JIM STRUTHERS: Good afternoon. My name is Jim Struthers. I have been a health professional for almost 40 years now and I appreciate the opportunity to speak with you. My presentation is on behalf of the 90 workers from the former Camp Hill Medical Centre who are still struggling on a daily basis to resolve issues surrounding our illness caused by our workplace. Our lives have been permanently altered in many and various ways since we were poisoned during our working days at Camp Hill beginning in 1989 and most of us have not worked for at least six years.
My colleagues and I are not arguing the validity of our illness, or whether or not a definitive diagnosis of our condition has been made. You can call it environmental illness or multiple chemical sensitivity, or whatever you wish. I believe that the medical authorities should debate that issue, not the Workers' Compensation Board. The facts were, are and will be that we were poisoned at our workplace over a period of time and I believe that that work injury is compensable.
We have not been treated in the same manner as other injured workers and that means the process by which injured workers are followed and that's well documented and can be proven to you. We were certainly not given the slightest benefit of the doubt which we are entitled to according to the Workers' Compensation Act. I can tell you that 85 per cent of those number of workers that Marie spoke of, we have been compensated for varying amounts of time, but no more than two years at any particular time. No one was compensated for any longer than two years. Then we were suddenly cut off. Were we confused? I guess we were. At one time the Workers' Compensation Board declared it was an illness caused by our workplace and then suddenly it wasn't. It is also well documented that court battles have been fought and won in our favour and still no go from the Workers' Compensation Board.
In cooperation with thousands of other injured workers across the province we have demanded and will continue to demand that the Workers' Compensation Board make disability payments to each worker and we're asking no more than we have legal right to according to the Occupational Health and Safety Act and to the Workers' Compensation Board policies which were brought into existence to protect workers who are injured on the job.
I can also tell you that we have very laboriously and conscientiously exhausted all the appeals processes, internal and external appeals, to no avail and these are very stressful situations if you've ever been involved in them. I believe that's an issue that needs to be addressed and you are probably very much aware of that. The wheels of bureaucracy grind very slowly and the Workers' Compensation Board refuses to pay benefits or our medical expenses. They state that they are awaiting applied scientific research data. Now, that may be all well and good, but I can tell you that some of that research is being done at the Fall River Environmental Centre but in the meantime, while we wait after all these years, we're asking that present, permanent and practical concerns should be addressed by the Workers' Compensation Board and the anecdotal information and evidence is overwhelming.
I'm sure that if there were only a few people saying that something happened to them at work, but when you get the evidence of 700 people, pared down to 300, and now 90 of us, who are still off work after five or six years and have to make concerted effort every day to live on a regular basis, that evidence itself is overwhelming. Finally, I'm asking that this panel show a true measure of understanding and compassion toward the injured workers of Nova Scotia. We will await your findings and recommendations with interest.
MR. CHAIRMAN: Thank you very much, Mr. Struthers. Are there any other members here who would like to make a presentation? Go ahead, ma'am. Just say your name and go ahead.
MS. CHRISTINE FLETCHER: My name is Christine Fletcher. I have worked in the cafeteria and in the kitchen for 27 years. I took sick at Camp Hill around 1987. I was out for one and one-half years. I went back to work. I was getting sick worse. Sometimes we would
stand there and we would see some stuff dropping down on us like silver. We had burning eyes, headaches, ear problems, so that you can't even stand to listen to someone talking to you. At the end of the day, you go home and you are all swollen. Your feet swell, your body is all swelled up.
I continued to work until 1988. In 1988, I went to the doctor. The doctor said I have six months to live. What was it? It was cancer. I followed up my physical really good, and I was in the doctor's office seven months before that. Specialists, no, I didn't have cancer. In a short time, I have six months to live. I had the breast removed, and I went back to work. I started to have the same problem. I had to leave. I start to have a problem with the other breast. I have to come out of the building. I lost all my mobility. I was very active at work, she can tell you. I was very active. I do everything, I was doing catering, 300 people, all the doctors. I didn't have a problem until I became ill.
Right now, at certain times, I can't even walk. The pain is right through my body. Yesterday, I was in the doctor's office and somebody just came by with cologne on, I passed out. The next thing I know, five people were over me. I can't go anywhere, because of this. I am here right now and my body is burning because I am reacting to something in here, and that is the way I live. I have been living for the past several years with the problem. The doctor filled the paper out yesterday, saying I will not return to work. I have lung problems.
I feel workers' compensation should look into. I went to see a workers' compensation doctor about four years ago, and he said that I am not even fit to drive my car, and yet still I can't get workers' compensation. I think somebody is robbing us, and I feel like a big chunk of me was just cut right out, because of what happened to me. I didn't come into this country to be sitting down, I came here to better myself, and I am not. I am sitting home. Sometimes I can't even find food with the money I am getting now, at least not here. I am on oxygen. A couple of weeks ago, I had to use the mortgage money to get the oxygen, and call the bank and tell them I didn't have all the money to pay my mortgage. That is not fair.
My husband walked out when I took sick. I am not able to do things, so he walked out. I was sick, and I am still sick.
MR. CHAIRMAN: Thank you. Is there anyone else who would like to say anything? Could you lean towards the microphone then. Thank you.
MS. SANDRA MARRIOTT: My name is Sandra Marriott and I was in middle management in the kitchen. So you are wondering about some of the chemicals, some of it which was mentioned was sodium hydroxide from the dishwasher, the exhaust was right beside the intake air. If you look at your tin of Drno, that is what they give the first aid for. We were continuously being infused with that. You could see white particles around the place. My office was tested, after a major cleaning was done, and there was still extremely high levels of sodium hydroxide. So they needed to do it again.
I would get facial burning, where it was just as if you had gotten a really intense sunburn. My skin would actually peel. It was because of what I was exposed to. I worked for three years with the development of environmental illness. I had fatigue, migraine headaches, it has progressed to a point now where I get extreme pain in different parts of my body. It is especially noteworthy with my legs, because at times I can't walk now. I use a cane quite often when I am reacting; it is a fold-up cane, so it is convenient that way.
I was a person who was very active, I could swim, I could play squash, do aerobics, and now, anywhere I go, basically, I am reacting. It has changed my life completely. The fatigue, everything, I need to push myself just to get out of bed. I had a job before this, working in Chester, so I used to commute back and forth every day and then I would often go to aerobics classes afterwards. I was a very active person who would push themselves, kind of almost towards a workaholic-type attitude. This is very different from what my life has become. I have developed asthma from working at Camp Hill.
Also you were wondering about the chemicals, another thing was, the first year was the sodium hydroxide that they found with the dishwasher, the second year of investigation showed that there were hydrochloric acids and sulfuric acid and a bit of nitric acid that was added to our ventilation systems through vandalism. They believed it was a disgruntled employee who had added it, so we were also exposed to that. Then the third year, which ended up being around 1991, was the amines and everything else that everyone else was exposed to.
Everyone in my area was affected, that I can think of. Of course, the idea, like Marie was saying, with the kitchen employees was that it was not something to be taken seriously. I have a Bachelor of Science degree and did an internship at the VG. I knew what I was hearing from everyone else, that of course, people in the kitchen should be ignored. That was the general feeling in the hospital, because we weren't educated and we didn't know what was going on. That was very wrong. People had suffered dramatically because of that attitude.
MR. CHAIRMAN: Thank you very much. Ms. Godin.
MS. GODIN: Mr. Chairman, I was just wondering if we could ask the members of the Camp Hill Environmental Victims Society to provide us with copies of correspondence that would have come from the Workers' Compensation Board to people because what I have been hearing from both Ms. Welton and Mr. Struthers is that there was a change of heart at the board, or a decision was made and then it was overturned. I would like to see the correspondence that originally said, yes, they recognized environmental illness and then afterwards said they didn't. If that could be provided to the committee, I would certainly like to see it.
MR. CHAIRMAN: Is that possible, that you could provide it to the Legislative Committees Office? If you could, that would be of great assistance to us.
MS. WELTON: Certainly, even if it means instead of going through our files, we will go down to workers' compensation and say, you go through your files and give it to us. One way or the other, we should be able to get it to you.
MR. CHAIRMAN: One way or the other. From our point of view, it is just that they are your personal files, and so, the material would have to be given by individuals who agreed to provide that material, because once it comes out - and I just caution - it becomes public. We wouldn't want to have someone's file come forward, unless they had a chance to scrutinize the material that was coming forward. There may be other personal material in there, and we certainly didn't want that to become public. It would certainly be of assistance to us, if you could provide the information. Mr. Fage.
MR. ERNEST FAGE: Good afternoon. Did the Workers' Compensation Board indeed acknowledge that you had received long-term benefits because of environmental illness? I wasn't aware that they had conceded that.
MS. WELTON: They didn't say long-term benefits. I think it was considered temporary disability benefits. I was actually put off the summer of 1991, which is when we ended up having a meeting. One person told another and the next thing we knew, we had 150 people in a room to discover we had all been told the same thing, not to tell one another and this kind of stuff. That is when Roy Fox, who was also at it, said, I am leaving. At that point, they moved me then back to the Abbie Lane building, which unbeknownst to me, although I had heard rumours, they had studies on that building, that that was not a healthy building from years back, but nothing was ever done with it. Then I got additional symptoms in that particular building, but I - sorry, I am losing my . . .
MR. STRUTHERS: It is a very complicated and complex issue. The Workers' Compensation Board was just as confused as everybody else, I guess, when we first got ill, because they were trying to identify what was wrong. The doctors were trying to put some kind of a handle on it, what was happening. With a little credit to the Workers' Compensation Board, they felt a little merciful towards us and gave us compensation. Like I say, most of us were on compensation, 85 per cent of us, for a certain period of time.
Then when they somehow came to a conclusion with other people in other provinces and the doctors here, they decided that if that is what it really is, if we are calling it environmental illness, then we don't have any scientific data and so on. In the short term, yes, they would pay us. I was encouraged by a sentence in the newspaper today, which you have heard before, obviously it has something to do with your committee, it says, "Compensating short-term illness because of chemical exposure" - which is our condition - "is reasonable, but
scientific studies have found claims of long-term environmental illness to be 'medically unsupportable.'".
Most of us now are in the chronic stage of our illness and are unable to work. They don't recognize that. They are still waiting, according to Mr. Stuewe, for the scientific data to come through, which . . .
MS. WELTON: The government did agree to fund Fall River; in fact, I was the one initiated going to the dean of the medical school and saying that we need help here as to what we should do to try and get better. Certainly many of us, myself included, then learned about complementary therapies that we previously had not known about, and it was our belief, right from the beginning in working on this committee, that the Environmental Health Centre would be looking at what are the most effective and cost-effective treatments for this, around the world, and then do some research on this. Certainly we know - and this book is one of many that tells about, whether it is the Gulf War victims or many other places - this is not unique, even though we have large numbers at Camp Hill.
We didn't even get anything started until four years after, and then there is quite a different mandate and a very restricted budget. Although I think the research director at the Environmental Health Centre is superb, but the mandate given thus far is very inadequate. I ended up finding out about classical homeopathy, which I knew nothing about, but did a lot of reading once I was well enough to even get out of bed and do some reading and that helped me a lot.
It was a mixed blessing of being middle management and having no union to represent, that I got pressured back to work, and then got sick again, because my doctor wasn't seen, even though she was initially a lawyer, a naturopathic doctor, trained for four years and four years training in homeopathy. I think these are very credible people, and people need to know how to have informed consent, even if they have to pay for it themselves, and that has not transpired as yet.
Certainly we have spent thousands and thousands of dollars of our own money. People have lost their houses. Seventy per cent is a fair bit of money, but it still means, if you suddenly lose 30 per cent of your income and you have additional expenses, then something major is going to give in a lot of people's financial situations.
At every point, we have to fight, whereas I feel it is so unfair. Roy Fox also got very sick, but he didn't have to fight in the way that we have had to fight at every point for everything we got, and made to feel that we are somehow unworthy of this. As somebody said, we would have been better off if the roof had collapsed on us at Camp Hill, rather than this chemical toxicity that we have been exposed to. I am sure many of the Gulf War veterans feel the same. In fact, I had some of them call me, because the military were saying, we don't know what to tell you, so they ended up calling me.
MR. FAGE: Situations, such as you are involved in, are extremely difficult, and it is frightening when you see the consequences of what has happened here.
MR. CHAIRMAN: Mr. [Hyland] Fraser.
MR. HYLAND FRASER: Just a simple question. The answer is probably not simple, but I guess the research that is going on, and I expect worldwide research, work has been going on, the Atlanta Drug Centre or whatever it is called, and those various places, but the exposure that you people have had and others have had, has it changed the chemical make-up of your body, is that what has happened or do we not even know that yet?
[5:00 p.m.]
MS. WELTON: I think, in understanding regular medicine, just as they tested for the chemicals, the system is such that unless you know what you are testing for, you have a system to set up to test for heavy metals or sodium hydroxide or some of those things, but they didn't do the testing until much later, and even that testing is highly questionable. In fact, in my office, when they did the testing, suddenly it sounded as though there was a jet plane taking off in my room, and that happened within 15 minutes of this testing going on, with all this equipment. Then, two days later, when the testing ended, suddenly this whirlwind jet sound stopped. No explanation was given to me, other than there was far more air in the office, even then the levels of carbon dioxide were higher than what was acceptable. What I found out, from this engineer, who had this party, who said, oh well, they just flip a switch, and it opens it wide, which is not the normal amount of ventilation.
So even when they were testing, I really questioned the kind of testing that was done. I feel that there was a great deal of cover-up, and I think rather than putting our time and effort in workers' compensation, we maybe should have put an effort into getting an inquiry, just as the Westray mining disaster, because there are all kinds of people, this is federal money because it was a veterans' building, and we were told the veterans weren't affected. Well, how can you test when they already have a whole multitude of problems and are aged, and the other group is psychiatric patients?
You can't tell me that you have doctors and nurses and others, physio and occupational health staff and kitchen staff collapsing, and it is not affecting patients. So there was good reason, as far as I am concerned, that it was covered up. It is federal money, it is provincial money, it is Department of Labour and it is Department of Health. One doesn't want to be cynical, but it does seem as though an inquiry would have been warranted into what in fact happened at Camp Hill.
MR. STRUTHERS: Just one brief . . .
MR. CHAIRMAN: Yes. Go ahead, Mr. Struthers.
MR. STRUTHERS: . . . further to what Marie is saying. What really happened, I think the explanation that was given to me, at least by some specialists, is that when we ingested these chemicals in our body, which were unnatural for our body, somehow our immune system was compromised. Your immune system doesn't kick in when infections come your way, and most of us, on a regular basis, are infected in our bodies, somehow, whether internally in our organs, or in our throat, our eyes, our ears or something, everything that comes our way, we get, because our immune system has been comprised by the chemicals.
I can personally tell you, without going into any detail, that I had surgery within the last three years, and a benign tumour that they took out of my body contained the same chemicals that were found and identified by the scientists in the air-exchange system in Camp Hill Hospital. To me, that is confirmation. I guess, without sounding too pessimistic and negative, we can say that we have been reasonably well-served by the hospital, because they did acknowledge the problem, they are paying us 67 per cent, I think it was originally 70 per cent (Interruption) Well, the Department of Health and administered by the hospital.
Our concern is that not just for ourselves but, I guess, towards to the workers' compensation, we are trying to convince people that this is a compensable injury. It happened in the workplace. Why it happened to some people and didn't happen to others, I don't know that, I can't explain all that, but I do know that it happened. The evidence is there for us. They should take another look, a second or third look or whatever, at it.
MS. WELTON: Actually, there were many doctors that were affected, two of which are very prominent physicians who spoke to me. They are in a unique dilemma, they feel that doctors should be studying, there should be a major study of what happened at Camp Hill. Two of them told me if they took the tests that I had, neurological testing, and proved that they had the kind of disabilities that they know they had and that were similar to what I had, they could not ethically practice medicine. People have had various options as to reducing their workload, of course they could move their offices. One particular doctor said, I give the kind of tests, neurologically, that you took, and my insurance company will not recognize this, and so I won't have anything, and so I am continuing to work, and I know I am not the kind of doctor that I was before, but I am sticking in there.
They have all agreed that they would talk about what they are doing. In fact, one doctor had told me that he used to wake up in the middle of the night, coughing for so long that he would end up with bruises. So I said to him, well, what are you doing for treatment? He said, well, I have seen so-and-so and so-and-so, two specialists, and they said steroids. I said, is that what you are doing? He said, of course not. That is all, of course, we were given, was steroids, and we were told to use them minimally. He devised his own plan, and other doctors have done likewise but I think that is a whole other story that won't even get told unless somebody really wants to know some of the answers.
MR. HYLAND FRASER: Thank you very much.
MR. CHAIRMAN: I believe those are all the questions from the committee. I can't thank you enough on behalf of the committee for bringing this matter to our attention. We appreciate the time that you spent today here with us and, in particular, I know you waited quite a while and we appreciate that. Thank you, on behalf of the committee, for your time. Any other written materials, as were requested by one of our members, that could be provided to the office would be of assistance.
MS. WELTON: Thank you very much. This has been much less intimidating than I think we anticipated. Thank you.
MR. CHAIRMAN: Thank you. I believe our next presenter is Mr. Robert McKelvie on behalf of Energetic Foods Inc. Good day, sir. Go ahead, Mr. McKelvie.
MR. ROBERT MCKELVIE: Good afternoon. My name is Robert McKelvie and I am the owner/operator of three restaurants here locally, in Halifax. I am also on the Board of Directors of the Canadian Restaurant and Foodservices Association. I am not here today as a representative of any association or organization. I am here simply as a Nova Scotian businessman trying to provide a livelihood for my family and employment opportunities for nearly 100 Nova Scotians.
I am not in a position to know or delve into the inner workings of the Workers' Compensation Board or the technical aspects of the Act, nor am I here to dispute anyone else's claims. What I want to talk about today is the impact workers' compensation has on my business and my ability to create jobs for Nova Scotians. The 1990's have not been kind to the restaurant industry and the introduction of the GST slammed the food service industry. The ever-increasing spiral of payroll taxes has also had a huge impact on my business, the municipal tax, the provincial taxes, federal taxes. At the same time, customers have become more cost-conscious and will not accept menu price increases. It is a fact that restaurant operators who increase prices will get a backlash from customers and the customers simply stay home and will not pay the increased prices.
My costs have soared and yet my prices have only increased marginally in the past few years. I think the most important thing I can say today is that workers' compensation, to me, is a payroll tax. Now the food industry is one of the most labour-intensive industries in the business sector; approximately 30 per cent of every dollar that we collect from customers goes to payroll and hence the payroll tax, workers' compensation.
When I look back at the compensation assessments over the last few years, I get quite concerned and actually shocked. Between 1992 and 1997, I have seen the base rate of my workers' compensation premiums increase by 70 per cent. At the same time, we have had minimal claims against workers' compensation and the claims are usually very minor, a finger cut or a burn on the hand or arm. Assessment increases of this magnitude put us in a real
dilemma and we have to start making some tough choices. The customers refuse to pay menu increases; I will have to find other ways to cut costs and one of the ways to cut costs is . . .
MR. CHAIRMAN: Mr. McKelvie, I am going to have to ask you to lean forward, because of the microphone, I am sorry.
MR. MCKELVIE: One of the ways of reducing costs, obviously, is to reduce labour costs and that means either reducing the number of people you have on staff or reducing the number of hours that they are working. Once again, the higher the payroll, the higher workers' compensation costs are.
From what I have been reading in the paper about this process, this committee is looking at perhaps expanding coverage of injuries and also I have realized that workers' compensation is drastically underfunded. When I look at my assessment statement, I find that I am paying 18 per cent of a surcharge towards this debt. So if you have a benefit that you can't pay now and you want to increase the coverage, then it doesn't really make a lot of sense to me. I mean if I am running a business like that, I won't be in business very long.
I know that people who work in the restaurant business work hard. I am just saying that this is people's money, it is hard-earned and just be careful what you do with it. I am also under the impression that workers' compensation rates are scheduled to go up again next year as well. I understand that some of the things proposed by the committee would force assessments to increase substantially. We just can't afford to absorb any more cost increases, and rate increases will have a negative effect on my employees.
I now provide private insurance benefits for my employees and, I might add, this is substantially cheaper than WCB. Increasing the cost of my mandatory WCB insurance may lead me to cut back on my private insurance plan and this is an option that I really don't want to follow up on.
As a representative on a national association, the Canadian Restaurant and Foodservices Association, I have been able to discuss this with peers from the rest of Canada. I am quite shocked to see how high the rates are in Nova Scotia compared to my fellow operators across the country. We just simply have to get our rates closer to everyone else's.
In closing, I have read about the backlog at the appeal board and I think that you must act now to clear it up. People deserve to have an answer, whether it is yes or no, in order to get on with their lives. However, don't throw the baby out with the bathwater and don't hit businesses with another increase. Keep my business competitive with those in other regions in Canada so that I can continue to provide employment for Nova Scotians. Thank you.
MR. CHAIRMAN: Thank you very much, Mr. McKelvie. How many people does your business employ? Maybe it varies, I guess, from time to time.
MR. MCKELVIE: Well, it varies but anywhere between 125 to 150 or 175. The difference would be part-time people, who we employ in the summer.
MR. CHAIRMAN: What rate would you be assessed at? Do you know what . . .
MR. MCKELVIE: Well, it is an industry rate for restaurants and I don't have that number, but I do know that between the restaurants right at the moment we are paying about $27,000 a year to the Workers' Compensation Board. That is real dollars; that comes from customer cheques and, as I said before, the cost of the assessment continues to rise. Our claims are minimal, they are going down and the benefits we are receiving are negligible, so we are just appealing to the Workers' Compensation Board and this committee to make sure that the increases are stopped and we find ways of funding this properly.
MR. CHAIRMAN: Thank you. Mr. Fage.
MR. FAGE: Mr. McKelvie, in that regard of spreading out the cost of premiums to employers in Nova Scotia, in this province, bank workers, a number of administrative businesses, the base is small, quite frankly, compared to other provinces that are paying into WCB. In looking at the consideration, I think for us to be prudent, if we do make recommendations, and that is an if, also how they would be funded in a prudent manner has to come with that, do you see a problem with having a look at broadening the base to help keep the cost down for the entire employer group in this province?
MR. MCKELVIE: Well, I don't know if I could answer that question. If you look at other insurance programs and other insurance, whether it is car insurance or house insurance or life insurance - well, not life insurance - the more claims you have, the higher the insurance. The fewer the claims you have, you should get a better rate. Our rate, even though we don't have any claims, continues to grow. It doesn't seem fair that if you are not a user of the system, that you should continue to increase your premiums for the people that are using it.
MR. FAGE: For individual businesses, it is my understanding, if you are having a good claims record that you actually see a smaller rate of increase or actual decreases. Some categories of business . . .
MR. MCKELVIE: A smaller rate of increase.
MR. FAGE: Yes, some of them when they came in and appeared before us, employers would give us that determination that they have seen that type of situation on their own. I guess majorly, when you look at the scope of where the WCB is at right now and you see $370-plus million unfunded liability, that 40 per cent that is going to administration and debt and is spread over 45 years of repayment, all of us that have been involved in business all of our lives start to wonder pretty strongly where rates are going to go. Is that really a solution,
is it sustainable and there have to be other alternative solutions found to maybe that kind of heavy load on employers or business in this province.
MR. CHAIRMAN: Thank you. Are there any other committee members who have a question? Yes, Ms. Godin.
MS. GODIN: Hi, Mr. McKelvie. How many years have you been in the restaurant business?
MR. MCKELVIE: About 18.
MS. GODIN: You said that you had minimal claims?
MR. MCKELVIE: Yes.
MS. GODIN: Congratulations.
MR. MCKELVIE: Well, the restaurant industry, you know it is not construction or industries that have injury claims. I mean we have cuts and . . .
MS. GODIN: There are kitchen accidents.
MR. MCKELVIE: Yes.
MS. GODIN: So what you are telling us, no, you are probably not telling us, you have never had anybody off on WCB?
MR. MCKELVIE: I can't remember the last time. I mean every time you are injured at work, you have to report, by law, if you go to the hospital or are injured, you have to report it but I am sure that most of the times that those things happen, there is not even a claim, it is just part of the process you have to fill in. I can't remember the last time somebody lost substantial, I think the last time somebody was seriously injured was about 12 years ago, that I can remember, 10 or 12 years ago at one of the restaurants where one of the fellows cut his hand and cut through a tendon and he was off work for a month. That is the kind of serious injury that you would get, at least in my experience.
MS. GODIN: Did that person return to work for you?
MR. MCKELVIE: Yes.
MS. GODIN: So you haven't had the opportunity to follow someone going through the WCB process who works for you?
MR. MCKELVIE: No long-term disability, and we have long-term disability privately.
MS. GODIN: You say that works better, in your estimation?
MR. MCKELVIE: Well, I think we feel more comfortable with it and it is half the price, too. We pay - I have it in my notes here - I think our long-term disability privately funded is 77 cents per $100 and the Workers' Compensation Board is $1.39 per $100, so it is almost twice as much money.
MS. GODIN: Okay. Thank you, Mr. McKelvie.
MR. CHAIRMAN: Mr. [Hyland] Fraser has a question for you.
MR. HYLAND FRASER: Thank you. Mr. McKelvie, I am an insurance agent, so that is why I am interested in what you are saying there. (Laughter)
MR. CHAIRMAN: Mr. [Hyland] Fraser's ears are perked up. (Laughter)
MR. HYLAND FRASER: I just wanted to clarify that. Because you do have workers' compensation coverage for your employees, your group rate is cheaper because the workers' compensation is the first payer for an accident or something at work. So, if you didn't have that, your insurance rate would be higher because they would have to cover for another calamity, I guess, besides what you have them covered for now. I am not saying that the rate would be the same thing.
MR. MCKELVIE: Oh, I didn't know that. I appreciate you clearing that up; that is a good point.
MR. HYLAND FRASER: They won't cover, I know when you would have done your application or your agent would have, one of the questions asked is whether you are covered under workers' compensation and, if you are, your rate reflects that because there is a period of time for an injury at work which your insurance premium doesn't cover because they don't cover the claim as well.
MR. MCKELVIE: Long-term disability workers' compensation is not an option, is it? That is part of the package. Does it vary from province to province then? Is Ontario, do they not have . . .
MR. HYLAND FRASER: I don't think you have an option but to have your employees covered for workers' compensation. I think you have to do that.
MR. MCKELVIE: Yes, that's okay. I consider workers' compensation as a payroll tax.
MR. HYLAND FRASER: Yes, and the long-term LTD coverage that you would have under your health plan would cover your employees if they got injured off the work or got sick or something like that and this would be a long-term coverage for your employees, a benefit, a real benefit.
MR. MCKELVIE: We have actually used that, long-term disability through private insurance. We have used that.
MR. HYLAND FRASER: That is right. That is what that is for but that wouldn't be for an accident at work, that would be any other accident or sickness of long-term disability that would happen to your employees, but the rate - I guess that is why I started to talk - reflects that because the health plan doesn't cover your injuries at work, which are the most common, actually, or a lot of them are.
MR. CHAIRMAN: Thank you. I believe those are all the questions, then. Thank you very much, Mr. McKelvie, for taking the time to be with us today. It is very helpful to hear from not only employees but employers. It gives a very full picture of the challenges we have to face. So, thank you.
MR. MCKELVIE: Good luck.
MR. CHAIRMAN: Our last presenter for this afternoon is Mr. Joe Awad. I am not sure how it is pronounced. Mr. Awad, have a seat.
MR. JOE AWAD: My name is Joe Awad. Good evening, Mr. Chairman. I am injured. I got injured in 1992 and I have unfairness from the workers' compensation. I have around 10 doctors, specialists. He advised them to retrain me for something else because I was a carpenter and a carpenter, if he was working and he couldn't handle the thing, he could injure somebody else under him and that is the reason the specialist tell him to do that. They send me to therapy for around 200 times and the last thing, I got fed up because if I am not going to heal for 200 times, it was just impossible.
MR. CHAIRMAN: What kind of injury did you suffer, Mr. Awad?
MR. AWAD: I have tennis elbow, I just couldn't work.
MR. CHAIRMAN: What was the date of your injury? When did you go off work?
MR. AWAD: August 24, 1992, something like that.
MR. CHAIRMAN: Were you working in a unionized or non-unionized job?
MR. AWAD: We were working, not unionized.
MR. CHAIRMAN: Not unionized.
MR. AWAD: Yes.
MR. CHAIRMAN: So you were working for a private company.
MR. AWAD: Private guy, he was building and just he hired me and I was trying to do the job. I was on the roof and slipped, I tried to, I reached the sheet of plywood and just my hand, you know I couldn't move it for a couple of minutes and after a little while I got up. I kept working and in the evening my hand started to swell and I went to the emergency. That is when I start - they sent me to Dr. LeGay - they sent me to the therapist after a little while and after they got me in the WCB, after a couple of months, two or three months, they cut me off and I have to go back and have an operation on my hand, on my elbow, in the summer, that is the next year. What I did, I have to go after and they sent me to therapy. They sent me around 100 times for therapy and after I got, you know, they said if I am not going to be helped, it is not going to help me.
I left therapy because I have a sister in Windsor, Ontario, and she was ill with cancer and I went over there. When I went over there I stayed around two weeks because she was very ill and, when I came back, they said we cut you off and there is nothing wrong with you. From that time, they didn't want to acknowledge. I begged, I asked for retraining and they said no. I still, to now, sometimes they answer the phone, sometimes they don't answer; they cut the phone off in my face. Now they say to me they are going to look at it next month. I don't know if they do or not because the same staff, they say it and they repeat it.
I tried to create a company, to hire people and do the job and just get benefits. When they cut me off before, I said they are not going to pay me for long. I have to do that because before I was self-employed and I go working when there is a job. I go work at the job but when there is not, I am self-employed. I ask for training because after they put the price up a little bit for the working and I couldn't work myself, I have to hire people. You have to pay them wages. If you don't pay them wages, they don't work. The last thing, I couldn't make any money and I went back. I said I need training for something to do my living. They said, no. From that time, I can't work. Nobody hired me because they were scared when I said to them I have problem; they were scared to hire me because I can hurt somebody else in the job.
Now they say no, nothing wrong. They sent me a doctor to assist me and the doctor, for around five minutes, he got this square and measured it, he said, that that is the right thing. But I have documents from 10 specialists. They said you can work and the last thing I heard from Dr. Johnson - because I was waiting for two years to see the specialist - he said, we will have an operation on your hand, but don't limit yourself until you go back to do carpentry work. I have lots of reports from different doctors. They said train him for something that is less hard work, because he can't go back to his former work. I can't do the work myself. I
can hire people. I am stuck, from 1992 to now, I don't have wages. I don't have money coming in to live, I have to share my wife's living to live. I have a son, 20 years old, he is in university. I am stuck like that.
[5:30 p.m.]
MR. CHAIRMAN: Mr. Awad, do you have an appeal in the system?
MR. AWAD: I did five or six appeals, and every time, they come and it is the same every year. They sent me to a lawyer, representing the workers, the last thing the lawyer said to me, we do not represent any more the worker, you have to call the board over there and they will put one for you over there. That is the last thing I know.
MR. CHAIRMAN: When was that? When was your last appeal heard? Can you remember how long ago it was?
MR. AWAD: The last appeal, it was in 1997, and it didn't come in. Now, when I call them, they say don't come in before the first of the year, next year.
MR. CHAIRMAN: Thank you. You weren't able to get any retraining at all?
MR. AWAD: No. I asked them for retraining. They said, we are not the welfare and we are not the food bank. That is their answer for me. I have someplace, in writing, where they said I am not the welfare.
MR. CHAIRMAN: Thank you. Do any of the committee members have any questions for Mr. Awad?
Ms. Godin.
MS. GODIN: Hello, Mr. Awad. I have personal knowledge of the tennis elbow thing, I know how painful it is.
I just want to confirm that you are quite willing to go to retraining.
MR. AWAD: Yes.
MS. GODIN: If you were offered that, you would . . .
MR. AWAD: That time, yes. That is eight years now. My training is not good anymore, because I will be 65 in another couple of years. It is not good, but before something could have been done for me.
MS. GODIN: So did anybody say to you that you were too old to be retrained?
MR. AWAD: They didn't say that word.
MS. GODIN: They never said that to you?
MR. AWAD: They didn't say that word.
MS. GODIN: Okay, but you are willing, you would . . .
MR. AWAD: I was willing, but now I don't know if I have to or not, because after eight years you lose your confidence with the system. I asked them, I said maybe if you trained me for something, on a computer or something, I would be willing to work and do better, and just, I will create, I will do my own. They said no.
MS. GODIN: Okay. Thank you, Mr. Awad.
MR. CHAIRMAN: Are there any further questions from members of the committee? Well, thank you very much Mr. Awad.
MR. AWAD: I have . . .
MR. CHAIRMAN: You have one thing else. Go ahead.
MR. AWAD: I have Dr. Hudani, Dr. Cathy Johnston, Dr. LeGay many, many times, Dr. Canhan, Dr. Patil, Dr. Venugopal, Dr. David Johnson, and they all, they have the same thing. I have the report and everything.
MR. CHAIRMAN: If you could just tell us, what do their report say about your elbow? Does it say that it is not going to get better, is that the gist of what it says?
MR. AWAD: The last thing Dr. David Johnson said, you need an operation, but he is not capable to go and hit nails because - and carry heavy plywood - you will be break it for good. You can't handle that. I don't have a strain in my hand until I do it. I have to wear a strap all the time. If I don't wear it, I can't carry a bag of groceries. And if the doctors are not good, why waste our time and waste the money from the tax or the money they collected after they said no, there is nothing wrong.
MR. CHAIRMAN: Thank you very much for taking the time. I know you have been here since 12:30 p.m., I think I understand from some of the staff.
MR. AWAD: I am not here to crucify the system, but there is someplace, something rotten in the barrel of apples. If there is one or a couple rotten, they have to be cut clean before all the barrel turns the same, because you know the bad smell has more effect than the nice smell, but there are lots of nice people. Thank you for listening to my concern.
MR. CHAIRMAN: Thank you very much for giving us your concerns. We will recess until 7:00 p.m.
[5:40 p.m. The committee recessed.]
[7:04 p.m. The committee reconvened.]
MR. CHAIRMAN: I call the Select Committee on Workers' Compensation to order. I would like to welcome all the members of the public who are able to be with us here this evening, and thank them for taking the time out of their schedules to come to our meetings. For the benefit of those members of the public who may not have been at the meeting earlier today, I would ask the members of the select committee to introduce themselves.
[The committee members introduced themselves.]
MR. CHAIRMAN: I would also ask the staff to introduce themselves.
[The committee consultants and staff introduced themselves.]
MR. CHAIRMAN: Thank you very much. Again, for the benefit of those of you who were not able to be with us earlier, the Select Committee on Workers' Compensation was created as a result of a resolution of the House of Assembly, passed at the spring sitting of the Legislature. At that time, this committee was charged with the responsibility to report back to the House of Assembly with recommendations for changes to the Workers' Compensation Act. As part of our deliberations, we have had an opportunity to hold hearings throughout the Province of Nova Scotia, at which members of the public have made presentations concerning problems that they have identified with the Workers' Compensation Act.
We particularly welcome the opportunity for members of the public who are injured workers, who have taken the time to make presentations, and we would encourage them to continue to do so. However, we must caution people that we are not able to intervene in their individual case although, of course, changes to the Act made as a result of our deliberations may very well have an impact on their particular situation.
Without any further ado, I would ask Mr. Petrie, if he would like to make his presentation.
MR. GERALD PETRIE: Members of the Select Committee on the Workers' Compensation Act, MLAs, consultants and guests, ladies and gentlemen, my name is Gerald Petrie. I am the brother of Everett Petrie, and it is his case I would like to tell you about this evening. He and I have been sorting through reams of documents since he decided to write to various government departments in 1995 for information concerning his workers' compensation claim that goes back to 1978. He is ill and unable to make this presentation.
Mr. Petrie worked two jobs in 1978. He did janitorial work through the week at DND Shearwater and worked with the Corps of Commissionaires on weekends and holidays. He had two chronic problems that were under control at that time. He had ankylosing spondylitis, similar to what I have, which is an arthritic condition of the spine affecting the movements of the neck, and he also had asthma, which had not given him a problem since he worked in a refrigeration factory in London, Ontario, in 1964.
Now, he otherwise had an active lifestyle with heavy involvement in sports. He liked to golf on the Par 3 ranges and attended as many of his two sons' hockey games as possible, and he easily attended to the daily activities of running his home. He had his own home in Forest Hills, and the kids were doing well in school.
Now Mr. Petrie is 100 per cent disabled; he has been since March, 1978. The first thing you notice about him is a severe bend in his back. He never did get the care to prevent ankylosing spondylitis from bending the spine, and his neck is also bent forward, so his chin is touching his chest. The second thing you would notice about him is his difficulty in breathing and moving; there are other difficulties you would never notice. He never has a day where he doesn't have trouble breathing. If a door is left open or he sits in a draft of any kind, his bronchial tubes clog. In the wintertime, he spends most of the day gasping for breath, and is taken to the hospital at least 10 times through the winter. He is taken to the hospital by ambulance, where he is treated in the emergency and released.
He does no socializing and can't participate in any community events at all. He never gets a full night's sleep; two hours is the most he can hope for. He must shower and change clothes twice a day because of excessive perspiration. He takes Valium for his nerves, and his leg shakes constantly when he sits down. His wife and 10-year old granddaughter take care of him; the stress on them can't be determined.
Mr. Petrie is, as you understand, severely disabled. He has been in a constant battle with workers' compensation for 20 years for proper compensation that he believes is justly his. He has been collecting documents on his case since 1995, documents that go back to 1975 and further, and created a paper trail that shows, unequivocally, that workers' compensation had an obligation to produce information that was withheld from lawyers and doctors working on his appeal over those years. They had information, they withheld it. It perhaps wasn't withheld intentionally by any individuals, that is not what he is saying, but there were rules within the system that prevented information from being divulged.
The rule in this particular case was one that the workers' compensation would look at information only concerning the last accident, and that is significant in his case. They determined if information from previous actions would go into the new file for this latest accident. Now, lawyers and doctors working on Mr. Petrie's case, on appeals, would be given the file with the latest accident; only the information concerning the last accident and nothing previous. They would determine what goes in this new file, apparently. The claimant didn't know what was in those files. My brother never knew what was in those files, or even if there was a second file. He didn't know if there was a first, second, third, fourth, he didn't know that. He just knew there was a file. Mr. Petrie didn't know what was in the file and, what makes the case so confusing, Mr. Petrie himself wasn't aware of the significance of the first claim. He wasn't aware of that, and I will tell you about that.
At any rate, let me tell you a story. Now from the time he started in Shearwater in 1975, he began to have asthma-related difficulties. He began to lose work due to asthma and, in 1977, was hospitalized for the first time. Each time he was able to return to work, feeling better. After he had these asthma attacks and once he got away from the cleaning fumes and that, he was back to work without any problem. Once he was taken away, he was in good health. He only took medication when it was needed.
In March 1978, he inhaled a mixture of Javex, acid remover and water. When he inhaled this, he was in a small closet and it knocked him to the floor. He has never been the same since. He was taken to hospital where he was treated for asthma and, within 10 days, released. Workers' compensation opened a claim for that accident. He went back to work, but this time he never did feel better and, since that time, he has been taking the maximum amount of medication. He started taking the medication through a ventilator machine that consists of an electric compressor and a face mask.
There are documents to show that the medication, the doctors said that they could not control his asthma now with medical therapy, and he has letters to that effect. Now it says in some industrial safety magazine, that I got from work at DND, that a chlorine vapour is emitted from this mixture - the mixture of Javex, acid and water - that can cause pulmonary edema if taken in sufficient amounts. It is heavier than air, so it will settle on the floor.
Mr. Petrie was knocked to the floor and remained there for an unknown length of time. He lay there until his co-workers investigated the odour that was spreading around the building, and came to pick him up. This gas, apparently, is the same gas they used in the First World War, and it is also the same gas that was emitted from the plastics fire in Hamilton, Ontario, a few years ago. Some of the firemen who had inhaled that gas are still not back to work.
Now his family doctor wrote to DND to give him a job away from these fumes. The cleaning fumes were causing him a problem, but Mr. Petrie was unaware of this letter when he went back to work in April 1978 and he had another accident on June 5th, within a span
of a few months, and this is where the workers' compensation bureaucracy sort of tripped him up. He had another accident that he was hospitalized for, so workers' compensation opened a second claim - the accident was that he mixed wax remover and water; wax remover and water doesn't emit any toxic vapours, just the vapour that would aggravate asthma - for the accident and further appeals he had over 20 years were based on wax remover and water, which is not dangerous. The previous claim was closed and it was never mentioned again in all of the 20 years.
The information from the previous accident was never put in the new file, and all appeals were to be based on wax remover and water aggravating asthma and not the toxic fumes that he inhaled that would have knocked over an Olympic athlete. Workers' compensation had an obligation to give this information to lawyers and doctors working for Mr. Petrie over the years. They had an obligation to give them that information. For 20 years, Mr. Petrie - now this is sad - wasn't aware of a few important facts. Now this man is a janitor, he didn't know that the vapour he inhaled was a toxic chlorine gas, he had no idea for 20 years. He only knew that there was a significant difference in his health after he inhaled that particular vapour in March, and he wasn't aware that the lawyers and doctors making his appeal didn't know anything about the first accident. He had no way of knowing that.
It must be noted that Dr. Michael was a specialist and he was also the specialist treating Mr. Petrie and he also worked for the Workers' Compensation Board. There was never a second opinion. The specialist for my brother and the specialist who worked for Workers' Compensation Board was the same man. He did see Dr. Gordon at one time and he did see Dr. Lundrigan at one time, but Dr. Lundrigan only saw the information in the new file. He didn't know about the previous accident and, of course, my brother couldn't tell them about that accident because he didn't know that he didn't know.
The question Mr. Petrie would like answered is: could the inhalation of vapour create symptoms similar to asthma? Was he being treated for symptoms similar to asthma when, in fact, it was clinical asthma? I am using the term clinical asthma to say that it was asthma created from fumes. I don't know if that is the right term. There is enough evidence to conclude that Mr. Petrie's health deteriorated quite a bit after the accident of March 1978. There is quite a bit of information that says that, but there is no evidence to check and see why there was any significant difference. There are no tests. Why didn't the specialist suspect something other than an irritant to an existing asthmatic condition exists? He knew there was a significant negative difference after the accident, he knew that he inhaled a vapour, but made no checks to this effect and it wasn't until Mr. Petrie hired a lawyer himself that Dr. Michael initiated these tests.
Another irony here is that it must be noted that the lawyer was under the impression from the Workers' Compensation Board file that Mr. Petrie had inhaled wax remover and water. The lawyer didn't know and my brother didn't know that the lawyer didn't know. We
must remember that Mr. Petrie didn't know there was a second claim and the information of the first claim wasn't available to the lawyer.
For the first 10 years or so, the Workers' Compensation Board didn't pay for drugs and paid only 10 per cent financial compensation; consequently, my brother lost his house. He couldn't afford a house. He was working two jobs, like I said before, and he had to give them up. After years of fighting the Workers' Compensation Board, all based on information from the workers' compensation last claim, he now gets 35 per cent medical and 50 per cent financial. He also, of course, gets a DND disability. He retired on that. I am going to mention that, but all this stuff is taxable and had he gotten 100 per cent workers' compensation back in 1978, plus his drugs, he would still have his house; that was my point about that.
Now, what is a guy going to do? A janitor now, and he has a claim - I don't know what it's called but he has a claim at the Workers' Compensation Board - he has it since 1991, and it has gone through every process and it is the last process right now, this claim he has, but the claim is based on information of the last claim. The information of the actual incident that caused his disability is not in this thing and it is going to be turned down. It was turned down at every stage and this is the final stage coming up, and he knows it is going to be turned down.
So what is he going to do? Here is what he did - he is a janitor, remember - he wrote to the DND archives, through the Freedom of Information Act, for all the documents pertaining to the March 1978 and June 1978 incidents. He also went to every hospital he was in and collected all the documents that were pertaining to his health. He collected all admission documents, all the tests that were available - some of them the doctors kept for themselves - all consulting reports, all the doctor on duty reports, all the family doctor's comments. He collected all this paper trail. He collected all the papers that the Workers' Compensation Board had pertaining to all the claims he had since 1975. He got it all - and they weren't easy to get - and he arranged this paper trail, not knowing anything about health, not knowing anything about the Workers' Compensation Act, not knowing anything, just prodding his way through this, right?
He found out was a number of things. First of all, the safety prevention report made of the day of the accident of March 1978 and signed by the foreman said there was a mixture of sodium hypochloride - which is Javex - of unknown strength, and phosphoric acid, the rust remover, and water, but the report from the personnel office from Shearwater to the Workers' Compensation Board said the mixture was only Javex and water. The workman's report of the accident read there was Javex, acid and water and the consultant's report - Dr. Michael's report - said it was an acid solution and Javex. He had these all chronologicalized and put there.
Now, the consultant, Dr. Michael, did not investigate to see if he had has chlorine inhalation, he didn't, knowing that that vapour was emitted from these compounds. He knew Mr. Petrie inhaled a harmful vapour and he knew Mr. Petrie wasn't responding to medical treatment like he normally did, so why not suspect chemical asthma, if that is the proper term. DND also knew that was a toxic vapour because the next day DND employees had a meeting and they told the employees there of the toxic qualities of the resulting fumes and what precautions to take. Mr. Petrie didn't know about that either; he was in the hospital at the time and when he got out of the hospital, nobody told him. He didn't know until he read the documents in 1995 that that meeting was held the next day, and it was explicit in there about what they did.
The Workers' Compensation Board did no investigation in this case. They did nothing. They did not investigate; in fact, if you read it, it is easy to draw a conclusion, albeit we are not lawyers, but it seems they read enough information to refute the claim and continued to make the same mistake 20 years later while Mr. Petrie suffered. There was no correspondence between the Workers' Compensation Board and my brother, but way back in DND's time he didn't know what conclusion the Workers' Compensation Board drew from this accident at that time, all he knew is DND, they dealt with the Workers' Compensation Board and they gave him his full pay for 10 weeks while he was off, then he goes back to work. There was no correspondence between the Workers' Compensation Board and he never knew what concluded from any hearing, if there was any hearing; it didn't say. He didn't know and he can't find out.
Did the Workers' Compensation Board say, yes, he inhaled a toxic vapour? He doesn't know. He can't find that out, right? The other thing he found out was that information the Workers' Compensation Board had was withheld from lawyers and doctors who, over the 20 years, tried to help him. That is the other thing he found out.
That is the whole story right there but if Mr. Petrie had received in March 1978 the compensation that he was justly due, a lot of social and human problems associated with chronic sickness would have been substantially less and he would not have lost his house. He would also have better medical care because people would know what his problem was, right? Maybe that is iffy, I mean I might be naive, but the normal sympathy and compassion that I believe is inherent in Canadian law for the victim of such things was not evident in the way the Workers' Compensation Board treated my brother. It was not there. They treated him like, not very well.
The personnel at the Workers' Compensation Board read only what they needed to turn down the claim and they withheld information from people who might have investigated further, and the result was they denied the full claim and all that it contained. Now, should a janitor in severe pain and discomfort have to do all this investigating when the Workers' Compensation Board people are paid to do this? Why does the Workers' Compensation
Board look for reasons to deny some of the things that they are mandated to provide? It is almost as if they have an undisclosed second agenda. You know what I mean.
Now, the staff at the Workers' Compensation Board, if I were setting it up, the staff at the Workers' Compensation Board would be knowledgeable people about the Workers' Compensation Act, so that a janitor or a doctor could go in and talk to them about the best way to file their claim. That is the way it should be. Those people should be able to go to the boss. They should be experts in the compensation law, or know who to go to, and they should be able to go to the boss, they should be able to make decisions, and go to a boss and explain why they made that decision and that boss explain, yes, it is a good decision or it is a bad decision. They should be able to. I mean even in the Army with all the military discipline we had in the Army, you still do this. If you see something wrong, you shoot your face off. You tell me what is wrong. These people are not allowed to tell their bosses what they think is wrong.
Any time you have a system, especially with the Civil Service where the people are not allowed to make discretionary decisions and have meetings saying what is wrong with the system, any time you have that you are going to get people having an ulterior agenda and it is not going to benefit the people of Nova Scotia. A government program must be open and the staff trained in the rules are to use their discretion and explain their decision to supervisors that would approve or disapprove with explanations. If that system is in place, a janitor can go to a civil servant at the Workers' Compensation Board and be helped. He doesn't have to do all that investigating. That should be there. The people at the Workers' Compensation Board are just like you and I. They don't have to be told to look for negative things.
In conclusion, ladies and gentlemen, I would like to end on a positive note. Mr. Petrie has finally found someone to listen. He was able to about a month ago meet a caseworker, a lady lawyer with the Workers' Compensation Board, who stayed in her office well after 5:00 p.m. listening to Mr. Petrie. She began to understand his problem and, with the compassion that he should have received years ago, decided to help. The appeal before the Workers' Compensation Board now she says has to stand. We will have to let that go through and we will file another one based on the information of the second claim. However, in previous dealings with the Workers' Compensation Board you can understand his skepticism but he is told that there are at least 90 pieces of medical information, the young lawyer told him, in those papers and he has reams of papers, 90 pieces of medical information that substantiate his claim. That is what the lawyer told him.
This is encouraging for two reasons. First of all, there are 90 pieces of information and somebody has finally read his claim. So he is looking forward to that. The appeal should be held but the appeal could be held up at every stage along the way that is coming up to new appeal and Mr. Petrie fears he would be deceased before any decision is reached but we will see. This man suffers. You wouldn't believe, when he walks down the street, kids laugh at him.
Ladies and gentlemen, when you present your report, I hope changes are made to the Workers' Compensation Board that describe exactly what the Workers' Compensation Board is designed to do and the staff. The immediate staff at the Workers' Compensation Board is people like myself. We are not educated people to deal with and when we sit down with them, if we know that those people are there to help us, not shaft us, right, they must be given the right to help us or guide us through things, but if they are going to start determining help by the bottom line, or whatever it is that they determine things by now, that is wrong. So we hope that the staff is allowed to openly carry out the new rules that are in this new Workers' Compensation Act, or changes you are going to make. We hope you are able to not only present some changes to the Workers' Compensation Act but to also change and solve the many problems. Thank you very much.
MR. CHAIRMAN: Thank you very much, Mr. Petrie. Yes, Ms. Godin has a question for you.
MS. GODIN: Hi, Gerry. I am a little confused about something. I would like to know who it was who actually finally helped you. I am confused about whether it was someone at the Workers' Compensation Board or whether it was a worker adviser?
MR. PETRIE: It was a workers' adviser.
MS. GODIN: It was a workers' adviser.
MR. PETRIE: Yes, and she was able to help because he spent about one and one-half years going through these papers and understanding where the problems were so he could point out these problems to her and she was good enough to listen because another thing about him, he is very confusing to talk to because, you know, he's taking Valium. He jumps from one topic to another. It is hard to keep him pinpointed on one job and she did it and she listened and then came back with some hopeful things for him.
[7:30 p.m.]
MS. GODIN: You said this mistake that was discovered in 1995, what happened in 1995, where did your brother go? Did he approach the WCB itself to try and get somebody to listen?
MR. PETRIE: First of all, he went to WCB and asked for his file, right? So they gave him a file and all that was in this file were things from the second accident: the wax remover and water. I said that is not the file, so he went back and it was just a fight between the Workers' Compensation Board, and the term file meant one thing to him, but meant another thing to them. He had to go, which he eventually did, and get all files related to him, all cases. The term file to him meant all his information, but that was not the case. That was the major problem too because when a lawyer went there, he was given the same thing, a file, and not
all the information. I am not saying now that people at the Workers' Compensation Board purposely did this; I wasn't. It was the system that they followed and when they followed that system, people like my brother got hurt badly.
MS. GODIN: Thank you.
MR. CHAIRMAN: Thank you. Mr. [Charles] MacDonald.
MR. CHARLES MACDONALD: Mr. Petrie, how old would Ed be today?
MR. PETRIE: He was 60 years old on September 2nd.
MR. CHARLES MACDONALD: So when he was hurt, he was roughly in his early 40's?
MR. PETRIE: Early 40's, just 40, yes.
MR. CHARLES MACDONALD: And his family, he had a young family at that time?
MR. PETRIE: His family was just growing up. The oldest was going to university at the time. He had a house out in Forest Hills and he was working, like I say, two jobs. He worked at the Corps of Commissionaires on the bridge on the weekends and on holidays; he never had a Christmas off or nothing. What I was trying to point out there was that he was a man, you know, even though with little education, he was working towards getting his family going and his family completely fell apart after that. It is a sad thing.
MR. CHARLES MACDONALD: Thank you.
MR. CHAIRMAN: Thank you very much. On behalf of the committee, Mr. Petrie, I would like to thank you for taking the time to come in here on behalf of your brother this evening and share with us his story and the difficulties in the system that he encountered. Thank you very much.
MR. PETRIE: I thank you all very much. Thanks for listening.
MR. CHAIRMAN: Our next presenter is Joyce Reynolds of the Canadian Restaurant and Foodservices Association. Good evening.
MS. JOYCE REYNOLDS: Thank you. On behalf of our 700 member establishments in the Province of Nova Scotia, the Canadian Restaurant and Foodservices Association is pleased to have the opportunity to present to this select committee our concerns with the current system and to provide our recommendations.
As one of the province's largest private sector employers, the foodservice industry has a major stake in Nova Scotia's workers' compensation system. As a labour-dependent employer with razor-thin profit margins, the foodservice industry is particularly vulnerable to problems with the workers' compensation system.
In order to have a healthy and sustainable workers' compensation system, it must be affordable and the Workers' Compensation Board financially accountable. However, neither of these fundamentals are in place and largely because of outside influences beyond the control of the board. Nova Scotia's workers' compensation system is in serious difficulty; with an unfunded liability of $370 million it has the weakest funding ratio in the country.
The new Workers' Compensation Act that was passed in 1995 and proclaimed in 1996 brought much-needed reform to the workers' compensation system. This has contributed to a significant reduction in liabilities between 1993 and 1996; however, the financial position of the system is still critical and we were alarmed to see the unfunded liability creeping up again in 1997. We find it inconceivable that additional benefits are being contemplated when current benefit commitments are still far beyond the Workers' Compensation Board's means.
The Workers' Compensation Board's efforts to focus on implementation of the new legislation and a long-term business plan, which could bring efficiency, economy, service improvements and eventually cost relief, have been frustrated and constrained by external interferences and directives, mostly pertaining to the old Act.
The Doward decision, in particular, which creates a precedent for chronic pain to be accepted as a compensable work place injury, has opened a Pandora's box for the Workers' Compensation Board. It has enormous but undeterminable cost implications. It has contributed to the huge backlog of appeal cases and because of the subjective nature of these claims, it opens up the system to abuse. This is an example of the courts widening the parameters of entitlement to workers' compensation benefits to the point that the significance of the employment relationship as the causal factor of the injury or the disease is blurred.
According to Dr. Jock Murray in a WCB report on chronic pain, "chronic pain occurs in about 11-54% of the population in various forms, and can develop without any evident cause, or may develop associated with stress, or injury or specific illness". He goes on to say that "The approach of medical investigation and treatment, the attitude of family and supporters, and the mechanisms of Workers' Compensation Boards and social agencies may become important factors by providing 'rewards' for remaining unwell, and accentuating the illness behaviour. The person may be quite unconscious of this, but it can be a process that worsens the condition even though the aim of these processes was to help the person".
CRFA supports a prevention and rehabilitation approach to chronic pain as recommended by Dr. Murray. Rather than simply providing compensation this approach is characterized by: better care of acute pain and trauma; use of normal recovery times for illness and injury; early recognition of chronic pain characteristics and behaviours; early intervention when pain exceeds normal recovery times; use of multi-disciplinary teams to manage chronic pain; stressing the goals of increased activity and improved function even in the presence of pain; and acceptance of the goal of early return to work. This approach appears to have been adopted in the 1996 legislation but for cases prior to 1996 prevention and early intervention are no longer possible but long-term income support that promotes inactivity is not the answer either for chronic pain sufferers.
Given the WCB's precarious financial state, and the potential for difficult-to-substantiate claims like this to bankrupt the system, CRFA recommends against consideration of any new conditions as compensable until the Workers' Compensation Board is fully funded. To allow the Workers' Compensation Board to function according to the legislation as it was intended it is recommended that legislation clarifying the authority of the WCB and the Governor in Council to pass regulations that would apply to the transition period between the old Act and the new Act be reintroduced.
CRFA is also concerned about the polarization between WCB policy and WCAT interpretations. A case in point is a recent misinterpretation of board Policy 1.3.3. dealing with environmental illness. This policy requires that a causal relationship be established between exposure in the workplace and the worker's illness before a claim for environmental illness is allowed. This policy is applied on occasion when workers suffer short-term adverse effects from limited exposure to a hazardous substance.
When the "balance of probabilities" are that the worker's disease is caused by something other than the claimant's employment, then the claim should not be allowed. However, a recent WCAT decision disregards compelling medical and scientific evidence of other non-work factors as the dominant cause of environmental illness. This decision has distorted Policy 1.3.3 and the Act so that the near impossible burden falls on the Workers' Compensation Board to prove that the disease is due to a cause other than the workplace, instead of for the claimant to prove that on a balance of probabilities the disease was caused by the workplace. This opens up the system to a deluge of other long-term environmental illness claims without a supportable workplace connection. In this way the appeals board has a pervasive effect on board payments and costs and its actions are beyond the control of the board.
The legislation should be modified to ensure the purpose and intent of the Act, i.e. to compensate workers for disablement which is due to the nature of employment, is followed. In addition, there must be a mechanism to appeal precedent-setting WCAT decisions that misinterpret board policy or the Act and have the potential of opening a floodgate of claims.
At the same time we share the concern of your committee and all stakeholders about the huge backlog of appeal cases. It is a problem that must be dealt with quickly and decisively. It is unfair to workers and their families to have their cases drag on for months or years. These cases must be ruled on one way or the other so that people can get on with their lives. We believe legislative amendments by this committee that will more clearly define eligibility, requirements for continuation of benefits, and criteria for terminating benefits will help resolve the current problem and future problems. We are hopeful that the Auditor General, who has been tasked with reviewing this issue of delays, will be able to provide further insights on how this entire process can be expedited.
CRFA also takes issue with the government's stated intention to reinstate pensions to survivors who remarried prior to October 1992. Although we can acknowledge the government's concern is legitimate about a court challenge under the Canadian Charter of Rights and Freedoms, we object to a significant but undetermined retroactive payment to these claimants being charged to today's employers. Since it is not practical or possible to go back in time and assess all the employers operating businesses between 1992 and present, it is the responsibility of government, if government decides it is necessary, to provide a lump sum payment from consolidated revenue for that purpose.
CRFA believes that it is important to ensure that injured workers are compensated at a rate that is fair and reflective of their earnings capacity and there must continue to be a differential between pre-injury earnings and compensation to ensure that there is a motivation to return to work.
CRFA remains supportive of the move in Nova Scotia to compensate on the basis of net income instead of gross income. It is more representative of a worker's actual after-tax income loss and prevents claimants from collecting more than their pre-injury earnings but perhaps the reform that has taken the most costs out of the system in relation to the foodservice industry is the inclusion of the two-fifths waiting period.
Injuries in restaurants tend to be low severity incidents like cuts or burns that have a fairly quick healing time. The number of minor injuries previously administered by WCB added greatly to the cost of the system. The two-fifths waiting period acts as a deductible, an added incentive for employees and employers to reduce workplace hazards. It dramatically reduces the time spent on paperwork. It also strengthens the ongoing relationship between employer and employee. Employees are more interested in alternative work arrangements and employers are coming up with innovative ways to keep employees working. A waitress with a burn who is prevented from handling food can take on the responsibilities of hostessing instead, as an example.
The decrease in short-term disability payments for the restaurant rate group has been significant. Costs in 1997 were $127,000 compared to $254,000 in 1994. The number of claims plummeted from 711 in 1994 to 577 in 1997 and it is recommended that the two-fifths waiting period be retained in its current form.
Despite these positive changes introduced in conjunction with the legislation and other positive initiatives such as early return to work programs, board reorganization and the introduction of an experience rating system, CRFA remains extremely concerned about the financial state of the system and the implications for those employers who fund it. Currently, the foodservice industry is staggering beneath the weight of ever increasing payroll taxes. WC premiums for restaurant operators are $1.49 and are amongst the highest in the country. In contrast, restaurant operators pay 97 cents in Alberta, $1.04 in B.C., and just $1.00 in neighbouring P.E.I., making these provinces more attractive for investment.
Nova Scotia's $863 million foodservice industry directly employs 24,000 Nova Scotians, representing 6 per cent of the province's total employment. The industry is also a major source of entry level jobs and it currently employs 8,000 youths under the age of 25. The average food service operator in Nova Scotia realized a return before income tax of only 5.6 per cent in 1996. In an industry where labour accounts for nearly one-third of the restaurants operating costs, increasing WCB costs means closure for marginal businesses and a reduction in staff for many others.
The competition in the foodservice industry is fierce and the failure rate is high. Employers must have reasonable labour costs in order to set competitive prices and maintain a viable business. Trying to incorporate payroll costs into menu prices is self-defeating because it tends to reduce the demand for the industry's goods and services, and this perpetuates a cycle of premium increases and employment decreases. Menu increases have not nearly kept up with inflation over the last couple of years in this province.
As mentioned previously, WC claims in the foodservice industry plunged from a high 711 in 1994 to 577 in 1997. Despite this decrease, the industry assessment rate increased 28 per cent over this period. Although frequency of claim comparisons are not available for earlier dates, we know that industry assessment rates increased 126 per cent between 1990 and 1998. We can't continue to be squeezed this way as an industry.
Workers' compensation must not become any more of an economic burden on small business operators than it already is. The board's operating loss last year of $5.5 million and the drop in the board's funding ratio of assets to liabilities to 49.8 per cent exacerbates an already precarious financial situation. The recent stock market slide and the shaky global investment market will likely make this situation even worse.
To achieve financial accountability, the board must be charged with the responsibility of meeting disciplined financial targets. New provisions need to be added to the Act which support the goal of maintaining a sustainable, competitive and financially responsible workers' compensation system. Requirements would include a five year strategic plan, clearly stated performance levels, and improved, more timely and more consistent information gathering and reporting.
Other checks and balances might include a legislative oversight committee to monitor the system's vital statistics on a regular basis, which would include administration costs, investment return, variances between performance and budget, details on claim trends, and actuarial assessment of future costs, including determination methods. Currently, it is impossible to tell if the board is on track, because actual operating costs and revenues versus budgeted costs and revenues are just not available or not accessible.
Clearly, as the sole funders of the WCB, employers have a vested interest in the financial performance of the WCB, and it would be helpful to have a hearing process that would allow officials to present pertinent track record information by rate group and receive input from the system's key players.
By Statute, all new policies should be costed and consistent with the objective of financial accountability, but it will be difficult to hold the board accountable as long as other parties are able to dictate how financial matters are determined. Steps must be taken immediately to rectify recent WCAT and court decisions like the Doward decision before they become major cost drivers.
The select committee must allow the board to stay the course laid out in 1995-96, to return the WCB to fiscal health. In an economy with a stubbornly high unemployment rate and a high level of payroll taxes, increasing benefits and, hence, assessment rates will only kill job growth.
CRFA believes that a healthy workers' compensation system is important to a healthy workplace and workforce and a thriving employment environment in this province. We appeal to the select committee to take steps to ensure that no new costs or benefits are added to the system until it is fully funded.
MR. CHAIRMAN: Thank you very much. Are there any questions on behalf of the select committee? Mr. [Hyland] Fraser.
MR. HYLAND FRASER: I am going to refer to what you had indicated on the spouses who remarried. Earlier on in our deliberations in another city in this province, several widows came before us whose husbands were killed at work. If I recall, one of them was a mother of nine, the youngest being five months old, and another was the mother of four, and I don't remember the ages exactly, but within about a year and a half or two years after their
first husbands' deaths, they remarried. The benefits were cut off. Neither marriage lasted beyond a couple of years, if I remember correctly, and they feel that they should have been entitled to benefits. I am just wondering about your opinion on that, when people like that come before us, as well?
MS. REYNOLDS: I have sympathy for the situation that they are in, and if government decides to provide retroactive benefits, we wouldn't object so much that they are providing the benefits, but that it has to come out of current employers' pockets. There are so many cases that are heart wrenching and yet, the money has to come from somewhere. To ask for employers that are just starting out today, that are struggling to make payroll, to be paying for that, maybe this is more of a societal issue and it should come out of consolidated revenue.
MR. HYLAND FRASER: I don't want to cloud the issue very much, but I believe that both employers of the first husbands of those widows are still in business, I think. This is a number of years ago, so it is not recent. If I remember correctly, both companies are still in business, so they have contributed through the years as well, for a program that these remarried ladies felt that they should have been included in. I just wanted your opinion on that. I am not going to be confrontational or anything, but those are the decisions that this committee will wrestle with, because it is entirely two different opinions, I guess.
MS. REYNOLDS: The difficulty is the downloading of some of the costs on employers that maybe it is unfair that not all employers are part of the system, and yet they are taking on the responsibility for issues beyond the scope of workers' compensation.
MR. HYLAND FRASER: Thank you. I wasn't being confrontational, I just wanted your opinion.
MR. CHAIRMAN: Mr. [Charles] MacDonald.
MR. CHARLES MACDONALD: Just for clarification on two areas, on the benefit of the doubt, are you saying that it should remain with the board as opposed to the employee? We seem to run into it in a great deal of cases.
MS. REYNOLDS: The concern is that it is an insurance program, based on accidents associated with work. Work has to be the dominant cause of the injury or disease. What we are concerned is happening is that instead of looking at whether work is the dominant cause, it is whether work was involved, if there was a possibility that work was involved at all. I don't think that is right. If the dominant cause of the injury was outside of the workplace, then just because there may be a small percentage that the workplace contributed to that injury, that shouldn't be cause for it to be covered under this particular insurance program.
MR. CHARLES MACDONALD: By the same hand, you are not 100 per cent sure where the cause lies, but we end up penalizing the employee.
MS. REYNOLDS: The way the legislation is written . . .
MR. CHARLES MACDONALD: The way the legislation is written today is totally workers' compensation and the employee is out, almost, in the benefit of the doubt areas, which seems to me to be wrong.
I realize that there is a grey area on both sides of the line, but there has to be another mechanism or something else to resolve that, to allow for it because we can do a great injustice to the employee as well.
MS. REYNOLDS: I agree. It is very difficult and there are grey areas but I think it is important to insure that, because it is an insurance program, the workplace has to be the dominant cause of the injury.
MR. CHARLES MACDONALD: Just one other one. You talked about policy and the finances. I am not sure what you said was that policy should be dictated by the financial viability of the compensation; in other words, if we have money in the coffers, then we can alter policy to allow for the claims to slide one way or the other, but if finances are tight, then policy should be restrictive, as far as the employees are concerned, which I have a bit of a problem with.
MS. REYNOLDS: What we are saying is the program is in financial difficulty; the funds are not available to pay even the current commitments. Employers are the sole funders of this program. I know government is contributing $4.6 million for a period of five years, but you cannot keep bringing on more compensable injuries if the money isn't there to pay for them.
MR. CHARLES MACDONALD: But, surely, if the worker gave up his rights to litigation before the courts in order for the employer and the employee to insure them through workers' compensation, then he is entitled to be compensated when he is injured.
MS. REYNOLDS: We are back to the grey area of whether, as an insurance program, it is workplace-related or not. I mean, in some cases, I think employers would rather go through the courts than go through the workers' compensation system.
MR. CHARLES MACDONALD: Thank you.
MR. CHAIRMAN: Thank you. Mr. Corbett.
MR. CORBETT: Thank you, Mr. Chairman. Good evening, Ms. Reynolds. Close to the top of your statement, you spoke quite a bit about Dr. Murray's study which, I think, has some points and has some failings also.You talked about the injured worker and getting them back to work. Indeed, associated with that report is a term called "tough love".
You also categorized people in the past who are suffering from chronic pain. In Dr. Murray's own report it said that there is a time - and I may be wrong - 18 to 24 months, that if they get involved in this system of chronic pain, their likelihood of returning to work as an able-bodied, gainful employee is practically nil.
I guess the question I want to ask you is: what do we do with these groups then if we are not going to compensate them? It has been proven, even if you agree with Dr. Murray, you just cannot take sections of what his report is. Certainly, if you buy into his report, what are we going to do with these people that he, himself, says that cannot return to work?
MS. REYNOLDS: I get back to this is an insurance program for work-related injuries.
MR. CORBETT: Exactly, I don't disagree.
MS. REYNOLDS: So when . . .
MR. CORBETT: It is chronic pain related to work. Again, I think I am going to echo the words of my friend from Antigonish, Mr. [Hyland] Fraser - and I don't want to be adversarial - you keep coming back and you seem to be having a definition of what is work-related and what isn't work-related.
I think, if you see Dr. Murray's report, certainly, there is a correlation. He is saying - I don't think he is disputing that chronic pain is injury related - his position in his report is how to best provide service for the chronic pain sufferer. He is saying if we don't get out there and we don't provide medical attention to the chronic pain sufferer within a certain time line, that that person, in effect, is not an able-bodied employee anymore.
I don't think we are here arguing the point, is it or is not work-related; we are at the point now where chronic pain is related to the injury, but what do we do? We have realized we cannot get this person back to the workforce.
[8:00 p.m.]
MS. REYNOLDS: I agree that that is a serious problem but, again, I have to go back to the fact that the workers' compensation is an insurance program for work-related injuries. It is not a social security program. That is not what it is designed to do.
I mean, a private insurer might have tremendous sympathy for people in that situation as well but they wouldn't be able to provide long-term permanent income support out of sympathy for those people under those circumstances. You have to keep getting back to the fact that it is an insurance program for work-related injuries.
MR. CORBETT: I am not going to muddy the waters any more or go over this too much more but I think it is a proven work injury and you keep saying it is an insurance plan, which I agree, and I think one of the major components is that it is a no-fault insurance plan.
I think, again, if you go back to Dr. Murray's study that he says that, you know, if a doctor misdiagnoses you with a work-related injury, if he is treating you for a broken arm and you have got a broken foot, and the foot doesn't get repaired, well, your time off is going to be longer. This is all it is, is a misdiagnosis, if you will, of some proportion. That is the last thing I am going to say about chronic pain.
I am going to go back to another area that you had brought up and that was about the two day waiting period which I think is an onerous situation on the employee as it has been highlighted about people. It is not a standard 40 hour week any more, we are looking at people that work 10 hour days, 12 hour days and how this can affect them. It can actually be, in many instances, a full loss of a week's wage for some employees.
With that in mind and some other things you said about, basically, people being able to return to work quicker, I don't think there is anything - if we change any of those things or if we bring levels of compensation up - that hurts your bottom line to have these people return to work. If, indeed, you can take somebody that is a chef's assistant, or whatever, that person has the ability to be a maître d' or a waiter. I don't think those causes prevent you from bringing the person back earlier.
Again, maybe you are. . .
MS. REYNOLDS: Those are 99 per cent of the injuries that we have in our industry.
MR. CORBETT: That's right, but I mean, in the sense that there is nothing preventing you from bringing them back early. You are saying that the two day waiting period is almost - these people - if the two day waiting period was not there, they would be on the beach in Havana somewhere smoking cigars for those two days. I don't think that most people would see it that way.
MS. REYNOLDS: No, what would happen previously is, they would take two days off work, even though they were quite capable of doing something else. Now they are motivated to find something else to do within the workplace so that they can continue to earn a wage and be productive.
MR. CORBETT: Well, I will end by the way of a comment. I would just say, I don't think that punishing a worker for an injury and taking two days off - we come at this from different sides, obviously - I don't think punishing a person for a work-related injury for two days is the way to go about this.
I want to go on record saying that I empathize with your industry, I realize you are not working with huge profit margins here, that with any changes we propose we have to be cognizant of the results of employment. I would also ask you, I guess, from your industry perspective, to be cognizant of the injured worker, too. Thank you.
MR. CHAIRMAN: Are there any other questions from the committee? I guess I had one question I was going to follow up on Mr. Corbett's question. Do you have any objection to a situation where an employee, either through a collective agreement or otherwise, negotiates with his employees or her employees for compensation during that two-fifths period? In other words, do you have a problem with an employer voluntarily agreeing to pay someone during that two-fifths waiting period?
MS. REYNOLDS: No, not particularly.
MR. CHAIRMAN: Thank you. That is my only question. There being no further questions, I thank you very much for your time and the interest of your association. I hope that you follow the rest of the course of our deliberations.
MS. REYNOLDS: I certainly will. Thank you.
MR. CHAIRMAN: Thank you. Our next presenter is Mr. Wilfred Landry. Have a seat, Mr. Landry.
MR. WILFRED LANDRY: I may have to stand.
MR. CHAIRMAN: Mr. Landry, as we have told previous presenters, there is no difficulty at all. If you want to stand in your place or sit, whichever is more comfortable for you. You can alternatively sit or stand. The only thing we would ask is that you try to speak towards the microphone, just for the benefit of the audio system and the TV.
MR. LANDRY: Sure. Thank you. My name is Wilfred Landry and I am also an injured worker in the Province of Nova Scotia. Mr. Chairman, members of the committee, I would like to say to all of you to feel free to cut me off at any time because I have grown accustomed to being cut off.
Again, Mr. Chairman, members of the committee, ladies and gentlemen, I am not here this evening to criticize, condemn or to blame, although by now you should have a clearer picture as to where the blame lies. I am here this evening to paint another picture for you of what it is like to be an injured worker in the Province of Nova Scotia.
I would like to start by saying that I would not wish for my worst enemy to sustain an injury that would cause him or her to have to open a claim with the Workers' Compensation Board of Nova Scotia.
You know that the abbreviated form for Workers' Compensation Board is WCB. Tonight I would like to give you the opportunity to choose any of the following words that I have chosen to describe the Workers' Compensation Board of Nova Scotia. Starting with the words that begin with the letter "W', they are as follows:
Wandering; wasteful; withholding; withstand; washed out; worse, in a manner or degree, more evil than bad; and the word "wrong", along with all of its adjectives. The word "wrong" meaning: not right, not fit, not what ought to be, erroneous, what is not right, an injustice injury, in a wrong manner, to do wrong to, to treat with injustice.
Now with the letter "C". Words such as calamitous; cancel; careless; challenge, meaning summons to fight, to defy, to call in question, to object to; changeful, in other words, whichever direction the wind is blowing on that particular day is the way that the minds of those at WCB are going to follow. The words "cheat"; "cold"; "coma" they are definitely in a deep sleep; cruel; cruelty; crazy; crooked; critical; cliques; command to order, to govern, to have at one disposal, to have chief power over order, control power of overlooking, and the power of defending anything and anyone but an injured worker.
Words that would definitely not apply are as follows: communication, compromise, considerate, confidentiality or compassionate. There is one word, starting with the letter "C" that stands out the most and that is the word, clyster. For you that do not know what the meaning of this word is, it means an injection, to cleanse the bowels. On behalf of all injured workers of Nova Scotia, we feel that it is about time that the Workers' Compensation Board of Nova Scotia and WCAT gets these injections. (Laughter)
It is time for the cleansing to begin, a complete investigation in the wrongful doing of Workers' Compensation and WCAT is necessary. Clean the house and start anew. For any one of us that are here this evening, if we do a clean-up at our home we don't do half a clean-up, we do a complete clean-up. If there is trash, we get rid of it. I think that it is about time that we do a complete and thorough clean-up at WCB.
Staff members are being dismissed for wrongful doings, for misleading injured workers and for filing reports of having met with injured workers and offering them programs and assistance when those injured workers have never seen or met with those staff members.
But for their wrongful doings they are compensated with an early retirement package and what else has not been disclosed. The victim, the injured workers, are still fighting for compensation. The culprit receives a package and is set free by his own board of investigators.
Injured workers who are asked to sign papers, some with no knowledge of what they are signing, maybe due to the fact that their education level does not permit them to verify what they are signing. Some being told that if they don't sign the paper presented to them that they will be cut off. A week or more later they find out that what they have signed is the cause for their benefits to be denied. These are only examples. I could go on and on all night.
Injured workers signing forms with nothing written on them and told not to worry, everything will be looked after, and later finds out that their date for an appeal has expired and the form that they have signed is no longer visible.
Walking in to WCB on South Street on one occasion and finding employees hanging out of one of the two windows of glass separating the receptionist from the public, as they engage in activities other than their work of duty. High-ranking officers with extremely high-paying salaries making a talk show with Brian Phillips, on the subject of green bins being dropped off at the curb for recycling, a greater priority than reporting for work and dealing with the issues pertaining to injured workers. This took place on Monday, August 24, 1998 at 9:40 a.m. His remark was that we Nova Scotians do nothing but complain, that we should live in other parts of the country or even other countries.
Calling WCB at 3:50 p.m. in the afternoon and getting a recording that the office is now closed and the hours are from 8:00 a.m. until 4:00 p.m. This has happened on numerous occasions. The two last incidents were 3:50 p.m. on Thursday, August 27, 1998; and 12:18 p.m. on Tuesday, September 8, 1998. Again, today at 12:18 p.m. when I called WCB, I received a recording that the office was closed. The hours were from 8:00 a.m. until 4:00 p.m. but this is 12:18 p.m.
Calls being made to WCB, you would get a recording, you would leave a message and if you were lucky enough to get a call back, your phone would only ring once. By the time you would pick up the phone, the person at the other end had already hung up. You are left with the screen showing WCB but no message.
Is this why WCB has 289 employees at the present moment, along with 22-plus at WCAT? Is there an explanation, other than the one given by Mr. Rick Anderson, Director of Human Resources, as to why the staff at WCB would consist of six MacLeans, five McNeils, four Slaunwhites, four MacDonalds, three MacInnises, three Morrisons. Mr. Anderson's explanation is that WCB does not discriminate against anyone applying for the positions available.
My question to Mr. Anderson is, where are these positions being known to the public at large?
At this time I would like to suggest that the committee take a very serious look at the recommendations that were placed before you yesterday evening, September 9, 1998, by Mr. Rick Clarke of the Federation of Labour.
Issues that need to be addressed with the Workers' Compensation Board of Nova Scotia and WCAT. The first one that needs to be addressed is communication. There is very little to no communication between WCB, WCAT, the employer and the injured worker. There are tremendous amount of efforts being made by the employer and injured workers to get information from WCB and WCAT. This is what you would refer to as a complete communication breakdown.
When contact is made at WCB or WCAT, first the receptionist asks for your claim number and there is always a second question. That second question is, what is the call concerning? Occasionally, I have asked the receptionist if she was such and such a person and she would say, no. Therefore, I would say that my concern is not with you but the person I have asked to speak with. When I would ask why they requested to find out what the call is all about, they would say that they are told to do this by higher officials. From my experience and from information that I have gathered, the reasons for such questions is whether or not you will get to talk to the person requested or whether you will be put through to a message recorder because you are becoming a nuisance in their eyes, because you are seeking information or need to have a question answered; 80 per cent of the time you will be put through a recorder. You may receive a phone call from that individual, depending on your request. Again, you stand a greater chance to receive a call from someone who is totally unfamiliar with your case.
The backlog needs to be addressed immediately. The backlog is increasing. It is now estimated that the backlog stands at 2,400 and growing. On May 6, 1998 I received this information from WCAT and it is in Exhibit 1.
On May 4, 1998, I received a letter from the Department of Human Resources at WCB, contradicting the information received in the letter dated May 6, 1998 from WCAT, although both parties had previously communicated. Another source of communication breakdown.
I was told by Mr. Rick Anderson, Director of Human Resources, that WCAT consisted of 16 full-time positions and several part-time appeal commissioners located throughout the province. That was in a letter dated May 4, 1998. I later received one, two days later on May 6, 1998, from Judith Ferguson, Chief Appeals Commissioner with WCAT. Her indication was that there are 10 full-time appeal commissioners and six part-time. Again, communication breakdown.
Instead of forming a medical review commission of at least nine commissioners, another hurdle for injured workers to cross, why not hire more appeal commissioners for the duration of the backlog to review the evidence, tapes, et cetera, of the appeal hearings as they are heard, to recommend, one way or another, a decision based on the information gathered.
I am ahead of myself here by one page. If there are 16 full-time appeal commissioners at WCAT, as indicated by Rick Anderson, Director of Human Resources, and six part-time appeal commissioners, as indicated to me by WCAT Chief Appeals Commissioner, Judith Ferguson, that is a total of 22 appeal commissioners. Based on the information that I received from WCAT, a time limit of one hour is set aside to hear one appeal unless extra time is requested prior to the hearing.
Based on an eight hour day, each appeal commissioner should be able to hear at least six appeals per day and according to the Chief Appeals Commissioner, every one of these appeals are being recorded. So if there are 22 appeal commissioners and each commissioner was to hear six appeals per day, a total of 132 appeals could be heard each day. The backlog is estimated to be at 2,400, give or take a few. That means that this backlog should have been dealt with in no more than 30 days, even less, because 132 into 2,400 is about 18.5 days. What is the problem? Who is willing to explain why so much money is being spent in administration and the work is not being done?
Poor management of funds is causing an alarming situation in the Province of Nova Scotia. Administration costs are increasing rapidly. Staff is nearly double and maybe surpassed double since the early 1980's. Less claims are being processed, 82 per cent of the claims are being denied. The assessment rate for employers is rising, causing employers to leave the province, others to close their doors, others into bankruptcy and so on. A frightening catastrophe, all because of poor management at the institution that was formed in 1918 to protect both the employer and employees in this province.
People are being brought in from other provinces at the expense of Nova Scotian employers to try and remedy this situation but to no avail, yet driving the costs higher and higher by bringing them in and shipping them out. Local staff, because of personal reasons, are being accommodated to move from one office to another, again costing employers more and driving the cost of administration higher and higher.
Two staff members in particular that I am referring to: in 1996, this one particular person from this area wanted to go back home because she felt she could do a better job, and the other person was from this area so he felt he could do a better job here; both of them were transferred at the expense of the employers. In May of this year, upon going to WCB, I gathered a little bit of information, information that was leaked out by two individuals that had no authority to leak it out. The transfer of these two people, because they were not satisfied where they were at, they were going to be exchanged again, because that is what
they were asking for and that, again, was going to be at the expense of the employers and also of the injured workers because the money that should be paid to us is being paid to them.
I should mention that a week or so after I went back, these two that leaked this information to me were nowhere to be seen. They are either gone or they are gone somewhere else.
MR. CHAIRMAN: Mr. Landry, I am just going to encourage you to come close to the end of your time. If you just want to wrap up so that the members of the committee would have a moment to ask some questions.
MR. LANDRY: Most of the time you will receive no information by mail or by phone from WCB, especially information that would help you in your cause with WCB but if you are lucky enough to do so, you can almost count on getting a duplication soon after. Again, lack of communication and driving up costs of administration. So many specialist and doctors' reports are necessary and required by WCB and yet are being disregarded and opposed by board doctors, advisers and hearing officers.
Several weeks ago, I had the opportunity to meet with a staff member, although I had requested to meet with several in regard to solid medical evidence being received by the board and yet disregarded and injured workers' claims being denied. I asked this staff member, who is the acting chief hearing officer, if I was to bring him an X-ray, a CT scan or other forms of films from a specialist, if he would be able to identify the problem or problems and his answer was, I am not qualified to do this, but yet he could sit there and tell me that he could make his decision based on the specialist's report. When the facts are on paper about a person's injury, he can compassionately say that no injury has been sustained.
In a letter dated August 25, 1998, which I have received from the same gentleman, if I may call him a gentleman, he has written this statement, "Workers' Compensation Board hearing officers are responsible for ensuring their notes of the hearing include all facts relevant to the issue under appeal.".
Now we go to WCAT. In a letter dated August 25, 1998, I received a letter from Judith Ferguson, Chief Appeals Commissioner at WCAT. I had requested information from WCAT regarding the main reason or reasons why so many claims ended up at the tribunal level of appeals. After canvassing her appeal commissioners, they came up with the following most common appeal issues; the first one being the hearing officer improperly interpreted and weighed the medical evidence; the hearing officer failed to give the benefit of the doubt to the worker; the hearing officer applied the wrong Act; and the hearing officer misapplied the policies.
So here we are, the injured worker has already seen two or more specialists, not counting his own family doctor. Total amount of administration costs not even disclosed. Now we go to the board doctors, advisers and hearing officers who deny the medical evidence, apply the wrong Act and misapply the policy. Again, higher administration costs and no settlement in sight. By that time the injured worker has received none or very little therapy or medical assistance for the injury. By that time, the injured worker has now gone from the state of acute pain to severe, if not chronic pain.
[8:30 p.m.]
MR. CHAIRMAN: Are you near the end, sir? Are you getting close to the end of your presentation?
MR. LANDRY: Yes, I am.
MR. CHAIRMAN: Okay, thank you.
MR. LANDRY: Not counting the trips to their regular doctors where now the cost of this injury lays on the shoulder of the taxpayers. This injured worker by this time may have exhausted all financial needs and may be depending on provincial assistance through no fault of his or her own. Again, more burden on the taxpayers, all because WCB staff members receiving high salaries and unqualified to perform their duties are forgiven, maybe applauded, while the injured workers' files are waiting another appeal and probably by this time losing dignity and personal belongings that they once worked so hard for. Where is the justice? Where does it end?
My plea this evening to all injured workers of Nova Scotia is that if this committee is not listened to, if a better board is not put in place, if the injured workers of Nova Scotia continue to go mistreated, if our voices are not heard, we need to unite and make the lives of those responsible as miserable as they have made ours. Let's make them accountable. Most of us have either lost everything or will lose everything through no fault of our own. No one wants to be injured, no one asked to be injured. Remember, all workers of Nova Scotia, you are only one injury away from becoming a victim. United we will stand, divided we will fall. These changes will not only be for ourselves but for others and maybe even for our own children. God bless each and every one of our injured workers and don't give up. Be proud and be strong. I thank you.
MR. CHAIRMAN: Thank you very much, Mr. Landry. Are there any questions from members of the committee? I don't think so. Thank you very much, again, Mr. Landry, for taking the time to make the presentation this evening. I know you have put a lot of work into it and we appreciate hearing from you.
MR. LANDRY: I do have a lot more to say. I do have a lot more but I don't have the time. There is one thing that I would like to say.
MR. CHAIRMAN: Yes, sir.
MR. LANDRY: That when I first sat in this seat, I was very uncomfortable but I feel very comfortable right now and maybe when the Legislature sits again, I may apply for Mr. Russell MacKinnon's job.
MR. CHAIRMAN: There is definitely a process for that, sir.
MR. LANDRY: I am very accustomed to doing what he is doing and that is nothing. (Laughter)
MR. CHAIRMAN: Thank you very much. I am sorry, Ms. Godin, do you have a question?
MS. GODIN: Mr. Landry, I think you had to skip over some pages, right?
MR. LANDRY: Yes, ma'am.
MR. GODIN: I was wondering, Mr. Chairman, if we could get Mr. Landry's complete presentation photocopied?
MR. CHAIRMAN: Oh, you are welcome to, sir, if you have a written presentation and you would like to leave it with the staff to form part of our record, you are welcome to do so.
MS. GODIN: That is right, thank you.
MR. LANDRY: If there is some time left over, there are a few more things . . .
MR. CHAIRMAN: I understand. I am not sure if there will be any more time left over, but if there is, we will keep you in mind. Thank you.
Our next presenter is Ms. Donna Morrison. Have a seat, Ms. Morrison.
MS. DONNA MORRISON: Could I just say one thing before I start my presentation?
MR. CHAIRMAN: Absolutely, ma'am.
MS. MORRISON: I was listening to the lady from the restaurants and I just wanted to let her know that there wouldn't be a Doward decision if the Workers' Compensation Board weren't handing out zero per cent and calling it an insurance plan. That is why that had gone to court to begin with. Number two, is the unfunded liability. Our rates were reduced in 1996 when new legislation came in and the two day waiting period and whatnot in order to fund this system as well, to help free up some funds. According to the annual report the unfunded liability had started in 1971 when I was eight years old but my benefits were reduced to help pay for some of this, too. So I just wanted that on the record.
MR. CHAIRMAN: Yes, ma'am. I take it you weren't receiving benefits when you were eight years old?
MS. MORRISON: Exactly.
MR. CHAIRMAN: Thank you.
MS. MORRISON: I wasn't hurt until the 1990's and all of our benefits were reduced in order to indirectly help fund this unfunded liability.
MR. CHAIRMAN: Thank you. Go ahead, ma'am.
MS. MORRISON: Thank you for the opportunity to speak to you tonight. I am sure by now that you have heard a lot about the historic compromise that is the foundation of the workers' compensation system. It is my hope that you are coming to the realization that the only one compromised is the injured worker. The system is in turmoil and this is well documented in recent court challenges, decisions, WCAT decisions and the refusal to even hold hearing officer level appeals since early spring 1998 for chronic pain because no policy had been in place.
The Workers' Adviser Program is failing us miserably since being moved in-house with clients being turned away for, among other reasons, just having the audacity to question their lack of representation. Files which were supposed to have been taken in-house are just sitting at former advisers' offices collecting dust in storage. Some of these files have had appeals with no decisions yet rendered while others are still waiting for appeals. These particular files have no authorization to be worked where they are stored and they are not yet wanted where they should be, leaving clients in limbo.
I know in the past that it has been shown that private lawyers were making a fortune on a single claim but since I was in the system, which was 1991, a cap was put on each claim of $1,200 with extension approval, if the need could be shown. Well, I was privy to all aspects of my appeal and three medical reports were requested. The total cost for those was $900, leaving $300 for all other appeals and expenses, including the lawyer's fees.
I would urge you to consider Sections 259 to 274, Part III of the Workers' Adviser Program and if it is the intent of the legislators to provide representation to injured workers, then they are free to do so under Section 272 or Section 274 or give injured workers who are forced to seek private legal representation access to funding under Section 269.
Section 187. This section is now being referred to as no doubt there will be no benefits. It is unrealistic for anyone to believe the possibilities can be evenly balanced when you are thrown into an adversarial system the minute you are injured. For example, consider if you fell off your bike at age five and you broke your arm. Now fast forward 30 years. You are at work one day and you injure your upper arm, shoulder area. The bike incident is mentioned while relaying medical history. You are now labelled as having a pre-existing condition and can never evenly balance any possibilities, let alone receive a benefit of the doubt. Again, if it is the intent of the legislators to give injured workers the benefit of the doubt, then say that, period. When legislation is watered down, as was the case in changing Section 24 of the former Act, injured workers are left to float, if not drown, in that same water.
Chronic pain policy, Sections 751 to 755. Upon first reading of the policy, you will find the appearance of injured workers finally being compensated for chronic pain they suffer due to work related injuries. It may even appear to sound to be a very generous package which includes a permanent impairment benefit, an earnings replacement benefit, a medical aid package but the appearances fade with such words and phrases as less 50 per cent Canada Pension, less 50 per cent apportionment, inherently multi-causal in nature, and my personal favourite is earning or is able to earn, deeming.
As an injured worker who suffers from chronic pain, because the ceiling in the building where I worked caved in on me, I am sick and tired of being abused by a system that I was forced into. I, not unlike thousands of others, have waited years to be recognized by this system, to now have our claims systematically left out of the policy entirely or having benefits even before the marked life disruption assessment or cheque is issued diminished to the point that some may actually be left owing the board benefits.
When one reviews Dr. Murray's chronic pain report, on Page 20, "Can We Apportion Cause Between Injury and Other Causes of Chronic Pain Syndrome? It is not practical or reasonable to apportion cause between injury and other causes of chronic pain syndrome in a specific case.". Translation, see Policy 7.5.5. Apportionment of Benefits for Chronic Pain. It states, "In recognition that chronic pain is inherently multi-causal, the adjudicator may, in the absence of any evidence to the contrary, in a specific case reasonably attribute a portion of the loss of earnings (LOE) to a cause other than the injury. If having regard to the evidence on file in a specific case, it is not possible to establish the portion of LOE that may be reasonably attributed to work and non-work related causes, the LOE may be apportioned equally".
This is a prime example of the board completely contradicting a report that they commissioned. On Page 99, Dr. Murray hits the nail right on the head as far as chronic pain clients are concerned by stating the obvious. He states, ". . . the very nature of the current adversarial compensation system, may be partly responsible for creating chronic pain patients. Thus a review of this system and its affects may be warranted.". Policy implemented to contradict or simply overrule the Act or court decisions, for that matter. For example, Policy 3.9.6. I have attached that for your review because I know you are being told a lot that you can't cross the line, it will bankrupt the world, but in that policy, it was put into effect to do just that. It takes into consideration people prior to March 23rd and people post-March 23rd and has them set not to exceed 5 per cent. So that is why I put that in there.
Policies such as the guidelines for assessment of a permanent medical impairment where very few body parts are valued at very much, such as total loss of sight, one eye, 16 per cent, 18 per cent if you receive an artificial eye. The 2 per cent extra is for the actual loss of organ and care. Complete deafness in one ear, 5 per cent; both ears, 30 per cent. Loss of one kidney, 10 per cent. A colostomy, 0 per cent and yes, injured workers are actually being awarded 0 per cent for injuries. There is one example after another in the policy manual, and I would urge the members to review policy for themselves, as it is easily cross-referenced with applicable sections of the Act stated at the bottom of each policy.
With the above being said, I realize that you do not create policy. However, you do create legislation which brings me to Section 183. This section, almost single-handedly, is destroying injured workers and their families. Section 183 must be repealed before you ever start to adopt any new legislation or your efforts will be futile. Section 183 (5) states, "Until a different policy is adopted, every policy adopted by the Board of Directors pursuant to subsection (2) is binding on the Board itself, the Chair, every officer and employee of the Board and on the Appeals Tribunal.".
Section 238 to Section 258 of the Act lay out the Appeals Tribunal's powers, duties, et cetera, but their experience and authority is diminished by binding them to policy. They are forced by legislation, when policy is the issue before them, to basically rubber-stamp the decision of an adjudicator, a reconsideration appeal, a hearing officer, thereby leaving injured workers with level upon level of appeals and forced to go through the motions until they can reach a court where the justices are not bound by WCB policy.
Section 183(8) allows you to skip WCAT on a policy issue only and go straight to court but that would only serve to move the backlog over to the courts. It does not provide a solution to the problem. Section 246 also reinforces the fact that the Appeals Tribunal is bound by the Act, the regulation and policy of the board. This, too, has to be repealed.
Section 183(6) states, "Any policy adopted by the Board of Directors may be retrospective or prospective in application and may be made retroactive to any date designated by the Board of Directors.". The chronic pain policy that was recently adopted,
stemming from the Doward decision, is a prime example of the detriment of granting the board the authority it has under this section.
The court ruled that the window period, March 23, 1990 to January 31, 1996, are to be compensated for chronic pain. With that, the board could have easily retroactively backdated the chronic pain policy to March 23, 1990 to encompass all involved. Instead, the board chose April 18, 1997, the date the decision was rendered and someone at the board had had to have known that hundreds of claimants would now be eliminated from receiving benefits.
Section 183(7) states, "The Chair, every officer and employee of the Board and the Appeals Tribunal may, in the performance of functions under this Part, interpret the policies, but it is not within the jurisdiction of any of them to refuse to apply a policy on the ground that it is inconsistent with this Act or the regulations.". This subsection is the clincher, as any reasonable person, not to mention the legal minds that injured workers must appear before at appeal levels, are well aware that a lot of this policy is inconsistent, not only with the wording but with the spirit and the intent of the legislation.
The Doward decision is, again, a prime example of how people interpret the same document differently, as the board had one interpretation, WCAT another, workers' advisers and injured workers yet another, but when the policy that has been implemented from this decision is applied, all involved can make as many interpretations as they care to but at the end of the day they are stuck with what is written in that manual.
It is my hope that this gives you a brief overview of some of the many challenges and hardships one faces when becoming injured in this province. Injured workers are not seeking to bankrupt the WCB, employers or government but we were also not expecting to be bankrupt ourselves. I have, in the past, received a letter of apology from Mr. Stuewe in relation to some of the differences that I have had with the board and although I appreciated that letter, it now sits, framed, next to a picture of the home I used to own before a ceiling crashed in on my life. Injured workers are not asking for a blank cheque. We are, however, asking for a substitute paycheque.
I would ask the committee's help in seeking clarification of a segment taken from the CEO's letter of the annual report on Page 9 which states, ". . . the challenges flowing from the Doward decision have required a significant diversion of administrative resources from operations to clarifying the rules for pre-February 1, 1996 cases.". These comments raise many questions for me because be it financial or human resources, why are significant administrative resources being diverted to seek clarification but when it comes down to compensating workers for their injuries, money is rarely in the budget.
Policy. Most recently the clothing allowance Policy 2.1.5 change that was passed by the board in June, is taking months to implement administratively. When policy, in effect, is adopted to reduce or negate a workers' rights to benefits, these are acted upon immediately but oh, that worker benefits, and we are waiting months, if not years to be paid. The board may feel that $350 is not worth the trouble compared to the big picture but the fact still remains, when an injured worker has not received income in years, $350 is a lot of money to them.
Section 186, real merits and justice. This section which states, "The decisions, orders and rulings of the Board shall always be based upon the real merits and justice of the case and in accordance with this Act, the regulations and policies of the Board.". This section, for example, is just a contradiction in terms. When legislators decided to grant the board the sole jurisdiction to govern itself, real merit and justice went right out the window along with many rights people would take for granted. Real merits and justice, in any other circumstances, would amount to a duty to decide each case on fact, evidence and merit rather than policy, PMI guidelines and established practice.
Lastly, with injured workers being the cornerstone of the foundation that is the historic compromise, we are frequently told individually, that our claim simply fell through the cracks. Well, with thousands of us in the same situation, we certainly didn't simply fall through the cracks, we were buried under the foundation. Thank you.
MR. CHAIRMAN: Thank you. Do any members of the committee have any questions for Ms. Morrison? Mr. [Charles] MacDonald.
MR. CHARLES MACDONALD: Ms. Morrison, you worked under the old Act, as well, did you not?
MS. MORRISON: Yes, I was injured in 1991.
MR. CHARLES MACDONALD: How do you compare the two, or would you have any basis for comparison in how you . . .
MS. MORRISON: There are some things that are there but they are never acted upon. It was the same with the old Act. There was good and bad. There are calculations, for example, before you got whatever percentage you got under the meat chart, or whatever, by 75 per cent. Now you have to be a mathematician to even figure out what your pension is going to be because it is your pension times 30 per cent times 85 per cent. There is that.
You had lawyers in yesterday talking about the subrogation of rights and that is real close to my heart and that just got demolished. I helped this gentleman with a case and Section 187 was turned around against him. He is overweight and he smokes and all these reasons were used against him to deny him benefits. He worked for 30 years. There are a lot
of situations like that. There is this apportionment that was in the old Act but it was rarely acted upon. Now every cent they can apportion you for, they are apportioning you whether you are pre-Hayden, post-Hayden, new Act, wherever you are.
There are a lot of problems with this functional restoration program. I don't think it was ever the intent to pay people for four weeks and then throw them out of the system and that is exactly what is happening with a lot of people right now. So there are problems but a lot of people are just, they don't know the system well enough, in the new Act, to come and speak to you because they are still in the process of going through appeals, still hoping that the next one may be it.
When you took out our independent appeal board - I mean there is a lot of talk about the backlog but I appeared before the Law Amendments Committee in November 1994 and there were over 1,200 cases then. We saw this coming. Instead of just throwing the baby out with the bath water, they could have kept the appeal board that was there to finish their mandate and then start anew with the new appeal board but they were just getting rid of everybody and we got lost in the process. Those are just some of the things.
MR. CHARLES MACDONALD: I know you could talk all night, maybe.
MS. MORRISON: Yes, you got a few hours?
MR. CHAIRMAN: Thank you very much.
MS. MORRISON: Thank you.
MR. CHAIRMAN: Our next presenter is Mr. Hughes from Fancy Foods Limited. Good evening, Mr. Hughes, just have a seat. On behalf of the select committee, I would like to welcome you back again and you can begin your presentation whenever you feel like it.
MR. SIDNEY HUGHES: Thank you very much, Mr. Chairman, and members of this legislative committee, gentlemen and ladies.
MR. CHAIRMAN: Mr. Hughes, I am going to ask you to speak towards the microphone, or else we are not going to be able to pick you up.
MR. HUGHES: Anyway, this is the second opportunity I have had to appear before you. A few weeks ago, I participated in the presentation on behalf of IMO Foods at Yarmouth. At that time, Mr. Phillip LeBlanc and I questioned this multi-faceted role of WCB has as the manager, spender, assessor, collector and enforcer of this Act. We also questioned the need and the reasoning that has carried the WCB away from the intended role as set out in the legislation.
We are particularly concerned, since the intent of the Act relates to a compensation or insurance program for our employees, financed from rates paid by the employer, as stated in Sections 121(1) and 121(3), is to be based on risk and experience. This is the intent of the Act.
I am going to leave with you tonight, you may have it from earlier, a copy of a letter that Mrs. Madeleine Hearns wrote to us, both to IMO and to Fancy Foods Limited, with reference to both companies, and in this note the intent of the Act has been set aside by WCB. You will note, if you read it, that it is clearly stated in the letter, dated November 6, 1977 from Mrs. Hearns, "The Board has developed Guidelines with regard to assessment matters.". So just like that, forget about the intent of the Act.
"Guideline #3.9 advises that the Board uses the Standard Industrial Classification Code produced and maintained by Statistics Canada. This Guideline states, in part, as follows: The major principle in classifying employers is that we assign SIC numbers based on the industry of the employer and not by occupation." It doesn't matter what you do, how much risk is there, you are going to fit into this little box. She goes on to say, "Ideally all employers should have one SIC (subject to Guideline 3.4) regardless of the number of occupations employed and the varying degrees of hazard associated with each one." Again, contrary completely to the intent of the Act.
"Administrative staff working for a logging company, for example, will be included in the logging SIC." I guess the fact that they have a tree or that they sell lumber puts them in the lumber industry, and they could be up there paying $10 or whatever the class is instead of 67 cents or 58 cents as it was a couple of years ago that a wholesaler would pay. Yet, they might just buy and sell lumber. Now there is another class in there for that one, but she uses that as the example for our company.
This justification given for this method of classifications is in Section 120 of the Act, a careful reading of this Section 120 suggests that the legislators envisaged a straightforward, uncomplicated list of business activities within Nova Scotia, and subclasses based on specific activities within these companies. In this manner, we should have a relatively short list of classifications, say 50 or 60 would probably handle most of the industry types, with the provision for subclasses to equalize assessment for those employees within those industries where their activities are similar, company to company.
An example, if you are in office routines and computer activity and general management, why should you pay more in company A than in company B. Warehousing, material handling, shipping, there are certain other risks associated with that. Machine operators, manufacturing line operators and so on. It is very clear in the Act that this is what was intended, but in two very small paragraphs, WCB staff just laid this aside and say, that is all fine, but forget about it. This causes a great deal of problem. Probably causes a great deal of extra work, because SIC has some 900 classifications, so you are creating quite a
massive amount of work fitting companies in and fitting rates to classes, probably employing five or six times the staff that you would need if you followed the Act to start with.
Section 121 supports the approach and establishes the basis of assessments and rates, classes and subclasses, "'The record, risk, cost or experience of any Class or Subclass over a period of time'". That is what your Act says. It is not being followed.
[9:00 p.m.]
Sections 120 and 121 of the Act are appended, if you wish to have them with our notes, and you can make copies, if you so wish, but I am sure you have, as I have, a copy of the Act.
This statement contained in the letter from Mrs. Hearns respecting the use of SIC federal Statistics classifications clearly is at variance with this intent of the Nova Scotia Act. These SIC classifications were created by the old historic Dominion Bureau of Statistics for the collection of statistical information on such things as imports, exports, employment numbers, economic factors, and the balance of trade. In short, this system was never designed for insurance ratings, and has nothing to do with accident risk or insurance liability. You are going to save yourself, I would expect, a few million dollars just in administration by putting the thing right.
Now, I will turn to the situation with Fancy Foods Limited, that is what brings me here tonight. Let's go back to 1975 through 1996. This business was listed in Class 7799, Business Services. In 1997, it was reclassified first to a fish plant, with the same costs as IMO, and then on a call from our auditor and a couple of exchanged letters, they made it into a Dairy Products industry, Class 5213. I suggest that both these classifications are wrong.
They did send an officer in to have a look and see what we do at Fancy Foods, and he asked a few questions, and determined, as we answer correctly that we sold some cheese. Well, how much do you do, how much of this and that, and he was given some general numbers that related to the local market. I guess I am as much responsible for that as anyone, but no it didn't matter to him, he quite insisted, it doesn't really matter, these numbers aren't going to affect your listing. But the next letter that came out to our accountant, of course, made us a dairy.
Class 7799, where we were, Business Services, pretty well explains what the company is, and in 1996 that rate was 52 cents, it went to 52 cents in 1997, no change, in 1998 it went up 10 cents to 62 cents, which would be the maximum allowed, so it is on its way.
The new Class 5213 changed this office into a dairy products company at $1.64 in 1996, and they thought they were on to a good thing, because I doubt if there is anybody else other than one or two companies, maybe three or four in Nova Scotia that do this, and how
are they going to complain, by 1997 we are $1.96, and this year $2.04. I would ask you what is it going to be next year? I would suggest $2.24. At best, this is a rip off.
Based on hours of employment activity at Fancy Foods, it is basically an international market company using computer, fax, telephone and mail services all located at a Ragged Lake address. This marketing company looks after all of IMO's sales activities, including the invoicing for their local sales, house brand, so that gives it a certain direct sell, through their own books, which is only, perhaps, 10 per cent or 15 per cent of the total sales that they are doing for that company. The rest of them being international activities. We do the selling, advise them by fax, IMO does the billing, the warehousing and the shipping, not only internationally, but for this local market as well; in other words, we do not handle the canned fish.
When this gentleman visited us, we did have storage in Dartmouth, and one of their other customers was doing the handling. That company couldn't stand the heat in this area for costs and went out of business - that is the Maritime Warehouse and Storage - so we have reverted that activity to Yarmouth, so it is just held in the normal course from production, and it is done there. Nevertheless, we are still put in that class. It didn't matter that one of their other customers did the physical handling and that we did the paperwork, without handling we were still classified.
As they wrote and told us in the letter, it wouldn't matter if they called us a fish wholesaler or - they have put both rates up - a dairy wholesaler, here we are. If we didn't like it, go see the appeals system. We have started in the appeals system, made an appeal, and it is very hard to get answers. I have a couple of letters we have appended here, relating to their activity and their response, and a few comments there where we sought a translation of one of the letters. If you can understand it, we can't. It is not a simple straightforward procedure. Nevertheless, we made our appeal. On hounding them by telephone, we understand that they say they are so short of staff in that organization that it will be another year or more before we are heard. In the meantime, our rates have gone up 20 per cent a year, 300 per cent, on this first move, and away we go.
I guess if you give an organization of this nature the opportunity and they see the door - and I would suggest to you that as much as the appeal process had to be reviewed, revised and something done, that you might not have the right answer - you have just created another growth industry that is out to do what most Civil Service organizations do. I don't know if they are all going to wear those kilts that one of the previous speakers was talking about, and the tartan, in their office or not, but Mr. [Charles] MacDonald can keep his eye on that one.
The international marketing by Fancy Foods for IMO includes markets in the U.S., Caribbean, South Pacific, Australia, New Zealand, Europe, and so on. This includes travel, mail, fax, phone, and general management and represents the main occupations for three of the six people we have at Fancy Foods.
Let me just give you some numbers to show a little perspective about the general amount of sales that go through here for physical handling because, as we have explained to WCB, we do have a small warehouse in the industrial park. We take in there, each week, a few gourmet speciality items from Ontario, Quebec companies or overseas and put them out, usually that same week. This handling we do requires about, we have documented it at six hours a week for one person. That includes a little bit of cheese, but fully 90 per cent of the cheese that we handle was all done on import quotas and stored in Dartmouth by an independent warehouse company. We never saw it, never handled it, unless there was some reason to go look at the stock or count it for inventory purposes.
This is strictly a business office and it is not doing the physical handling. Nevertheless, we were first declared a fish plant, then a dairy, then a dairy wholesaler and that is where we lie and that is where we are ticked. It doesn't matter that other companies in similar operations will pay 50 cents or 60 cents, I think you are good for a little more.
As I say in my presentation, Fancy Foods has taken on other products and that is what I referred to as the gourmet items we bring in. This work along with the canned fish involves three additional people. They do everything, not only those products but all the other products we sell directly. One is an invoice clerk, phone answering and that, two are on the road selling, one of whom does some of this, five or six hours, three hours, six hours a week in the warehouse.
We were moving to do more of that and to open up more warehousing facilities and take on some of this ourselves, because of the failure and the kind of services we are able to buy through third parties or contract for through third parties in this province. We do this, and a good part of this business that we do is done this way in the United States or elsewhere. But again, these products, canned fish especially could be warehoused in Ohio or some place in the United States, we invoice them out of here or out of Yarmouth. It is a paper transaction. It is not, in any way, shape or form, a dairy.
I have made a few quick calculations before coming in this evening, and I find that about 15 per cent of our sales are in Canada, and of that 3 per cent in Atlantic Canada. Out of that 3 per cent, about 0.5 of 1 per cent is physically handled.
I think we have had a little injustice here, and we can't seem to get anybody to take it seriously, that we would like to have the thing corrected. The first correction I would like to suggest would be to get off this bingo game of SIC classifications.
MR. CHAIRMAN: Thank you very much, Mr. Hughes.
MR. HUGHES: I have a little bit more here, and it will move quickly, I think.
MR. CHAIRMAN: Thank you.
MR. HUGHES: We have to be responsible for the liabilities created by our business activities. However, we fail to understand why we must pay premiums carrying a WCB inefficiency tax of 200 per cent or 300 per cent over and above the cost of the liability. I say that because we have never had a claim out of Fancy Foods, in its history of, I guess it started around 1973 or 1974. Nevertheless we seem to be targeted for some of the new income they require. That certainly does not relate to risk or liability as established by the Act.
The Act does set out the necessity to meet costs and to hold a contingency fund, assuming these are reasonable costs associated with the customer, again liability and responsibility. Reasonable administration costs must also be covered. The principle in the Act still applies, and I repeat it, these rates established, among other things, they must be equitable. They must relate to one another. Perhaps if there were more equity in the level of rates, if there was in fact less rate structure or a smaller class structure, we could compare them very simply, get away from all the complications in this stupid Act, and bring in an appearance of relationship to the accident experience.
I would suggest that the usage of funds for unintended purposes, if this were watched, companies like ourselves would not speak up. It is very unfortunate that companies that are complaining bitterly about the treatment they have had on rate structure and classifications the last few years were not coming forward in droves. They are out there, but they don't seem to want to get their name in. Maybe the same thing would happen to them as is happening to us, and they would be targeted for a new classification and higher rates. They would find one there. This, of course, they can do this and not take much liability for it, but fluff it off down the road a year or two to another board that you have established that is growing out of all proportion to what is necessary.
One question you asked at Yarmouth related to the process of appeal. As a result of the 1996 revisions to the Act, there is in place what is intended to be an independent court. This mechanism may be necessary in the short run to try and clear this backlog of complaints. However, this organization is already on an agenda of posting hearings over a year in the future, and the result is one of growth of the structure, a new large bureaucracy. Their response to our company is appended as well. I told you that earlier.
I would say here that there has to be a simpler way. I was very intrigued by the statements made by the two gentlemen before me who referred to the run-around he appears to be getting. Whether he is right or wrong, this would be handled in 15 minutes in a court that was properly established. You asked me in Yarmouth to express an opinion relating to the payment of the appeal legal fees, you pay them for workers, you don't pay them for companies, or the board does and doesn't. I think it has the right to but it doesn't. You advised that legal fees were paid to the unions or employees but not to companies.
I have given it a little more thought, and I would get emphatic this time; it is easy to say yes, but the considered answer is no, definitely no. Not to either party. This is creating unnecessary turmoil. Simplify the Act, get this thing on a tribunal situation. Let it sit down like the old healing courts, two people speaking to a tribunal of one judge. So that is your three people. And he can give you an answer within a very short time. Cut through the fluff. Cut the cost of doing it. I would also like to elaborate on the concept of replacing the existing appeal process with a one-man judgement court, that is what I have just said, supported by a clerk. That should be enough staff. Until you clean up the backlog, you might need the second person.
This court would hear the position of the two sides of the case. The actual parties involved could state their story and the judge would rule. At this stage, no lawyers are necessary. In the case of the worker's appeal, perhaps his immediate shop steward could assist, but nobody else. Let it be simple. Get the Act down in English. I previously used an example of a court that I sat in on over a two-day period while a student in Business Administration in London, England, and as I recall, that experienced adjudicator could handle between 15 and 20 disputes during his short working day, some time of course necessary for consideration in a few cases, he might set them aside, but for the most part, he knocked them down right there. Of course the courts are always open, but very few court cases are ever coming into being after this process.
Essentially, this is a tribunal with two sides and a third party as coordinator or judge. These informal courts are used extensively in the United States for industrial disputes. We have something similar in Nova Scotia, and I refer to the Small Claims Court. They are used in the United States for all kinds of situations, usually a trucker/company dispute, a payment dispute, collections and so on. They are very informal, and usually have a room to the side where the judge listens a little while and points at the two fellows and says, you have taken this far enough, you are just being stubborn, the two of you better go outside and settle it, hear it out. In this case, of course, that wouldn't apply to this Appeals Tribunal. He would have to give a ruling. Usually on industrial disputes, you work them out and he signs the order. They are all done in a very few minutes, not much more than going to a traffic ticket court.
I think that is probably all I have to say, along with what we said before. If you have questions, I would like to take a crack at them. Thank you.
MR. CHAIRMAN: Mr. Erjavec.
MR. LUC ERJAVEC: I was interested in something you said. I know last time you were in Yarmouth, you brought up about your plant, because you had a good safety record, you had some experience rating, and I noticed when you talked about SIC 5213 that you pay the rate of $2.04, and you have not had a claim against you in 25 years.
MR. HUGHES: Well, we were paying 52 cents in 1996, now it is up to $2.04 this year.
MR. ERJAVEC: Which is the full rate. I just want to get your opinion on something that I know small businesses are always complaining to me about. Even though you do not have an accident or claims against you, because you are a small business, you do not get to benefit from experience rating, because you do not have $10,000 or $20,000 in assessments. Do you find that is a problem in this area, because it is a small business?
MR. HUGHES: No. The new Act does. Not everything is wrong with WCB. The new Act does make provision for reductions on good behaviour.
MR. ERJAVEC: But I mean, with your small business that you have now, it seems you are not getting any experience rating, because . . .
MR. HUGHES: No, we were reclassified.
MR. ERJAVEC: Yes, but after the full $2.04, if you have a good safety record, you should have been lower?
MR. HUGHES: Oh, yes, but I don't know if they are on commission, the sales people for WCB are not. They reclassified us, out of the blue, before looking at us. As part of IMO, they said, oh, you are one and the same thing, because IMO looks after our payroll. We are a separate company, we do different things, but we do contract out to them our payroll preparation, and we share employees. I work for both companies. For this reason, it got a little complex in a sense, and we would sit down and talk that over.
IMO, by the way, I told you then, was reassessed in, I think, about 1976, and put in a class, because it was one of a kind, as a canner. There were three other canneries, I think, at that time, or maybe four in the Annapolis Valley, and maybe one small fish cannery by the Nickersons up in the Antigonish area, up that way, River John maybe, I don't know.
That one closed, it left us as the only fish cannery in Nova Scotia, because we can fish and because the old historic SIC class was trying to find out how much fish was used in canned or frozen or filleted, what not, that was for trade purposes. Then of course, in those days, a fish plant had a cannery. Most of them canned lobsters, today they freeze it, so they are doing something else. We are a one-of-a-kind operation there, and because the rates, I guess, went from $2.00-something to $3.00-something and now $4.00-something, it looked better if they could - you know, they are out to increase the ratings and get more money. It is as simple as that.
We didn't have any argument if we were paying the same rate as other canneries, it didn't matter that those other canneries were still using equipment that was designed in the
1930's and ours is a modern cannery, with a low rating. I think if we were ever to go on an investigative case, we would find that those cases at IMO where they were paying out a couple of amounts, although as I told you then, it was a very small percentage of what they are collecting from us, they had no basis on risk or experience to reclassify IMO or to charge more, and certainly they don't in this case.
When you are looking at this kind of revenue, you are driving business away. There has to be a cheaper way to do it. The cost of administration there is ridiculous. I tried to find out through their annual report just where their costs lie, if you can find your way through it, I can't. The nice words by the chairman read very well. The stories about the individual people on that board, they sound good.
This could be a good board, but I don't know how much the board is doing about the operation at the office, other than clapping their hands when they see these new big fees coming in, the new millions coming in, but costs going up and payments going out and staff being hired. I was shocked when I heard tonight that there are 280-some people employed there or 240-some, shocked. If you need more, let's say 100 to do that operation, there has to be something desperately wrong.
MR. CHAIRMAN: Thank you very much, Mr. Hughes, and thank you on behalf of the select committee for taking the time to be with us here this evening. We appreciate that you have taken the time to make a presentation on two occasions, and thank you again on behalf of the committee. Good night. Our next presenter is Mr. Terry York.
[9:25 p.m. Mr. Hyland Fraser took the Chair.]
MR. CHAIRMAN: Good evening, Mr. York. Welcome to our committee this evening. You can begin whenever you are up to it.
MR. TERRY YORK: Okay, thank you very much. Good evening, my name is Terry York and I am an injured worker. I was injured on the job in 1990 and for almost nine years I have been battling the Workers' Compensation Board. I put appeal upon appeal into the board and I am always getting denied for different reasons, almost every time. I have been to doctor upon doctor only to be told the same thing, every time, that I am totally disabled and will never be able to return to gainful employment.
All medical evidence was sent to the board by these doctors but the board does not seem to want to recognize my condition. All I wish is to be paid what I should be paid going by what I made at the time of the accident and by what I would be able to make today if I could return to gainful employment.
The board has had false evidence about my injury which I have tried time and time again to rectify but to no avail, it keeps showing up in the letters to me from the board. The last appeal that I went to before the board, I was basically told that they would not look at any of the most recent doctors' reports. They made me an offer and told me to basically take it or I get nothing and be put back in the system again. One incident, they told me that I was only receiving 50 per cent of my wage loss because the other 50 per cent was due to chronic pain. Another time, I was only receiving 50 per cent because the other 50 per cent was because I had an old injury before this accident which I never and was cleared up by the doctors' reports. The last reason was because I refused vocational training. So as you can see, they have given me a number of different excuses over a period of time.
I just feel that there should be a better system in place for the people, like myself, who are not abusing the system. Thank you very much for your time.
MR. CHAIRMAN: Thank you, Mr. York. Some of the committee members may have questions for you but I will ask the first one. What was the nature of your injury and what were you doing?
MR. YORK: I had two discs out of my back, L4 and L5. When I had my operation, I received a very serious back infection that went up through my spine and everything. I nearly died from that. Right now, my spine is tipped backwards. Most normal people when they have an injury like this, their spine is supposed to tip forward but my spine is tipped backwards and I can't sit up for long periods of time and I wear a brace to hold me up when I can sit up.
MR. CHAIRMAN: What type of work were you doing when you were hurt?
MR. YORK: I was doing construction work.
MR. CHAIRMAN: Thank you, Mr. York. Mr. Fage.
MR. FAGE: Mr. York, are you currently receiving some benefits now from workers' compensation?
MR. YORK: Yes, I think it is extended earnings replacement benefit or whatever it is. They have so many different ones that I am confused, I don't know, myself. I had a lawyer until I found out today I never had a lawyer for a month now so I better find out if I can get another lawyer now.
MR. FAGE: So have they assigned you one from the Workers' Advisers Program yet?
MR. YORK: I was talking to them today and they are going to send an appeal in for me.
MR. FAGE: Have you accessed Canada Pension, as well?
MR. YORK: Yes, I am getting Canada Pension since 1991 or 1992. I can't remember now.
MR. FAGE: Is that for total disability?
MR. YORK: Yes.
MR. FAGE: Thank you.
MR. CHAIRMAN: Is there anyone else? Any of the consultants? Mr. Power.
MR. POWER: Thank you, Mr. Chairman. Mr. York, I noticed in your presentation there that you referred to one of the excuses being that you had an old injury before this accident and then you say, which I never. Do you mean you never did have a prior accident?
[9:30 p.m.]
MR. YORK: No, I did not have no prior accidents and I had doctors went right back in the files and back through to prove that I did not have a back injury or even a complaint of a back injury. Every time I turned around, the compensation board was saying something different. First it was like, back problem, then they said I had a calcification of the spine. I returned to work. Every time I turned around, it was a different excuse. The last time I was told to take what I get or get nothing and I was forced to sign a paper, which I feel I should never have signed, but at the time I was that upset, I didn't even realize I signed it.
MR. CHAIRMAN: Ms. Godin.
MS. GODIN: Hi, Mr. York. Do you have a workers' adviser?
MR. YORK: Not that I know of right yet. I will have to find out tomorrow.
MS. GODIN: You find out tomorrow?
MR. YORK: Yes. I did have one but I found out she left a month ago and I have been trying to get an appeal in for the last three to four weeks. I have been shoved around from lawyer to lawyer.
MS. GODIN: Okay, but you are aware of the program and you are seeking a workers' adviser?
MR. YORK: Yes, I am aware of the Workers' Advisers Program.
MS. GODIN: Okay, thank you, Mr. York.
MR. CHAIRMAN: If there are no more questions, I would really sincerely thank you Mr. York for the effort you made to come before us and present your case and the problems that you have with workers' compensation. We certainly appreciate you coming in. Thank you very much.
MR. YORK: Thank you very much.
MR. CHAIRMAN: The next presenter we have is Mr. Wes MacLean. Good evening, Mr. MacLean and welcome. You can begin whenever you are ready, sir.
MR. WES MACLEAN: Okay. I will just say hello to everybody. I don't believe that different positions make people any better. I am with a new organization formed in Dartmouth called Nova Scotia Injured Workers On-line. I have been involved and been an injured worker since 1994 and I want to thank Tim Hortons because that is where we meet.
When I first became an injured worker, I met a lot of injured workers who were intimidated to speak out for fear that their case would be closed by workers' compensation. There is a stigma, everybody seems to think as injured workers we are sitting home drinking beer and watching TV. That is not true.
I will take you to chronic pain and environmental illnesses. I have heard a few people speak about those and trying to make them trivial to people. Well, since 1984, I have been on painkillers and in the last two years, I have taken one, Demerol, for pain. In the last year, I stopped taking anti-inflammatories and skeletal muscle relaxants. These people that spoke on chronic pain, environmental illness, I don't think any of them have ever had it. So I really don't want to say any more about it because I think a few people that spoke here spoke with a forked tongue.
To give you an idea of what I am talking about, right now there are 41,000 chemicals on the market today that have never been tested to see if they are harmful to all of us. Another situation I want to talk about is I believe that injured workers have been cut off from having any increase in their pensions until the year 2000, yet government, workers' compensation and organized labour have all had increases. In my situation, I went from $900 a month to $91.61. I fought for my case and so have a lot of others.
Let's talk about injured workers, not just in this province but across the country. In 1990, there were 30 groups in Canada. Right now, at this time, there are over 30 groups in Ontario alone and well over 100 in this country. So that goes to tell you that injured workers are getting sick and tired of having to fight to get what should be handed to them. They talk about all the costs that are spent, they are fighting us and the only ones that won out of the deal is the lawyers. Need I say more?
One of the things that I started in 1990 was what we called the Injured Worker Help Line. It is the first of its kind, as far as I know, anywhere in the world. We also produced an injured workers' newsletter. Now that wasn't done just by injured workers, I have to give thanks to the CLC, CUPW, Federation of Labour, Self-Help Connection and your man against red tape, Bart Armstrong.
Okay, here is another scenario. Everybody is talking about pensions not being high enough. Okay, I went to see Dr. Reardon and we went before the appeal board for a 10 per cent pension; I was given 10.5 per cent. Do you know why that happened? It was because, over 10 per cent, you can't get a lump sum. I think that a couple of things that you should look at is that the benefit of the doubt should come back to the injured worker and we need our external appeal board back.
I have done plain-talk workshops at the Labour Temple, the WCB and had the privilege of practising doing this at the Self-Help Connection. A couple of things that were just brought to my attention. I knew of construction, but I am going to stand up for business when it comes to construction and banks. Banks should be paying into workers' compensation; look at the money they are pulling in. As far as construction goes, and even the gentleman that spoke before me, I don't believe that if you are in the construction field and you sit in downtown Halifax, you should not be paying the same rate as somebody that is on the job.
One more thing about my case. I went to Bart Armstrong and from Bart Armstrong we went to the Ombudsman of Nova Scotia because I was told that I had a pre-existing condition. Okay? I will tell you right now, if you see any letters with pre-existing condition, let me know because I have got a statement from workers' compensation stating they will never use the pre-existing condition law again. Only 1 per cent out of all of the people that have spina bifida don't walk. Why workers' compensation bent to us was for the fact that 1 out of every 3 people born in this country are born with spina bifida and I threatened to go to the employers and say, look, you are paying money for somebody who is not even going to be covered. That is where I got the letter stating that they will never use that statement in another letter to an injured worker.
I have just put down a few things, tacked down, as some of you know. I got in touch with you last night and it was sort of by accident that I saw this on TV and I have been taping the whole lot. I think that the one good thing is the help line. It gives injured workers a place to vent their problems. I know of people that are in the medical field, the Workers' Counsellor Program and the spouses of injured workers and their children. They don't understand why daddy can't pick you up or mommy can't pick you up or you can't go out and throw the ball to each other. So when you think of an injured worker, you think of an injured worker and his family. I just hope that this committee can do something real quick and I also want to volunteer my services to help you in any way because this is unreal. I really can't believe it.
I have got to say this. Number one, when the Tories were in, boy, I didn't like them at all, the way they treated injured workers. So then, all of a sudden, oh, the Liberals are in, great, we are going to get something done here because when they were in the Opposition, Paul MacEwan sent me letters, if not every day, every second day and sometimes two or three letters a day about workers' compensation and what he wanted to do. What did they do? They got voted in. Where did he go? Up there, Speaker of the House. He was the best person they had that knew about workers' compensation. You know, it is like hiring somebody to cut up meat when they are used to teaching you something or they are driving a taxi. This is something that has been said for quite a while and we are going to keep our eye on what goes on here because some of these people have been waiting many years.
How many families have you, over there, voted against for workers' compensation and these families have nothing? Have any of you been injured on the job? Yes? So we have one or two people. You guys should have a good feel of what it is like if you had a hard time. If you lose your arm, that is fine, lose your leg, that is fine but if you have soft tissue damage or environmental illnesses that are supposed to vanish after six months, it is not going to happen.
I wish to thank you and I wish to thank all the people that have backed me over the years. We are back. You think you had problems in the Premier's Office. We are going to be there and we are going to hold each and every one of you accountable. When you go to be elected again, you can count on an injured worker or maybe 50 or 100 at your door to make sure that we are going to be treated right. I have to say that I am totally upset with the Liberal Party and I will tell you, I walked around my area during the last couple of elections, local and national, there are some pile of people out there frustrated; a lot of them are really frustrated. So I think we have to clean up our act. Thank you very much for allowing me the time to speak to you and remember, you could be the next one, one second away from you becoming an injured worker.
MR. CHAIRMAN: Thank you very much, Mr. MacLean. Some of the committee may have some questions before you leave. Is there anyone with questions for Mr. MacLean? Mr. Parker.
MR. PARKER: Mr. MacLean, do you feel there would be some merit in having injured workers working for the board in positions of authority to make decisions, to help determine policy and so on?
MR. MACLEAN: Yes. I think that is most definite. I remember listening to Rick talking the other day about having an injured worker on the board. It is like they don't have feelings over there. I mean there are people that I went to school with, people I hung around with, people that I worked with, and now they are at the Workers' Compensation Board and I really have to say, I don't know how these can people can lay down and go to sleep at night. I can't. I have to take medication to go to sleep or I don't go to sleep.
MR. PARKER: You are part of an organized group of injured workers and there are others around the province here and there.
MR. MACLEAN: Yes.
MR. PARKER: Do you feel there would be some merit in having some funding available to injured workers' associations so they could help their members?
MR. MACLEAN: Yes. As you can tell, I am wearing a shirt here. I don't think any Tories want to see it but in Ontario they celebrate Injured Worker Day on June 1st. This is for all you fellows up there in Ontario, for all the information you have sent to me, I am just giving you back what you deserve. But yes, the Injured Worker Help Line, I got about $700 a year from the CLC and then the rest came out of my pocket. So I put $800 to $1,000. So you are talking like for a few thousand dollars, the injured workers have the ability to call somebody. The medical field and the lawyers, they are just tickled pink. Hey, take this phone number, call up this injured worker, just to have a place to vent.
MR. PARKER: So do you feel there should be funding available from the WCB itself to help the injured workers associations?
MR. MACLEAN: Yes. In Ontario, the government funds the 30-plus groups there.
MR. PARKER: Okay, thank you.
MR. CHAIRMAN: Mr. Fage.
MR. FAGE: I think it is important to point out some of the factual things that are here. My colleague is wondering if it would be good to have injured workers and people who are advocates from injured workers on the board. Currently, it is my understanding that there are representatives on the board in that circumstance and whoever rose from that area. I think it is encouraging that there already are people there on the board. Obviously more input from everyone and especially injured workers are important but I don't think we should have the perception that there are not people on the board now that have not arose from the ranks of injured workers.
MR. MACLEAN: Yes, in fact there is an injured worker that is on the board now but as far as I know, she was appointed by labour. Yes, injured workers across this province would love to have somebody that knows, who is keeping up with what is going on and has the ability to go to the other groups and let them know what is going on, to take their complaints. Like the Pictou group, they meet quite frequently.
MR. CHAIRMAN: Thank you very much, Mr. MacLean. I see no more questions so we thank you very much for coming in and making your presentation before us this evening.
MR. MACLEAN: Thank you very much for giving me the privilege.
[9:48 p.m. Mr. Michael Baker resumed the Chair.]
MR. CHAIRMAN: Our next presenter is the Workers' Compensation Board. I would ask Mr. Stuewe and the other representatives to come in.
Perhaps if you gentlemen would introduce yourselves. I think we know who you are but I think for the benefit of those who don't.
MR. INNIS CHRISTIE: My name is Innis Christie. I am the Chairman of the Workers' Compensation Board. On my left here is David Stuewe, the Chief Executive Officer of the Board and beside him is James Houston, the Policy Director of the Board.
MR. CHAIRMAN: Mr. Christie or Mr. Stuewe or Mr. Houston, you can commence your presentation any time you like.
MR. CHRISTIE: Thank you for giving us the opportunity to meet with you this evening and provide you with information on the workers' compensation system. The workers' compensation system in Nova Scotia is a system in transition. It is in transition in terms of governance, the benefits it delivers, its funding, and the way the service is delivered to injured workers and employers.
I know you have heard all across the province that there are many serious issues within this system, in particular, inadequate pensions for those injured prior to 1990, how chronic pain is dealt with and the backlog of appeals at the Workers' Compensation Appeals Tribunal. Those issues are very much with us.
Clinical rating scale pensions awarded to workers prior to 1990 are inadequate, (Interruption) CRS pensions . . .
MR. CHAIRMAN: Mr. Christie, I don't mean to interrupt you, but I will tell you from being in the House, that is one of the things that the other side always tries to do is to distract the speaker, and I don't know if Mr. Hadley has gone over to the other side or not, I apologize.
MR. CHRISTIE: It is a good ploy.
MR. CHAIRMAN: It is a good ploy and it is not the first time it has been tried.
MR. CHRISTIE: A very athletic one, in this case.
MR. CHAIRMAN: Thank you. Go ahead, I am sorry.
MR. CHRISTIE: CRS pensions, the old clinical rating scale pensions, which were awarded to workers prior to 1990 are inadequate for those who could not return to work and who were in the lower ranges of the permanent medical impairment ratings. The Legislature recognized this and in an earnings loss system of compensation in the new 1996 Act, rectified it, but earnings loss is considerably more expensive. It is a much more expensive system, and the WCB's finances, when the new Act came in, could at best be described as fragile.
Other than the supplementary benefit program for those who had CPP and were on permanent pensions, it was decided by the Legislature that earnings loss support could not be extended back to workers injured prior to 1990. It was thought that to have done so would have meant a rate increase, it would make our employers even more uncompetitive, putting Nova Scotia jobs at risk. The Legislature made the decision not to go back, whether that was right or wrong, I am not here to say. They made that decision, and there is no question that people at the lower end of the medical impairment scale, who are trying to live on a CRS pension are not well provided for.
Chronic pain has also become a significant and confusing issue in this province that requires clarification. Under the old Act, the Workers' Compensation Board did not believe that the Statute entitled it to recognize chronic pain as a compensable condition. In fact, under the new Act, the only benefit for chronic pain is the benefit defined in the functional restoration program regulations passed by Cabinet. In 1997, however, the Court of Appeal, in the Doward case, stated that chronic pain was compensable under the old Act, and since that time there has been considerable confusion regarding the issue of chronic pain with subsequent decisions from the court and WCAT bringing some clarity, but the system needs clear legislative direction regarding chronic pain to resolve this situation, particularly for workers injured prior to February 1, 1996, the date the new Act came into effect.
We also need a resolution of the appeals backlog at WCAT. Although this could more appropriately be addressed by that tribunal, we at the WCB believe that clarity in the rules dealing with chronic pain would help reduce the backlog. I understand those issues, the CRS pension issue, chronic pain, the appeal backlog, and they are serious issues, but I must say that I believe that the earnings-loss-based new Act fully introduced February 1, 1996 is working for those injured after that date, and the best measure we have for this is that we have had less than 300 appeals to the Workers' Compensation Appeals Tribunal for the over 60,000 cases that have come into our door since the new Act was introduced. Those old Act issues before you need resolution, but the basics of the Canadian and the Nova Scotia workers' compensation system are sound.
As you know, it is a system with very deep roots, based on the Meredith Principles introduced in 1910, based on this historic compromise that said there would be no-fault insurance for workers in return for there being no right of suit against the employers. The idea then as now was that there be certain and expeditious compensation rather than lengthy lawsuits which serve nobody's interest in the long run. The Meredith Principles - and I won't
go into further historical detail - have served us well since then. If you look on Page 4 of our presentation, you will see them listed and I urge you that whatever you recommend, it not be a departure from those fundamentals.
I want to move to the governance of the system, because it is at that level that I am particularly involved as Chairman of the WCB Board of Directors. It should be understood that the Minister of Labour is the Minister responsible for the Workers' Compensation Act as well as Minister of Labour. The Workers' Compensation Act is not administered by the Department of Labour, but the minister is responsible for the Act, and the governance of the Act is given over by that legislation to the WCB Board of Directors. They employ a staff of some 300 people that is commonly referred to as the WCB.
If you look at Page 6 of the materials, you will see the chart showing our modern bi-lateral or tri-lateral structure of the WCB Board of Directors, which we have had only since 1992. You see there that there are equal numbers, three representatives of employers and three representatives of workers, nominated by various unions and labour associations. The chairman and the deputy chairman are non-aligned members, and there are two other non-aligned members on the board, but they are non-voting, as is the deputy chairman except in the chairman's absence. That is the WCB Board of Directors and that is the group of people to whom the Act gives responsibility for the governance of the system. It is important to recognize that these are equal numbers of representatives of labour and management.
What does this board of directors do? It taxes. The board sets the assessment rates on employers and determines the basis upon which employers pay for the system. This is an employer-paid system. The board also regulates the system. I know there has been a lot of discussion on this, and I just want to underline this point that the board makes policy in accordance with the Act, which governs the activities of all parts of the system under the new Act.
The board has no power and no intention to make policies that are not fully in accord with the Act. If they are not, they can be challenged in court, without going through any elaborate appeal process, they can be taken directly to the Court of Appeal. It is never our intention to pass a policy that is not in accordance with the Act, but it is a complex system with many details to be attended to that cannot all be spelled out in the Act. It is our responsibility to try to bring consistency to the application of the Act.
[10:00 p.m.]
The Act, for example, says that benefits are to be based on an injured worker's prior three years of employment. The board passes regulations that say, for example, particular attention is to be paid to the period within those three years which is most representative of the worker's earnings. So that somebody who has been unemployed for two years and fully employed in the year prior to his injury is compensated on the basis of his earnings in that
year. The board attempts to make uniform the exercise of judgement and discretion by its staff under the board.
In addition to that, and thirdly, the board has supervisory power. It oversees the activity of WCB management, and in that function, it is very much like the board of any private corporation. It doesn't get into the day-to-day operation of the business, but the management is answerable to the board.
In addition to that, the board, and here I mean the employees of the board, make decisions on claims and assessment matters. Ultimately, I suppose, the board takes responsibility for that, but it is important to understand that the board of directors does not deal with individual cases, it deals at a policy level with the running of the system and supervises, in the sense of overseeing, the management of the system.
If I can just wind up my part of this by saying that in the period from 1992 to 1998, this board in transition has had its methods of governance changed. A joint labour/management board of directors has been established. The board is overseeing a system which has become more fair, in the sense that we have moved from the CRS system to an earnings loss system. The board's finances have become sustainable. It was the most poorly funded system in Canada, only 27 per cent funded in 1992 and it is now 50 per cent funded. It runs an affordable system, rates had increased 100 per cent between 1986 and 1992, they have been stable since 1994.
There is a concept of a compensation system that this board has firmly in view and which applies to the whole system. The board of directors has given clear direction to the staff, through Mr. Stuewe, that service must be improved. There are clearly identified areas for service improvement, and there are clearly established service standards which are to be achieved within set time-frames. We conduct ongoing surveys of our clients, both injured workers and employers. We attempt to sample the opinion, not just of the activists, the people that are unhappy with the system, but the whole range of people who are dealt with by the system. That presents, not a perfect picture, I don't suggest that for one minute, but a much different sense of the degree of satisfaction with the system than what you have heard.
We have established clear corporate performance measures, having to do with the timeliness of the payment of benefits, the degree to which our surveys must show that people are dealt with politely and to their satisfaction and we are holding the staff to that. This is a cultural change, quite frankly, at the board, this emphasis on service, and it takes time. Standards have been set, and we are making significant progress. Mr. Stuewe can speak further to that.
As a final point, and I would refer you here to Page 10 in our materials, I do want to reiterate the recommendations that the board of directors made in November of this past year with respect to changes that we think, thought then, had to be made through legislation
because they are not things that we can control through policy, because we can't make policy that isn't in accord with the law.
We suggested that the PMI adjustment rule, the 10 per cent PMI adjustment rule should be removed. We suggested that top-up payments for recurrences for workers in receipt of extended benefits should be allowed in a way that we think, through some oversight, was precluded by the Act when it was drafted. We think and recommended that there be some special program for pre-February 1, 1996 chronic pain claims which are under active consideration by the WCB or in the WCAT backlog. We recommended that there be some sort of ADR process to reduce the WCAT backlog, and made it clear that we support and participate in that.
We recommended that the employer's right, where it is bargained for collectively or offered, to pay injured workers during the waiting period, the two-fifths deductible as it were, be reinstated. We recommended that that the Legislature revise the registration requirement for non-resident workers from six months to one week, so that people coming in from outside the province would not have the benefit without bearing the cost, most importantly would share in the cost of the system in Nova Scotia.
That completes the part of this presentation that I had undertaken and I will ask David Stuewe to carry on.
MR. DAVID STUEWE: Mr. Chairman, ladies and gentlemen, you have spent the past three weeks touring the province and have had the opportunity to meet with many injured workers and some businesses, but I understand an awful lot of injured workers, and have had the opportunity to see what our staff has seen over the past number of years. It is a pretty intensive period of time, and I just want to give you a sense of where our staff comes from.
I arrived at the board in September 1992. When I walked onto the floor, just to walk around and meet the staff, I was met by a group of people who said, you have to help us change this system. There was staff there who had files piled around their desks, you had staff there who routinely were coming in on Saturdays to deal with the backlog of cases that they were handling, because there was not enough staff on the floor to try to do the job.
What the board of directors said to me was, you go out and figure out what is needed to try to change this system, and there was sort of a number of major things that were given focus by our board of directors. The first was service. The second was trying to assist the board in coming up with a system to move to an earnings loss system; our staff knew that those people who were having to live on PMI-based pensions, clinical rating scale-based pensions and who could not go back to work, could not live on the amounts that were provided. Our board said, come up with a mechanism that the board can consider to change the legislation. The employers' side was also very frustrated as were the injured workers.
They said, we need an experience rating system to ensure that the rates that we are paying are reflective of the costs that our firm is costing the system.
Over the past four to five years, we have gone systematically through the organization, attempting to address many of these concerns. What I would like to do is to share with you tonight some of the things that have occurred and some of the issues that we still think are outstanding. I am speaking to Page 11 of the document that was handed out, not the supplementary material, because that is there should you ask questions and wish to see particular information on that.
The first thing that Nova Scotians demanded and were given by this Legislature in 1995, when it was proclaimed, was an earnings loss system. The focus at that point in time was to try to get funds to those who were in the greatest need and those who were in the greatest need were perceived to be those who could not return to work. You can see on Page 11 at the bottom right-hand side, the box, the amount of money that was being paid out per time loss claim - this is every time loss claim - you will see that in 1993 the amount being given was $6,800. In 1997, the amount that has been given out to people who have time loss claims has increased to $10,100 and that is controlled for inflation.
The most important thing to look at, really, is the pie chart. You will see that the funds have shifted significantly from 1993. Those people in 1993 who were receiving 55 per cent of all the funds that were available were people who were on short-term benefits. These are people who, for the most part, now - and I cannot give you the time-frames for 1993 - in 1997, fully 50 per cent of them go back to work in two weeks after their injury; another 97 per cent of them go back to work within 12 weeks.
Those others who are off work for the rest of their lives are now, as you can see, instead of getting 45 per cent of the money, receiving 75 per cent of the funds that are going to injured workers in this province. That has been a significant shift and it recognizes the need that members of the Legislature have identified as bringing in an earnings loss system.
When I go out and meet injured workers, like you have over the past couple of weeks, I meet people all the time who are living on these small pensions who are pre-Hayden. Our Act does not provide us - other than that one program called supplementary benefits - with any authorization to provide any additional funds to those persons.
On the next page you will see - to give you a sense of where we are at from a financial perspective, there are greater details on the financials in your package and we can provide you with any information you wish on that side - that the average assessment rate is now at $2.54. It has been held constant there for the past four years. We are the third highest in the country. You will see that on the right-hand side, as of 1997, the board has 50 per cent of the funds that are required to fund it. We are the worst funded board in Canada. However, we have
moved, fully, from a 27 per cent funded position to a 50 per cent funded position over the past five years.
On the next page, I wanted to try to give you some sense of what this new Act has meant in terms of actually managing cases. The arrow is intended to focus progress, assisting individuals who are injured and helping them get back to work. That is what disability case management is all about. Under the old system, all the staff of the Workers' Compensation Board was asked to deal with were the first two and one-half points on here. They determined eligibility. They figured out what the person's wage was the week before they were injured, multiplied it by 52 and said, that's the wage. For those who are on seasonal benefits - I am sure you can understand that - that inflated the wage rate substantially.
There was a great protest, particularly from the business community on that side because people were being paid substantially more than, in many cases, they were actually earning in the year. They determined eligibility, determined the wage and then their health care status was determined, what was their permanent medical impairment. That was multiplied by their wage and that was the benefit that the person received.
The new earnings loss system requires a series of other steps. As you can see, we have to look to the return-to-work capacity and say, can this person return to work? This requires a lot more work on our part. One of the biggest cultural changes that our staff had to engage in was going to the business community and securing from them assistance in getting injured workers back to work.
Under the old system, an employer would see that worker, whether he went back to work or not, receive the same amount of money. The employer would also find themselves in the situation of whether they took that worker back or not, i.e. helping to reduce the potential impact on the system, being charged the same amount. The new Act changes that substantially.
We have seen a tremendous turn-around in terms of employers willing to work with us on ease-back programs and things like that. Those services were not available to the staff in 1992, 1993 and 1994. It was only when this Act changed that those incentives became apparent.
I should also tell you, however, that the employers of this province in 1994, as we moved towards earnings loss, went out and organized themselves to go around the province under their own organization called the employers' early assistance, working them to try to get other employers to understand the benefits of early assistance and light duty work. We have tremendous success recently with this. We did not have such success in the past, as I am sure you can understand.
Where we do not have return-to-work capacity, we now have a rehabilitation coordination program. That program in the past simply was, you would send someone to school. We now, after research in 1993, changed the very nature of that program. What our board of directors said to us is prove to us that the programs work. After we did the research it was very clear that our old vocational rehabilitation programs of just sending people for training was not working.
In 1994, we introduced a new program. The whole focus of it was trying to find on-the-job training so that injured workers would have the opportunity to, as part of their rehabilitation, spend time working. That has proven to be very successful.
The other thing that our staff was having to do is as they moved through this - under the old system, staff one minute would be dealing with a claim from Yarmouth, the next hour they would be dealing with a claim from Truro. There was no consistency from their perspective in getting to know the employers in a particular region.
In 1994 and 1995, we went through a major restructuring of the board which required us to take all of our staff and say, you are to be focused and work with the doctors, the employers and the unions in your particular region of the province. It gave them the opportunity to get to know the needs in that community and work with people. That, combined with the early assistance approach, has given us a tremendous improvement in terms of return to work rates.
Finally, after rehabilitation - you can see that people either, hopefully, return to work or go on to long-term disability if we are unable to provide them with support.
Our staff, on top of just doing their regular job now, have a series of formal training programs. In the past three and one-half years, there have been 47,000 hours of training provided to our staff. Initially, about 27,000 of those hours through 1995-96 were required just to come to understand the new Act. In the early part of this year and the latter part of last year our staff started working on some of the basic skills that they, themselves, have identified that they needed to work on.
What I hope you will see here is that you have got a process that is significantly more complicated than the old system. The old system was simple: determine eligibility, get a wage rate, multiply it by the PMI and say, thank you. The new system says you don't do that. You try to determine what that person needs to get back to work, you put in place a VR program and then you move forward. That is a much more complex job.
To support that, we have a formal quality assurance program of audits on the files. Mr. Chairman, we just met, actually, yesterday or, I guess, the day before with the Auditor General's research group and they have advised us that they will be coming in to check all of our programs, to make sure that the processes that have been set up to provide quality
assurance are, in fact, being followed. I understand you don't have the time to do that and on your behalf, I understand the Auditor General will be doing that. They will be looking at our auditors, in terms of how we audit files. The adjudication advises whose job it is before a negative decision goes out to review it. These are some of the changes that have occurred in the past two years at the board.
Every single decision of an earnings loss nature since February 1, 1996 had to go through a case review committee. We had to make sure that there was consistent decision making across the board. We did that fully for a year and about a quarter and we have now moved back to sort of say only certain types of decisions have to come up so we can assure consistency.
That has been the major change in the system and our staff has demanded the training to go with it. Our board of directors has provided the resources to do that. The other thing that the board of directors required as part of their new governance mandate was that the system be open. In 1987 or 1989, I understand that the former Leader of the New Democratic Party asked for a copy of the policy manual in this House. She was told at the time, that that policy manual could not be given out by the Minister of Labour. One of the first things that the new board did in 1992 was make that policy manual available and public.
The new board at that time started publishing its minutes and said that its policy manual would be developed so that it could go into the libraries of this province and on a monthly basis, a retrospective would be sent out of its dealings so the public could be aware of what it was doing. We put together the staff to implement that. Those structural pieces were not in place in Nova Scotia at that time.
The board also put together a series of major policy papers that were released through 1993, 1994 and 1995. Those are papers I'm moving to earnings loss, a major study on chronic pain, a major study on a new assessment model. When we looked at the assessment model that was in place in Nova Scotia and we tried to apply classic insurance principles to ensure that the firms that are paying the assessments, are paying it in accordance with the amount that they are costing the system, we found that there was a $10 million over-charge to a group of employers and a $10 million under-charge to another group of employers.
Through 1994-95, the whole experience and assessment system was changed at the direction of the board. We went out and met with the employer groups. We also offered meetings to the labour movement. The federation did have one meeting with us on it. That system changed and we are just in the final years now of implementing the adjustment.
As I am sure you can understand, if you are going to bring somebody's rate up and bring somebody else's rate down, you have to do that over time. Otherwise, you could have a significant effect on the economy and that is another major change that has occurred because the board of directors said, we want accountability, we want openness. Part of 1995,
no one could tell you what the formal underlying systems were for our assessments model. Mr. Chairman, those are some of the major changes that have occurred in terms of governance. The board has said, be open.
One of the most outstanding changes that occurred is that every employee in Nova Scotia, when they are injured, now receives an insurance policy. It is called A Guide to Your WCB Insurance Policy. This was not given out at all when a person was injured so the other major change was trying to assist people to understand what their particular rights were. Our staff, whenever a new claim is opened, since the new Act has been passed, has put one of these brochures in every claim with the objective of trying to make sure people understand their rights.
So I hope what you will see, Mr. Chairman, is an institution that has gone through a tremendous change. Staff have been saying they want the change, the government, the employers and the workers saying, we need earnings loss. We are in the process of delivering that, a system that asks for some sort of clarity on financial matters. A long-term funding strategy has been put in place and on a yearly basis we report on that.
Mr. Chairman, I would be more than willing to address any questions that you might have. There are a series of other slides that are there but in recognition of the hour and the long day you have had, I am sure I should stop talking.
MR. CHAIRMAN: Well, I am certainly not going to disagree that we have had a long day. I guess I had one question which I will address to Mr. Christie, initially. It is just a question about the board composition.
My understanding is that with respect to the three worker representatives that are on your board, two of the present members of the board that are workers' representatives have been nominated by organized labour. A third one was nominated by the government without a nomination by organized labour. Is that correct?
MR. CHRISTIE: That is my understanding. I point out, of course, that we do not have any control over that process.
MR. CHAIRMAN: No, no, it wasn't a critical question, it was information.
MR. CHRISTIE: We don't even, in a formal sense, know who has nominated whom. I mean, in fact, we do know and, in fact, you're right.
MR. CHAIRMAN: (Laughter) Yes, in fact is what I was looking for.
MR. CHRISTIE: Yes, well, I just want to make it clear that that is not our bailiwick.
MR. CHAIRMAN: No, I understand that. It was just a matter of information as much as anything. I am going to open the floor to questions from other members. I will start with Mr. Fage.
MR. FAGE: Thank you, Mr. Chairman. Mr. Stuewe, we have been through a rather exhaustive tour of the province, meeting with a lot of claimants, injured workers, people who have cases that have not been resolved through the years, cases where injured workers who would quote a payment that they had been receiving on long-term disabilities, those type of things, and when I look at the chart here, I see 75 per cent in 1997 going to long term. The $10,136 figure, what is the significance of that?
MR. STUEWE: The $10,136 is the average payment that is set up for lost-time claimants that came through the door in 1997. That is how much money we would have paid out to people in that year. That is the amount we would pay out.
MR. FAGE: So that is the average of 1997 payments to new claimants during 1997?
MR. STUEWE: That's correct.
MR. FAGE: It causes one some concern when you then look at the social service rolls of this province and what a single person would be allowed. What the claimants have told us they are receiving, in most cases they will receive more on social services than they will from a WCB claim on a monthly basis.
MR. STUEWE: It would depend, Mr. Fage, on how much they were earning before their injury. If their injury resulted from an accident and they were only earning a small amount, we would pay 85 per cent net of what they were earning. The average claimant in Nova Scotia is earning $25,000, so we would be paying out an 85 per cent net of $25,000.
MR. FAGE: So what would, approximately 85 per cent net of $25,000 be?
MR. STUEWE: I can give you the number. I think it is about $14,000. On Page 32, you can see the monthly benefits of the supplementary document.
MR. FAGE: Right.
MR. STUEWE: The monthly benefits, on Page 32 you will see - this is an example right out of a case; of course, you don't have any names in here - this worker was earning $25,000 a year and had a Revenue Canada code of TD-1, who was not able to return to work. It is a back injury. The person had a permanent medical impairment of 20 per cent. Their gross monthly earnings were $2,800, and what they would receive from us on a monthly basis would be $13,442 a month. Under the old system, what they would have received - I'm sorry - $1,300, excuse me. (Laughter) Not correct, eh, Wilfred?
MR. CHAIRMAN: It is getting late for everybody, isn't it?
MR. STUEWE: Yes, it is. The other individual who would be under the old system - and this is the example that I have to deal with every day and my staff deals with every day - is the person who was under the old system, they would receive $346 a month. Those are the people, Mr. Fage, who were probably talking to you about welfare.
MR. FAGE: Okay. You answered the question but that is what gives me some concern too. Shouldn't that number, when you boil it out, have been $10,000? It's 1,300 times 12, if that is the average claim and it is $25,000 in 1997, why are the two figures incongruent then?
MR. STUEWE: No, it would not be, because you have short-term claims. If you will recall, fully 50 per cent of all our lost-time claimants go back to work within two weeks, and about 90 per cent of the rest will go back to work - and it may be 93 percent, I am not actually sure of that number. I don't have it clear in my mind. Is it 97 per cent, do you know, Jim?
MR. JAMES HOUSTON: I believe so.
MR. STUEWE: Yes, it is 97 per cent of the remainder that go back to work within 12 weeks. As you can see, we have some short term, a lot of short term but it is the long-term claimants who are receiving the largest amounts, of course.
MR. FAGE: Yes. I mean, that is why I asked that supplementary question. It is the long-term claimants that tend to show up at our hearings. Your average figure here shows, in 1997, that a long-term claim is what you told me before, earns an average, or receives an average benefit of $10,136.
[10:30 p.m.]
MR. STUEWE: I understand where the confusion is. That would be for someone under the earnings loss system. Someone under the old clinical rating scale system, you would multiply, for example, on Page 32, the 1990 number, $346 times 12 and that would be your amount. It is $4,000, something like that.
There is no question, people under the old system who could not go back to work are not receiving the funding if they have a low PMI that would allow them to live on that amount of money. (Applause)
MR. FAGE: Thank you very much.
MR. CHAIRMAN: Yes, Mr. Corbett.
MR. CORBETT: Mr. Stuewe, it seems hard to believe that I have sat through a meeting with you without overheads, but we both got through it. (Laughter)
I am just going to ask you a question. This revolves around, pretty well, standard complaints that we have heard from both injured workers and the business sector. I know you have probably answered it somewhat, you or Mr. Christie. It is the fact of the whole idea of the board employees or the board, itself, being either non-caring or completely ambivalent about complaints, whether it is an injured worker who seems to be given the short shaft by the intake worker or the business person who wants to know, where did you come up with my assessment, it is so ludicrous it doesn't match my industry.
We have heard people tell us that basically they manage forest projects for somebody and that they are not really in the woods with saws, that 95 per cent of their stuff is clerical and, yet, they are being assessed as somebody that would have chainsaws and all the ancillary objects.
Mr. Stuewe, you or Mr. Christie, are telling us that look, it is a conversion here, we are changing but, yet, it does not seem to be apparent to the people you are supposed to be serving. I guess I am asking a question that may be fairly difficult to answer, but how come it is not apparent?
MR. STUEWE: I guess, Mr. Corbett, there is no question that I do receive, at my desk - because I do return telephone calls - I hear about people who say, somebody said this or that. Then I will go and speak to those staff to find out about it, what was going on.
On many occasions, I find out that staff were giving a person an answer that they particularly did not want to hear and those persons sometimes get rather irate. That is not to say that our staff are perfect and that we - I mean, I should tell you, one of the first things we did in, I think it was 1993, we put our staff, everybody, that was involved in the front line through telephone courses. How do you handle those difficult situations? When you have to tell somebody that they have to live on $346 a month, people get pretty upset because they know they cannot live on it, our staff know they cannot live on it but that this is the law of Nova Scotia. We cannot give out more money than is allowed by the law. We have clearly tried to address that issue.
One of the things we have done to try to check up on it is actually conduct surveys. We had conducted for us, not ourselves, we commissioned an outside firm to conduct a survey of 900 injured workers who have been injured since February 1, 1996. On Page 20 of your supplementary document is the rating that injured workers, those 800 injured workers have given our staff on a politeness scale of 0 to 10. You will see that our staff were given an 8.4 per cent politeness reading. What the board of directors has said to me is, that has got to be 9 per cent. So, we work with our staff to try to help them deal with very difficult situations.
I can assure you on the assessment side, when a particular firm has not paid its assessment and our staff are told that they have to collect the assessments, and under our Act there is tremendous power to collect the assessments which includes freezing bank accounts and seizing assets. Our staff does engage in collection activities, and people get very hostile. Our staff is particularly trained to try to be responsive and understanding, but their job is to make sure that the Province of Nova Scotia Workers' Compensation Fund receives the money that it needs to pay out. We do everything we can to try to ensure that our staff is polite. Through this sort of sampling, we try to check up, and I can tell you from my side, that I am not getting the sorts of calls that I used to get.
MR. CORBETT: Mr. Stuewe, I will tell you, it has been my experience in these last three weeks that I can't believe that everyone of these people who came to us aren't just PO'd, that they didn't get the money they deserved. These were people that, from the front end, going into the system, have told us that they have met roadblock after roadblock. I say this by way of comment, because I am not trying to apportion blame. What I am saying is, this is what we are hearing. I am not saying this to be offensive to the board or to any of your employees, what I am saying is, this is what we are hearing out there. I guess I am trying to be a conduit back to you.
MR. STUEWE: Thank you. I take it in that vein and I can assure you that our staff is working to try to address it. One of the first things we did when I was asked by the board to sort of take on this responsibility was to go onto the floor and find out what the staff needed. They said that they just needed more resources. We tried to put more resources in place to help them do their job, to give them the training that was needed, and when you are in a pressure cooker and you are dealing with 268 cases per employee, and the national average is 100, sometimes things don't work as well as they should.
That was one of the demands that the board of directors placed on me, to address this issue of service, because our board of directors are very blunt about what they want and about what they are hearing.
MR. CHAIRMAN: I am going to follow up with a brief question, before other members have a question. I have called several large companies before, over the last little while, personally and it is an observation ending with a question. Some of those companies have a recording that comes on that says, for the purpose of quality assurance, this telephone conversation may be taped. This is an observation coupled with a question, because obviously the purpose of that is that these companies want to make sure their customers are being dealt with by their front-line people, to use your phrase, in a proper manner and not trying to record what the gist of the conversation is as much as the method that they are treated by. I don't know if you have ever given that any thought.
MR. STUEWE: In fact, some of our staff have suggested that we move to that methodology, principally so that it can be proven that when they didn't say something, that in fact, there is a record of it.
MR. CHAIRMAN: It works both ways. It is beneficial. Also, if you are a dissatisfied client, and you say, look I was treated rudely and abruptly, there is a record of that too.
MR. STUEWE: Well, that is exactly it. It goes two ways. I have discussed this with staff and this is the sort of system that we may have to move to put in place. There are costs associated, you just don't put it in, you then have to monitor it and dedicate staff. That is the sort of thing we may be certainly willing to consider.
MR. CHAIRMAN: Thank you. The next member who had a question I believe is Mr. [Charles] MacDonald.
MR. CHARLES MACDONALD: For my first question, is this the only chance we get at this board before we . . .
MR. CHAIRMAN: No.
MR. CHARLES MACDONALD: No. It is not, so we have more time. Mr. Christie, we need time.
MR. CHRISTIE: And we are going to make it available for you, as much as you ask.
MR. CHARLES MACDONALD: I just want to ask a couple of questions to deal with some of the things that we have heard. One of the ones, and it came across the table today, was from a gentleman who has been in the system for over 20 years. His appeal is up at the final level. I have heard this before, throughout our deliberations across the province. But there is new information that comes in, but he can't introduce it into this appeal. He has to finish this appeal that he is in or the process that he is in and then get kicked back down the ladder again, to start the whole process again.
Now, the man has been in the compensation system over 20-odd years or better, and he is finally getting to that final tribunal and he has new information, but they won't take it. He has to go back down the system and start over again. A simple answer, what is the matter?
MR. CHRISTIE: It seems to me that in any rational system, if he has new information, and the new information makes a difference in his claim, he should go back to the decision maker who rejected him originally and say, I have new information, and if it is relevant new information that makes a difference, his case will be adjusted.
MR. CHARLES MACDONALD: This hasn't occurred once, this has occurred more than once in our deliberations across the province.
MR. CHRISTIE: I understand that. Very often - this is really a question that Mr. Stuewe should answer, I suppose, because it gets into detail - there may be new information, there may be what the claimant considers to be new information, but it has to be decided, and I am not saying there isn't sometimes new information, but sometimes it either isn't really new or it is new information that simply doesn't change the water on the beans for the case. People expect that they are going to get something different when they get new information, but that may not change their entitlement under the Act. That is what has to be decided fairly, compassionately, carefully.
MR. CHARLES MACDONALD: We can agree with that in a sense, but even if it doesn't change the entitlement, why not listen to the evidence that the person has to present. It is going to be adjusted as you go through your process, or you are going to deal with it at the tribunal, they would take the information in hand and decide in fact whether it does alter the conditions that pre-existed or not. But to force them back down, and when they are talking six years to get through an appeal process . . .
MR. CHRISTIE: I understand how dreadful the appeal process is.
MR. STUEWE: If I might, Mr. Chairman, if someone has new information, rather than waiting to go through the appeal, all they have to do is take that information to the original case manager, whoever is handling their case, say, here is the new information. That case manager, that day can change that decision, like that.
MR. CHARLES MACDONALD: Okay. I will leave that with you.
MR. STUEWE: But I can also say to you, the other thing that is really important about new information, when I arrived I went through a process of quality control, and went to the staff and said, listen, your decisions are being overturned at 92 per cent at the Workers' Compensation Appeal Board, what is going on? How can we be so wrong? What they were able to indicate to me is that at the higher levels, new information that they had never seen, not that they were not even given a chance to look at the information, was changing the decision.
For me to be able to hold the staff accountable, because this is what the board has said, David, go down there, make sure that you train them, make sure they know what they are supposed to do, and you hold them accountable if they don't follow the Act and the policies. For me to hold them accountable, because part of the quality control process is the appeal process, because the main decision, their main product is a decision, assisting that person to get back to work and deciding if they get benefits, what sort of support they get. If I do not have not the ability to say to them, you have all the information and the same
information that is available to you is available to the hearing officer or to WCAT and they overrule you, then you have a problem.
But if the hearing officer and the WCAT have different information than does the front-line staff person, I cannot hold that person accountable for the decisions that they make. We are trying to put in place, like you have in the regular court system, a process that says, the senior appellant body will only decide on the facts that the junior appellant person or the junior decision-maker had before them at that time. That is how you hold accountability, and quite frankly, I think it is more expeditious, because if I know your case, and you bring in that piece of evidence that shows you really do have a crush in the knee or there is a nerve impingement, that can change like that, because that is allowable under the Act.
The problem often is that the new evidence really is not new evidence, it is a re-writing of evidence that has been around for a long time. That is particularly problematic, because people get frustrated.
MR. CHARLES MACDONALD: I am not going to argue the point with you. I am going to leave it with you. I have two more short ones, if I may.
MR. CHAIRMAN: Short snappers would be all right.
MR. CHARLES MACDONALD: Why does it take a year for an employer to get an appeal on his assessment? Why is he told that there is not enough staff, it will take us a year before we can tell you if we can reduce your rate or not?
MR. STUEWE: This is at the first level? That should not be the case. If you come before us today at the Workers' Compensation Board, and you go to our hearing officer, we can give you a hearing date within two weeks. We have no backlog at the Workers' Compensation Board internal appeals system, none. There are about 60 cases, less than 100, that are in a hold as a result of the lack of clarity flowing from the Doward decision. There is no backlog at the hearing level.
MR. CHAIRMAN: Excuse me but, those are employer cases that are on hold?
MR. STUEWE: No. The only cases that are on hold are Doward-related cases that are clients' cases.
MR. CHARLES MACDONALD: No. We are talking about assessments. My assessment as an employer.
MR. STUEWE: If you have an assessment issue and it is going to our hearing officer, it can be dealt with in a matter of weeks.
MR. CHARLES MACDONALD: There was a gentleman that told us today that they gave him a year down the road before his hearing would be heard.
MR. STUEWE: I suspect that he was at WCAT.
MR. CHAIRMAN: Ah. WCAT again.
MR. CHARLES MACDONALD: Okay.
MR. STUEWE: But, if you could give me, or maybe my staff could identify who that employer was, I will find out what is going on. Our board of directors has a policy statement that you will see that we have to get decisions out the door, Page 22, timeliness of internal appeal decisions. We measure how long it takes us to get a decision out the door. Our staff have 90 days from the time that an appeal is filed at the hearing officer level until the decision goes out the door, and we measure it. On Page 22, you can see what our processing has been, in terms of making that 90 day time-frame . . .
MR. CHARLES MACDONALD: . . . 7 to 10 days though.
MR. STUEWE: That is exactly the way it should be, but sometimes issues are complex.
MR. CHARLES MACDONALD: I will give you one last one.
MR. CHRISTIE: If I could just comment briefly using Mr. [Charles] MacDonald's example of the employer with, supposedly, a year in delay. I think that probably is at WCAT. That is a good example of the kind of case that not only the CEO but the board of directors wants to hear about, not because we deal with individual cases, we don't dispose of individual cases, but we are very interested in hearing about such a case because our direction to Mr. Stuewe then is, find out if in fact that person is held up for a year by our board, and if that is the case, find out why, and tell us why. If it is a staff problem, train and discipline as you would with any organization where staff is not behaving properly.
The board doesn't want to put up with that kind of thing at all. It is just unacceptable to us, and we are always open to hearing that kind of complaint. Whether it is employers or injured workers, we have had hundreds of cases that Mr. Stuewe has pursued to ascertain that proper process and policy and law was followed, not with an eye to correcting them, but to ascertain whether there is something awry that needs to be corrected by training, by discipline, by, in the final eventuality, replacement of an incompetent or improperly motivated staff member. That is the way we work, and we try very hard to improve the service standards of this organization, and we hold him responsible for that.
MR. CHARLES MACDONALD: I will give you one last one, then I will leave you, but I have many more here.
MR. CHAIRMAN: There may be another day, yes.
MR. CHARLES MACDONALD: On your specialists, and the injured worker has two or three specialists that all are in agreement as to his injury and the extent of his injury. He goes before the board or the appeal, your general practitioner overrides the specialists or your adjudicator overrides the specialists.
MR. STUEWE: I think it is important also to look at a sort of time-frame on this one. Our doctors, under the Act, are required to look at the impact of the injury, and try to determine how that injury has affected that person. There is a permanent medical impairment rating schedule that is used right across Canada, it is basically the same, that says; if you lose a finger, you get x; if you lose a hand, you get y; and if you lose the full arm, you get w, a certain percentage.
Many specialists, and I am particularly familiar with the role of specialists, don't look at just the hand, the arm, they look at the whole individual, and they say, can this person go back to work? What is the likely loss of income that this person may have as a result of this injury? They will say, maybe 45 per cent or 50 per cent. Our board, with the laws as they are, are required to say, what is the loss of permanent medical impairment, because that is the way the old system, the clinical rating scale system was based. You get a certain percentage for certain types of conditions. If you have had the maximum you can receive for a back is 30 per cent, there are many people who cannot work because of the back injuries they have had. Our staff knows that; our doctors know that. The specialist, however, is looking at the whole person, saying, here is the situation, but we have a schedule that is being used throughout the system, so we often have individuals coming in and saying, my doc says this. We have to look at the evidence and ask how it fits within that schedule. That is quite often the reason for many of the differences.
MR. CHRISTIE: It may be unnecessary to add that those differences produced an enormously different result under the CRS system. Under the earnings loss system they shouldn't produce a significantly different result at all because, as long as the person has the disability, the PMI, then what we look at is earnings loss, so you are not as likely to get the specialist stretching, if you like, in the interest of the worker under the new system as you did under the CRS system. That is just one of the many problems with the CRS system. It is a dismal legacy that we have inherited.
I say now - as I started out by saying - one of the big problems we face is that old system and the many cases that are left over from it and the fact that the legislation did not attempt to go back. We can't go back. The Legislature had to go back and it didn't see fit to do so for reasons that I am not criticizing - I couldn't afford to - but that is a decision that
government has to make. We can't do it. We can only pay CRS people what the law entitled them to and we know it wasn't adequate.
MR. STUEWE: Under the new system, Mr. Chairman, it said the permanent medical impairment, if the person has not gone back to work, doesn't account for that much of their money. Their money really comes from their earnings loss evaluation. It would be interesting, Jim, I guess, for us to undertake a study of how many PMIs are being objected to now under the new system. We went out and spoke to the medical community to help them understand we have gone to a new system. Some have taken the time to understand it, some have not, but it is clear when I speak to the medical community that they believe that the earnings loss system is a much fairer system because they deal with these people on a day-in and day-out basis. They know that they can or cannot go back to the work, but our old Act said all they could get if you have a back injury, the maximum is 30 per cent. Quite often there would be differences that are given, they would look at the whole person.
Our docs, by the way, they are all accredited by the American college that is responsible for disability assessment. There are only 10 physicians in this province who have that accreditation. The purpose of having the board doctors do the evaluations is to ensure that all individuals in the province who are rated are rated the same, so you don't get somebody up here getting 50 per cent and somebody over here getting 30 per cent. So the PMI schedule, the objective is to have standard ratings done by doctors whose job it is to give to those people that which they need.
It is important to remember that the Workers' Compensation Board is not an insurance company in the traditional sense. We, the staff, nor the board members get any money because money isn't given out. We are a neutral third party whose job it is to enforce an Act which says a person who is injured has certain rights and we give them the maximum amount. The message that I give to our staff when I meet them when they are new - and our management team - I tell them that your job is to find a way to pay. That is the modus operandi because we are trying to find a way to help this province become a healthy, working Nova Scotia. Give them their benefits and help them get back to work; that is what they need and that is what we are trying to do.
MR. CHARLES MACDONALD: Thank you, Mr. Chairman. I will leave that for now.
MR. CHAIRMAN: Thank you very much, Mr. [Charles] MacDonald. Our next member who has a question, Mr. [Hyland] Fraser.
MR. HYLAND FRASER: Thank you, Mr. Chairman. I have so many questions, I could be here the rest of the night, so I am going to just ask one and I will defer the rest until the next time we meet. One of the things we heard that I guess discouraged me just as much, as I was going to ask the question Mr. [Charles] MacDonald asked, where the specialists are
continually overruled, but it is on the retraining. I know you referred to it that you are doing it differently now. We have had cases where people, it seemed, were sent for some kind of retraining whether it fitted what they could or could not do, just to get them off the system. We heard from an individual who had his right hand completely smashed who was allowed to take a barber's course, who couldn't cut hair. We saw somebody else who had no right . . .
MR. STUEWE: What year was that?
MR. HYLAND FRASER: . . . arm and was allowed to take a truck driving course to drive an 18 wheeler with a split shift. I mean these were people who came before us in our trips around this province. When you hear that stuff, you just know that nobody cared somewhere along the way when people were allowed to go into these types of things which they can't qualify for. I mean who is going to hire them? These individuals knew, themselves, once they got into it, they couldn't do the job but by that time there was closure brought to them, they were cut off because they either couldn't keep going on the job and stuff like that. I guess if many things change, I hope to heck something like that changes, that these people are not just saying we will pay for your course so we can get you off our system and we won't see you anymore because that is wrong.
MR. STUEWE: Well, I hope that I can assure you with great clarity that that is not happening now. We have a process, whenever a job training program is looked at to make sure that not only is the person suitable but there is some level of availability for that type of work in their community or in the area that they used to work in.
MR. HYLAND FRASER: I guess in part and parcel with that, the other comment I will make is that people who are retrained are then deemed to be able to earn a certain amount of dollars and if they are in a community, and we saw them in places of high unemployment, where there just isn't any work but they are deemed to be able to earn so much anyway. I don't think that is right either.
MR. STUEWE: The estimation of potential earning capacity is probably one of the most controversial aspects of an earnings loss system. An earnings loss system requires the staff to say, has this person any residual capacity and is there any work. In Nova Scotia we are very different than the other jurisdictions. For example, in New Brunswick, routinely people were deemed to be able to be parking lot attendants but there were no parking lots in the area they came from. We can't do that in Nova Scotia. It is against our law.
What our board of directors has said is that we have to look at the level of employment availability in their region and if it is high availability, as determined by Employment Canada, that is the number of people seeking jobs relative to the number of people there, we can estimate the person able to get that job. If you are at a moderate level or medium level availability, we have to find where we can be able to say, here are the job
offers that are available to you. If you are at high unemployment levels, we have to find a job before we can do an estimation of potential earning capacity.
All those decisions, where there is an estimation of potential earning capacity done, if you remember that arrow diagram I showed you, they go to a committee called the Case Review Committee and the Case Review Committee's responsibility is to make sure that that estimation is being done fairly and reasonably. There is no question about it, in some parts of our province, there is great unemployment and we have great difficulty getting people back to work.
MR. HYLAND FRASER: I will defer the remainder of mine.
MR. CHAIRMAN: Yes, thank you. I have a follow-up question, Mr. Stuewe, following up Mr.[Hyland] Fraser's question. There was one gentleman I recall who was complaining about the fact that he had been retrained, had in fact been fortunate enough to go back to work but the work he had gone back to paid less than the average as determined by the committee. So this individual was lucky enough to get a job in his area of vocation and then is deemed to have made more money than he actually makes so that, for example, I can't remember the nature of the particular trade that this individual had but he had someone who had made say, for example, $10 an hour and there was a concern that he was making $10 an hour but in point of fact the average in this area for this particular trade might be $13 an hour and so he is deemed to be making $13 even though, in point of fact, he is making $10. Should that be happening? These are people who are lucky enough to get jobs.
MR. STUEWE: We routinely pay top-ups to people who are earning less than that which we estimated them to be able to earn and they can only get a certain level. I would like to see that particular case before I comment. There may be . . .
MR. CHAIRMAN: No, no. My question was, not about the particular case . . .
[11:00 p.m.]
MR. STUEWE: They should be being topped up by us. I would have to look at the facts of the case and I should tell you, the commitment that I made to the staff when I went there is that I will never look at a case and say, change that decision. I look at a case to say, I have the policy and procedure been followed because in the old days there would people who would just come down and change a case. I said as long as the policy and procedure are followed, your manager will be responsible for you. So when I look at files, I look at them and say, if policy and procedure are followed, they will stand as they are. If they haven't been, then the manager will deal with the person.
MR. CHAIRMAN: I guess my question was, it seemed to me that the policy and procedure at least shouldn't provide, in a situation like that, where someone is lucky enough to get work, that they are penalized, in effect, by some theoretical position. The reason I say that is because, in point of fact, people shouldn't discriminate against people because they are disabled . . .
MR. STUEWE: That is correct.
MR. CHAIRMAN: . . . but in the real world that we unfortunately live in, sometimes they do and they have to take a job that may pay less than the norm in order to get employment.
MR. STUEWE: Sure. I must tell you that I have dealt with a case like this and when I had the file pulled and it was looked at, the employee had been offered a job paying them substantially more money than the job they ultimately took and our staff then deemed them to be able to earn more.
MR. CHAIRMAN: I understand. I am not going to give the specifics of that case. Thank you. Mr. Power.
MR. POWER: Thank you. I have to stand up, apparently, to accommodate the cameras and I am standing. (Laughter) I am sick of that joke. (Laughter) There is a lady in the gallery who wants me to ask this question. As part of the board recommendations, the special program, I think, proposed $7,500 chronic pain pay-out. Is that correct?
MR. STUEWE: The board simply said that they thought a lump sum payment arrangement would be the most effective for addressing this issue. The specific amount was not decided by the board of directors.
MR. POWER: I see. Was there ever a $7,500 proposal?
MR. STUEWE: There are a whole series of options running to substantially higher numbers.
MR. POWER: That was like a bottom figure, was it?
MR. STUEWE: That would be one of the options. When you are doing costings - I am an economist and was trained in the Saskatchewan Government - you don't ever go anywhere to give a presentation, at least to your board of directors or the Cabinet without telling them what the potential cost might be under an array of options. That is but one of the options.
MR. POWER: I see. Then secondly, does the WCB have the resources, financial and also personnel, to participate in, I guess I would call it a strike force - easy Frank - or a special task force, that would go in and identify not just the chronic pain cases but the chronic, shall we say, WCB claimants, identify those claims and assist in bringing closure or conclusion to those particular cases?
MR. STUEWE: You have asked two questions. One is financial, the other is staff resources. The WCB would respond to whatever the Legislature directs us to do and we would have to accommodate that in terms of our rate system. It depends upon how much money is involved. In terms of building a team of people to work with or identify those in particular need, we have already started to build the team that is hopefully going to help resolve the chronic pain cases. To go so broadly as to say that we would identify every chronic case, you would have to be very careful in your definition and you could be dealing with thousands of cases because it is important to remember that in the Workers' Compensation Act of Nova Scotia, no case is ever closed so any person who has ever had an incident could come forward and say, I have a reoccurrence or I have a problem; I have to dedicate staff to look at that.
So you want to be very careful in defining your group. If you were defining the group as being those people who are currently at the Workers' Compensation Appeals Tribunal, we have already allocated additional resources to help the Workers' Compensation Appeals Tribunal undertake a new activity they have started and I have additional staff who are targeted to continue with that. It depends how big it is. That is why if you let us know what it is, we will cost it, figure out an administrative mechanism to deal with it, because that is my job, and then we can tell you what the implications are. I should just tell you, when the legislation was changed in 1995, it took a year and a half to change the computer systems and $4 million. We had 27,000 hours of training for our staff. So you have to realize this is a big system, 30,000 accidents a year. We have 12,000 people who are on continuing pension. We have somewhere in the neighbourhood of 4,000, 5,000, 6,000 people a year who want to come in and get their claims adjusted. So we have to respond to all that plus deal with the new accidents.
So when you design a system, I would hope that you would, through the board, give us an opportunity to comment on the implementation ability of that system, if you are contemplating changes, because this is not a simple matter.
MR. CHAIRMAN: Mr. Erjavec.
MR. ERJAVEC: I guess I just have two very quick questions for the chairman. When you gave your presentation on governance, you talked a little bit about the board of directors and the employers and the employee representatives. When we go across the province, when we talk to the labour or we talk to business groups, they are all very satisfied with the quality and the competency of the members of the board. However, there have been some
suggestions that we have to add new members, maybe a specific injured worker representative or a specific legal representative. My question to you is, in your opinion, are you satisfied with the current board structure and are you happy with the way it works?
MR. CHRISTIE: I think the answer to the second part, am I satisfied with the way it works, the answer is yes. I think we have eight quite splendid people there who are prepared to take serious responsibility, prepared to keep open minds, prepared to learn and prepared to talk to one another, at length, such that in my time, and my predecessors' time as chairman of the board, that is since 1992, every decision that this board has made has been made by consensus. There are no dissents, they are made by consensus. We just keep working at it until we come to an understanding. I don't know whether that will go on forever or for very long. It gives me a great deal of satisfaction that the board is doing its job well and responsibly.
In terms of changing the structure of the board, I don't think you could make the board any bigger than it is now and hope to have it continue with that kind of cohesive decision-making. Maybe that kind of cohesive decision-making isn't thought by this committee or by the Legislature to be important. I am sure, if it was not a matter of labour and management assisted by the insights of the non-aligned members who have brought a great deal of wisdom to our board in the last months since those positions have been filled but I am sure that if we had more diverse interest groups on the board, it would be next to impossible to continue to work by consensus and one would have to think very carefully about what the potential alignments might be if it were to become a board full of various cabals and not as it is now, one with people appointed from two clearly defined interest groups which might generally be thought to be on opposite sides with the chairman having ultimately the power to cast the deciding vote. The dynamic could be changed dramatically and because it is working at this point, I don't want to see that.
I should add, by the way, that this bipartite model which has worked well in Nova Scotia since 1992, hasn't necessarily worked well everywhere. In fact, it has broken down in British Columbia. It has broken down in Ontario. In Ontario, it has been thrown out in favour of what they refer to as corporate governance, which simply means that the government appoints people, as you might to the board of a corporation, who have no interest that they come from, if you like. It is broken down in British Columbia where the government has simply appointed the members of the board and they are effectively civil servants. This system of government, which I think has worked extremely well in Nova Scotia and served both sides of this delicate balance very well, I think it is well worth preserving and I don't think it is something that we should take for granted. I think it can very easily pass out of existence, as it did in those two provinces, if it is not understood what those people have to do and what the role is. It requires people who can see the other side of the argument, and all six people on that board now can. I give them full credit for it.
MR. ERJAVEC: The general consensus, what I get from people, it is working and I was just hoping for some confirmation on that. The second question, I may be a little unfair in asking you to put on your legal hat for a minute, back when the Act was changed, one key change was that the WCAT was bound by board policy. As we travel around the province, the complaint we hear all the time is, WCAT, WCB they are one and the same; WCB controls WCAT. As a renowned legal expert, are you satisfied with the independence of the WCAT from the day-to-day operations and decision making of the board?
MR. CHRISTIE: I think it is totally independent. It is not independent in the one sense, that it is bound by the policies that the board makes. I would ask you to remember that in the days preceding the new Act, there was a situation in which the board made policies, all Workers' Compensation Boards make policies, all boards governing complex systems of mass adjudication develop policies, precedents, they try to act consistently in like cases, that is what policy is all about. The board did that and had its sense of policy.
The appeal board had a different sense of what the Act meant in some pretty significant cases and routinely allowed appeals. I thought it was terrible that there was no common sense of what the Act required, and if the board had the power to set policy, I thought the appeal board should take cognizance of that. On the other hand, when the appeal board overturned the board, I thought the board should pay attention to the grounds of the overturn and change what it did.
My conception of the way it should work now and I think is working, is that we make policy consistent with the Act and if it isn't consistent with the Act, then it can be taken to court, without even bothering to go to the Appeals Tribunal. That is binding on the tribunal and it gives us some consistency, but when the tribunal tells us that we are misconceiving a common fact pattern or misapplying the words of the Act or our policy, and they have to follow the policy, but they can overturn us in terms of how an individual case is treated under that network of rules.
We have to pay attention to what they say and change the way we conduct ourselves, because we don't want to be appealed. That is what Mr. Stuewe was saying, he put it in terms of quality control. I say, our adjudicators have to understand that if there is no new evidence and I don't think there should be new evidence allowed at the appeal stage, then it is an indication that they have made an error, if they have been overturned. They should only be overturned when they have made an error, not when there is new evidence, not because there is some different policy.
The right of appeal should be there to deal with the fact that everybody is human. The best adjudicators will make occasional errors and there should be a recourse against that. Just as there is in the general court system. That is what the appeal structure should be and we should pay attention to that. We should learn from it. But we should be playing from the same
rule book or songbook and that is what our policies are all about, they are part of that set of rules, not inconsistent with the Act, I may say.
MR. STUEWE: If I might, Mr. Chairman, just to reinforce that point, if there is not a common set of rules for the whole system, you cannot hold staff accountable.
MR. CHAIRMAN: Thank you. I think we have a very brief question. The hour is getting very late and I don't want to hold people much longer. Ms. Godin, you had a very brief question.
MS. GODIN: Yes, I did.
MR. CHAIRMAN: I am not trying to cut anybody off, but the hour is getting late.
MS. GODIN: It is just that now I think I understand something a lot a better. Last night we heard a woman tell us that you, Mr. Stuewe, had suggested that she go on welfare and I now realize that you did that out of politeness and out of concern for her because she would make more money on welfare than she would make through the WCB system. Who are these people, Mr. Stuewe, who have come before us the past three weeks? When we met with you three weeks ago, and correct me if I'm wrong, you said something about people who wouldn't get on with their lives. Did you say something like that? Is that who we met these last three weeks?
MR. STUEWE: I wouldn't think so.
MS. GODIN: Is that what you think?
MR. STUEWE: No, of course not. I don't know all the people that you have seen over the past three weeks. The material that I have seen would indicate that a large number of the people that you've seen are pre-Hayden individuals who are having to live on clinical rating scale pensions that are not sufficient for them to get by on. I think that's a very significant number.
The issue about getting on with their lives, I think was in the context of a chronic pain issue where the condition was multi-causal, where there was a suggestion that the person with proper counselling and support and physical therapy would be able to work with the problems that they have. I think that comment, and I would have to check the record, I was taking in the sense that we all know people, as we sit here, our backs are degenerating and that a large number of the population will go on to develop back pain which is a common occurrence. Many people do work with back pain in Nova Scotia day in and day out.
The intent of the functional restoration program, if there's no objective evidence of pathology, then we have to assist those people to deal with that pain which they may have sporadically throughout their life so they can get on with their life. So it was not intended to be a derogatory comment towards anybody. I'm not familiar with the case of the person who said that I told them to go on welfare. I would want to look at that very carefully. Those are not the sorts of words that I would use.
MS. GODIN: Mr. Stuewe, I hope you read every word of what we've heard the last three weeks.
MR. CHAIRMAN: Mr. Parker, I think he has one last question, and that will be the last question I'll take because the hour is getting very late.
MR. PARKER: I will try to be brief. I just have a couple of comments or questions. We heard from a lot of frustrated people over the last three weeks. They are very unhappy and I guess they wouldn't come before us if they weren't, both employers and injured workers, and others. One thing that people are looking for is common sense. They've asked, where is the common sense in this issue and I think one question Mr. Corbett asked earlier tonight, from an employer's point of view, concerning forestry companies and forest management companies, or consulting companies that are paying the same rate as if they had a power-saw crew in the woods, or whatever, but really the only thing they are operating is a photocopier or a computer. Why do they have to pay $10-something per rate when they have no great risks as compared to the other companies?
MR. STUEWE: I guess there are two answers to that. We have some 16,000 employers who are registered in this province and who are categorized by their industrial classification. The objective is to ensure that all employers who are engaged in the similar industry pay the same rate. In the forestry cooperative example that you're speaking about, I believe - I'm not familiar with the particular case you're raising - those foresters are owned by the landholders so they are an integral part of that company. So, therefore, they are classified as being in the forestry industry.
If you have a large corporation that is engaged in forestry, it has planners who do this exact same work. Those large corporations have come to us and said, let us put our administrative staff, let us put our consultants and our engineers in a separate group so they can be treated differently. What we do in Canada, which is different than the United States, Mr. Chairman, all firms in Canada, if you are in the forest business, that is your rate, so that all people are treated equally. What we try to do is make sure that there is a level playing field in Nova Scotia and that's the approach that's taken in terms of trying to establish someone's rate group and the classification that they're engaged in.
MR. PARKER: But in this case those small companies have two or three employees and they're only involved in office work and they're not involved in a dangerous occupation. It is especially difficult for those in the northern part of the province that have to compete with New Brunswick just across the border, they have much lower rates. They are just asking for common sense to come into the system.
MR. CHRISTIE: I will just try this answer. It seems to me, because the board is aware of this issue, and we were briefed on it by Mr. Stuewe. I guess what I would ask in reply is, suppose a large forestry corporation, which as Mr. Stuewe says employs an office staff, sets up a separate company and contracted with that company to do its office work, would you then suggest that blah, blah, blah Woodlands Office Company Limited should be assessed at the same low office rate that you are asking for this co-op? You have to look beyond, I think, the sort of formalities, the structure, to the reality of what this organization is, and then assess it based on the industry that it is working in, that is the approach.
MR. STUEWE: I might just mention that in the past three months, I have become familiar with the issue that you are speaking of, and I have asked that some work be done to determine what the competitiveness situation is for those employers, because if they are truly competing in a market where people from outside the province are coming in, that is the other reason we said we want the legislation changed, right, so they would have to pay the exact same rate, then there is a real need. There are some anomalies. When you have 16,000 employers, you will have some anomalies when you try to classify, and we are trying to figure out a way to address that, but we tend to work from facts situations.
MR. PARKER: Okay. I had other questions, but I will leave it because it is late at night.
MR. CHAIRMAN: I thank all the committee members for their indulgence in not asking any more questions, because the hour is getting late, and there will be another time for that. Again, thank you to the representatives from the Workers' Compensation Board for being with us this evening, I appreciate your indulgence, the hour is late. Thank you, and I am sure we will be seeing you again. Good night.
[The committee adjourned at 11:22 p.m.]
