SELECT COMMITTEE ON
THE WORKERS' COMPENSATION ACT
Mr. Michael Baker
MR. CHAIRMAN: On behalf of the Select Committee on Workers' Compensation, I would like to welcome all the members of the public to our meeting here this afternoon in Sydney. We truly appreciate the time that the public has taken out of their schedules to be with us here this afternoon. The first thing we generally do in our program is to ask our members to introduce themselves.
[The committee members introduced themselves.]
MR. CHAIRMAN: Mr. Johnson, if you would introduce yourself.
[Mr. Gordon Johnson, Legislative Counsel, introduced himself.]
MR. CHAIRMAN: The gentlemen on the side are our consultants and I would ask them to introduce themselves.
[The committee consultants introduced themselves.]
MR. CHAIRMAN: Thank you very much. Just by way of a few preliminary comments, the Select Committee on Workers' Compensation was formed as a result of a resolution of the House of Assembly, passed unanimously by all three Parties at the spring sitting of the Legislature. Our mandate is to conduct hearings throughout the province and issue a report back to the Legislative Assembly, hopefully for the fall session this year, which commences on October 15th.
Our mandate is to look at all areas of the workers' compensation system and in particular, obviously, the legislation that governs it. As a result of that, we are very interested in hearing from members of the community as to their experience with workers' compensation. Obviously, we are not an appeal body so that, with respect to an individual case, we are not able to make a decision that is isolated to that particular case. Clearly, any recommendations we make for legislation may have implications with respect to people in the room and their particular cases. But I wanted to let people know right away that our purpose in being here is not to adjudicate on a particular case. I should also indicate that we are completely independent of the Workers' Compensation Board. We are charged with the mandate of changing the rules. We don't come with any pre-decided opinions in favour of or against anything in the system. We are here to hear from you.
We appreciate that we have such a large number of people who are able to be with us this afternoon. I should also indicate that we have decided - as a result of the number of requests for opportunities to make presentations - to come back to Sydney on another day, so that members of the public would have a chance to make their presentations. At this point, it appears as if the date we will be coming back to Sydney will be September 22nd. That date will be advertised in the newspaper, I believe, but just for the benefit of anyone who is here or who may speak to anyone who isn't here today, September 22nd is the date that we expect to be coming back to Sydney.
In the interest of time, we have had to make certain rules with respect to the length of presentations and, in particular, we are trying to make sure that all presentations by individual members of the community are limited to no more than 15 minutes. Groups however would be allowed 30 minutes to make their presentation. I should also indicate that as people get to the end of their allotted time, I will remind them that they only have a few minutes left to complete their presentation.
We also encourage anyone who has any written material to file it with the committee. We will consider all material, both presentations orally here this afternoon, as well as written material, as part of our deliberations. I should also indicate that the proceedings here are being recorded, that they are also part of the permanent record, and that people, in discussing their own particular case, should realize that this a public meeting, and that obviously, anything they say here is part of the public record. They may want to do that, if they have interests of personal privacy.
Unless anyone has any further comments from the committee, I would ask for the first presenter. Edward F. Kelley. Mr. Kelley, everyone needs to sit there at the microphones. Our technical people have a problem if you are not at the microphones.
MR. EDWARD KELLEY: I don't know if it is on or not.
MR. CHAIRMAN: Yes it is, sir.
MR. KELLEY: My reason for being here, I had a hearing test back on August 1, 1986. At that time, I was told by the speech therapist, she was recommending me for two hearing aids plus a pension.
MR. CHAIRMAN: Okay.
MR. KELLEY: I got my two hearing aids. I never got a pension. Then later on, I had it appealed by . . .
MR. CHAIRMAN: Mr. Kelley, I am just going to stop you, not because I want to stop you but because our experts have a number of questions that they like me to ask, preliminarily, just to make sure that they know where you are in the system. I just have a very few brief questions. Where do you live Mr. Kelley?
MR. KELLEY: I live in Glace Bay; 9 Cooling Street.
MR. CHAIRMAN: When was the date of your injury? What was the date that your injury was reported?
MR. KELLEY: August 1, 1986, I had my test.
MR. CHAIRMAN: Do you have a case that is presently in the system under appeal or anything of the kind?
MR. KELLEY: Not now. I did.
MR. CHAIRMAN: When was your appeal completed?
MR. KELLEY: February 13, 1997.
MR. CHAIRMAN: Were you represented by a workers' adviser in Halifax or in Sydney as part of that appeal?
MR. KELLEY: No. A lawyer from Sydney.
MR. CHAIRMAN: You had a private lawyer, did you?
MR. KELLEY: No. A compensation lawyer I think it was, Mr. Dwight Rudderham.
MR. CHAIRMAN: Mr. Rudderham. Does he work out of the Workers' Compensation Advisers' Office or is he a lawyer that has his own private firm?
MR. KELLEY: He privately has his own firm.
MR. CHAIRMAN: That is fine. Thank you very much. Now go ahead, sir, I didn't mean to interrupt you, but it is just that we need to have that information.
MR. KELLEY: I had the hearing test and I was recommended for two hearing aids, which I received, and she also stated - that was Mrs. Odelia MacDonald, I believe she runs a hearing place now - she said, I am recommending you for a pension also. I got the hearing aids, but I never got the pension.
I got Mr. Rudderham, someone told me to see him and I went. He started enquiring about me, got some documents from compensation. He sent me for another hearing test from Dr. Chokshi, and also Tolaterian. Anyway, he told me, you are in the ballfield for a pension. My hopes were pretty well built up. Then I was called back later on from him that they started and they went back to the time I was 60 and took a certain percentage off, from the time I hit 60 years of age. My hearing was gone before that; why they did that, I don't know. That is, in my words, discrimination. That is the size of it. They wouldn't allot no, they brought me down just a decimal or so below the pension (Interruption) age.
MR. CHAIRMAN: Just a quick question for you. What age were you when you made your application for your pension?
MR. KELLEY: In 1986?
MR. CHAIRMAN: Yes.
MR. KELLEY: I was born in 1929; about 59.
MR. CHAIRMAN: Okay.
MR. KELLEY: I retired from the mines in 1987. September 7, 1987.
MR. CHAIRMAN: You worked in the mines, did you?
MR. KELLEY: I worked the mines two months short of 40 years.
MR. CHAIRMAN: Thank you very much. I will ask if any of the other committee members have any questions. Perhaps I will ask one last question. What would your suggestion be on how the system could be improved so that it would be better for people with problems like yours?
MR. KELLEY: I say give everyone a fair chance. I don't think mine was fair. I know of other people who got pensions and their hearing is much better than mine. I don't know what it is, how they work it, but I don't think I was treated right. I don't think they should have gone back and taken, after I was laid off, I wasn't in the line of loud noises, other than
the wife hollering at me, (Laughter) but other than that I was in the line of machinery, explosions, why turn and pick a certain age? They went back just far enough to put me down under. That is all I have to say. Thank you.
MR. CHAIRMAN: Thank you. There may be some questions from some of the members. Do any members of the committee have any questions for Mr. Kelley? Mr. Parker.
MR. CHARLES PARKER: Mr. Kelley, I want to ask you about your age 60. You said that, at that age, you had a decrease in increment or something, or they cut you off.
MR. KELLEY: They started cutting a certain percentage. I have the letter here, if you want it.
MR. PARKER: Were you getting benefits at that time, or a pension of any type?
MR. KELLEY: No.
MR. PARKER: What was it they were cutting out, you said . . .
MR. KELLEY: They were cutting the hearing loss that I had, so it would bring me down below whatever the standards are; I don't know. They just started picking at it; 1.5 per cent or 3.5 per cent, I don't know which, but it is in the letter here.
MR. PARKER: Did you ever receive benefits from the WCB?
MR. KELLEY: I received benefits from them, yes, but not for hearing. Never
MR. PARKER: Oh, for other reasons.
MR. KELLEY: For other reasons; I lost some fingers.
MR. PARKER: Okay. Thank you.
MR. CHAIRMAN: Mr. Kelley, if you would like to provide copies of those documents to us, one of the people travelling with the committee would be glad to take those documents and make a copy of those. They may be of some assistance to us.
MR. KELLEY: Well, I can leave those with them.
MR. CHAIRMAN: Thank you very much.
MR. KELLEY: They are no good to me, if they are not going to give anything. (Laughter) They are only taking up space. Thank you.
MR. CHAIRMAN: The gentleman with the blue shirt back there, he would be glad to take those from you. Thank you very much, Mr. Kelley.
The next presentation would be from the Cape Breton Injured Workers. It will be Norm Gillis, John MacKinnon and Clarence Oliver. Gentlemen, I would ask you to have a seat there at the mikes, please.
Good afternoon, gentlemen. The floor is yours. Whenever you want to begin.
MR. CLARENCE OLIVER: On behalf of the Cape Breton Injured Workers and the three of us here today, we would like to give you a big Cape Breton welcome in coming here and listening to our problems. (Applause)
MR. CHAIRMAN: Well, thank you very much for being here this afternoon.
MR. OLIVER: First of all, Mr. Chairman, we are going to have Mr. [John] MacKinnon do his presentation here on Doward, I believe it is, John?
MR. JOHN MACKINNON: Yes.
MR. OLIVER: Then I am going to do a little bit here on the ADR hearings and Mr. Gillis is going to be part of my presentation. Then I will follow up at the end and my suggestions to how you can solve the problem, hopefully.
MR. CHAIRMAN: Thank you very much. Go ahead, gentlemen.
MR. JOHN MACKINNON: My name is John MacKinnon. I am an injured worker plus I am with the Cape Breton Injured Workers Association. Before I present my brief, I would like to give a little bit of information on the office that we have as injured workers.
The system is so bad that we have had, in the last seven months, 928 people coming through the door. They were told by WCB that there was no money available for the claims that they were trying to get. To date, it is $727,110 that we are trying to get for those people from WCB. They said the money was not there for them.
So on my brief, it is on the Doward decision, on the summary. The Nova Scotia Court of Appeal, on April 17, 1997 released a decision in Doward vs. Workers' Compensation Board of Nova Scotia.
The decision could have far-reaching operational and financial impact on the workers' compensation system. The court decision dealt with the cases where the workers were injured between March 23, 1990 and February 1, 1996 and have a permanent disability and earning
loss resulting from an injury. The claims in this period are known as transitional or window claims as they were filed into the period March 23, 1990 and February 1, 1996.
When the WCB started its shift to an earnings loss system through the new Workers' Compensation Act, workers that were on benefits at this time had their payments cut to comply with the new Act. The court, in Doward, ruled that the former Act applied to these cases in the window period, rather than the new Act, as stated in the Minister of Labour's report in October of 1994.
The Doward decision stated that workers in the window period with permanent injuries as an earnings loss resulting from an injury are entitled to an earnings loss payment based on the benefit levels of the former Act which is 75 per cent of the gross pre-accident wages. Even though this is greater than what is intended with the introduction of the new Act, the court also ruled that these earnings loss payments should be payable for life rather than the normal retirement age of 65. The court also ruled that chronic pain cases prior to February 1, 1996 were compenable so these workers should be paid under the former Act, not the new Act. Now, the WCB is trying to backdate legislation by implementing policies to pay these injured workers in the window period under the new Act.
The WCB of Nova Scotia has introduced a new program called Marked Life Disruption Assessment, MLDA. This new program should only apply to workers who were injured after February 1, 1996, however, this is not the case. They are going to backdate to March 23, 1990 instead of following the former Act, Section 45, which states, A worker who is unable to go back to work force due to work-related injuries is entitled to 75 per cent of the gross pre-accident wages.
In conclusion, I strongly believe that the laws and decisions of our courts are made for every citizen of Nova Scotia and no person or bodies such as the WCB should feel they are above the law. If anything, they should abide by the wishes and the intent of the courts to the letter. Thank you.
MR. CHAIRMAN: As far as asking questions are concerned, perhaps we will wait until the very end of your presentation, if that might be acceptable.
MR. OLIVER: Good afternoon, gentlemen, and again, thank you for coming here. My name is Clarence Oliver. I am an injured worker. My brief here this afternoon is about the ADR hearings that are going on. I would like to enlighten you on the manner in which injured workers are treated in the Alternate Dispute Resolution hearings. It has come to our attention that the injured worker has not been properly represented by the advisory council. There is more than one case involving Rick MacCuish, workers' adviser in the Sydney Office. He advised in writing that he, nor anybody else in his office, will represent these people and returned their files to them stating they were unwinnable.
I would like to inform you that all these cases were won by outside lawyers. One case in particular received national television coverage. There are more of these cases among the injured workers from Nova Scotia. My understanding is that the advisory council lawyers take their orders from Anne Clark, head of the advisory council in Halifax. In researching some of this information, I find that Ms. Clark is paid through the Labour Minister's office which, in turn, is in charge of overseeing the Workers' Compensation Board. The law clearly states that this is a conflict of interest.
With me here today, I have Mr. Norm Gillis. After hearing the story of his ADR hearing, I hope you have a better understanding of the misrepresentation that his gentleman received at his hearing. Mr. Gillis, would you like to begin?
MR. NORMAN GILLIS: Good afternoon. My name is Norman Gillis. I had an ADR hearing on February 26, 1998. My workers' adviser at that time was Patricia Dunn who notified me the night before my hearing to meet one-half hour before my hearing time to discuss my file. When we met the next day, we discussed my file for about 15 or 20 minutes. We then entered the boardroom, proceeded with the ADR hearing with Al MacNeil and two other members of the WCB. Mr. MacNeil, at that time, asked me what I expected out of the hearing. I asked Mr. MacNeil about the Doward case, that chronic pain had to be paid by workers' compensation. Mr. MacNeil, at that time, informed me that workers' compensation does not pay for chronic pain. The court decision was going to be appealed and maybe tied up in the court for a few years.
I then told Mr. MacNeil I expected to be paid for the injury I received at my place of work because I am unable to go back into the workforce because of my injury. Then proceeded to go over my file. When that was done, Mr. MacNeil and my workers' adviser, Patricia Dunn, went out of the boardroom to discuss an offer. While they were out, Annette Boucher, from the Appeal Board, told me if I didn't accept the offer they were going to offer me, it may take another year to hear my case and when they do hear it, I may not get what they will offer me today. Mr. MacNeil and Patricia Dunn entered back into the room to discuss the offer with me. After we spoke, Mr. MacNeil offered me the sum of $10,000; $6,000 for physiotherapy and hydrotherapy and $4,000 for pain management counselling. My workers' adviser at that time told me it was one of the better offers. I took the offer because I felt if I didn't accept the offer, the way they explained it to me, I may not get anything at all in the future.
MR. OLIVER: Now, it is obvious to me, Ms. Clark and her bag full of legal minds are not representing the injured workers in the manner they deserve. In the law dictionary, there is an Act called the Improvident Act, meaning that acting not in one's best interest. These people haven't been acting in the best interest of the injured worker. It is unbelievable that the courts told the WCB to pay chronic pain and the lawyers representing the injured workers were unaware of this. Injured workers were told at these hearings that WCB did not pay chronic pain, will not pay it, when, in fact, the courts in Doward told them to pay chronic
pain. These people were misrepresented and ill-advised at the hearings by WCAT and the WCB. The courts state that under the Detrimental Reliance law, if you were led to believe there is nothing there when actually there is, you are entitled to receive the benefits of it.
[1:30 p.m.]
With this in mind, the injured workers who receive medical aid packages at the ADR hearings, should receive their fair chronic pain payments which are justifiably theirs. These facts I have pointed out should be enough to tell you that the ADR hearings are wrong and should be disbanded. The injured workers of Nova Scotia deserve better representation than what they have. From 1950 to 1994, the Act took care of the injured workers but since 1994 when Jay Abbass introduced a new Act, it has been a disgrace and a total embarrassment to the Nova Scotia Government. My suggestion is to take the 500-some-odd pages of this new Act that we have here today, throw it in the garbage and go back to the old Act where the injured workers will get justification for their injuries.
I also have here, under the Detrimental Reliance Act, estoppel, and I believe you are in the law department, sir? Yes. I think you will understand where I am coming from here. The meaning of estoppel is assertion of facts on which another relies, assumption of position, which if not maintained, will result in injustice to another, concealment of facts. Now it is obvious here today what Mr. Gillis had told you, on February 17, 1998, the final appeal was put through and the three member Nova Scotia Appeal Court threw it back to the compensation board and told them to pay the chronic pain. This is on February 17, 1998. On February 26, 1998, this gentleman was told that there was no chronic pain. Do you understand where I am getting here with the dates? This man was misrepresented. He was misled and there was an unjust done to this man, not only to him but to other injured workers who went to these ADR hearings. What you have to understand is that you put yourself in the position of an injured worker. Now you gentlemen come to this side. Come live with an injured worker for a day and see what he goes through. You have a gun to your head when you go into these ADR hearings.
It is like a gentleman told me, he said it is like taking a rubber tube or a dinghy and putting it on the government wharf and having three holes in it. They are telling you to go and swim to the Joey Smallwood. If you make it to the Joey Smallwood with that rubber dinghy with the holes in it, then we will give you what you deserve but if you don't want to take that chance, we will give you what we think we are going to give you. Do you think that is fair to the injured worker of Nova Scotia, especially when the banks are phoning. There are people in the institutions here, they are under that much distress and duress, it is unreal. Like the kids don't have rubber boots to go to school with in the winter time. They go home, all they eat is Kraft Dinner and hot dogs. I mean do you think they deserve this? They do not deserve this and hopefully, gentlemen, that you people, actually I am begging here today on behalf of the injured workers of Cape Breton and of Nova Scotia, that you do something to help the injured workers. This is our last shot and our last hope, is you people.
So hopefully you can come back with some recommendation to say, hey, Mr. Stuewe, Mr. Christie, sorry, this is not working, the problems, we are going to have to solve this. If it takes $150 million to solve the chronic pain issue, instead of paying the chronic pain issue out over 35 years, what they say to $500 million liability, I don't know exact figures, why not add another 10 years on, pay the $150 million and pay it over 45 years. At least these people will be taken care of. The money is there. It is only paper. Do something. Thank you.
MR. CHAIRMAN: I don't want to cut you off. I am just going to have a very brief question myself about the ADR process. Now, through your organization, have you seen the ADR process working, and other than the people with chronic pain, as far as you are concerned, has it worked for anyone or is it a complete failure? I am just asking for your views on the ADR process.
MR. OLIVER: Well, you have to understand that we have statistics here that in 1997, 236 ADR sessions were held, 181 of those 236, settled; that is 76.7 per cent. That is great. Mr. Stuewe can wear a feather in his hat saying that they were settled but do you understand that you are gone back to work. Let's use you for example, Mr. Chairman.
MR. CHAIRMAN: Sure.
MR. OLIVER: You have gone back to work. You are working at Stora, you are an electrician. You are getting $22 an hour so they take you in for an injury that you had to your shoulder a few years ago or whatever. They say, okay, we are going to give you $4,000. Well, hey, Jesus, I am making $60,000 a year, I will take the $4,000, thank you. This is what is happening. The chronic pain issue is not working and there are a lot of other cases that aren't working like people who went in there expecting to get settlements who have been in the system for 8 or 10 years who should have got $60,000, $70,000 or $80,000 and they are saying, well, we will give you $6,000 for a medical aid package. What is a medical aid package? To go swim at the Delta here? You pay $350?
They also turn around, and a case just came to light. Now this is a good one. I couldn't believe it. This gentleman here, apparently from what I understand - I might be wrong on this but you will get the point when I get to it - has been in the system. He injured himself and they gave him four weeks of benefits and whatever so they sent him to a psychiatrist. Now this is the good part. Now the psychiatrist turns around after meeting with him a couple of times, turns around in the final meeting and says, now I am going to take you for a walk in the park. Now take a guess what park this gentleman was taken to. He never left the office but he was told to smell the fresh air, listen to the birds chirping. Do you honestly think this is working? This is not working. There are definitely problems here and it all starts at the top, the same as the $500 million unfunded liability. This is going on since 1993 with the Moss Marwick report in 1993 it was handed out.
Now May 21, 1997, Salmon, is it Salmon?
MR. CHAIRMAN: Mr. Salmon is the Auditor General.
MR. OLIVER: Yes, he is doing a report again. He just did one on May 21, 1997. He said the same problems existed in 1993 as are here today in 1997. Now here he is a year later doing another report. We spend so much time on reports and backlogs it's no wonder people are starving. Homes are breaking up. They are losing their cars, businesses gone. I mean there has to be something done here, definitely. All three political Parties have to sit down. We have you here together today and you have to take your hats off and say, this is not a political issue, this is an injured workers' issue and it has to be solved. There are no brownie points here for any political Party. It has to be done. The three of you have to work together here. This commission has to work with these gentlemen over here and we have to solve this problem. It is not something you can put in the courts again. We are tired of living in the courts. Every time you turn around, David Stuewe has us in the courts. The court already told him, pay it, pay the money. Give the people some relief here. Let them go back to their lives. Thank you. (Applause)
MR. CHAIRMAN: Thank you. Do any of the committee members have any questions? Mr. Corbett.
MR. FRANK CORBETT: It is hard to call you Clarence, Sonny.
MR. OLIVER: Well, whatever you want to call me. I have been called worse.
MR. CORBETT: I know that, by a lot better. I want some clarification and any one of the three of you can answer this. Do you find that there is not enough separation between WCB, WCAT and the Workers' Advisers Program? Do you find that they are too closely tied together and that they are not clearly separated?
MR. OLIVER: Do you want me to take a run at this, John, then you can have it? Okay. Now here we go, okay, I am going on a roll here now.
MR. CORBETT: Sorry.
MR. OLIVER: That is all right, Frank. I listen to you all the time. (Laughter) The problem that we have is in 1994 - and this where I am coming from - we have a lady by the name of Judith Ferguson who introduced Stuewe's God gift. Do you know what I mean? Anyway, she introduced this to Jay Abbass. Without fully going through this, I mean legal minds can't, you cannot understand this. This is totally confusing to everybody. I mean even the compensation board, the people working within the system don't know what in the hell is going on here. I mean how do you expect us, as injured workers, to know.
But anyway, they turn around in 1994 and they introduced this. Then Jay Abbass came out with this stuff without really checking it out and going through it. Now from what I understand is that Judith Ferguson now is head of WCAT. Okay, she has the final decision at WCAT. Then when you go through the appeals process, you go through the compensation board and they go through their rigamarole and you have an appeal process at the compensation board where you can get a re-decision or re-hearing through the same person. Like I am in that case right now. So this guy is going to hear . . .
MR. CHAIRMAN: The review officer.
MR. OLIVER: . . . he is going to review my case but he has the option of changing his mind. I highly doubt he is, do you know what I mean? That is the problem that we have. The same person who turned you down is going to review you again. That is kind of stupid. Anyway, they turned around and for Judith Ferguson to sit on the throne where she is at and say that she has the final decision when you go through WCAT on whether you get this or not, everything is put through her. Now do you honestly think that she is going to turn around and see that something that she is going to prove is going to contradict what she went and brought in to the legislation in 1994? I highly doubt it. I think there is too much of a tie there.
I think the bottom line is that we should go back to a suggestion that was made a long time ago, that they should go back to the three member appeals board. Sure, 97 per cent of the cases probably were won by the injured workers but if they didn't deserve it, they wouldn't have won it and I think that system worked a hell of a lot better than what the system they have here today. It is not working, gentlemen.
MR. CHAIRMAN: Are there any other questions from members? Mr. [Charles] MacDonald.
MR. CHARLES MACDONALD: You say it is not working, Clarence. One of the problems, I guess, is there are just too many layers in it, on the appeal. There is appeal, appeal.
MR. OLIVER: Oh, it is just unreal. Then you have like Mr. Norm Gillis here, I am only using him as an example so I can get my point across. When he signed his paper here, it says that the appeal is disposed by way of this final decision. This final decision reflects on the mediated settlement agreement witnessed and executed by the parties on February 26, 1998. What they are saying is, and why Dave Stuewe can stand up and say to you people, okay, we never had an appeal on the ADR system, it is obvious they never had an appeal on the ADR system because of the stress and the anxiety and all that and duress that the injured worker was under at the time when they went in there, not fully understanding, they are supposed to be represented by these lawyers. There are other cases. I have been there, myself. Mr. [Norm] Gillis has been there. Mr. [John] MacKinnon has been there. We spoke ourselves.
These people are supposed to represent us. They never opened their goddamned mouths. Never said nothing. I knew more about what was going on then they did.
Once you sign this paper, under the stress you are under, you take it, you take the settlement. You can't appeal this system and that is why he holds a feather in his hat that nobody appealed the system, nobody appealed the ADR hearings. I mean put yourself in the position that a lot of these people have been under. You know what are you going to do? You wife is sitting in the hallway. Well, I got the bank phoning. I owe them three months for the house. Now it is either I take this and pay the back payment on the house or we are not going to be living there next month. Do you know what I mean? It is just not working. That is why I feel that everybody who went through the ADR should be brought back into the system and dealt with fairly under a new system. Maybe we can come up with - there has to be some suggestion here to help this. My suggestion is, let's go back to the old Act. Get rid of this. This is all a pile of garbage. You gentlemen are MLAs and professional people. Sit down and read this. After a year of reading this, you are going to come back and still be confused.
MR. CHAIRMAN: Do any other members have a question? Do any of our consultants have a question?
Well, thank you very much for taking your time this afternoon to be here with us. I guess I have one last question on your presentation. In answer to Mr. Corbett's question, you talked about the WCAT, the Workers' Compensation Appeals Tribunal. What about the Workers' Advisers Program? Do you also feel that that is too closely tied to the Workers' Compensation Board?
MR. OLIVER: I believe, Mr. Chairman, I already stated that . . .
MR. CHAIRMAN: I think you implied it but I just wanted a direct . . .
MR. OLIVER: My suggestion here to you, Mr. Chairman, today, is to disband the Workers' Advisers Program, disband the ADR hearings and go back to the original three male appeals board. That is my suggestion to you people here today.
MR. CHAIRMAN: That is fine. I guess I was just trying to make sure. You said it in a roundabout way and I just wanted to have . . .
MR. OLIVER: Well, I think I clarified that right now.
MR. CHAIRMAN: Certainly, I am very clear now, sir.
MR. OLIVER: Thank you.
MR. CHAIRMAN: Thank you very much for taking the time to be with us here. (Applause)
Our next presenter will be Mr. James Tobin.
MR. JAMES TOBIN: Before I sit down and start I will pass this brief out to members so they will have it.
MR. CHAIRMAN: Sure, thank you. I might mention to you, Mr. Tobin, or anyone else, that if, from time to time, you have stand up to stretch your legs, because I understand that is a problem, it would be fine just as long as you stood sort of in the place you are at because I know sometimes people have problems with a prolonged sitting and we appreciate that. The only reason for making you stand up in that relative area is because the microphones are very limited in the amount of direction they will pick up from.
MR. TOBIN: Right. Thank you very much, Mr. Chairman.
First of all, I want to introduce myself to the panel. My name is James Tobin. I was injured in 1968 and I come before this committee today and I recognize all the problems that are within the compensation system and I recognize that there is not a great deal being said about the older workers out there. I speak for myself on behalf of the older workers, particularly myself. I made a brief here before the committee and I am not going to spend a whole lot of time on it because I know the committee will read it. I think what the committee has to realize, on the older workers like myself, that were injured when I made 90 cents per hour and I am totally disabled.
The Workers' Compensation Board recognizes that I am totally disabled. I am paid by the meat chart at 40 per cent. I make $298 a month in compensation. I retired in 1998, I was making a little over $4,000 a month. In return, I receive $298 from the Workers' Compensation Board.
MR. CHAIRMAN: Sorry for interrupting you, I just have a few questions about your injury and so forth; again, it would help us in figuring out what we should be doing with the system. You said you were injured in 1968?
MR. TOBIN: That's correct.
MR. CHAIRMAN: What was the nature of your injury, Mr. Tobin?
MR. TOBIN: I fell off a truck in a windstorm, carrying gyproc.
MR. CHAIRMAN: You were working construction then, were you?
MR. TOBIN: I was with a lumber yard taking my apprenticeship course.
MR. CHAIRMAN: Okay. Thank you.
MR. TOBIN: I had smashed my back up. Since that time, from 1972 to 1976, I went through three spinal operations, the last one being a fusion, and I was placed in a body cast for almost seven months. Since that time, I have had serious problems with my back and have gone through various nerve blocks. I was down at the Lahey Clinic in Boston, and every orthopaedic surgeon that has been in the Maritimes, I have seen them.
In 1990, I was diagnosed with arachnoiditis. A lot of people can't pronounce the word. A lot of people don't know what arachnoiditis is, neither do the doctors, because there is no research on arachnoiditis in Canada. All the research comes from the United States. Just so the members on the panel know when I talk about arachnoiditis, I have put a slip in the back here to fill you in, briefly, as to what arachnoiditis is about. Arachnoiditis is a terrible disease. It is an inflammation of the spinal cord caused by bad myelograms.
Myelogram dye that has been left in my spine, that I was told was being sucked out, and what was left in there would be absorbed by my body. It didn't, because it was an oil base. They recognized the problem in 1990 and changed it over to a latex dye. That doesn't help me.
MR. CHAIRMAN: I think we have had a presenter already who had arachnoiditis. I am not sure if I am pronouncing that correctly.
MR. TOBIN: Yes, that's correct.
MR. CHAIRMAN: A couple of other questions now about your particular situation. When did you stop working? You said you were injured in 1968, but when did you actually stop working?
MR. TOBIN: I stopped working fully in 1993. I was off and on from 1987 until 1993. Some years, I worked two months or three months; other years, I might have worked six months. Finally in 1993, I couldn't carry on any longer.
MR. CHAIRMAN: Again, this material may be in the written material you provided, but do you have a case that is under appeal, or are you through the system now completely, as far as they are concerned?
MR. TOBIN: I have been lost through the system. I don't know how to get back to the system, because the answers that I receive are, you are under the old legislation. When I go for the old legislation, you are under the new legislation. I don't know how they got me into two legislations. It's ironic that the part of the legislation that I fit underneath is the old
wages. I can't get that adjusted. The $297 or $298 a month is what I am going to get, because they will not adjust it. Everything else, I fall under the new legislation.
MR. CHAIRMAN: Do you get the top-up, where you get topped up because you are making a certain amount? Are you subject to any kind of a top-up?
MR. TOBIN: No, because I receive Canada Pension at 1993 rates.
MR. CHAIRMAN: Okay, so you are receiving Canada Pension.
MR. TOBIN: Yes. In 1993, I was on full compensation. I was cut off by the board in 1993 because I was totally disabled and I was never going to return to work again.
MR. CHAIRMAN: You received a partial disability at 100 per cent, and when they reassessed you, your permanent disability went down?
MR. TOBIN: That's right. I was getting 30 per cent. I went to various doctors in Halifax, when I was diagnosed with the full-blown arachnoiditis. At that time, I was assessed at another 15 per cent disability. I fought tooth and nail for five years. Finally we dickered with the compensation on 10 per cent. They gave me 10 per cent of my old wages, which amounted to $63 a month more on my pension. I might add that $298 a month, that I am receiving, probably $100 of that was through inflation and indexing, which I don't receive.
If I am under the old system, why don't I get the indexing? If I am under the old system, why do I have to go through workers' counsellors instead of a lawyer, like we used to? It seems like I am under the old system when it becomes easy for them to give me an answer why they won't do anything for me, or why I am falling through the cracks. That is not fair. There are not two laws in this province that say, if you rob a bank in Halifax, you get two months for it, and I rob one in Sydney, and I only get six weeks for it or three weeks. That is crazy.
The compensation uses these two systems against the older workers. I don't think it is fair. I have to pay for everything today in 1998 wages, with a dollar that everybody knows is not worth anything, but they are paying me back in 1968 value, what I receive I guess the ironic thing that I get so upset about is that I had my wages adjusted up to $430 or $432 a week, something like that, when I was injured. I even argued on the fact that well, okay, that 10 per cent should be of that $432, not at the $0.90 an hour I made in 1968. The doctor defined that the arachnoiditis was full-blown in 1990, that is when it was really discovered. That is the date the compensation should take. No, we can't do that, because you are under the old legislation. I just can't fathom how they keep forcing us back and forth between legislations.
That is why I am saying the legislation that is put in place, it has to look at the older workers out there. It has to look at the suffering that we have been going through. October 13th of this year will be 30 years for me. I have absolutely nothing from the Workers' Compensation Board, but a hard time. I come before the committee today so that you understand the problems that I am going through, and I know that you understand the problems that a lot of other people are going through out there. We, older workers, are not being treated right. In my opinion, we are being discriminated against. I can prove discrimination from the Workers' Compensation Board towards me because I am an older worker that made lower wages, and they use part of the Act today, because he is saying no to me, and a new part of the Act the next day to say well, we can't do that because the new Act forbids us from doing that. To me that is discrimination. I can't see how they can do that to me. I really and truly can't.
That is why is it important for this committee to take into consideration, when changes to the Workers' Compensation Act become part and parcel of whatever is going to happen out there, that the older workers are taken into consideration. There has to be some type of indexing, there has to be. If I am discovered in 1990 with a disease because somebody injected me with a bad dye, and it was approved, the responsibility was that of the Workers' Compensation Board. They picked up the responsibility. Why should I have to retire, lose 10 or 12 more years of a good pension plan, be forced on $296 a month, with my Canada Pension, just to make me break even. I am not even able to get the top up on it.
I am at wit's end. I just can't get answers to any of my questions. The previous speaker, I agree with him when he says that we should go back to the old system, with the three panel tribunal. That is the only system that I ever got justice from. Just for whatever reason, on whatever case, the last case I had going, they just said, they weren't going to do anything more for me. Because I fall under the old Act, and they are not responsible for the old Act. Who do I get to represent me? Who do I get to listen to me?
If that is what is enshrined in there, then give me everything that I am supposed to get under the old Act, give me my lawyer, and let me go out there and fight it. If I have to go through the courts, I will go through the courts. Do that for me. But don't get me slugged between two Acts for the past 10 years, fighting over which Act I am under. That is not fair.
Like I said, Mr. Chairman, I don't want to go into the report, because I know you people will read it.
MR. CHAIRMAN: We certainly will. I appreciate your not doing that, because as I said, we appreciate when people file written material, because it saves us time, and it is very helpful to us. Thank you.
MR. TOBIN: Right. I can't add any more than what I have said, other than what is in the brief. I really ask you to very seriously look at the Act, look at a balance between the older workers. It seems like in 1990, everything faded away. There were no injured workers in Nova Scotia after 1990. That is not so.
There is a large group of injured workers out there that suffer as much as I do. I suffer from chronic pain. I start my day with a Demerol and I end it with a Demerol. I do the best that I can. I never even got proper treatment from the workers' compensation. Even their own medical doctor said I should be at a pain clinic in Halifax, which they refused to send me to. They never even listened to their own medical adviser.
MR. CHAIRMAN: Not to interrupt you, but you indicated that you went to Boston at one point.
MR. TOBIN: Yes.
MR. CHAIRMAN: Did the workers' compensation pay for that?
MR. TOBIN: No, they didn't, I paid for that myself. I was never reimbursed one cent from the Workers' Compensation Board.
MR. CHAIRMAN: Did you seek compensation for that?
MR. TOBIN: I was told that it was not necessary, that the trip to Boston was not necessary, that there were doctors here who would treat me. There were no doctors here who would treat me, because my own family doctor tried to get a doctor in Halifax to look at me at that time. They couldn't, because they just never had the specialists that were available at the time that I went to the Lahey Clinic. I went down totally on my own. I paid my own cost, my own hospital bills, my own doctor bills.
MR. CHAIRMAN: Did you find that that was a useful trip?
MR. TOBIN: Yes. I found out things that weren't being told to me. I was told to go home, it is all in your head. It wasn't in my head, it was in my back. There was a good report written by that doctor down there. He had no brownie points to make with me or anybody else in the Province of Nova Scotia, he gave an honest evaluation of my condition. My condition at that time was severe, and it was going to be prolonged and there was nothing that he could do.
He said that he had never seen a younger person like myself that had gone through so many operations, and had so many invasions of the body and to go home and try to live with whatever good days you have, and put up with the bad days that are going to come down the road. There was a report written to the Workers' Compensation Board, as early as 1996,
concerning me from Dr. Reardon, a fine orthopaedic specialist. It told the compensation what was going on with me and that I would never return to work, that I have a long, hard, difficult road ahead of me.
There is nobody there. I am not saying that everybody in the compensation system is bad, but there are a lot of them that should go for some sort of treatment on how to look at injured people. Not everybody is out there trying to shaft the system. I am certainly not out trying to shaft the system. This shafting the system bit is no different than any other thing that is out there, whether it be life insurance or disability insurance from a private individual, you have a certain amount of people out there who are going to take advantage of it. But for God's sake, don't punish 95 per cent, because there is 5 per cent bad apples out there.
MR. CHAIRMAN: Thank you very much.
MR. TOBIN: Thank you, Mr. Chairman.
MR. CHAIRMAN: Hang on, there may be somebody who has a question. Does anyone have a question for this gentleman? Any of the consultants, do you have any questions? Mr. Power has one question.
MR. MICHAEL POWER: Mr. Tobin, where do you stand now? Have you exhausted all levels of appeal?
MR. TOBIN: Yes, sir.
MR. POWER: When was the last appeal hearing or decision that you received with respect to your $295?
MR. TOBIN: 1996. That would have been the last time I went before an adjudicator, who ruled in my favour. But again, the argument was made that those wages should have been in today's real money, not yesterday's 90 cents an hour. It just fell upon deaf ears. They just referred back to the old legislation.
MR. POWER: There hasn't been anything done since 1996, then?
MR. TOBIN: No. Not a thing has been done.
MR. CHAIRMAN: Thank you very much for taking the time to be with us this afternoon. I hope you can stay a little longer and listen to some of the other presentations.
MR. TOBIN: Thank you very much.
MR. CHAIRMAN: Thank you very much, Mr. Tobin. (Applause) Our next presentation will be from a group, Mr. Steve Drake on behalf of the United Mine Workers. Good afternoon, gentlemen. Perhaps you might introduce yourselves.
MR. STEVE DRAKE: I have been here before, several times. My name is Steve Drake, I am President of the United Mine Workers of America, District 26, and this is Ralph MacNeil, he is Secretary-Treasurer, newly elected. Today is Ralph's first day on the job, so we are baptizing him under fire. Ralph is going to be here as an observer. I believe Brendon MacIntyre, a sub-district board member for District 26 is here also.
MR. CHAIRMAN: If he would like to come forward, he is certainly welcome to do so.
MR. DRAKE: Brendon, do you want to come up front?
MR. CHAIRMAN: He is bashful, is he?
[2:00 p.m.]
MR. DRAKE: Not a bit. You don't know him. One thing, just before I start on my presentation, I have a copy here. I guess one of the biggest problems that we see with workers' compensation right now is that if you flip through this huge book we have here and go right to the back of it, this portion that we have right here is the actual legislation, Bill 122. That is it right there. The rest of this is policy that has been created by the Workers' Compensation Board. From speaking with average people and listening to the presentations here today, the problem that, I guess, we see as the biggest thing is that workers' compensation employees can create policy at will. Section 183 of this Act, I am just going to read it for the record if I can.
Section 183 reads:
"(1) For the purpose of this Act, 'policy' means a written statement of policy adopted by the Board of Directors and designated by the Board of Directors in writing as a statement of policy, and 'policies' has a like meaning.
(2) The Board of Directors may adopt policies consistent with this Part and the regulations to be followed in the application of this Part or the regulations.
(3) The Board of Directors may invite submissions from interested parties before adopting a policy pursuant to this Section.
(4) Every policy adopted by the Board of Directors pursuant to subsection (2) shall be available to the public.
(5) 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.
(6) 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.
(7) 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.
(8) Any participant may appeal a final order of a hearing officer made pursuant to Section 197 to the Nova Scotia Court of Appeal on the ground that a policy upon which the decision of the hearing officer depends is not consistent with this Act or the regulations but there shall not be an appeal on any other question of law or fact.
(9) Subsections 256(2) to (6) apply mutatis mutandis to appeals under subsection (7), provided however, it shall not be necessary to provide notice to the Chief Appeal Commissioner.".
What this section of the Act does is give the Workers' Compensation Board ultimate power over the legislation that was duly passed by the people that represent injured workers in Nova Scotia, and that is the politicians of every Party. If this committee does one thing, they have to take that out of the Act. The policy-making powers of the board should be outside of the Act. It should not be inside the Act. It should be removed permanently, and any policy that they make from here on in should be in keeping with the Act.
I will just read this letter, if I may.
"The Workers' Compensation Act of Nova Scotia was introduced as a bill late in 1994 and the Legislation came into effect on February 1, 1996.".
Many people that we have spoken to over the last four years cannot figure out how any person that was injured before February 1, 1996 can file under the new legislation. Once the Doward decision became public, it is beyond us as a union to understand how anyone can make legislation active before it is actually passed in the House of Assembly.
"The system, in its present form, is fast becoming a web of air-tight compartments that injured workers are having difficulty fitting into; this is a direct result of the absolute power of the Board as granted by Section 183 of the Act. Injured workers and their representatives have lobbied for changes to this legislation for the past four years in an attempt to bring some compassion back into the system; our fight will continue.
As union representatives we have first hand knowledge of the inconsistencies and irregularities in the implementation of this Legislation and state emphatically that as long as Board Policy is entrenched in the Legislation, as long as General Practitioners can over rule Specialists, as long as awards are based on economic rather than on scientific considerations, workers in Nova Scotia will never be properly compensated for on the job injuries.
We are well aware of the immensity and complexity of the task this committee is undertaking and are confident that the committee will make the proper decisions based on presentations made in our communities. The following recommendations, although not completely comprehensive, would go a long way in helping the cause of injured workers in this Province.".
The first problem is Section 183, policy-making powers of the board of directors. I read it already, so I won't go through it. I won't repeat myself, but we have a few recommendations here:
1. Policy should not be entrenched in legislation, all Workers' Compensation Board policies should be readdressed for strict compliance with the Workers' Compensation Act.
2. All new policies adopted by the board must conform with workers' compensation legislation.
3. Policies of the Workers' Compensation Board which are not in compliance with the Act shall be considered null and void.
4. These recommendations should be introduced into legislation by the House of Assembly.
The second problem, and every one of these refers to just about every injured worker in Nova Scotia, or every person working in Nova Scotia who could potentially become an injured worker today or tomorrow or at any time in the future. The Permanent Impairment Benefit, Section 34(4)(a). There is a 30 per cent reduction calculation in there, which reduces injured workers' permanent benefits by as much as 70 per cent when compared with the same pensionable injury under the old system.
Just for an example, we feel that the Workers' Compensation Board has realized substantial savings by reducing the benefit levels in the new Act to 75 per cent or 85 per cent of net from what it was in the previous Act, 75 per cent of gross wages. They saved enough money on the backs of injured workers in Nova Scotia, that 30 per cent reduction should be removed.
In addition to this reduction of benefit levels, the Workers' Compensation Board applied a further reduction factor of 30 per cent to the final level of benefits for a permanent impairment benefit. We met with Workers' Compensation Board bureaucrats, the chairman of the board, the CEO, the Minister of Labour at the time, on September 13, 1996. The representatives that were there could not confirm the origins of the 30 per cent reduction calculation. To the best of our knowledge, it was made by some accountant somewhere that said, this is how much money we need and this is how much you can beat up injured workers in Nova Scotia. This is what they will take, because they can't justify that 30 per cent. If they can't justify it, it shouldn't be there.
I will give you an example, and this is the same example we used before the last stage of the legislative process, the Law Amendments Committee. We went before the Law Amendments Committee before this Act was legislated and we used this same example. This can be extrapolated to any injured worker, just use different numbers based on their wages.
Under the old Act, a coal miner who had a 10 per cent black lung disability, pneumoconiosis or whatever, 10 per cent award, would receive 75 per cent of his gross weekly wages. If that is $700, you multiply that 75 per cent of his gross weekly wages by his disability percentage. That number comes to $210 a month for a 10 per cent disability, based on the old Act. That is an approximate number.
Under the new Act, the same coal miner, working in the same conditions, at the same time as the original guy, the same disability would receive, under the calculation of the new Act, 85 per cent of his net wages, which is a huge cut already. That would be net wages of around $450, multiplied by the 30 per cent reduction factor, multiplied by his 10 per cent disability. In the case of the new Act, the same miner, this coal miner with the same injury would receive $45 a month, approximately, compared to $210 a month, approximately, under the old Act. That is absolutely ridiculous that the Workers' Compensation Board can get away with this.
The recommendations:
1. The reduction of benefits to 85 per cent of net wages should satisfy Workers' Compensation Board requirements; the 30 per cent reduction calculation should be eliminated. Also, this would create a true dual system of awards for injured workers.
2. Language should be introduced into the Act to reflect the awarding of permanent-impairment benefits based on pain and suffering, loss of enjoyment and quality of life.
3. These recommendations should be introduced into legislation by the House of Assembly.
The next one is case managers and Workers' Compensation Board medical advisers making medical decisions which overrule medical specialists. At the UMWA, this was happening on a regular basis, and we sent for the curriculum vitae of the three doctors that we know work for the Workers' Compensation Board. With all due respect to their medical profession and their expertise, we respect the fact that they are doctors, but they are not God by any stretch of the imagination.
Dr. Murdock Smith, we asked for his curriculum vitae, and it is about six or seven lines on one page. If anybody wants to see this, there are his references. Dr. M.G. Shaw, same thing, it is about a third of a page, and he is probably well qualified as an MD. There is no doubt in my mind about that. Dr. Dobson, these people all work for the Workers' Compensation Board, there is Dr. Dobson's. If anybody wants to have a look at it, there is Dr. Dobson's.
One of the specialists that they regularly overrule, this gentleman, Dr. John R. Lemoine, we deal with him quite often on lung disabilities, pneumoconiosis for coal miners, so we are familiar with him. We asked Dr. Lemoine if he would send us his curriculum vitae, and I will just show it to everybody here so you can understand where I am coming from. It is three and one-half pages of references. He has 42 letters behind his name. For the life of me, I can't understand how any doctor, an MD, has the authority under the workers' compensation legislation to overrule a specialist.
An example, Claim No. 5008138 is, we feel, illustrative of the inconsistencies of the awards process and the power of case managers and board medical advisers. The injury in question occurred in November 1987, and a prominent Nova Scotia surgeon recommended surgery. The injured worker requested a second opinion and a second specialist recommended extensive physiotherapy, and stated emphatically that the injury would be a life-time problem. For approximately nine years, the Workers' Compensation Board accepted responsibility for medical examinations, physiotherapy and medications related to this claim.
In 1996, the injured worker's family physician requested a course of physiotherapy and contacted the Workers' Compensation Board for approval. Mr. David Hoddinott, who was a case manager at the time, and Dr. M.E. Smith ruled that the problems in 1996 had no relation to the injury of 1987 and refused approval for physiotherapy. This ruling was in direct contradiction to nine years of documentation from specialists which indicated that these problems would be permanent. Dr. Smith and Mr. Hoddinott had never interviewed or
examined the injured worker, and Mr. Hoddinott subsequently stated in writing that he had no medical qualifications whatsoever. He was going on the board's adviser, and the adviser was Dr. Smith who had never seen this injured worker.
What happens in these situations is that, we feel, they put injured workers up against the wall, and they want to see how far you will go until you collapse and give up. Unfortunately, I think you have probably been hearing that right across the province. I think that is a sad state of affairs, and I think that most people that you will be talking to will agree that that is a sad state of affairs.
What happened when this particular injured worker decided not to go up against the wall and fold, but fight, the decision was overturned after the injured worker contacted the Minister of Labour, the Nova Scotia Medical Society and the CEO of the Workers' Compensation Board. This gentleman went to physiotherapy, went to a chiropractor, all based on the 1987 claim. They tried to beat him up, and they didn't win. Unfortunately, there are people out there who don't have representation from unions and don't have enough money to get a lawyer, and they are on their own, and they don't know the system.
I spoke to several lawyers who looked at this Act; they don't understand it. I don't think the Workers' Compensation Board understands it. I know that the Ministers of Labour, we met with every one of them and they don't have a good comprehension of this. There is too much there. They made it too complicated and it is too hard for people to deal with.
Recommendations on case managers and compensation board medical advisers:
1. Case managers and other non-medical WCB employees' opinions shall not influence final decisions on claims where medical evidence or eligibility is in question.
2. When a question of eligibility for awards arises as a result of interpretation of medical evidence, the opinion of medical specialists shall be recognized over board employees and medical advisers with lesser medical qualifications than specialists.
3. These recommendations should be introduced into legislation by the House of Assembly.
There is another problem, there are all kinds, there are probably 10,000 problems in here but I don't think you are going to fix every one of them. The biggest one is the policy. Review of compensation, Section 71(1)(b) which states in reference to permanent awards that the board may review and adjust the permanent impairment benefit amount only when in the board's opinion there is a change in the worker's condition that represents at least 10 percentage points in the worker's permanent impairment rating.
So if a worker has an 11 per cent disability, and the maximum is 20 per cent, and you have to get at least a 10 per cent change, he will never get awarded his 9 per cent, never. That is legislation. In the original sitting of the House, when they were debating this, this was brought up several times, and it still made it through. Just the facts on this, in effect, this section of the Act requires a disability increase of a minimum of 10 percentage points before an injured worker is awarded an increase in his or her permanent impairment benefit. Anything under a 10 per cent increase is not considered sufficient for an increased award.
For example, and I will use a coal miner again, because it is what I am familiar with but you can just take the same numbers and apply them to any worker in Nova Scotia. A coal miner who is presently receiving a permanent impairment benefit of 8 per cent for black lung is awarded an increase of 12 per cent by a specialist, which would bring him up to a 20 per cent disability. Workers' Compensation Board employees and medical advisers rule that the increase won't be 12 per cent, the increase will only be 3 per cent.
After overruling the medical specialist, the Workers' Compensation Board increases the total award from 8 per cent plus their 3 per cent to 11 per cent. Under the clinical rating system, the maximum award for black lung might be, it may be, 20 per cent. Just use that as an example, which means that the injured worker who now has a rating of 11 per cent could only be awarded 9 per cent more before he was at the maximum of 20 per cent.
This 9 per cent increase would not satisfy Section 71, the so-called 10 per cent rule, and the injured worker would be denied any increase in benefits despite a significant increase in his disability. The final result of all this, Section 71, is that the worker would permanently receive an 11 per cent award for the rest of his life, despite massive increases in his disability.
1. The 10 per cent rule must be legislated out of the Workers' Compensation Act.
2. Instead of may review, the board shall review and adjust the amount of compensation payable where there is a change in the worker's condition that represents any increase in the worker's permanent impairment rating.
3. These recommendations should be introduced into legislation by the House of Assembly.
The problem with Section 37(4)(6), earnings replacement benefits. Section (4) penalizes, and we argued also with the minister responsible for introducing this Act, well, debated it I guess, it wasn't an argument, but on this section it was Jay Abbass, the Minister of Labour. Section (4) penalizes an injured worker from receiving benefits for the first two days of a compensable accident. Section (6) allows for repayment of loss of benefits under Section (4) if the worker is off for more than five weeks.
There should be no penalty. When you are injured, workers' compensation is supposed to cover you. That is why we gave up the right to sue our employers. Workers' compensation, this is an economic thing, it has nothing to do with pain or suffering. It has nothing to do with the Act as far as we are concerned. It was an economic thing. They cut two days' pay off an injured worker.
We feel that this section of the Act restricts access to benefits and has a purely economic foundation. The potential for abuse is obvious in that after five weeks on active compensation, an injured worker will not be penalized for any days of lost time. I would challenge the workers' compensation system to show us what they saved on this one. It is pennies, as far as we are concerned.
1. This section of the Act should receive new legislated language which allows for payment of benefits from the first day of a compensable accident.
2. This recommendation should be introduced into legislation by the House of Assembly.
The problem with Section 13, eligibility. Workers who have been exposed to silica dust or coal dust for extended periods of time and fit the criteria under Sections 12 and 13 for eligibility are refused benefits for silicosis and pneumoconiosis based on inconsistent Workers' Compensation Board criteria and decisions. This one is a little bit lengthy so I hope you will bear with me. I am going to refer to two actual cases with blatant problems.
The criteria for the diagnosis of coal workers pneumoconiosis must be as comprehensive as possible. Injured workers who have the symptomology of this disorder are routinely refused benefits based on the opinions of medical and non-medical advisers and employees of the Workers' Compensation Board of Nova Scotia. In many cases, these decisions conflict with the diagnosis of highly qualified medical specialists who have specific training in reading X-rays or diagnosing biopsies. Two case examples are necessary to illustrate these problems.
Claim No. 1390583-1. Dr. J.R. Dill ruled that the worker did not show an increase in disability. The Workers' Compensation Board did not increase disability benefits based on Dr. Dill's interpretation of X-rays and pulmonary function tests. Drs. Shaw and Dobson reinforced Dr. Dill's report by interpreting the X-rays as showing insufficient change for an increase in benefits. Dr. Shaw's or Dr. Dobson's curriculum vitae, that I show that they provided - the Workers' Compensation Board provided us with that - shows no specific training whatsoever to interpret X-rays; none. Dr. John R. LeMoine, the other doctor that I showed you, and Dr. Paul Landrigan, interpreted the same X-rays - now these guys are experts - and found that the workers exhibited changes significant enough to warrant an increase in disability benefits.
Workers' compensation beat this guy up for months and months based on the opinions of the other doctors. Workers' compensation accepted the interpretation of Dr. Dill and disallowed an increase in benefits. The worker entered into a lengthy battle with the system and, eventually, with the preponderance of evidence in his favour, forced the Workers' Compensation Board to increase his benefit level to the recommended percentage indicated by Dr. LeMoine and Dr. Landrigan. So he fought them and he won. He is a member of a union. If he had had no one to fight for him and he couldn't afford a lawyer, he probably would have gotten swallowed up by the system and would not have gotten an increase in his benefits.
The second case is Claim No. 5052765. Dr. J.R. Dill interpreted X-rays as showing pneumoconiosis and recommended a 15 per cent disability. Dr. Dobson - remember what he did in the last case and the Workers' Compensation Board - accepted it. This time he said that the guy did have pneumoconiosis and he recommended a 15 per cent disability. Dr. Dobson stated that Dr. Dill is not a designated chest X-ray reader and that in his opinion, Dr. Dill's 15 per cent rating was not acceptable. Dr. Dobson accepted Dr. Dill's report the last time when he said the gentleman had no pneumoconiosis; this time, when Dr. Dill said that the gentleman had pneumoconiosis, Dr. Dobson said, I am sorry, you are not a designated chest X-ray reader so we can't accept your report, Dr. Dill. Now that is an inconsistency and it is blatant.
On top of that, for the same case, Dr. J.R. LeMoine read the same X-rays in 1995 and said that the changes in the film, consistent with or characteristic with pneumoconiosis were not present - that was Dr. LeMoine - so the board refused the workers' claim. The worker then submitted to having a biopsy done. So he had a biopsy of his lung performed, which showed positive evidence of pneumoconiosis. The board still refused to accept the fact that the worker had a disability and they based it on Dr. LeMoine's and Dr. Dobson's report of a year previous.
In 1996, Dr. LeMoine re-examined the workers' biopsy and the most recent X-ray and reported that in his opinion the worker now had simple coal workers' pneumoconiosis. The Workers' Compensation Board still refused to allow the claim. Despite the fact that Dr. LeMoine changed his position, despite the fact that they had a biopsy taken right out of the coal miner's lung, the Workers' Compensation Board refused to pay. The inconsistencies in these two claims are rampant in the workers' compensation system and must be rectified. This worker - he is a unionized employee - still hasn't been compensated for his disability.
Recommendation. Enacted into legislation in the United States is the Black Lung Act which deals with the same type of lung disorders that the Workers' Compensation Board of Nova Scotia must rule on in cases of pneumoconiosis. The following recommendations, drawn from this legislation, will provide justice to coal miners who suffer from this debilitating disorder. This could be also extrapolated to other people who suffer from lung disorders.
1. No claim for benefits shall be denied solely on the basis of a negative X-ray. That is not conclusive evidence that you do not have pneumoconiosis.
2. A negative biopsy is not conclusive evidence that the miner does not have pneumoconiosis also. However, where positive findings are obtained on biopsy, the results will constitute evidence of the presence of pneumoconiosis.
3. Where two or more X-ray interpretations are in conflict, in evaluating such X-ray reports, consideration shall be given to the radiological qualifications of the physicians interpreting the X-rays.
4. In all claims, only certified radiologists or qualified physicians shall interpret X-rays. Certified shall mean certification in radiology or diagnostic roentgenology. Qualified shall mean a physician who has taken and passed a proficiency examination in evaluating chest X-rays. General practitioners shall not overrule the opinions of certified or qualified specialists.
5. A determination of the existence of pneumoconiosis may also be made if a physician, exercising sound medical judgement, notwithstanding a negative X-ray, finds that the miner suffers or suffered from pneumoconiosis. Any such finding shall be based on objective medical evidence such as blood-gas studies, electrocardiograms, pulmonary function studies, physical performance tests, physical examination and medical and work histories. Such findings shall be supported by a reasoned medical opinion.
6. These recommendations should be introduced into legislation by the House of Assembly.
Section 35 is automatic assumption. This section allows for disability benefits for a coal miner who has worked at the face of a mine or in similar conditions for 20 years or more and suffers from a loss of lung function. Facts. The Workers' Compensation Board does not allow time off for sickness or compensation to be calculated into the 20 year time-frame for eligibility for automatic assumption. In the event that the worker who was off for a total of two years in a 20 year period with lung related problems, applies for benefits under Section 35, the Workers' Compensation Board deems him to have only worked 18 years at the face and the worker will not qualify under this section.
Recommendations:
1. The Workers' Compensation Board should consider the fact that biological difference exist in a miner's capacity to resist conditions that could lead to a loss of lung function. Therefore, the Workers' Compensation Board should implement the date of hire, inclusive of sick and compensable time off, as the deciding factor when determining the 20
year calculation. This wouldn't cost them a whole lot of money and sure would provide some justice for some of the miners who are suffering from this lung disability.
2. Pneumoconiosis and automatic assumption are dealt with as separate entities by the board when they calculate them through the Act. The cheques issued should be separated also. The reason for this is kind of small and I think it could be done very easily. Devco has a carve out for automatic assumption when you go on pension. So if a miner is getting $400 automatic assumption, Devco can carve out a substantial part of that. If a coal miner has pneumoconiosis and automatic assumption and he is getting benefits for both of those, up to a certain level, that cheque would be combined and it confounds the situation when Devco does the carve out. We think that those cheques could be separated very easily.
MR. CHAIRMAN: Can I stop you there?
MR. DRAKE: I only have one more.
MR. CHAIRMAN: No, no. I have a question.
MR. DRAKE: Okay.
MR. CHAIRMAN: You are talking about carve out. Can you just explain us for those of us who are not involved in the mining industry?
MR. DRAKE: All right. Under the automatic assumption claim, if a miner gets a pension, Devco has an opportunity, and they do this on a regular basis, if I am getting $450 automatic assumption benefits, there is a cap on it for a pension, for a compassionate disability pension, we will say. Devco could carve out everything down to $250 and that would come off my compassionate disability pension, okay? So actually, they are taking my money away from me. We don't like it very much but it is legal. The situation is, when you have a pneumoconiosis cheque and an automatic assumption cheque combined into one, there can be difficulties there.
MR. CHAIRMAN: It makes it is harder. Isolate which is which.
MR. DRAKE: They could separate that very easily, I think, and send both cheques separately.
The last one I have is very short. I am just going to refer to a case. This is a friend of mine and this was just brought to my attention. Brendon MacIntyre has been working on this case for a long time. It is Claim No. 5042646. It is a friend of mine from New Waterford. It is on chronic pain policy and wage loss and the Doward decision. This gentleman has had eight operations. He is in pain all the time. He can't sit for five minutes. He can't stand for
10 minutes. He can't drive properly. He, basically, can't do a whole lot of regular life activities.
[2:30 p.m.]
Workers' compensation, through this Vocational Rehabilitation Program, asked him - my understanding of it - if he could sit in a classroom for four weeks, five days a week. He told them that he couldn't do that and they know the situation that he is in; they cut him off. He has been cut off for two years and that is wrong; there is no way that anything like that should ever be allowed to happen. If you are going to go to voc rehab and it takes you 10 weeks to finish a four week program because of your disability from an injury in the workplace, that is the way workers' compensation should do it. They shouldn't force you to sit in a classroom for five days a week when your pain doesn't allow that.
The Workers' Compensation Board, on the chronic pain policy and the Doward decision. The Workers' Compensation Board is presently, from my understanding, implementing policies to deal with the Supreme Court decision on the Doward case, and I don't know all the details of it. These policies should not compromise the rights of injured workers as designated by the Doward decision. They should pay by Doward. There is a Supreme Court decision there and Mr. Stuewe and Mr. Innis Christie shouldn't be allowed to create policies to confound that decision; that is the Supreme Court of Nova Scotia.
Recommendations:
1. Injured workers who file under the Doward decision should be paid by the strict ruling of the Supreme Court decision.
2. Any policy created by the Workers' Compensation Board that does not strictly adhere to the Doward decision should be declared null and void by the Government of Nova Scotia.
I know that was rather lengthy and I apologize, but I had a lot to say. Thank you very much.
MR. CHAIRMAN: No, no. I thank you, Mr. Drake. Now I would open it up to questions from members.
MR. CORBETT: One of the first questions, Steve. When you or your board members get a case from one of your members, who usually proceeds with it? Do you guys do it as executive or do you farm it out to lawyers?
MR. DRAKE: No, both board members. Most of our compensation cases are dealt with by Brendon MacIntyre and Ron Cote. We farm very little out. Our guys are very good at what they do.
MR. CORBETT: You talked before about the reassessment, especially when we talked about the 10 per cent automatic assumption. Now, is it also accurate to say that if it's less than 10 per cent the board buys these men out, just gives them a lump-sum payment?
MR. DRAKE: Yes, there is a lump-sum payment. That is correct.
MR. CORBETT: And if you are over 10 per cent, but below 30 per cent, there is an option there?
MR. DRAKE: There is an option there. I believe you can take a buy-out or you can go for a pension. I think at a certain point - I am not absolutely certain - but at a certain point of disability, the board would opt for a pension. Now I am not sure of that, someone on this side might be a little more familiar with that.
MR. CORBETT: Again, when we talk in those terms, nobody seems to have a handle on where that 30 per cent came from. It just fell out of the sky.
MR. DRAKE: Well, we met with five Ministers of Labour so far. Since 1994, there have been five Ministers of Labour and, every time you meet with someone, they always say they have to get up to speed on this stuff, right, but they never get up to speed on it because they are always gone and it would take you five years to get up to speed. We are four years now. We have a rudimentary understanding of this, but if you have a Minister of Labour, with all due respect, who has a busy schedule and he has to memorize this and understand it, that is why he has people working for him and advisers, and we understand that. So we met with five Ministers of Labour and we asked Jay Abbass, originally, where the 30 per cent came from and he couldn't tell us.
Subsequently, we asked the other ministers and they couldn't tell us. We had a meeting with the board of directors and a CEO and the Minister of Labour in September 1996, as I said earlier, and no one really knows where the 30 per cent reduction factor, the calculation, came from. We feel that it was just based on economics and I don't think that is fair; I think injured workers deserve a little bit more respect than that in Nova Scotia, and I think that 30 per cent reduction factor should be taken right out of the legislation. They took a massive hit at injured workers by going from 75 per cent of gross to 85 per cent or 75 per cent of net. That is big enough. We took enough on our backs and I guess we are going to have to swallow that, but we don't want to swallow this 30 per cent also; that should be removed.
MR. CORBETT: Okay, in the interest of time, just one last question, Steve. It goes back to what you talked about on board policy and, if you could capsulize it as best you can, is there a level of frustration there when you realize that no matter how solid a case you may have going before the board and how right you may be, or probably WCAT, going from the WCAT, that there is no chance of you winning because they can't override policy?
MR. DRAKE: That is exactly right. This Section 183, 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. So we work on a claim for an injured worker and we figure we have a really good case and maybe we win this one. All of a sudden, we get a new policy in the mail and it says take Policy No. 1452 out of the book, throw it away, and put this new one in. We read the policy and it takes care of the next guy under the same case with the same circumstances, we can't win his. It is legislation because they have it right in the Act under Section 183. So the level of frustration with the Workers' Compensation Board is extraordinary right now. People in Nova Scotia are fed up with it and they want changes. We have been lobbying for changes for four years. People don't lock themselves in Workers' Compensation offices or the Premier's Office for fun. They are frustrated and this has to be fixed.
As I said before, if this committee does one thing policy should not be entrenched in the legislation, it should be removed. Section 183, throw it out the window. Say, here is what we do with your policies, throw it out the window and say we will live by the Act. We can fight the Act but we can't fight policy when Workers' Compensation Board bureaucrats can make any policy they want to make any ruling they want and make it retroactive.
MR. CORBETT: Thanks, Steve.
MR. CHAIRMAN: From our consultants? Mr. Erjavec.
MR. LUC ERJAVEC: I just have one, quick, 30 second question. I was doing the math and I was interested in the example you were giving, the difference between the new Act and the old Act and the guy with the 10 per cent disability, just picking a random something. You said his pension went from $240-something down to $45.
MR. DRAKE: $210.
MR. ERJAVEC: $210 down to $45. When you are calculating the pension for the guy who is making $45, is that assuming he continues at work with his regular earnings?
MR. DRAKE: Yes. Were you Jay Abbass' assistant?
MR. ERJAVEC: At one time.
MR. DRAKE: You were the guy who was in the meeting with us for five hours. (Laughter) So you remember every bit of this. (Applause) If I can, when we appeared before the Law Amendments Committee - this is kind of funny - we presented the exact same numbers that I just presented here today and Dave Stuewe was at the UMW presentation, and Dave Stuewe came up and asked me where we got those numbers. I said, look in your Act, they are there for every single injured worker in Nova Scotia. They are accurate numbers. We did them about 50 times before we went there, to make sure they were accurate. These numbers are accurate and you can apply them to any injured worker in Nova Scotia. It is unfortunate because it is a financial hit and it hurts people. People are coming here and they are going to sit here before this committee in Sydney, and they are going to do it all across the province, and they are pouring their hearts out right now because they are hurting. That is not what this Act was supposed to do to people. There was supposed to be justice in this Act and there is none right now. I never forget a face, Luc.
MR. CHAIRMAN: A good memory can be a great tool, can't it? Mr. Neville.
MR. JAMES NEVILLE: Steve, you mentioned about the pension. If it is over 30 per cent, it must be paid out as a pension, under 30 per cent it is a lump sum payment, one time only. Just for information.
MR. DRAKE: Some people don't want that. It seems like workers' compensation can force it on you and say okay, here is a lump sum payment of $10,000 and they are giving this to an injured worker who has been off work with no money for two years or three years and they say, well, if you take this $10,000 lump sum and invest it properly, you will get an investment return of x percentage points and you will get your $57 pension per month. But that injured worker hasn't had any money for two and one-half or three years. He is not going to invest that $10,000. He is going to spend it on paying the bills that he accumulated fighting workers' compensation. It should be an option. It shouldn't be forced on injured workers. It should be an option.
MR. CHAIRMAN: So just to summarize, you would suggest that the injured worker would have the option of electing.
MR. DRAKE: It should be written right in the legislation. If you have 10 per cent disability and you have an option, the option is yours, the choice is yours. The Workers' Compensation Board can't force you to take a buy-out. They should give you an option of either taking a buy-out, lump sum payment or a pension for life. Now the Workers' Compensation Board has no idea of the financial situation of most of these people and I don't really think they care, to tell you the truth, so they shouldn't be allowed to force it on injured workers.
MR. CHAIRMAN: Well, thank you very much, Mr. Drake, for coming forward this afternoon.
MR. DRAKE: Thank you for the opportunity.
MR. CHAIRMAN: Most of us certainly haven't heard this presentation before and I certainly found it very useful, personally. Thank you.
MR. DRAKE: Thank you, Mr. Chairman. (Applause)
MR. CHAIRMAN: The next presentation would be from the Canadian Union of Public Employees, Barb Kowalski. Ms. Kowalski, whenever you are ready.
MS. BARB KOWALSKI: Mr. Chairman, I would just like to say that I agree with everything that Steve just finished saying and I won't reiterate because it was a wonderful presentation and certainly reflects the feelings of the workers in Cape Breton.
My presentation is going to be an informal one. It is not going to be formal so just bear with me.
A worker recently applied for compensation for an illness. It was an environmental illness. It wasn't so recent; it was two years ago. She went through a series of doctors and she had suffered from anaphylactic shock. When she would go into a workplace which was individual homes, if somebody was cooking fish or somebody was doing something that would trigger her allergy to it, she would become very ill.
She listened to her doctor and she stayed away from places that would trigger those attacks. She was cut off from her pension or her money because they said she was not suffering from any anaphylactic shock lately and, therefore, she must be better. Now, because she did what she was told and stayed away from the places that triggered it, this happened. This was an actual case but, fortunately, it was not a compensation case. It was an insurance company.
However, it is not that far away in that we are going down the same road that we are blaming the victims. Environmental illness may be new to insurance companies and, certainly, they don't want to deal with it in any way. They just cut people off and let them drift. Certainly, it is probably new to the compensation, as well. It goes to show that people are at the whim of power and it is the powerless who suffer.
One worker, recently, who was not a unionized employee applied for workers' compensation because of a repetitive strain injury. When the papers went out to her employer, one of the questions asked on the form, I believe, was, answer yes or no, does this worker do repetitive work? The employer did not answer that properly; they just answered with, yeah, she does this, this and this. So the worker was not given any compensation because they did not determine that, yes, in fact, she was doing repetitive work continuously. I asked her, did
she file for appeal and she said, no, I just can't be bothered. Now, what happened was, she quit instead, quit her work.
The problem that is going to be for her that when she goes back to work her skills are such that she is probably going to be in a situation where she is doing repetitive work again and when she applies another time, she is now going to have a pre-existing condition which workers' compensation will have on her file which said that she had it before and now she is not going to be able to get it again, so she is damned.
In listening to presentations and people having concerns about workers and injury at the work place, perhaps we are dealing with the wrong group of people. Perhaps we should be looking at employers instead. Instead of calling this Act the Workers' Compensation Act, we should be calling it the employers' protection insurance. If we begin to look at the employers and what they are not providing in the work places, then perhaps we would have a better handle on what is really going on.
CUPE, in Cape Breton, deals with workers in nursing homes, in universities and school boards. A lot of the places are low-paying, their jobs, they do not make a lot of money. School boards, for instance, work 10 months out of the year. Some of those employees, because of a wage freeze since 1989 make $6.00-something an hour, less than the casual employees in that same workplace, work three hours a day and when they are injured, simply cannot afford to be off.
What is happening, unfortunately, with the new Act is that workers are now turning to their sick leave. They cannot afford to miss two days of pay, like it or not.
Since I put my name down to make this presentation to the committee, I was trying to get a sense of what's wrong. Why are we not moving ahead instead of always going backwards in terms of workers? It's because we are victim-blaming continually. We are always so afraid that somebody might get ahead of us that we focus on that one individual, or two individuals, and make laws and rules that will try to encapsulate those abusers, and everybody else, unfortunately, gets swept in.
CUPE's policy is one of prevention, as opposed to coming after the fact and having people collect in workers' compensation or on LTD claims or wherever. I wonder - and I don't know how you would do this - what is the relationship between workers' compensation and the Occupational Health and Safety Division? How much work do you do together in terms of prevention?
The nursing homes are understaffed and so injury is a given, but compensation is not a given. School boards, especially in Cape Breton, because of the way in which the funding formula has been based, has cut back in staff, so there is going to be an increase in injury because people are trying to compensate for the fact that there are not enough workers.
The way in which the Act apparently adopts regulations is quite a concern to CUPE as well. I know I have been at the table in an employer's workplace and we are talking about the way in which workers' compensation is developing a policy or has decided in the way in which this section of the Act is to be interpreted, only to find out next week that that was wrong and have to go back and say, no, especially on the two days and the top-up, et cetera, and we look like we don't know what we are talking about and, quite frankly, we don't because we just don't have that clear indication from anybody as to how to interpret that Act.
Chronic pain. I have an example of chronic pain. I have a person quite close to me who is a very good worker, never missed time from work but, because of a series of injuries from lifting and back problems, ended up with chronic pain. In fact, his pain was so bad that sometimes his leg would give out and he would fall down. He was cut off from workers' compensation and, instead, the doctors put him on Tylenol 3 in order to compensate, so that he could function. Now he is addicted to Tylenol 3. Now, wherever in Halifax, the drug centre is looking at why this person is receiving so many drugs and Tylenol 3's. Here we are, again, in a situation where a person being forced to work, being forced to take medication in order to go to work, becomes addicted, and we condemn that person.
The issue of prevention, proper enforcement would certainly be a benefit to our workers. I know when they complain to us or bring their complaints, there are not enough inspectors to go around, in our opinion. One of the things that was brought to my attention by our occupational health and safety expert, Rob Wells, was that, I think it is every five years that the inspector could make it to your workplace - once in five years - if you take the 14 times the inspectors have been at the steel plant, and well they should have been, it is going to take 70 years to get an inspector to your workplace.
There should be enough inspectors to go around. There should be the proper equipment in place. When a worker gets injured, there should be some kind of accounting of what happened at that workplace, not in terms of the worker, but in terms of what was not present to make that worker's life safe. When we find out that it was the cause of not enough equipment, not enough staff, then somebody else should pay besides the worker.
The two-day waiting period, as I indicated earlier, has indeed turned our workers toward sick leave instead of applying for compensation as they should. I may be corrected on this one, but I believe that after 28 days, they may get their two days back. While workers are not staying off for a week, they are staying off for 30 days. In essence, what you are ending up with is a catch-22 situation, where certainly if I am going to be off work because I have been legitimately hurt, I am not going to give up two days of my pay. I will wait the 30 days, and I will get my two days' pay back.
The top-up is another situation for workers, another slap in the face; aside from being frozen for seven or eight years, aside from everything else, taking money out of their pockets. The things that they have negotiated, the things that they have given up, because in every set
of negotiations, in order to get something, you usually give something up. One of the things that people would have done was give up certain things at the bargaining table for that top-up provision. Government comes in and government takes it away. It is a violation of the right to negotiate. If an employer says, we have this money over here, and yes, if there is a compensation claim, we can top you up, what business is it of government?
The very fact that we have to be here today, and that you have to travel this province to talk about what is wrong with this plan, certainly indicates that there are major problems with this plan. CUPE, as I said, would encourage you and urge you to insist, if you have to, on more inspectors, on better workplaces and fines for employers who don't comply. I would like to think that when an inspector goes into a workplace, they don't inform the employer in advance, so that the employer can clean up the workplace and have the situations hidden in order to get a clean bill of health.
I know that, having worked with the City of Sydney, when we worked with the health inspectors, they didn't inform the restaurants in advance that they were coming in to check their restaurant kitchens and facilities. If they came in and found them wanting, they were issued orders and they had so much time to rectify the situation or they were closed. The same thing should happen in workplaces such as this, that we deal with. If the employer is not complying, there is where the penalty should lay, and not with the worker. Thank you.
MR. CHAIRMAN: Thank you very much. Are there any questions? Mr. Corbett.
MR. CORBETT: Good to see you again, Ms. Kowalski. I guess the only question I wanted to talk to you about is, you talked about occupational health and safety and WCB working closer together. Do you see that as something we should do legislatively, or do you think that through the ministry, it should be tied together in some way, more loosely as opposed to a piece of defined legislation?
MS. KOWALSKI: In my mind, I can't even see it operating separately. To me, it is one and the same. Somehow workers' compensation and occupational health and safety should be hand and hand, and certainly, if necessary to legislate it, by all means do so. I think one should not be operating over here and one - well, if occupational health and safety has a report on a workplace that says it is not up to standard, and they are working with that employer, and an employee gets injured over here in that same workplace, do we know that? Do we know that over here is an inspector's report? I am sure we don't. What we end up focusing on, unfortunately, is the worker. What did you do? What didn't you do? And narrowing its scope as opposed to broadening it out. Certainly looking at the history of workplaces, I can do it from where I sit, and say, I see careless workplaces, because there isn't the equipment. Government, of course, is responsible for the fact that there isn't enough staffing in most of these institutions that I deal with.
MR. CHAIRMAN: Thank you. Mr. Samson.
MR. MICHEL SAMSON: Just on a point of information on your concern with occupational health and safety, the Department of Labour has just issued a number of new postings for occupational health and safety officers throughout the province. I guess the department has taken that initiative and hopefully, it will help address some of the concerns which you have raised, and other workers have raised.
MS. KOWALSKI: Thank you, Mr. Samson. It certainly will, if in fact they are going to work hand in hand with workers' compensation.
MR. CHAIRMAN: Other questions from members or consultants? Thank you very much, Ms. Kowalski, for taking the time to be with us this afternoon. I hope you have an opportunity to stay a little longer and listen to some of the other presentations.
MS. KOWALSKI: Thank you. (Applause)
MR. CHAIRMAN: Thank you. At this point, I think it is appropriate to have a ten-minute adjournment, to give everyone an opportunity to stretch their legs. We will resume at 3:05 p.m.
[2:56 p.m. The committee recessed.]
[3:15 p.m. The committee reconvened.]
MR. CHAIRMAN: Ladies and gentlemen, we are going to resume now. Our next presenter is going to be the Cape Breton Island Building and Construction Trades Council, Mr. Cliff Murphy. Mr. Murphy, come forward and have a seat.
MR. CLIFF MURPHY: Mr. Chairman, distinguished members of the committee, ladies and gentlemen, I would like to speak to you here today on a pre-prepared text, and I would like to pass that around to the committee now.
MR. CHAIRMAN: Sure. That would be great, thank you. Go ahead, Mr. Murphy.
MR. MURPHY: As President of the Cape Breton Island Building and Construction Trades Council, I welcome the opportunity to speak to the committee about the Workers' Compensation Act. I brought with me today a copy of the Workers' Compensation Board of Nova Scotia, 1997 Annual Report. I am sure you have all seen it.
On Page 2 of that report, in the letter from the Chair, the Chairman, Mr. Innis Christie refers to the Meredith Principles, which are broken up and listed on Page 55 of the report and attached to this brief as Schedule A, the second last page.
It has been my understanding that there were five basic principles to Mr. Justice William Meredith's report which became the foundation for workers' compensation throughout the country, the first being:
"1) Security of Payment - the worker was to be guaranteed compensation for as long as earnings were impaired.
2) No Fault System - it would not be necessary to prove negligence in order to receive benefits. Contributory negligence would not prevent workers from receiving benefits.
3) Employers Funded Collective Liability - the vast majority of employers would have to contribute to a fund from which benefits would be paid. This protected small firms from the potential high costs of serious accidents.
4) Administration by an Independent Agency - this was the beginning of workers' compensation boards. Workers were to be spared the expense and delay of going to court.
5) Injured Workers' Could Not Sue Employers - in exchange for the establishment of workers' compensation, workers gave up the right to sue their employers. This is often referred to as the historic trade-off. This means that workers' compensation is not welfare; Workers' compensation is a right!", and I emphasize that, a right.
As you can see, there certainly is some additional interpretation to the above five principles by the authors of Page 55 of the 1997 annual report.
I would like to draw your attention to the inside of the front cover of the 1997 annual report, reproduced and attached as Schedule B, the last page of this brief. Under the heading, The Workers' Compensation Vision, is the following statement: "The vision of the workers' compensation system is a healthy, working Nova Scotia.".
We all agree with that statement; without question. The problem is who is saying it and where it is being said. The Workers' Compensation Boards' vision should be to eliminate the backlog of injured workers' cases and get their compensation in place without cost to them and without delay. A healthy working Nova Scotia is an admirable goal and must be pursued; however, it is the right of the worker to be compensated, and that is the primary responsibility of the Workers' Compensation Board.
To confirm that the Workers' Compensation Board has their priorities mixed up, one has only to look at the next heading and statement, on the inside cover. "The Mission of the WCB. The mission of the WCB is to co-ordinate the workers' compensation system, to assist
injured workers and their employers by providing timely medical and rehabilitative support to facilitate the efforts of the injured workers to return to work; and by providing appropriate compensation for work related disabilities.".
You can see from the above statement and the balance of statements on this inside cover, the WCB considers compensation to be the least of their priorities and have carved out a whole range of right-wing objectives in an attempt to eliminate the WCB's unfunded liability on the backs of injured workers, so compensation premiums for employers will not substantively increase.
As you read through this document - and that is this one right here, the annual report - you will find there is a reference to the fact that Nova Scotia has the third-highest-average employer premium in the country and, in fact, the premium was a topic of discussion at the board of directors meeting on November 20, 1997, where it was a concern that, "Increases in assessment rates can have a negative impact on the Nova Scotian economy in terms of job creation and competitiveness.".
The assessment rate for pipefitters and pipe-welders in the Province of Nova Scotia is approximately $5 per $100 of salary. In the State of North Carolina, the assessment for the same tradesman is in excess of $27 per $100 of salary. I don't see investors flocking from North Carolina to Nova Scotia to set up business because the compensation rates are so low. In fact, what is not mentioned in the 1997 annual report is that, prior to 1994, Nova Scotia had the lowest compensation rates in the country for the preceding 25 years which without a doubt, caused the present unfunded liability of over $300 million.
During that time, were investors moving to Nova Scotia by the hordes to take advantage of the low rates? No, of course not. It didn't happen, and, of course, the high rates of North Carolina will not happen. However, it is the responsibility of the Workers' Compensation Board, as trustees of the fund, to fulfil their fiduciary duty and ensure that the unfunded liability is cleared up by increasing rates and not denying benefits or creating schemes, policies, to minimize benefits.
One of the schemes that the Workers' Compensation Board has come up with to reduce benefits impacts construction workers with devastating results. That policy is used in determining long-term benefits by averaging out the salary earned in the preceding two years, and then using 85 per cent of that average income to determine the benefit.
The construction industry is a cyclical industry where developers and contractors rely on a pool of skilled tradesmen to provide necessary workers during peak periods of construction, and eventually they will be laid off when the work is completed. A construction worker could be out of work for much of the time leading up to an extended period of activity, work for a few days or a few weeks, and then have a serious accident. Under the above scheme, this worker would have his benefits severely curtailed without any
consideration of his potential earning ability. This is grossly unfair compensation and makes a mockery of Mr. Justice William Meredith's Principles. What would a judge in a private suit consider when earning ability is lost? Run over a lawyer in a crosswalk and see if it isn't his future earning ability that will be used to settle that or any other similar claim.
There is one other glaring example of policy overriding the right to be compensated and that is benefits for those suffering chronic pain as a result of a work-related injury. It would appear that workers who were injured after March 23, 1990 will be compensated to some degree, however, those suffering from chronic pain who were injured prior to March 23, 1990 will not be compensated. Where is their right to fair compensation? Can they sue their employer?
The backlog of cases awaiting decision is an outrage that has the compassion of a gold-digging person waiting for a relative to die so he or she can inherit the money. The injured workers are not bad people. They have bills, they have wives, they have husbands, they have children, they have goals, and they have future aspirations. Would you want your son or daughter to be thrown on society's scrap heap through no fault of their own, lose their home, be unable to support their children in the pursuit of higher education, lose their self-respect and wind up with a family break-up? Not if you could help it. These people are at the mercy of the Workers' Compensation Act and have no recourse.
Ladies and gentlemen, this is not fiction. This is happening every day. The message is slowly getting out to Joe Worker that the system is unfair and they are losing confidence that they will be taken care of, should they unfortunately suffer a serious work-related injury. The council is deeply concerned, that some unfortunate caseworker or receptionist, who are far removed from the policy-making process will bear the brunt of mounting frustrations of many of these claimants.
Legislators, you people, must take the lead in this dilemma and give clear direction to the Workers' Compensation Board, that their primary duty is to provide compensation without delay and that rehabilitation and all other related activity, including prevention, must not take priority over fair compensation.
I trust you will consider the injured worker as if he or she were your own blood and weigh the hardships that they have to endure. Injured workers must have the respect given other Canadian citizens under the Charter of Rights and Freedoms in considering them innocent and not treating them as guilty crooks and asking them to prove their own innocence. Thank you. (Applause)
MR. CHAIRMAN: Thank you. There is opportunity for questions from members of the committee. Mr. Samson.
MR. SAMSON: Hi, Cliff. Thank you for your presentation. Cliff, as you know my dad and my godfather are members of your council. I am just curious, with the different trades under your council, as you mentioned in your presentation, their income can vary from one month to another, from one week to another, to one day to another. You mentioned in your presentation, something about earning capability and the unfortunate running over of lawyers in crosswalks, but (Interruption) What I am wondering, Cliff, (Interruption)
I am just wondering, as a recommendation to this committee, and I am curious how one could assess the future earning capability or even the present earning capability of members of your council. As you said, one could be working at $10 an hour, a pipe-fitter, this week, and then next week, have been over at the Stora project making $25 an hour. I am just curious, as you mentioned, it is not fair if someone is working on the job for three days making $10 an hour, where they might have been working for two years, to base their loss of income on those three days that they were working. I am just curious, what would you recommend to us, I guess, as a recommendation when trying to assess income loss and future earning ability for members of your council, since their incomes can go up and down on such a scale? How would you recommend to us to set a figure for the Workers' Compensation Board to use in assessing income loss for members of your council?
[3:30 p.m.]
MR. MURPHY: I think that it should be a longer period of time. Those periods where the construction industry has high unemployment rates, as high as 85 per cent and 90 per cent, really shouldn't be considered. There should be a closer look at the years when at least there is more than 50 per cent unemployment, and consider those years, or some other formula. It also varies with age and ability to travel. Some young, single guy may be able to hop on a plane and fly to Vancouver and go to work, where a married person, who maybe his wife is working, doesn't have that opportunity. He might have to stay around home and look after things, be a part-time babysitter or whatever, when he is out of work, at least to help with the family activities after hours, and may find it difficult to go long distances, and be on unemployment for maybe a year.
The unfortunate thing is somebody like that could be on unemployment for the best part of the year, then work a short time, be on unemployment again, and then go to work some day and get his leg chopped off or something. How does a carpenter get up and down the scaffold without a leg? He is pretty well limited to what he could do after that.
We think it would be unfair, and we definitely say it is unfair that those periods be taken into consideration. It is different than other areas of the workplace where people have permanent jobs and they work for many years. We think it is kind of a discriminatory practice against construction workers.
MR. SAMSON: As we are going to be meeting again for another week, I am wondering if it would be possible for you to go back to your council and maybe draft up some sort of a proposal for us that you could send to us, so that we can bring this when we are deliberating to see if there isn't a formula that we could put in there. I would certainly rather see a formula coming from you guys, than us going to the Workers' Compensation Board and saying, here is what has been suggested, you tell us, you make the changes necessary. If you could get together and maybe put together a concrete formula that we could say, okay, you go back for six months, or you go back for a year, use the six weeks of maximum employment and take a percentage of that.
MR. MURPHY: We would look at that. But we have people that have been hurt in car accidents and things like that, and there were lawsuits and all that. Usually the insurance company will contact us, find out what the hourly rate is, and they base the award pretty much on that. We have had cases that have gone to court under similar conditions, and some large awards have been made without looking at the last year or year and one-half of the person's earnings.
MR. SAMSON: Would it be safe to say that what you are recommending today is maybe that the Workers' Compensation Board starts taking the same sort of look on loss of income as the courts are doing, and adopt a similar type of policy as the courts have done in similar cases?
MR. MURPHY: I think they should look at the times that the person has really worked. If you are on unemployment, any time on unemployment, and if unemployment runs out, and the person is on welfare, I think that part of their history should be stripped away from the consideration of their potential earnings.
MR. SAMSON: Great. Thank you.
MR. CHAIRMAN: Are there questions from other members of the committee? Mr. [Charles] MacDonald.
MR. CHARLES MACDONALD: I will ask you, maybe I should have asked some of the last ones, but one of my concerns in going through the province and listening to some of the stories, is that I find a disruption in earnings - I am looking at long-term claimants as opposed to short-term claimants - because they end up going through a system where eventually, they may be losing their home, their marriage may be breaking up, but there is no continuation of income. To me, there should be. In life today, we should have some method whereby there is some continuation. If you do get cut off your employment insurance, there should be something else - not employment, but if you get cut off your compensation claim, there should be something else to kick in - they shouldn't be left to fall by the wayside, because . . .
MR. MURPHY: Well, I think . . .
MR. CHARLES MACDONALD: . . . they eventually lose everything they have acquired in life.
MR. MURPHY: We see it happening when the short-term benefits run out, if the person isn't able to go back to work, there are reassessments and re-evaluations, and all kinds of things happen. People still have their mortgages, they still have their car payment. When I go to work in the morning - it was my impression of the compensation - I am a healthy guy, I have all these things, I worked hard to get them and, God forbid, if I get in an accident and I can't work anymore, I shouldn't lose any of that. I worked hard to get it. Why should I lose that, or my position in life, lose my standard of living dramatically? That is not what compensation is all about.
Ordinary workers that are out there working every day who haven't had a relative who has gone through these problems, and they think that if something happens to them that they are going to be taken care of. That is far from the truth. It is a mess. It is an outrage. People aren't getting compensated properly, without delay and the cost of going to court.
Some of these people who are hanging around for two or three years or longer to try to get a settlement, it costs them money to travel, to be at different places, and that wasn't the intent of the workers' compensation legislation when it was enacted in 1915.
MR. CHAIRMAN: No further questions from the committee? Any of our consultants?
Mr. Erjavec.
MR. ERJAVEC: I am not sure of all the rates for all the different trades or whatever, but it is my understanding that in New Brunswick, particularly, and P.E.I., the construction trade rates are substantially lower than in Nova Scotia. When I have had some discussions with the Construction Association of Nova Scotia, they said that one problem is the length of time that a company has to be in Nova Scotia before it has to register to do business, particularly in the construction trades. It is six months, so for the first six months they are registered in New Brunswick and pay a lower rate.
They are suggesting that the time-frame be shortened, because New Brunswick and P.E.I. companies are having a competitive advantage over Nova Scotian companies. Would you have any comments on this, or any recommendations? Should we shorten the amount of time a company from another province should be in Nova Scotia?
MR. MURPHY: Usually when a contractor bids on work in another province, a substantial amount of time goes by through the tendering process and the awarding of the contract and the starting of the job. There is ample time during that awarding of the contract
phase, in most cases, for those contractors to register in the Province of Nova Scotia. If it is worth bidding on and making money in the Province of Nova Scotia, we think they should contribute to the compensation of Nova Scotia, and vice versa.
MR. ERJAVEC: Thank you.
MR. CHAIRMAN: Thank you. No further questions, I thank you very much for making your presentation today. It is very helpful and, as I said, if your council does decide that there is some further material they would like to submit, we would certainly encourage you to do so. I think you answered Mr. Samson's question but, if upon reflection, there is other material you think would be helpful to us, we would really appreciate that.
MR. MURPHY: We will have a close look at it and we will send you something.
MR. CHAIRMAN: Thank you very much for coming. (Applause) Just make a note - and I know that one person has already done that - if anyone is a presenter or wants to make a presentation to the committee today, if they could contact the gentleman in the blue shirt over there at the table and give him your name, that would be greatly appreciated. Thank you.
Our next presenter is Ms. Barb Lewis. If Ms. Lewis could come forward.
MS. BARB LEWIS: Good afternoon. I have chosen Getting Through the System as my topic today. In my opinion, there are many problems with the workers' compensation system, but the hardest on workers and their families is just getting through the system. During this presentation, I will be relating to you the problems I have experienced in the past number of years and in presently dealing with the WCB on my late husband's case. Most, if not all, of these experiences are the same as the experiences of numerous other survivors, some who are still fighting and some who have given up either from frustration or lack of knowledge on where to go next.
My husband, Al, worked in the Sysco coke ovens from 1978 to its closure in 1988. He started to experience problems during the mid-1980's with fatigue, his vision, and breathing. There were personality changes we, as the family, saw but at that time we did not understand the cause. Al finally accepted the fact he had health problems and in 1988 went to Dr. Murdock Smith, a workers' compensation doctor and Al's personal physician. Dr. [Murdock] Smith diagnosed Al with chronic bronchitis from exposure to industrial smoke and dust. Also in 1988, a chest X-ray showed deterioration of the hila in one lung. In 1989, Al was sent to a Workers' Compensation Board paid consultant who found slight impairment.
Al filed for workers' compensation on March 28, 1990. The WCB denied his claim without explanation. In November 1991, Al was sent to Dr. Landrigan, an independent medical consultant, who found obstructive lung disease due to his exposure to the emissions from the coke ovens. Two years following the first claim in 1992, a notice of appeal was filed.
Three years after filing on May 1, 1995, a paper review was performed and the claim once again denied.
Finally, on June 28, 1995, Al was given an oral hearing. Even though the benefit of the doubt was there with two doctors stating Al had lung disease, the hearing officer only took into account the medical evidence that could be used against Al and he was, once again, denied. In September 1995, Al's lawyer informed him there was nothing more that could be done regarding his claim and returned his file. Then in 1996, Al received a letter advising he could appeal to WCAT for another hearing. He obtained permission to, once again, use his previous lawyer, who apparently requested another paper review.
I remember one morning, and I remember this distinctly, in 1995, while we were listening to the radio, workers from Devco and Sysco were saying that WCB waits for a person to die so they don't have to deal with their claims. I made the comment to Al, what angry, cynical people. His reply was, do you actually think they will deal with me before I die? Little did I know that he would be dead within two years and sorry to say that I am now one of those angry, cynical people.
Al passed away on March 23, 1997, one day after his oldest son's birthday. He had a hileraum tumour in his lung, the same part of his lung that showed deterioration in 1988. His serious lung condition caused him to have a massive heart attack. He died in front of me in the back of the ambulance at our front door while in the care of ambulance attendants. He never knew he had cancer. I only found out two weeks prior to his death.
I decided to proceed with the case and received a call in December 1997 asking if I would partake in the alternative dispute resolution. I agreed and was told that my case would come up in March 1998. Then on January 12, 1998, I was informed that my case would be dealt with by the ADR on January 27, 1998. My son and I spent two weeks researching the chemicals workers were exposed to when working at the coke ovens. My husband was exposed to upward of 90 chemicals, many of which are known as carcinogens and a least a dozen heavy metals. Dust, it turned out, was a minor factor.
I met with the lawyer at 11:30 a.m. on the day of the hearing and was advised that he would not be mediating that day. My reply was, I am ready, but he advised me that the WCB left a message on his phone saying they would not deal with my case that day. I was totally devastated. They made me relive my husband's death numerous times over the past two weeks, and for what? Then Mr. Stuewe, CEO of the WCB, advised the Injured Workers' Association that the board would be in Sydney the first week of April to hear five cases that had been turned down by the ADR.
I got up in a meeting and specifically asked a Workers' Compensation Board member who was present if the workers' compensation were coming with an open mind, were they just patronizing me and coming here with the same mindset they had all along regarding the
case? I was told by the member that he understood they were coming here with an open mind. Well, two days later, I received a call from the same Workers' Compensation Board member telling me that he had led me astray and that he was sorry but he was now being told a different story. They were coming here only to explain why they didn't deal with my case on January 27, 1998. I told him I was not interested in them wasting money and time to come here to tell me why they hadn't heard the case. I did receive a couple of calls but I told them to forget my meeting with them if they weren't going to deal with the case.
The WCB then advised me that they would have another paper review. I advised Judith Ferguson that not in her life would I accept another paper review. I wanted an oral hearing and under the Doward decision, she had to give me an oral hearing. She told me that was her decision. I said, it is not your decision, it is the decision of the Appeal Court of Nova Scotia.
By this time I had decided to represent myself and Al's lawyer returned the file to me. In preparing the file, I added all the extensive research I had done during these months. When I finally appeared before WCAT, I presented a list of some of the talks since my husband was in contact with, the CCME Guidelines, a federal report completed in 1974 that showed emissions at the Sysco coke ovens were 2,800 to 6,000 times above acceptable levels. I might add that this is the same federal report marked control and restricted and hidden in Ottawa for 14 years. They never enforced one of the recommendations and at no time informed the workers of the dangers they were being exposed to. Isn't that what you would call criminal negligence, when you have 63 per cent of your steelworkers dying from lung cancer?
I enclosed also a 1984 provincial government report on the Sysco coke ovens and its emissions. It was as telling as the 1974 federal report. It was obvious that the WCB did not read anything I submitted. They came back with a report from Dr. Dobson in which they were using the generic evidence from a class action suit brought forward by eight miners against British Coal and the British Coal Company in London, England. The evidence was put forward by Dr. Morgan of London, Ontario, an expert witness who appeared on behalf of the coal company and the government.
In Dr. Morgan's covering letter to Dr. Dobson, he gave the name of a Dr. Jim Dicks in Wakefield, England. I had one of my sons - who lives in London, England - contact Dr. Dicks to find out what the outcome of the case was. What my son found out was that the miners had won the case. I then personally spoke to Dr. Morgan on June 2, 1998 in London, Ontario, and he advised me that he was unaware that the Workers' Compensation Board was using his report. He stated he sent his report to Dr. Dobson under the assumption that Dr. Dobson wanted it for his own personal use to iron out a couple of issues. According to Dr. Morgan, the report was on the effects of dust only, nothing to do with chemicals. I, then, rebutted Dr. Morgan's evidence as unreliable since the miners won the case.
Janet Curry of the Workers' Compensation Board, came back with the counter-rebuttal stating that the British case was irrelevant to my case and yet, in his medical rebuttal, which was attached to Janet Curry's letter, Dr. Merv Shaw still referenced Dr. Morgan's name and report. Attached to this presentation is the letter of response I sent on August 11, 1998, to the adjudicator concerning this double standard and questioning why the British case was brought up in the first place.
The letter reads:
"On this date I received W.C.B.'s rebuttal concerning my late husband's case. I am not going to submit a counter rebuttal for the following reasons:
1. The W.C.B. is ignoring the fact that inhalation of coke oven emissions per eight hour shift was the equivalent of smoking 2,000 cigarettes, as stated in the report included with my original submissions, but still attempts to lay the blame for medical conditions on 20 cigarettes a day consumed by smoking workers. It is obvious that they have not read the two environmental reports which I submitted done by the Provincial and Federal Governments on the emissions of the Sysco coke ovens while they were operating. This shows their complete unwillingness to settle claims justly, especially when the worker in question had not smoked for several years.
2. In their rebuttal to me on May 27, 1998 the W.C.B. used the evidence of Dr. Morgan, re: dust and chronic bronchitis, given in the case brought forward by British miners, but now says that my use of the same case is irrelevant. This further exemplifies their unwillingness to look at any facts except those that go against the workers.
3. I presented my case using chemicals as the main cause of my husband's illness, but the W.C.B. continues to ignore this and proceed on the basis of dust.
4. The W.C.B. submits that I am claiming for industrial bronchitis and not cancer. I was advised that I had to continue with the appeal of the original claim and that the cancer and my husband's death would have to be dealt with at a future time if I claimed survivor's benefits.
It is very obvious that the people I am dealing with at the W.C.B. are in denial regarding the conditions the men worked under at the Sysco coke ovens until their closure at which time these men were simply discarded and left to die and be forgotten.
I presented my case using the 'benefit of the doubt' clause on June 10, 1998, not July 10, 1990 as sated in Janet Curry's letter. In my opinion I have satisfied this clause as two doctors diagnosed my husband as having chronic
bronchitis and as Dr. Shaw's report states that cigarette smoking is a major contributor, not the only cause of industrial bronchitis.
Having reached this level in the process I have no intention of dragging this case on forever. Win, lose or draw please proceed with your findings.".
However, subsequent to sending that letter of August 11th, I obtained an executive summary of the British case and was in contact with one of the lawyers in South Wales who worked on the miners' case. He had concerns about Dr. Morgan allowing his generic evidence to be used. The lawyer asked me to forward him a copy of Dr. Morgan's covering letter and, in turn, he sent to me the complete 500 page judgement by Justice Turner. In the judgement, Justice Turner found Dr. Morgan's testimony to be ill-considered and inaccurate. He stated the evidence inappropriately referenced published papers which were partial and inconsistent with some of his own earlier published pronouncements and that Dr. Morgan and his colleague, Dr. Pearson, lost all professional and intellectual credibility. Justice Turner further stated that they gave evidence based on the way they thought the dice were going to roll in the outcome of the case.
I mentioned the judgement to a couple of lawyers in passing and was advised by them to send the executive summary to the adjudicator in my case. One lawyer was adamant that I do so immediately in order to protect myself, the adjudicator and other claimants that may have Dr. Morgan's evidence used against them.
Many families are suffering from the same cold, calculating and indifferent abuse at the hands of the Workers' Compensation Board. Dr. Merv Shaw either does not read the claimants' evidence or he has his head in the sand when he makes the comment that Al was not subjected to enough emissions to cause his illness while working in the Sysco coke ovens. The horrific conditions men worked under at the coke ovens is public knowledge and well documented.
I do not expect much consideration from WCB or WCAT. They not only lack empathy, sympathy, compassion or sensitivity, but also the impartiality required to make informed, unbiased and just decisions. With the WCB, it appears they are ruled by the almighty dollar, not by the law.
It is my understanding that workers' compensation was set up as an assurance for companies that they would not be sued by injured workers. It is also my understanding that workers gave up the right to sue employers with the guarantee they would be treated with fairness and justice, neither of which has been or is the case. Maybe it is time that the workers took back their right to sue. We would probably be dealt with in a more expedient manner and our cases would be heard by an impartial, uninfluenced person in the judicial system. No doubt safer working conditions would prevail if companies had to pay the full price for their safety and health shortcomings.
My recommendations on behalf of the injured workers, after the fighting the system for 10 long years, are as follows:
Forget the paper reviews. The review officer only looks at the hearing officer's findings and comes up with the same conclusion or vice versa, a waste of time and money.
At present, WCB and WCAT hearings have one hearing officer who acts as Crown Prosecutor, judge and jury. There should be three members, the chairman being independent of the WCB or WCAT, possibly retired lawyers or judges, and have the deciding vote.
Have the lawyers represent workers on some form of contingency basis. With the present system, the workers' advisers get paid whether they win, lose or draw. They have no vested interest to win.
The workers' advisers have too many cases. They cannot do proper investigations or preparation. More advisers or research assistants are warranted.
The WCB and WCAT should have to abide by the existing laws. The Nova Scotia Government should not be giving them the power to override the law with their policies. As it is said, absolute power is power absolutely.
When I was in social work, we were reminded every so often of our powers under the law. They held seminars every couple of months as a reminder for us not to use our sweeping powers because we were there to help children and help keep families together. One of the studies that was constantly related to us was one done in the 1970's, and this came to mind on Sunday night when I saw it on television again. It was the findings of a well-known researcher in human behaviour.
What he did was he put an ad in the paper and he hired 15 people to act as prisoners and he hired another number of people to act as guards. The only restrictions he put on the people who acted as guards was there would be no physical abuse. It was up to them from there on to come up with their own rules and regulations. Sound familiar? They were at liberty to come up with their own rules and regulations. He called a colleague to come in and assess the project after its sixth day. By this time, three persons had been released as the guards had broken down their defences. The guards resorted to degradation, deprivation, emotional and psychological abuse, much the same abuse as used in the movie Cool Hand Luke. The project ended after seven days.
This week I watched an interview with the researcher and one of the prison guards. The guard stated that after all these years, given that same absolute power, he was sad to say it, but he felt he would probably resort to the same type of tactics again. While watching the interview, all I could think of is the absolute power of the Workers' Compensation Board of
Nova Scotia and the fact that they use it against claimants much the same as the guards used their absolute power against these prisoners.
MR. CHAIRMAN: I am going to give you the time warning . . .
MS. LEWIS: I am almost to the end.
MR. CHAIRMAN: Good. Thank you.
MS. LEWIS: The general consensus among injured workers is shred the new Act, return to the old Act. It did the job for decades and, with a few legislated changes, it would do the job for decades to come.
Put things on a level playing field. WCB had a total of 62 days to rebut my evidence, I had 11 days to rebut theirs.
If the WCB wants to rebut the claimant's evidence at WCAT hearings, make them have a representative who has to be sworn under oath as is expected of the claimant.
General practitioners should not be paid a retainer per annum and given the right to overrule specialists. Specialists should not be paid retainers per annum by the WCB. One specialist in the Sydney area, paid a retainer by the WCB, diagnosed a claimant as not having a serious problem. Within a couple of weeks, the claimant had major surgery for the non-existent problem. The specialist was told and his reply was, I must have been wearing my WCB hat that day.
[4:00 p.m.]
The WCB should have to recognize all specialists on its list at all times and under all circumstances. In another instance, a specialist in the area diagnosed a WCB claimant as not having a problem. The person's claim was denied. The WCB stated, "this is one of our recognized specialists in his field." Two weeks later, the same specialist awarded 15 per cent for a WCB claimant. WCB stated that, "since this specialist is not one we recognize, the claim is denied".
Lastly, when it comes to vocational retraining, the participants should be screened carefully, based on injury, age, education and aptitude. You want to talk about nepotism, one school in Sydney is run by the parents of a hearing officer and they have hired their nieces to teach than injured workers.
Part of my submission is the personal story to be told by one of the participants. He is now 56 years old, has a Grade 9 formal education, has been on to, two and too for the past six weeks and will be on to, two and too for the next six weeks. He told me to be educated
for something he could do or would like to do, he would be 105 before he finished his education. (Laughter)
I have the pleasure of introducing to you, Ozzie Doyle. (Applause)
MR. CHAIRMAN: Ms. Lewis, I will just ask if the committee members have any questions of you before we begin with Mr. Doyle, if that would be okay. Do any of the members have any questions for Ms. Lewis? Yes, Mr. DeWolfe.
MR. JAMES DEWOLFE: It is not a question so much as just it is nice to see you again. I am sorry you had to relive the sequence of events in this case leading to the tragic death of your husband. I just want you to know that your report is not falling on deaf ears and we will certainly use it as a tool during our deliberations. Again, thank you.
MS. LEWIS: Unfortunately, Mr. DeWolfe, one has to become as cold and calculating and devious as the people who work at the WCB. It is a sad state, but that is the way it is.
MR. CHAIRMAN: Any other questions from the committee members? Do any of the consultants have any questions?
Thank you very much, Ms. Lewis.
MR. OZZIE DOYLE: I would like to show you what I have been doing for the last six weeks.
MR. CHAIRMAN: Sure. Mr. Doyle, I am going to ask you a few questions because I think it might be helpful in your case. When were you injured, Mr. Doyle?
MR. DOYLE: In 1991.
MR. CHAIRMAN: What kind of work were you doing at the time?
MR. DOYLE: Coal miner.
MR. CHAIRMAN: What was the nature of the injury you suffered?
MR. DOYLE: I got run over with the trip. I had a double compound fracture of the left leg.
MR. CHAIRMAN: Have you been back to work since then or have you been off work since then?
MR. DOYLE: I have been off work since then.
MR. CHAIRMAN: Did you ever have a workers' compensation counsellor, a lawyer in private practice hired by the Workers' Compensation Board?
MR. DOYLE: Kuna represented me for a while, yes.
MR. CHAIRMAN: Do you presently have a workers' adviser in the Workers' Advisers Program?
MR. DOYLE: I went down to see them a couple of times but I ended up going back to Jimmy Neville.
MR. CHAIRMAN: Okay, that's fine. I guess the other question is, do you have an appeal in the system now, or where is your case in the workers' compensation system at the moment?
MR. DOYLE: Well, I'm going to school. I started school last year. They didn't have the school set up very properly right off the bat because I was the only one in the class and that's very embarrassing when you're looking at a teacher for two days all alone. Ron Sampson started so the adviser came in, the girl who was looking after me. She suggested that we get magic paper because Ronnie's hands were swelling up. So me and the teacher couldn't figure out what magic paper meant so we came to the conclusion it was carbon copy. She wanted me to do the work and hand it to Ronnie. I said, well, that's not very fair to Ronnie. If I'm stupid, he's stupid. If I'm smart, he's smart. (Laughter) So I said it wouldn't be no good for me to do the work and hand it over to Ronnie and he has to go over there and they are going to say, gee, this man is smart and he don't know nothing what he's doing. So I said, listen dear, that can't work out. That's not fair to Ronnie and I'm no genius in the first place. So she came up with the idea, because his hands were swollen, of a fat pen so he could write. The fat pen never materialized.
We stayed there for so long and the only bright part of the day is when - no disrespect to the lady - but when she came in with her mini-skirt on, I had to take my heart pills. (Laughter) I thought my hormones were dead. (Laughter) Apparently they weren't.
MR. CHAIRMAN: They were just resting. (Laughter)
MR. DOYLE: We stayed there for so long but it was two flights of stairs and after so many weeks, I fell down the stairs. I thought I would kill myself again. They wouldn't even recognize me falling down the stairs. They don't even want to talk about it so I just put in an appeal with Jimmy yesterday.
As I said, my neck was coming along good. My leg gave out and before that I hit the corner of the house and had to get a bone taken out of my hip and put it in my neck.
We stayed there so long and I got a little certificate with - I got 100 in physics, or something. I said, what's physics? I thought it was something to eat. I didn't know physics. The test they gave us and the marks they gave us were outrageous.
Anyhow, I got my 100 in physics and he gave me a little certificate to go out to the pit to look for work. (Laughter) I go out to work and she writes out that work asked me to work and they write back, what do you mean by suitable work for Mr. Doyle?
She writes back and she says - I forgot my glasses so you will have to bear with me - she said, can you give Mr. Doyle work? It is unsafe for him to balance, climb a ladder, carry any objects, unsafe for him to balance, climb a ladder. He is limited by cane, increased balance, he uses a cane for walking and he cannot carry anything. (Laughter)
She left out the part from Mr. Guy Reid which said, this man would be a hindrance to himself or anybody else on the job site where agility or speed is required to avoid or prevent accidents. I don't know if she was trying to get me hurt, somebody out in the pit hurt or to get sued. You know, when he wrote that part, I would be a hindrance to myself or anybody else on the job site, she wasn't trying to get me a job back at Devco. (Laughter) I don't know if she was trying to help me.
Anyhow, all that said and done, they closed that school and we moved to the YMCA. The YMCA wasn't too bad but at the second day the young fellow knocked me on the shoulder and he said, do you own that car? Yes. You cannot park in that parking lot. I said, how come? You are not a member. Every day we had to take a pile of quarters and put it in the parking meter so we would not pay a fine. I said to the teacher, this cannot work out too good because having a bad leg running back and forth to the parking meter over snow banks ain't working out good at all. Then they put us down by Master Meats. Have you ever seen that little place, Master Meats? There was mould growing in the bathroom. They closed it down and we had to move again. (Laughter)
We ended up in the Trade Centre. It wasn't bad but there was eight of us in a small little room. After 13 months they decided, this school is no good for you. It didn't teach us nothing. They put us in a new school. That is what I have been doing now for eight weeks. Every time my wife wants to go to the store I go right crazy. (Laughter) Especially when she asks for $2.00 to pay the paper boy.
MR. CHAIRMAN: The good news is that soon $2.00 will be worth $1.00. (Laughter)
MR. DOYLE: Jimmy says, I know the big two though.
Okay. Dr. Reardon says I have a permanent dropped foot. Ronnie didn't get his fat pen anyhow.
They gave a friend of mine three applications to look for work for a dispatcher. I said, how about giving me them names so I can maybe look around. If he had to call her up, she gave them a nice form letter, it looked good, employer one, two and three. I go and check one, and I called Day & Ross. I asked her for the address so I could go put in an application. I couldn't understand the address, so I said, well, dear, where are you? New Brunswick. I said, you are in New Brunswick? Oh yes, our dispatcher is in New Brunswick, 350 miles away. I said, you don't have a dispatcher here? No. I said, where is your office down here? She said, I don't know but I found it. There were two young fellows there, no dispatcher, but that was one of the employers they put on the phone.
I went to AMJ Campbell Van Lines. I asked the lady, she was very nice, I said, do you have a dispatcher? Oh, our dispatcher is the sales manager-owner and he isn't giving you his job. So that was two ruled out.
Then I went to one down here on George Street, Midland. They said, our dispatcher doubles as a driver. I said, you don't have work for guys who can only work for two or three hours a day? Oh no, he doubles as a driver. I said, when was the last time you hired anybody? Twenty years. When do you think you will be hiring again? Twenty years, again. I said, my prospects are not very good here either.
Now they got us in this school over here, I asked for a urinal. In the morning, I can't get to the washroom, my leg's ruined. I called up, and said, can I get a urinal and a pair of crutches to get to the washroom in the morning? It is embarrassing to have to ask that when you get short taken. They wouldn't give it to me, I had to go out to Mr. Neville and Mr. Penney just to get a urinal and a pair of crutches. Then they get all mad at me, because I went over their head.
There is no consistency down there. I asked for help with a hot tub, their own doctor said I could use a hot tub to get me mobile. This Fogarty woman that they hired, she said it is a great help but you can't get any help from them. You can pound your head against the wall. All they have down there is one policy, no, no, no. That to, two and too when I get back to school tomorrow, that will be on my desk again. I will be 105 before I get - I will be 56 on my birthday. What do they want from me?
It is getting ridiculous. This school should have been set up for guys 20, 25, 30, 35 at the most, who want to go to school, that could learn something. But on the national news, if you are over 50, forget about being retrained. Nobody will hire you. I mentioned that to them, oh, yeah, we have people in here 60-some years old. I said, name one. They couldn't name one, because they didn't have one. You wouldn't believe.
MR. CHAIRMAN: What are you supposed to be being retrained for?
MR. DOYLE: I have no idea. (Laughter)
MR. CHAIRMAN: I thought that would be the answer, frankly.
MR. DOYLE: First of all, I have no education. I am not a dummy. I quit in 1962. I went to Ontario, I worked, I came down and worked in Wreck Cove, I worked in the pit. I have worked all my life. Nobody gave me nothing. I made $40,000, $50,000, sometimes more a year. Nobody gave me nothing. When you pick out certain jobs, oh, you can't do them, they cross them out. Then they picked out parking lot attendant. Oh, maybe you could do that. I go and look at the parking lot attendants. Guess how many there are on Cape Breton Island? One.
I go down and see little Rodney, he works right down here by the hearing aid place. I said, Rodney, I don't want to know your business, but you don't make $650 a week like the compensation? I left, he was still laughing on the floor. (Laughter) He don't make that a month.
Then gate guards. I don't know if any of you guys have heard of a gate guard, I never heard of it. I have heard of security guards. I said, okay, I could be a security guard. I will let them steal everything, because if I have to chase him, how am I going to chase him? If I do chase him, and he recognizes me, he chases me back, how am I going to get away from him? (Laughter)
Yet, they are going to retrain me. I am the worst speller in the world, I can't help that, that is why I quit school, some people can't spell. At the other school, I got, I think it was 100 in spelling. They forgot to say it was Grade 2 spelling. I still can't spell elephant; Grade 2 spelling, but I made 100 in it, makes me look good on that, I got a little certificate here. My wife was wanting to frame it. But she doesn't say, go to the store, anymore. There, there, there. She won't say that either. That is the next two words.
The two little girls that are teaching it, they're good little girls. They are nice little girls teaching, but the father at the school is my adjudicator, my case manager, and it is a little nervous. So when he signed these papers, you must have a passing grade, I said, how come you don't take that out of there, and take a little bit of pressure off of us? Oh no, you can't take that out. I never took a Valium in my life, now he gives me 84 at a time. I have to take Fiorinal and Tylenol 3 to get there, then I have to take Tagamet to settle my stomach down, then I have to take Valium so I don't kill somebody.
They don't realize, when you are 55 years old, nobody is going to hire me. This demon has to stop. The more I learn, they say, you can make $2,000 because you have your Grade 9, I said, you better stop, because I am going to end up owing you money. It is ridiculous. Only for Jimmy over there, I would be after shooting somebody long ago. It is getting out of hand in there; there is no control.
There was a fellow down from, I think, Saskatchewan, but they got rid of him. They had him in a dark room. They brought him in our classroom first. I said, oh, here we go, now I have to learn Braille. You weren't allowed to put the lights on, so they had to put him in another room. They could only teach him in the dark, what were they going to teach that poor fellow for?
You have to change their attitude. They should be screening the guys that want to work, that can work, and are able to work. Somebody like me, my doctor says two and a half hours is your sitting tolerance, you have to move around, your leg gets sore, your leg gets swelled. They have to screen that more. They have to go and say, are you willing to go to school and train? But they called me up on a Friday and said, be in school Monday. You have to have a passing grade, and that puts a lot of pressure on you. Nobody wanted to be the first guy to fail and get thrown out on the street.
Physics, I still don't know how to spell it. I don't know what it means, but I made 92 in it. Chemistry, I made a good mark in that too, don't know what it is, just force in motion. I have been out of school 37 years. They want to give us 10, 11 and 12 in one year, part-time, in six months. I said you might as well close all the high schools, what did I send my kids to school for?
This is factual, there is not one thing I said here that I have exaggerated, or I lied. It is just stupid. Somebody, I think Jimmy said somebody called them compensation dirt. They have no compassion at all. I don't think anybody gets a yes out of them.
With my doctors' report, I think I should get at least, under the old system, I would be retired today, under the old meat chart, but this new one, I am not getting anything. They gave me, paid part of my hearing aids, $1,800. My wife said, gee, when you get your cheque now, we will go out for a meal. I got the thing here, my cheque was 54 cents a week. Now you can imagine what I am going to do with that pension. I am not going to buy a new car. So he must have multiplied it by 4.333 to make it $2.34 a month.
I never answered, they sent me $300 and said whistle. Fifty-four cents a week for my hearing loss. I have that on paper here.
MR. CHAIRMAN: I appreciate, Mr. Doyle, the fact that you have such a sense of humour, because you . . .
MR. DOYLE: If I didn't, those fellows down in the States that go in and shoot everybody, I am not that stupid, I would write the names down. I wouldn't shoot the innocent people, I would know who I was going to shoot. It is not crazy people that go in and shoot people, it is ordinary people like me that they drive to it. I already told them in there, I am not going to come in here and just shoot the first fellows, I am going to pick out the bad guys.
They can hang me afterwards. (Interruption) If you know any bad guys, give me their names. (Laughter)
MR. CHAIRMAN: I am sure they will be glad to send their names forward.
MR. DOYLE: I will put them on the top of the list.
MR. CHAIRMAN: Thank you very much. There may be some questions from members of the committee. Does anybody have any questions for Mr. Doyle?
Mr. Parker.
MR. PARKER: I want to ask you a little bit about the school. It is set up by the Workers' Compensation Board, and it is a private school. It is not a licensed trade school or anything, but it is just a classroom that the WCB has started and is training people?
MR. DOYLE: Yes.
MR. PARKER: Is it under the retraining program?
MR. DOYLE: I don't know. They just call it the rehab centre, of some sort.
MR. PARKER: There are as few as one student only, at a time?
MR. DOYLE: One classroom has one student and one teacher. There are three or four of us in another classroom with another teacher.
MR. PARKER: There are full-time instructors being paid a salary to teach one student at a time?
MR. DOYLE: Before we got there. Now I think there is two in that classroom, but sometimes it is one.
MR. PARKER: Okay. Thank you.
MR. CHAIRMAN: Do any other members have questions? Do any of the consultants have any questions? Thank you very much, Ms. Lewis and Mr. Doyle, for taking the time to be with us here today. Again, I truly appreciate, particularly Mr. Doyle and Ms. Lewis, that you shared your personal hardships with us.
MR. DOYLE: You will have to excuse my briefcase, I am not used to this. (Laughter)
MR. CHAIRMAN: If you are not, you did a pretty good job. Thank you very much. (Applause) Our next presenter is Mr. Gerald Locke. Is Mr. Locke here? Thank you very much, Mr. Locke. Thank you for coming to be with us today. I guess, anytime you would like to start with your presentation, we would appreciate it.
MR. GERALD LOCKE: Mr. Chairman, do you have a copy of what I have?
MR. CHAIRMAN: We sure do, Mr. Locke. It was provided to us.
MR. LOCKE: Okay. My name is Gerald Locke. I am an injured worker, a construction worker. I am 57 years old. I am here to make my presentation about unfair treatment to the injured workers. I am here to express to the committee the concerns I have about the Workers' Compensation Board.
I want to inform the members of the unfair treatment of injured workers by the WCB. Someone who has worked for what they believed in, and what they are trained to do, should not have to receive this kind of treatment. We work all our lives, hopefully to someday retire with a comfortable life and a reasonable income, but an injury can interrupt that plan.
The WCB has a policy in place to help the injured worker. They are sent out into the community on an eight-week job search by the WCB with little chance of securing employment, against a younger generation who are better trained and educated. This being true, the younger generation is still finding it hard to find a job. Moving away seems to be the only alternative, which can be hard because you have to leave family and friends behind.
Why is the WCB sending injured workers out on a job search when it seems likely that there are no jobs to be found? The résumé produced by the WCB for this job search is not fully accurate. There is not one word mentioned on the résumé about the injured worker's disability. If on a job search, it is only fair that the employer have the knowledge of the injury so that when he hires, the worker can be totally suited to fulfil all of the job requirements. If an injury is not known, the employer may hire someone who is not able to perform all duties described.
The WCB is discriminating against the older workers as well. The younger workers are being trained by the WCB, giving them an unfair advantage over the older workers. More opportunities are available to the newly retrained workers. At the same time, the WCB is penalizing the older worker, because they cannot find a job, but are being told that they can work. If the older worker was retrained, they would be on a level playing field with equal opportunities to find a job for both generations of workers.
There also seems to be a discrepancy between the WCB and their assessors, that is the physicians and specialists. If a specialist assesses an injured worker and provides the WCB with the worker's capabilities because of the injury, then these limits should be followed by
the WCB. However, case workers for the WCB are not following the assessments of the specialists, and are giving the injured workers different ones.
Why is it, when a qualified doctor is asked to provide the information about an injured worker, especially what they are capable of doing in a work environment, that the WCB does not follow this information? The WCB does not agree with the assessment, and caseworkers are telling the workers different stories. Does this seem like a waste of resources for the WCB, when the advice of qualified medical people is being sought but not followed?
Is the WCB looking out for the welfare of the injured worker? Or are they looking out for the welfare of their own pockets? Is the training of the staff correct and diligent? It seems that the caseworkers are not being fully trained to assess the needs and concerns of the injured worker. When the advice of a doctor is not followed, the caseworker then becomes the specialist all on their own. Are the caseworkers being trained to save money for the WCB, by providing assessments that are more beneficial to the WCB and their money bags? Or are they being trained for the benefit of the injured worker, and more importantly workplace safety?
I raised many questions today that I feel are valid. I have concerns that the WCB is not looking out for the welfare of the injured worker, and that this could cause major safety problems for both the worker's health and workplace. The WCB should be protecting the injured worker by providing the benefits that they deserve, so that they can live with some dignity. Not being able to work to support yourself is hard enough to tackle on its own. Not being able to live because of lost benefits that could be caused by improper assessments only furthers the problem.
Thank you very much for your time and for hearing my concerns. I hope the committee will take what I have brought forward today into their considerations for changes to the WCB and their laws.
Does the committee have a résumé in front of them? Do you know what is on the résumé that the WCB made out for the injured workers who were sent out on an eight-week job search? I was one of them. Nothing on there about my disabilities. Not one thing.
[4:30 p.m.]
Transferable Skills: listening and following directions, problem solving, measuring, scheduling and organizing, building and assembling. Work history: 30 years of welding in construction work.
MR. CHAIRMAN: Thank you, Mr. Locke. I don't think you said originally what your injury was?
MR. LOCKE: My injuries are to both shoulders and my left knee.
MR. CHAIRMAN: That was from a fall or some type of accident?
MR. LOCKE: It was an accident on a job, yes.
MR. CHAIRMAN: Yes. What year did that happen?
MR. LOCKE: My left shoulder happened in 1989. My right shoulder happened in 1992.
MR. CHAIRMAN: Where is your appeal now? Are you in the appeal process somewhere along the way?
MR. LOCKE: Yes. I am just waiting for results from the hearing officer. I had a hearing on July 31st.
MR. CHAIRMAN: Do any of the committee members have any questions for Mr. Locke? Mr. Corbett.
MR. CORBETT: How are you today, Gerald?
MR. LOCKE: Okay, Frank.
MR. CORBETT: Are you considered a chronic pain sufferer too, Gerald, or just the other?
MR. LOCKE: That is not a pager.
MR. CORBETT: Okay. Thank you very much. That answers that. He showed the TENS machine.
MR. CHAIRMAN: Anyone else? Any of the consultants? Thank you very much, Mr. Locke, for coming in and telling us your story as well. We appreciate your taking the time out to help us along with our job. Thank you. (Applause)
Is Ozzie Doyle here in the room, yet? Mr. Doyle wanted one more minute to come in, and I indicated that we would have a second, he had one matter he wanted to add. Have a seat, Mr. Doyle.
MR. DOYLE: Before when I spoke about these résumés. That would be the same thing as you sent overseas for a bride, and she sent you a picture of Marilyn Munroe, well she comes over and she looks like Hulk Hogan. You know she lied to you. These résumés are the
same thing. You are not allowed to put your injury on it. So when you go to a job site, and they ask you to climb a roof, and you have only one leg, how are you going to do it? You shouldn't be allowed, I know you are not allowed to discriminate, like ladies should be getting the same amount of money, you know what I mean. I am not saying that, but if you want a roofer and a carpenter, you don't want a guy in a wheelchair, so the guy in the wheelchair should put down his limitations. They say you are not allowed to discriminate, but like I say, if she shows up and she looks like Hulk Hogan, there is not much sense in it, you know.
That is all I have to say. These résumés are terrible. They shouldn't be allowed to do it. I think it is a terrible injustice. You have to go to 150 places. Where would you go tomorrow, to 150 places? You have to go to all the little candy stores, all the garages, it is very degrading. That is all I have to say.
MR. CHAIRMAN: One question that I had, that I forgot to ask before. You indicated that the school you are presently attending, what is the address or where is that school, at the moment?
MR. DOYLE: I don't know the address. It is that yellow place right across from the old co-op building, where they sell the lumber. The yellow place right on that corner. I think it used to be a . . .
MR. CHAIRMAN: Is it King's Road?
MR. DOYLE: King's Road, yes.
MR. CHAIRMAN: Okay. It is a yellow building across from where the old co-op was on King's Road.
MR. DOYLE: Yes. The place that sells the lumber. I went to so many places, you don't remember the addresses.
MR. CHAIRMAN: That is where they are.
MR. DOYLE: Getting back to that 13 months I went to school, and they told me to forget about that. That is a year of my life, they said, forget about that school. We are going to start you all over again. We don't think that was right. That is right to me, when it is a year out of my life going there and they build me up to be some kind of a scholar, and then say, we will start all over again. To them it is all right, somebody is getting paid big bucks for that. But it is a year of my life. At 55 years old, I haven't got that many good ones left.
MR. CHAIRMAN: A couple other questions arising out of that. Do you have regular contact with somebody from the Workers' Compensation Board, like a rehabilitation counsellor, or are the only people you see on a day-to-day basis or hear from, the people that teach you at the school?
MR. DOYLE: Yes. Just the teachers.
MR. CHAIRMAN: You said there are two young ladies who teach there at the school.
MR. DOYLE: I put in some appeals, but me and Jimmy don't get very good, we get a little bit, but everything is no, no, no.
MR. CHAIRMAN: Thank you very much. I don't know if any of the other members have any questions. Thank you.
The next presenter is Ms. Marjorie Walker. Thank you, Ms. Walker, have a seat.
MS. MARJORIE WALKER: Mr. Chairman, members and consultants. My name is Marjorie Walker, and I am the widow of an injured worker. My husband was injured in 1985, and he suffered serious head injuries. I was in my last year at university, and left to look after him. I looked after him for 24 hours a day, for eight and one-half years.
In 1986, my husband was awarded 100 per cent permanent total disability. At that time, we were told that because he was receiving 100 per cent permanent total disability, I would receive a widow's pension. I was also given a paper by workers' compensation, which says, under the heading, permanent disability pensions, a life disability benefit is paid where there is a permanent disability either total or partial, compensation is payable for life. In a sub-heading under that is dependent widows or widowers benefits, a lump-sum payment to the widow or widower and a survivor's monthly pension for life or until remarried.
When my husband died in 1994, I was told that his death was not caused by the injury. He had a brain tumour. I am not eligible for the widow's pension. I feel that my husband was betrayed, because he died thinking I was going to get a small pension. I would recommend that the workers' compensation use some compassion and honour their word. Thank you.
MR. CHAIRMAN: Thank you very much, Ms. Walker. You said your husband passed away in 1994?
MS. WALKER: Yes.
MR. CHAIRMAN: Were you providing assistance at home with him when he passed?
MS. WALKER: No. Since then, a member of the UMW found out about it and they appealed my case and I didn't even know from the workers' compensation that I was eligible for it. They paid me a lump sum. That was a couple of months ago.
MR. CHAIRMAN: So, they did pay you a lump-sum payment.
MS. WALKER: If it hadn't been for the United Mine Workers, I would never have known about it.
MR. CHAIRMAN: I am just interested, after your husband passed away, you were told that you weren't going to be eligible for any pension whatsoever, no benefits at all?
MS. WALKER: Yes.
MR. CHAIRMAN: Who told you that? Was it somebody from the Workers' Compensation Board who told you that?
MS. WALKER: Yes. I applied for the pension and they told me I would have to have an autopsy. I said, no, I don't need an autopsy. What would I need that for? They said, for you to get a pension. I said, I was already told I would have a pension. They said, well, you have to have this autopsy. When the autopsy came in and it was a brain tumour, they said, it is not connected with this injury.
MR. CHAIRMAN: How old was your husband?
MS. WALKER: When he died?
MR. CHAIRMAN: Yes.
MS. WALKER: He was born 1935 and he died in 1994. I can't think anymore.
MR. CHAIRMAN: Fifty-nine. Thank you. Those are all my questions. Do any of the other members of the committee have questions?
Mr. Corbett.
MR. CORBETT: Ms. Walker, after the lumpsum payment, is there an ongoing pension or is there just the one-time payment and that is it?
MS. WALKER: To me?
MR. CORBETT: Yes.
MS. WALKER: That was it.
MR. CORBETT: Okay, thank you.
MR. CHAIRMAN: Do any of our consultants have any questions for Ms. Walker? No? Thank you very much for sharing your - yes, I'm sorry, I missed Mr. MacDonald.
MR. CHARLES MACDONALD: No, not a question. I guess I am wondering, can a consultant ever shed a light on this? I mean, is there a reason why you cut off but there is no pension?
MR. CHAIRMAN: That is one of the things we have to look at.
MS. WALKER: Well, my husband received workers' compensation during his lifetime and I didn't get anything as a survivor, nor did my children.
MR. CHAIRMAN: Was your husband receiving Canada Pension Plan benefits as well?
MS. WALKER: Yes.
MR. CHAIRMAN: So the only benefits you would have got is you would have continued with survivors' benefits under the Canada Pension Plan. Yes, okay, thank you very much for sharing your difficulties with us. It has been very helpful.
MS. WALKER: Thank you. (Applause)
MR. CHAIRMAN: Our next presenter is Mr. John Kingston. Have a seat, Mr. Kingston. I see you are here as a representative, Mr. Kingston, on behalf of the United Steelworkers of America?
MR. JOHN KINGSTON: That is correct. Mr. Chairman and members of the committee, advisors, and ladies and gentlemen.
The United Steelworkers of America, District 6, represents in excess of 85,000 members in Ontario and the four Atlantic Provinces. In Nova Scotia alone, we represent more than 3,000 active employees, a myriad of occupations and literally thousands of retired employees.
Changes made to the Workers' Compensation Act in 1996, although dramatically improving the bottom line of the board, has achieved these monetary improvements unilaterally on the backs of the workers it was founded to represent.
It is often beneficial to examine where we have been in order to get a clearer view of where we are going. For this purpose, I enclose a quotation from Maclean's Magazine, April 1, 1915. I don't know that you ever expected to hear a union person quoting from Maclean's Magazine but I had to go back to 1915 to get the quote. (Laughter)
". . . industry and not soup kitchens must look after the helpless humans sacrificed in the service of industry. To the yawning criticism that workers surrounded by such pleasant options (WCB benefits) will not maintain their usual safeguards, the retort of experience is that no worker in his sane sense deliberately invites a painful, perhaps fatal bodily hurt . . .".
Changes made to the system in 1996 have actually forced many of the injured workers to rely on the very soup kitchens spoke about in 1915. It is our view that the majority of these changes must be rescinded to allow Nova Scotian workers to receive comparable treatment as the rest of Canadians.
The United Steelworkers of America will undoubtedly support many of the proposals that are submitted by organized labour, by and on behalf of injured workers who are talking from experience and know first-hand, the pitfalls and deficiencies associated with this Act and the changes needed to provide some semblance of dignity for workers whose only sins were reporting for work and being injured on the job.
On behalf of our members, past, present and future, and workers throughout the province, we urge this committee to listen and enact much-needed changes to the Act.
Changes implemented in the 1996 Act seriously restrict the right of companies and unions to bargain benefits to employees that deal with WCB. The two-day waiting period essentially destroyed a long-time benefit of our union which provided that an employee would be paid for the remainder of the shift if they had to leave work for medical attention. Since implementation of this provision in the Act, it becomes meaningless for an employee who is injured to the extent that he or she will be off for more than a couple of days to be paid by the employer and still have to establish two days of wage loss.
Welders and those working in industry that has welding being carried out, not segregated from the general workforce, is a prime example of where short-term absences occur due to welders' flash. Depending on the severity, this usually requires a day to allow an employee's eyes to heal sufficiently to return to work. I have asked the question repeatedly to WCB but have never received an answer as to whether or not an employee who has protection for short-term absence as outlined above and does not go on WCB but is sufficiently healed to return to work would be compensated if there were difficulties in the future resulting from these short-term absences in which they have not filed for WCB due to
wage replacement. Of course, the problem is compounded for those not fortunate enough to have the right to collective bargaining in that they simply suffer the wage loss.
The two day provision is an outright penalty to employees unfortunate enough to be injured, especially those on short-term absences and should be rescinded and unions not restricted from bargaining this or any other waiting period.
In the past, prior to 1996, unions negotiated top-up provisions which varied in amounts up to 100 per cent of an employee's wages. We had agreements with provisions for salary continuance which assured the employee of a paycheque, whether sick or injured, and also provided some continuity when glitches in the system delay payments. The employee received their normal pay and signed over the cheque from WCB to the employer. This benefit was hit in two directions by implementation of the 1996 Act; first, by the requirement of two days wage loss and the second by the reduction of benefits payable from workers' compensation. This section should be rescinded and, as stated previously, unions not restricted in their collective bargaining.
The basic compensation formula, which was reduced from 75 per cent of gross pay to 75 per cent of net pay, is an outright disgrace in light of the fact that employees in the majority of locations across this country receive 90 per cent of net.
It is beyond our comprehension why an employee working for the same employer in the same industry, one on the East Coast and the other on the West Coast, with a similar injury would be compensated differently because of their place of rest at residence. We can only surmise that the government of the day in 1996 listened solely to employers when decreasing the basic benefits and further compounded the issue by implementing a waiting period and decreasing WCB payments in the event of top-up. The injured worker takes the hit and the employer shrugs and says, there is nothing I can do, the government has tied our hands.
The 1996 Act eliminated a basic right in the former Act which required the WCB to give a worker the benefit of the doubt in considering his or her claim. Implementation of the 1996 Act compounded this injustice as our union also had an Order in Council reiterating this benefit as it related to occupational illnesses associated with the steelmaking and coking processes in Sydney.
In the introduction we stated that we represent a large number of retired members and it is these members most frequently who fall victim to the ravages of diseases associated with their former workplaces. Latency periods vary from 5 years to 25 years and longer so it becomes nigh on to impossible to provide the strict proof to correlate the workplace and the illness, especially when the workplace is no longer here, as in the case of the coke ovens, blast furnace, open hearth. It is also extremely difficult to deal with personnel from WCB who find it impossible to believe some of the conditions that workers dealt with on a daily basis. I think
that in listening to Ms. Lewis and bringing that up, it really brings to light some of the conditions that were prevalent in the coke ovens, that were prevalent also in the lower plant of the Sydney Steel operation here. We have similar stories, probably, from Trenton Works across the province and from some of the other areas.
In the early 1990's, our union successfully lobbied for an epidemiological study into the cancer rates in the area surrounding the steel plant and coke ovens which is notably higher than the rest of the country. The then provincial Minister of Health, Dr. Ron Stewart, committed the province to conducting health awareness and the federal government was responsible for the epi study. This all fell by the wayside with the formation of JAG which we see as a delaying tactic or foot-dragging exercise by the governments. Although this doesn't deal directly with your committee, it does point out our concerns with the changes made to the Act which complicate and may lead to denial of claims for workplace disease.
We have probably three to five cases of cancer at any given time in some state before the WCB. Some of these cases have dragged on for years in one stage of appeal or another. We no longer use asbestos in our everyday work life like we did in the past. Records from 25 or 30 years ago are difficult, if not impossible, to find. Workers involved in demolition can still come in contact but, as stated, latency periods vary up to 25 years and longer so will future generations believe that a worker in 1998 was exposed to asbestos if he or she develops a disease associated with this material in 2018?
Removal of the benefit of the doubt has, in effect, sentenced workers to sometimes slow and painful death and denied their loved ones any compensation for their shortened life span and suffering, not to mention the decrease in money caused by their early death. This provision must be put back into the Act as a basic right of an injured worker.
The elaborate system of appeals created in 1996 has created an enormous backlog of cases and we would state that it appears to us it was designed to fail, to frustrate workers with time-delaying procedures and restrictions and hopefully brow beat them into giving up and thus save the WCB money. WCAT does not have the ability to examine the facts and apply the Act but are bound by policies established by WCB so a worker who does not fall into the strict policy is doomed before they start and compound this with the removal of the benefit of the doubt.
We believe that this select committee must recommend a complete revamp of the appeals process to allow an injured worker a fair, impartial, non-adversarial hearing and a decision in an expeditious manner that is a simple one-page decision on their case. Some of the people who have come forward, Mr. Chairman, members of the committee, to get a 20 page decision on their little claim is just utterly frustrating and I think that it is redundant.
The select committee should also remove outside interference from Cabinet or the board in the Workers' Compensation Act. The power to amend benefits through regulations or policies should not be permitted without the process of public hearings to amend the Act.
We believe that it is incumbent on your committee to look at the changing workplaces when making your recommendations. In 1979, there were about 5,000 workers employed at Sydney Steel, 2,500 at Trenton Works and, in general, more workers employed in heavy industry throughout the province. Today, you see approximately 700 employed at Sydney Steel and about 1,500 at Trenton Works.
Our union has changed with the times so that now we represent workers employed in credit unions, banks, security, retail establishments, hotels, as well as the much reduced number employed in more traditional mining, basic steel and heavy manufacturing, as pointed out previously. Injuries have changed as well with soft tissue and repetitive strain being the buzzwords of the 1990's. Stress disorder is becoming commonplace amongst all workers, whether due to not replacing absentee workers, ineffective instructions from management and generally pushing the worker beyond their maximum level of endurance or tolerance.
As recommended by previous committees, there should also be universal coverage for all workers throughout the province. For example, I said to you that we represent people in the credit unions and banks. They are exempt from WCB.
No retroactivity. This committee should recommend that in the future all changes to the Act must be made for the future to eliminate the nightmare, court decisions et cetera, that plague the revisions made in 1996.
In conclusion, we would like to thank the committee for your attention to this brief outline of needed changes to the Act but would be remiss if we didn't state that it is our union's belief that the only way to effective, meaningful savings to WCB is through prevention. Untold amounts of money were paid out to the widows and dependants of the Westray disaster which could have been prevented by enforcement of occupational health and safety regulations by the province and there isn't one of those family members who wouldn't gladly exchange the monies they received to have their loved ones home again. We also have a large number of workers who survived Westray who had to be retrained and some of who are still battling the trauma for what Justice Peter Richards called a predictable path to disaster.
Properly set up, functioning occupational health and safety committees with government enforcement for renegade employers such as Westray is, in our estimation, the answer to reducing the number of workers needing assistance from WCB to maintain an income.
I think that I would be remiss, though, if I didn't just touch on one other issue. It has been brought up here today and it deals with Section 45 which is the deeming capabilities of the board. We are starting now to really see this coming forward. As we speak, the Province of Newfoundland is in the process of reviewing that very aspect of their Act to look at the whole process of being able to deem someone, as Mr. Doyle had pointed out, capable of doing whatever job. I believe that those powers there should be very seriously looked at as well. Thank you.
MR. CHAIRMAN: No. Thank you. Do you see from your members or people you come in contact with, a difficulty where WCB is fairly arbitrarily deeming people to be able to pursue a particular line of employment?
MR. KINGSTON: It is just starting to show itself, really, and it is probably taking that time. I have experience with it from other jurisdictions where I have had to deal with it. I think probably the most commonplace is a worker 59 years old who the board looks at and says, what are we going to retrain this person for. They are going to take two or three years to train and then this person is going to be off. They, frequently, then deem them capable of doing something. I am not sure that the process should be just completely thrown out but it seems to me that what they are deeming you to do at least should be available. I don't know that it is much use to deem someone to be capable of doing a job if that job isn't even being carried out in the area that the person lives, especially if the person is 55 or 60 years old. I think that that is really where Newfoundland is struggling with this very issue right now.
[5:00 p.m.]
MR. CHAIRMAN: Thank you. Do any of the members of the committee have a question for the presenter?
Well, thank you very much. Again, we do appreciate your time in making the presentation today on behalf of your members. This is very helpful. I think we can also congratulate the professionalism of your presentation.
MR. KINGSTON: Thank you. (Applause)
MR. CHAIRMAN: We will be adjourning now until 7:00 p.m. We would encourage all members of the public to be back with us at that time and again I would indicate that if anyone has a presentation to make which is not already scheduled, they should talk to the gentleman in the blue shirt. Thank you.
[5:01 p.m. The committee recessed.]
[7:00 p.m. The committee reconvened.]
MR. CHAIRMAN: Ladies and gentlemen, I would like to call the evening session of the Select Committee on Workers' Compensation to order. I would like to welcome all those of you who were not with us this afternoon. For the benefit of those folks that were not here this afternoon, I am going to ask the members of the select committee to introduce themselves, starting with Mr. [Charles] MacDonald.
[The committee members introduced themselves.]
MR. CHAIRMAN: I would also call upon members of our consultants panel to introduce themselves, starting with Mr. Neville.
[The committee consultants introduced themselves.]
MR. CHAIRMAN: Thank you very much. Some of you may have been here this afternoon and for those of you who were, you will have to forgive me for going over some of the same material again.
For the benefit of those who were not here, the Select Committee on Workers' Compensation was created as a result of a resolution of the Legislative Assembly at the spring session. At that session of the Legislature, this committee was charged with the responsibility to inquire into the Workers' Compensation Act and to make recommendations to the Legislative Assembly for the fall session which starts on October 15th.
As part of our mandate as a committee, we have been conducting hearings throughout Nova Scotia. In fact, there has been sufficient demand in the Sydney area that we will be coming back on Tuesday, I believe, it is, September 22nd. For those people who are interested or who would have friends or neighbours that would be interested in making presentations, you can advise them about that meeting.
Something else, of course, which is obvious is that we are not here to hear people's appeals. We certainly are interested in hearing representations from injured workers because that is how we are going to know where the problems are in the system. However, of course, people should realize that we are not directly able to intervene in their cases. What our job is to do is to see how the system can be made better which may affect their case but not intervene directly. I also should indicate that we are not part of the Workers' Compensation Board. We are not in any way affiliated with the Workers' Compensation Board. If people have any concerns, we are completely independent of that body.
Without further ado, I would like to call on our presenter for this evening, Mr. Wilfred - I am going to do a terrible job to your name. It is a typo. You can pronounce your own name, sir, because we have got a problem with it. Wilfred, right? I got that part right. What is your name, sir, for the record?
MR. WILFRED HERRIDGE: My name is Wilfred Herridge. I am the Secretary of the Cape Breton Injured Workers Association. Like a lot of other people that have and will appear before you, I am also an injured worker.
MR. CHAIRMAN: I have a list of a few questions, if you wouldn't mind, that I might ask. It would help us when we are hearing your presentation. The first question, of course, is, when were you injured?
MR. HERRIDGE: My personal injury was in - I had two injuries. I had one in 1984 and I had another in August 1989.
MR. CHAIRMAN: Okay. What were the nature of those two injuries?
MR. HERRIDGE: Back injuries. The first injury I received surgery, the removal of a disc and the second injury was a similar back-type injury, but at that time, the specialists didn't agree on doing surgery, that it would better my condition.
MR. CHAIRMAN: Where were you working? What kind of work were you doing at the time?
MR. HERRIDGE: I was in the construction industry.
MR. CHAIRMAN: Were you represented with respect to any of your claims by a workers' counsellor, under the old Workers' Counsellor Program, where there was a private lawyer that was paid by workers' compensation?
MR. HERRIDGE: No. I wasn't.
MR. CHAIRMAN: Is your case currently in the system? Are you currently under appeal, or is a review of your workers' compensation . . .
MR. HERRIDGE: Not my specific back injury, no.
MR. CHAIRMAN: Thank you. I think those are all the questions for the moment.
MR. HERRIDGE: Mr. Chairman, I would like to, first of all, welcome you and your committee to Cape Breton on behalf of our organization, and thank you for giving us the opportunity to appear here today. We will attempt to put forward to you our problems, concerns and hopefully some solutions to the neglect and injustices caused to injured workers by a compensation system that was supposed to be put in place to protect them.
Mr. Chairman, the group of injured workers I am representing here today are categorized to be known by the Workers' Compensation Board as pre-Hayden or injured workers covered under the prior Act. Mr. Chairman, for the information of the committee, injured workers are categorized by WCB in different groups and each group treated differently: they are pre-Hayden, workers injured before March 23, 1990; post-Hayden, workers injured after March 23, 1990, but before February 1, 1996; injured workers in the window period covered under what is to be known as the Doward decision, and injured workers injured after February 1, 1996. If this sounds confusing, it is only confusing to the point that it is actually cruel to the lives of injured workers.
Mr. Chairman, as I have stated, the group of injured workers I am speaking for here today are not only from Cape Breton, but also from the rest of Nova Scotia, and are known as pre-Hayden. Injured workers in this category have been unjustly treated by the board policy for many years. Policies that were created solely to deny and take away the benefits that legislation intended injured workers should receive.
Mr. Chairman, if the committee will allow me, let's examine how injured workers got to this point of impasse where they find themselves at today. Back in 1915, the Nova Scotia Government, along with representatives of employers proposed to set up a system to protect injured workers in case of a workplace accident. For their part, to receive this compensation, the workers were obliged to give up their right to sue employers if they were injured on the job. Employers were obliged to make contributions to a fund and the government would appoint a board of directors to administer claims.
Thus legislation was proclaimed and the Nova Scotia Workers' Compensation Act was brought into effect. While it had its ups and downs, with some changes and amendments over the years, most labour groups were satisfied with the Act.
Then in or around 1987, an injured worker by the name of Mr. Hayden appealed his claim to the independent Appeal Board of Nova Scotia regarding compensation. He argued that under Section 45 of the Act, it implied that if through injury, he could not return to work, he was entitled to 75 per cent of his gross earnings which amounted to wage loss. The Appeal Board, following the legislation, found in his favour. The Workers' Compensation Board ignored the Appeal Board's decision until they were finally ordered to do so by the Nova Scotia Court of Appeal, and recognized what the Act had intended. This decision was handed down March 23, 1990.
Mr. Chairman, the date of this decision has been thrust into the lives of pre-Hayden injured workers like a sword from hell - excuse me if I get a little emotional - every time a court decision is handed down, which may offer some monetary relief for pre-Hayden injured workers, this date is constantly used in policy changes to deny injured workers of the courts' decisions. Similar policy was created to eliminate injured workers, prior to this date, from the wage loss program.
One of the cruelest things that arose from this mess was that a group of approximately 400 injured workers from pre-Hayden were actually given what was called an interim wage loss, and the policy was then amended after about 18 months; the criteria that made up eligibility for this program was amended and these people were cut off. Many of these people will never recover from the financial and psychological hurt that was caused them.
Mr. Chairman, injured workers have suffered tremendously because of policies created by the board; besides their physical injuries, injured workers are suffering emotionally and financially because of these policies. Injured workers have seen their lives torn apart and ruined, lost their homes, their belongings, and had their families broken up. Injured workers have been forced into depression, ridiculed by society, lost the respect of their friends and families and, yes, some have even committed suicide, all because of the policies of a system that was meant to protect them.
Mr. Chairman, because of recent court decisions and policies, pre-Hayden injured workers are eliminated from wage loss and chronic pain benefits, although we will never agree that we are not entitled to both. The board claims that they had no policy to cover chronic pain prior to the Doward decision, and that they never paid an award for chronic pain. I would like to cite the case of a Mr. Donald Boutilier who, in October 1988, was awarded a 5 per cent PMI by Dr. A. J. Johnson, who was employed by the board, and after examining Mr. Boutilier, found: Based on my examination, I find that this man suffers from constant and unexplained pain. Is this not a definition of chronic pain?
Chronic pain suffered by injured workers in March 1980 is no different than chronic pain suffered in March 1990. Also Section 45 of the former Act states that if you are injured and cannot return to work, you are entitled to 75 per cent of your gross earnings, which also amounts, in our estimation, to wage loss.
Mr. Chairman, we did not ask to be injured; it just happened. Not too many years ago, we were productive members of society with good paying jobs and were hard-working. Most of us never thought we would be disabled, unable to work anymore. We also never thought that a system put in place to protect us would afford us nothing better than welfare status. At least as welfare recipients, we would have access to emergency funding for problems that might arise in our everyday living, as well as a drug plan for your family and for yourself, above and beyond your compensable, physical disabilities.
Pre-Hayden injured workers do not have access to any of these privileges. Most of us who have been fortunate enough to have our claims settled are receiving permanent medical impairment pensions, or PMIs. Some are receiving Canada Pension Disability benefits, but there is no emergency funding from either. We are required to live, run our homes, and support our families on what we receive. Mr. Chairman, we by no means want to imply that we are criticizing welfare recipients as many of our own members have been
forced to apply for these benefits. We are just trying to point out that the compensation system has failed us.
Mr. Chairman, injured workers have been denied benefits, or had their claims held up in appeals for years and years. They have seen their medical evidence ignored or overturned by board doctors or caseworkers, evidence that in most cases came from leading specialists. Injured workers have been belittled, insulted and threatened with loss of benefits by secretaries, caseworkers, case managers, and board doctors employed by the board, all due to board policy.
Mr. Chairman, we are tired of being ignored and abused. This is the reason why we are appearing before your committee here today, to air our concerns and try to offer some solutions. We need your help. Mr. Chairman, in my opening, I have attempted to outline the problems and injustices that have plagued injured workers for years, especially pre-Hayden injured workers. We will now attempt to put forward and explain some initiatives that we hope, with your help, will alleviate some of the hardships pre-Hayden injured workers are experiencing.
They are as follows:
No. 1. Injured workers and labour groups are unanimous in their agreement that the new Act of February 1, 1997 should be shredded. This piece of legislation is the most devastating thing that has been inflicted on injured workers since the inception of the original Workers' Compensation Act. It has reduced benefits, eliminated many from programs, and added to the list of appeals that has sent many appeals to the courts and will take years to be decided.
As we stated previously, this Act should be shredded, and we strongly recommend you consider this. The alternative would be to replace it by readopting the previous Act. Most injured worker groups and labour groups would accept this with maybe a few amendments. It is only the compensation board itself, because they could not follow the legislation as intended, that recommended that the previous Act be abolished. We strongly recommend bringing it back into law.
No. 2. Our next issue, we will try to examine board policy. Board policy is killing injured workers. I cite the example of Section 71(1)(b) of the new Act, which provides for an injured worker to be reassessed only if he or she has a 10 percentage increase in their disability. Such an increase would raise their monetary value of their disability. Board policy puts a ceiling on certain injuries, which for the sake of argument may be 20 per cent or 30 per cent in the case of multiple surgeries. When an injured worker reaches this plateau, they are there for life.
The Act states, we need a 10 percentage increase for reassessment. The policy says we can't exceed 20 per cent but 30 per cent is the maximum in the guidelines. How are we ever to get an increase if our PMI rating is already over 10 per cent?
Also Section 203(1) of the new Act, which refers to the setting up of a Medical Review Commission, similar to what has been proposed by the minister in his submission to the Legislature. I quote from Section 203(1)(2)(7) and also Workers' Compensation Board Policy No. 8.1.6, Paragraph 3.
From the Act, Section 201(1), for the purpose of Sections 204 and 205; (a) a commission means the Medical Review Commission established by this section; (b) co-ordinator means the co-ordinator of the commission; and (c) medical opinion means a written statement and a medical conclusion and the facts and the reasons on which the conclusion is based in respect to an individual worker is established a Medical Review Commission. I go on to paragraph seven. The deliberations of the commission and the opinions issued pursuant to this section are not subject to appeal, review or challenge in any court. I would like to repeat that: the deliberations of the commission and the opinions issued pursuant to this section are not subject to appeal, review or challenge in any court.
Policy No. 8.1.6, paragraph 3. The medical opinions of the Medical Review Commission are not binding on the Workers' Compensation Board and shall be considered by an appropriate decision-maker in conjunction with all other information relevant to the matter under consideration before a decision is rendered. This is the kind of stuff we have got to put up with in policy. Mr. Chairman, we recommend that the Medical Review Commission's findings shall be binding on the Workers' Compensation Board and shall not be overruled by board policy. We also recommend legislation to set up a committee of the Legislature, or a political watchdog or what have you, to oversee policy and make sure it conforms with the intent of the Act. It is time for the government to take back control of the board, make them accountable for their policies, and give injured workers the confidence that they will be treated fairly.
We recommend that the mandatory 10 percentage points of disability, as mentioned in Section 71(1)(b), be removed from the Act and be replaced with the wording: "ANY SIGNIFICANT INCREASE found by the claimants' doctor through examination would automatically qualify them for re-evaluation of their disability percentage.". This re-evaluation should be done automatically every two years. Also, the claimant should be allowed any percentage increase in their disability to the maximum of the guidelines. We also strongly recommend that the maximum in the guidelines be increased in instances where injured workers have been unable to return to work.
No. 3, Mr. Chairman. The next two concerns we feel go hand in hand in their importance to pre-Hayden injured workers, those being chronic pain and wage loss, or earnings loss, or earnings loss replacement benefits, or whatever the board decides to call it.
What it boils down to is what Section 45 of the former Act intended and the court upheld in the Hayden decision, that being if a person was unable to return to work because of an accident, then he should receive 75 per cent of gross earnings which we consider amounts to wage loss.
Mr. Chairman, perhaps the main reason most injured workers are unable to return to work is because of ongoing and unexplained chronic pain but, again, because of this arbitrary date of March 23, 1990, adopted by the board policy, pre-Hayden injured workers are denied access to these programs. Our organization strongly recommends legislation be introduced to recognize the intent of Section 45 of the former Act and to include pre-Hayden injured workers in chronic pain and wage loss benefits.
No. 4, Mr. Chairman. The next recommendation we have concerns the board's attempt to satisfy pre-Hayden injured workers' exclusion from wage loss benefits by setting up of a supplementary allowance. The ceiling for receiving benefits from this program is a combination of Canada Pension disability benefits and permanent medical impairment benefits totalling under $11,500, or at the same level as Old Age Security recipients, their benefits.
[7:30 p.m.]
Mr. Chairman, this figure is insulting to injured workers, many of whom had to give up good paying jobs due to their injuries and are trying to support families and keep their homes. The board's assertion that there would be too much of a monetary drop at age 65 does not hold water. Most injured workers have spouses. They would turn 65 just before or after the injured worker themselves. So the monetary increase would be minimal. Injured workers recommend that the ceiling of this allowance be set at the poverty level for Nova Scotians and be indexed as the level rises. This would put a few thousand dollars yearly in the pockets of pre-Hayden injured workers and remove some of the feeling of financial insecurity.
No. 5. Mr. Chairman, failing the adoption of any of the previously mentioned initiatives, the Cape Breton Injured Workers Association recommends legislation to provide a one-time payment of a medical aid package of $7,500 to pre-Hayden workers who qualify, that being they have never returned to work and are in receipt of permanent medical impairment benefits. This would be similar to what is being passed out every day at the ADR hearings - Alternative Dispute Resolution Program - on a weekly basis to some appellants who have never received PMI. This one-time payment would permit pre-Hayden injured workers the opportunity to afford such things that might make their disabilities more tolerable, such as maybe a hot tub in their home, a membership in a wellness centre, or maybe even some over-the-counter painkillers that the board will not pay for. In essence, a small reward for the pain and suffering that they are forced to endure.
No. 6. Provide pre-Hayden injured workers with the opportunity to commute their PMI pensions if they so choose, include them in Section 74(2) of the new Act, which gives the board the authority to pay any pensions 10 per cent or under in a lump sum. This opportunity would be provided with no questions asked. This would allow injured workers to pay off a mortgage, invest it, or maybe even open a small business in their home if they are able to. What they do with their own money should be their own business, to do with it as they wish.
Finally, Mr. Chairman, enact legislation to create an equal playing field. By that I mean create a system that is user friendly, that will not be clogged up by long appeals, or biased by one-sided decisions. Make the Workers' Compensation Appeal Tribunal independent completely from all policies of the board and answerable only to the government and whose sole purpose would be to follow the intent of the legislation. Eliminate the unfairness in the policy the board uses when calculating an injured worker's income. By this I mean in cases where the board is calculating earnings loss, 50 per cent of the claimant's Canadian Pension disability is deducted right off the top and taken from their earnings loss to be received but when calculating a claimant's earnings for a supplementary allowance, 100 per cent of their Canada Pension disability benefits are added together with their PMI benefit to determine their supplementary allowance. They simply use whichever method is monetary beneficial to the board. They have the best of both worlds and we do not think this is fair or just to injured workers.
Last but not least, under Section 187 of the new Act which provides for the benefit of the doubt. Under the former Act, Section 24 stated that notwithstanding anything in this Act on any application of compensation, an applicant shall be entitled to the benefit of the doubt, which shall mean that it shall not be necessary for the applicant to adduce conclusive proof of his right to compensation applied for.
Under the new Act, Section 187 states that notwithstanding anything contained in this Act on an application for compensation, an applicant is entitled to the benefit of the doubt, which means that where there is doubt on any issue respecting the application and the disputed possibilities are evenly balanced, the issue shall be resolved in the worker's favour. Our organization recommends returning to the wording contained in Section 24 of the prior Act.
Also under the new Act, board doctors seem to be making the final decision on PMI assessments and appeals. This makes it possible for them to ignore the findings of highly qualified specialists and disregard any important medical evidence. Board MDs are not qualified to overrule specialists' findings. It is wrong, unethical, and their opinions would not hold up in a court of law. Section 187 as well as the authority of the board doctors who overrule specialists' findings have to be removed from the Act to give injured workers a fair and just chance to receive proper PMI ratings and benefits and the benefits that go with them.
MR. CHAIRMAN: I am not trying to stop you Mr. Herridge, but you are getting down to time now, you are actually slightly over. I just want to give you the warning that perhaps you could come to a conclusion.
MR. HERRIDGE: I am at my conclusion.
MR. CHAIRMAN: Good. That is great.
MR. HERRIDGE: Sorry about that. Mr. Chairman and members of the committee, pre-Hayden injured workers account for the largest number of compensation claims and recipients who have had their claims in appeals for years. They make up most of the audiences at the meetings on compensation matters, most of the protests and demonstrations and sit-ins.
Mr. Chairman, our organization has met with all the political Parties, individual politicians, government ministers, even the Premier. We have met with the chairman and directors of the board, the CEO, branch managers and board staff. We have received commitments from all that things would change for the better. While our organization has been successful at changing attitudes in everyday dealings of claimants by caseworkers and support staff and have regained some lost benefits and medical aid for injured workers, little has been done to improve the quality of life for pre-Hayden injured workers as a whole.
Mr. Chairman, my very knowledgeable friend and member of your committee has been helping injured workers for years out of the goodness of his heart. I urge you to act out of conscience alone. You and your committee have heard from many injured workers throughout Nova Scotia bemoaning their problems with the compensation system since your hearings have started and I am sure you will hear a lot more before you are finished. We think your conscience will tell you that there must be something wrong with the system for so many people to be so hostile against it.
Mr. Chairman, we are not going away. Gentlemen and ladies of this committee, we implore you, listen to the concerns and solutions we are putting forward here today and also the presentations of other injured and worker and labour groups that have appeared before you and act on them. Try your utmost, when the changes to legislation are made into law that they will ensure a decent quality of life for pre-Hayden injured workers.
Mr. Chairman and members of the committee, we implore you, if you are not known for anything else in your political careers, at least say you were given the opportunity to make change, to help these people, and you took up the challenge and did it. If the changes are not positive for pre-Hayden injured workers, then the public outcry, the protests, the demonstrations will never stop; we will never quit. You have the unique opportunity to bring this to a close. We urge you to do it. Thank you. (Applause)
MR. CHAIRMAN: Thank you. Are there any questions for Mr. Herridge? I might ask Mr. Herridge one question. You talked about a period of time when there was an interim payment paid?
MR. HERRIDGE: Yes.
MR. CHAIRMAN: Perhaps you could just very briefly explain to me what happened there, that it was paid and then taken away?
MR. HERRIDGE: Excuse me if I don't have the exact dates, but it was in and around the fall of 1993, the board introduced a policy to enact criteria to make pre-Hayden people eligible for what they called an interim wage loss. This was approximately 50 per cent, I think, of what the wage loss was actually supposed to be. I think the big doubt there was whether or not they could deduct Canada Pension from wage loss and, at that time, there was no law on the books to allow the board to do that.
Anyway, the criteria was that you had to be receiving Canada Pension disability, you had to be in receipt of a PMI award or pension and, if you met that criteria, you were eligible for the interim wage loss. I am not exactly sure of the number - I know it is over 400 - but over 400 of us did actually get that wage loss for a period of maybe 18 months, some less, some more, I am not quite sure.
At that time board policy was changed again and the criteria was adjusted so that your accident had to happen before March 1990 to qualify for wage loss. It wasn't actually anything done through legislation or the court decision, it was board policy, period, that eliminated 400-some people, gave it to them, cut them off. The results and the damages that were done to these people's lives, we will never know.
MR. CHAIRMAN: These were for pre-Hayden people. I think you maybe misspoke, I think you meant after March 1990. You said that board policy was changed so that it was only for people after March 1990, in fact what it was, was for people . . .
MR. HERRIDGE: Yes. If your accident occurred before March 1990, you did not qualify.
MR. CHAIRMAN: Yes. You just misspoke. Thank you. That was my only question.
MR. HERRIDGE: As I said, I think it had to be one of the cruelest things that was ever done to a group of people in this province.
MR. CHAIRMAN: Any other questions? Do any of our consultants have any questions?
Thank you very much, and I would like to thank you and also the Cape Breton Injured Workers for making the presentation here this evening. It was truly helpful. Thank you.
MR. HERRIDGE: Thank you for giving us the opportunity.
MR. CHAIRMAN: Our next presenter is Lockey MacLeod. Lockey MacLeod? Not here. Our next presenter is Ms. Debbie MacKenzie. Debbie MacKenzie? Okay. Our next presenter would be Mr. Walter Kozera.
MR. WALTER KOZERA: My name is Walter Kozera. I was in the workforce for over 40 years, 36 with Sydney Steel. In 1989, I had trouble with my lungs. I applied for workers' compensation benefits. I had a long, hard fight, and I had to go through the appeals division. I obtained a pension. In 1993, I was notified by the appeals board that I was given a pension of $174.85 of permanent partial disability award. They paid me for six years. I accumulated $24 interest over six years. That was Consumer Price Index. In 1996 I received a letter from the Workers' Compensation Board stating that anybody who received a pension after March 9, 1990 was going to have it recalculated. Now I received mine July 9, 1990 by the appeals division, when I got my letter, the date was on it, the amount of the award and a description of the award. In 1996, I received this letter from the workers' compensation new interim policies and they took my pension and they cut it to $53.85 after paying me for six years. I had to go through an adjudicator, the whole system all over again. I went through that in 1990. All over again.
A young girl was an adjudicator. She cut me and she told me, either you sign those papers or we will implement your decision on you. I said, what about my rights? I don't have no rights under the interim policy, she said. We have it. We are the adjudicators here and we enforce the policies. Either you sign it, and I had to sign for $53 and I signed under duress. But nobody can tell me - I asked Paul MacEwan - who can overrule the Appeal Board? He said, only the courts. But she overruled them. She overruled them on three things, even my doctors' reports. Why did I have to go, six years later, to her for an adjudication that I went through in 1990?
When I got the notification, the first place I went to was the Minister of Labour, Manning MacDonald. Manning was honest. He said I don't know diddly squat about workers' compensation. (Laughter) He said, if you have any literature, take it down to Mr. MacQuarrie and I will get back to you. In the meantime, go down and see Mr. MacEwan. He is the MLA for your district. So I went down and seen him and he sent off a few letters and everything else. He said he was just as confused as I was and I said, what did you go along with this for? He said we really didn't know what was in it. That is the same thing Manning MacDonald told me, yet they voted for it. Why did they vote for it?
You guys are sitting here, the same thing, you guys are only paying me lip-service. That one took my civil rights, my rights as a Canadian, from me. She told me I am not allowed no appeal, I can only appeal her calculations. I look in the paper, I see the workers' compensation went to the Supreme Court of Nova Scotia and they were turned down. What did they do? They went for an appeal. A judge in the paper the other day, let that Gillian Guess out after four days. He had to let her out because those are appeals that are allowed for criminals and murderers and yet I am an injured worker and I am not entitled to an appeal. I lost $140. I only get $1,125 from my Sysco pension and I lost $140 off my pension and I can't get nobody to tell me why. I don't mean to get upset but I am upset. I have been treated unfairly. All I want is, in black and white, show me and I will go away quietly.
Here is my hand, a badly mangled left hand. I done that in 1954. I got 7 per cent, that was $135. I get $58 for that and for 7 per cent and now I got 10.5 lung disease and I get $53. You wonder why people take guns and go after people. I am talking to you, at least I can see you. I am talking to this one on the phone or anything, she tells me I got no rights. If I was out to the steel plant and she said that, it would be different.
MR. CHAIRMAN: It sure would.
MR. KOZERA: I don't mean to get upset but I am upset.
MR. CHAIRMAN: I understand.
MR. KOZERA: That is all I got to say. All I want is to know why they took my pension. How could they overrule the appeals board? Only the courts can do it but she changed the definition on my pension from a permanent partial impairment award to a PI award so she could lower it down to $53.
MR. CHAIRMAN: PMI?
MR. KOZERA: Yes. The appeals court gave me that. They gave me, in the same letter, the amount. She overruled Don MacNeil, a pension officer and his calculations. I could show you his calculations. I got it all in black and white. Now that is not fair to do that, after six years; I have mortgage payments. My back is against the wall. That is about it.
MR. CHAIRMAN: Just for our information, sir, have you got copies of any correspondence that you would have received . . .
MR. KOZERA: I have copies of everything. I even have a copy of Mr. Don MacNeil's statement telling us people that received a pension after 1990, which was delayed by the MacKay court case, and the backlog of appeals, that we would be paid back, because of the delay, to the date we applied. I originally applied in 1988 but they put me down as
1989 and the appeals board gave me a 1990. But I got a copy of that at home, too. You can have a copy of that but it didn't take place. My lawyer slipped up on that.
MR. CHAIRMAN: I will ask, there may be members of the committee who have questions for you, sir. Mr. Power has a question.
MR. POWER: Mr. Kozera, do you have somebody representing you now?
MR. KOZERA: No. I am not entitled to an appeal.
MR. POWER: Have you applied or looked into the Workers' Advisers Program.
MR. KOZERA: No, I haven't gone down there yet.
MR. POWER: If I could say, Mr. Chairman, that may . . .
MR. KOZERA: I would sooner go through the injured workers.
MR. POWER: Okay, then go through Mr. Neville's group but . . .
MR. KOZERA: All I am looking for is justice.
MR. POWER: I think you will find if you look into it and have it presented, that there is going to be justice eventually.
MR. KOZERA: Who gave all these girls all the power to overrule a specialist, my doctor, overrule the appeals board? Who gave them that power? The MLAs gave them the power. They screwed with our civil rights, my rights. They took the appeal, a system that they can use themselves in their own courts, and took them from me. You guys got to look and you got to stand up and you got to read. If you don't understand it, read it over and get somebody in to help you. That is what I tell my grandchildren. You got to get your education. Make sure you understand it. If you don't, these teachers are being paid, ask them over and over again.
Not only that, since I went to a few meetings up there at the union hall, I have run into one or two more people that got their pension, four of them five months after I received mine. It wasn't touched but the letter that came to me said that anybody who had a claim after March 9, 1990 was going to get recalculated. How come they discriminated against some of us? You know, it's not right. I come in to say a lot of stuff but I get excited, I get mad.
MR. CHAIRMAN: Mr. Kozera, I should also indicate that when you leave today, as far as making contact with some people who may be able to help you, Mr. Hadley, who is over there in the blue shirt, and I would ask you to talk to him because he may be able to
assist you in making some contact with people in the Workers' Advisers Program or other programs who might be able to help you. Please, by all means . . .
MR. KOZERA: I went through that in 1990 and they put me through the wringer in 1996. Why? Who gave them girls that much power? Tell me. You tell me, who gave them girls that much power? They overruled everybody. You don't realize until you get behind something like that and you say, is this for real? I was a nice guy one time, you know, but now my wife, every time I see something with the workers' compensation, oh, son of a bitch or the bastard, or something like that, it comes out of me. I am a good Catholic. I think I am. I don't mean to be like that but I can't help it when you are treated badly and walked upon and nobody will do anything for you.
Do you think that it's right to take $140 off of me after paying me for six years? And the MLAs voted for it. They gave them that power. You guys can take it back. You guys can help us out. After 44 years, I got my hand mangled, 44 years, I get $58. That is the meat chart. Here I am with the new 1996 stuff only getting $53 for 10.5 per cent? What happened? I only had a small education, eh, and I am drilling everything into my grandchildren, stand up and be counted. That is about it. I thank you for your time.
MR. CHAIRMAN: Thank you very much, Mr. Kozera. I won't say I can appreciate your frustration because it is probably hard for any of us who haven't been through what you have been through to appreciate what your difficulties are.
MR. KOZERA: I gave up numerous times and like I say, you are a loser. We are injured workers. We don't contribute no more. The 40 years that you paid into the stuff, that don't count. Right now, when I went up to the stage in the union hall and I saw Innis Christie there and Dave Stuewe and they were up on the stage trying to tell me and the rest of the people in there how much better off I am with that $53.85 than I was with the $198. (Laughter) And that is a fact. That is the gall of them guys. Then they brought in stuff to back it up. Okay, thank you very much.
MR. CHAIRMAN: Okay, thank you very much, Mr. Kozera. One last comment. I can tell you the nine people here, the one thing is they didn't vote for the last bill. All nine of us are newly elected.
MR. KOZERA: Read it and look at it, that is what we tell our grandchildren.
MR. CHAIRMAN: Thank you and again, I would really encourage you to take advantage of talking to Mr. Hadley before you go. Thank you very much for your time. (Applause)
Is Betty Bauman here? I think she might have been given a time when she was to appear so it is a possibility that some of these folks may have been given times for later appearances so that's fine. Would Donnie Ellis be here? Are there any other presenters here at the present time who would like to make a presentation whose name has not been called. I will repeat the names of Lockey MacLeod and Debbie MacKenzie. Are there any other presenters who wanted to make a presentation at this time? There is a gentleman. Come forward, sir. Your name is, sir?
MR. LOUIS DUBOIS: My name is Louis Dubois. I worked in the coke ovens for 34 years. I was put off on a disability pension by the army - which I served overseas - in 1975. Well, I never smoked all the time since I was about 25 years old. While working in the coke ovens, under extreme conditions, I developed bronchial disease. I went to the compensation doctor the first time and, of course, he was a compensation doctor, he gets paid to see that you don't benefit, I think. Anyway, I didn't get anything and a short while after that I seen two specialists and they both said I had industrial bronchial disease.
They gave me I think it was $7.15 a week and then a short while, about three years ago, they cut me off altogether. I was getting 10 per cent. They cut me off. They gave me a lump sum of $1,200 and told me to go on my way. That's about it. Now I didn't want to take the cheque but my lawyer told me, it was mine, go ahead and cash it. I applied for an appeal just before that and they wouldn't give me one.
Two women from the compensation board came down here and they were listening to appeals. I came down with my lawyer and they wouldn't even see me. Like the gentleman before me said, I don't know where the hell they get all the power they got to just say that you're not going to get anything. We are finished with you. That's not right. Of course, that compensation board should have been shook up a long time ago. There was too many cases disqualified where they shouldn't have been.
[8:00 p.m.]
I worked for 34 years in the coke ovens with people that were disabled. I went to the compensation board with one of them. He was walking with a cane. He was in an explosion that was in the coke ovens. He was ordered back to work by the compensation board. I got involved in an explosion in the coke ovens around 1970. I had a hole in my head, it's still there, by X-rays, and they didn't give me nothing for that. I fought with them, which a lot of people do. They fight for so long and then they give up. Right now there is two people you can't fight, the government and the compensation board. You haven't got a chance. You haven't got a leg to stand on.
The last appeal that I had, I developed sinus trouble and I had it bad. When I went up before the board, I went up by myself. I haven't got enough education, I should have took a lawyer with me. But anyway, I went by myself and the X-ray pictures were there. You could
see the hole in my forehead in the X-ray pictures and everything and do you know what one of the doctors told me? He said, well, how old are you? I said, 60 years old. Well, he said, you know sinus and all that develops with age. That's what I got from the compensation doctor. You see, they outsmart you every time. There is other people here that could tell you the same thing. We had a hell of a job with the compensation. You haven't got a chance. The only way you would beat them is if you went with about four lawyers that were a little smarter than them. That all I have to say.
MR. CHAIRMAN: Just have a seat, Mr. Dubois. Maybe a member of the committee has a question for you. Do any committee members have a question for Mr. Dubois? Mr. [Hyland] Fraser.
MR. HYLAND FRASER: Just one question. Are you getting any compensation now at all?
MR. DUBOIS: No, they cut me off.
MR. HYLAND FRASER: Absolutely none?
MR. DUBOIS: They gave me $1,200 and said that was it. I didn't want to take the $1,200 because I wanted to go and appeal. I have a specialist looking after me now. It's a disease that I developed while working in the coke ovens. I was an electrician there for 34 years and I developed this bronchial trouble, this breathing, and the specialist even got me on a puffer now and I am taking pills besides. They won't do nothing about it and where the hell else did I get this? I got out of the army in 1947, I went to work at the steel plant and that is the only place that I developed this.
For the record, every man that worked in the coke ovens, I know what he died of and 95 per cent died of cancer. I worked with every one of them. There was 10 electricians in our crew. There is myself and another fellow left. There is eight of us left out of 10. They all died of cancer. That was the worst environment anybody could work under; that and the mines.
MR. CHAIRMAN: Thank you very much, Mr. Dubois. (Applause)
Our next presenter is Sheila MacLean. Margaret MacLeod? Okay, good, come forward. Good evening, ladies, just tell us your story.
MS. SHEILA MACLEAN: Good evening, sir, committee members. My name is Sheila MacLean and I am the wife and widow of Earl Leadbeater who was killed in the mine in No. 12 Colliery in 1973. That was 25 years ago. It hasn't been easy since Earl died. It has been a struggle. I had four little children at the time; my baby was 15 months old. They never ever got Earl's body. Earl is buried in the mine. In 1975 I remarried, and I lost my widow's pension and I never ever got any money back to help me raise my kids and it was a struggle.
I have one sone who is 30 years old who went into a life of crime - stealing - and he served time in jail because I couldn't give him, I did the best I could for him, but it just wasn't enough. It was really rough trying to be mother and father to them. It has really been hard, like I say, and I think if I had of had a little more financial help it would have been a little easier for the children.
I didn't know that the other ladies who were widowed and remarried received their pensions back in 1985. Had I known, I probably would have come forward earlier and wrote the Workers' Compensation Board and made my views to them. I just want everybody to know that I am Earl Leadbeater's widow. I will always be his widow. If I marry more than 100,000 men, I will always be Earl Leadbeater's widow and I think I am entitled to my widow benefits. I thank you very much. (Applause)
MR. CHAIRMAN: What was the date, ma'am, that you remarried?
MS. MACLEAN: It was 1975.
MR. CHAIRMAN: You remarried in 1975 . . .
MS. MACLEAN: Yes.
MR. CHAIRMAN: . . . and Mr. Leadbeater, what year was it that he died?
MS. MACLEAN: It was 1973. When I remarried, the marriage only lasted a couple of years. I was like, sort of in a daze. I don't know, you think you are doing the right thing. Financially, I thought he had a good job and he was able to help me with my family. It just didn't work out. Those things happen. I thank you for listening.
MR. CHAIRMAN: You say that you know other ladies who had lost their husbands who did get pensions, in fact?
MS. MACLEAN: There are ladies now that are getting pensions. In 1985 they revised and they got their pensions back, but they must have forgot about me. I don't think I am alone either. There are other ladies here. I know Mrs. MacLeod is another lady who was left with nine children and I am sure she has a few things she would like to say also.
MR. CHAIRMAN: I think Mr. Corbett has a question for you, Mrs. MacLean.
MR. CORBETT: How are you, Shirley?
MS. MACLEAN: Oh, hi, how are you?
MR. CORBETT: Good. Congratulations to Joey, by the way.
MS. MACLEAN: Thank you very much.
MR. CORBETT: Her son was a member of the Canadian little league team that won the Canadian championship.
Shirley, were you a part of the widows' group that went to the Human Rights Commission to try to recoup any money from WCB?
MS. MACLEAN: Yes, I am.
MR. CORBETT: You, too, Ms. MacLeod?
MS. MARGARET MACLEOD: Yes.
MR. CORBETT: Okay, that is all I wanted to know.
MR. CHAIRMAN: Is that case still pending, in front of the Human Rights Commission at the moment? Has the case ever been resolved?
MS. MACLEOD: It hasn't been resolved.
MS. MACLEAN: It is not resolved yet.
MR. CHAIRMAN: Are there any other questions from members? There are none. Ms. MacLeod, do you have anything you would like to add?
MS. MACLEOD: My story is pretty much the same as Sheila's except that I had nine children and my youngest was six months old in 1968. I remarried in 1971 and things didn't work out.
MR. CHAIRMAN: Well, thank you very much, ladies, for taking the time to tell us of your problems.
MS. MACLEAN: Thank you for listening.
MS. MACLEOD: Thank you very much. (Applause)
MR. CHAIRMAN: I am going to run over the list of people who are presenters and just see if any of them are present at the moment. Debbie MacKenzie? Donnie Ellis? Betty Bauman?
Betty Bauman is here. Come forward, Ms. Bauman.
MS. BETTY BAUMAN: We were told that our time was 8:30 p.m.
MR. CHAIRMAN: I know. What happened is there were a few people who didn't show up so we got sort of "sped" up here.
MS. BAUMAN: Oh, I see . . .
MR. CHAIRMAN: No, no. That's all right. You are not late.
MS. BAUMAN: I have never done this before, so you will have to bear with me. My name is Betty Bauman and I am Chair for the Widows' Group of Nova Scotia. On behalf of the widows, I think it is only fair that we should be treated fairly like the rest of the women in B.C. and Ontario. The legislation, according to the Minister of Labour, in the spring he was supposed to propose our changes to do with the women, but that didn't happen so now I am hoping it will happen in the fall.
I know of 25 women, of the 120 that are involved in the case, and, on behalf of them, I would like to say that there are a lot of women who are in dire need of the money that will help them. Some women have cancer, and their husbands can retire if they get the money and spend quality time with them. I have a lady, she has heart problems, and she is living in a situation with her husband now that is not very acceptable. Things like this are going on and I know it is not your fault that we weren't included when things changed, but I hope in the future - like in the fall - that it will change.
MR. CHAIRMAN: Perhaps, for the benefit of the committee, you could indicate what change you would propose. The group of widows and widowers that we are talking about are people whose spouses died prior to what year?
MS. BAUMAN: Well, according to the copy that I have, the changes that are supposed to be amended is that we go back to 1985 and that we are paid retroactive and that we get our pensions back. Now this is a part of the compensation package that the Minister of Labour is proposing in the fall.
MR. CHAIRMAN: I just wanted, for the benefit of the committee, that the proposal is that the pensions would be reinstated back to March 1985.
MS. BAUMAN: No, April 17th, according to . . .
MR. CHAIRMAN: The date the Charter of Rights and Freedoms came into effect. With respect to the equality provisions, I think you will find that is the date.
MS. BAUMAN: Okay. This is my co-chair.
MS. DEBBIE KREWENKI: My name is Debbie Krewenki.
MR. CHAIRMAN: And the other lady is?
MS. LUCY THOMAS: Lucy Thomas.
MR. CHAIRMAN: Is there anything else that you ladies would like to add, as far as the proposed legislation?
MS. THOMAS: Well, I was married to Bruce MacLean and he died in a car accident on the job in 1969. I received the workers' compensation up until 1984 when I remarried. Well, that marriage only lasted a year and I got nothing from him because they said I hadn't contributed anything, money-wise, to the marriage. So I am just one year out. I haven't had anything. But I did call the Halifax office and they said they are going to bring that up in October. They are fighting to get all the widows to have their pensions.
MS. KREWENKI: Okay, now I have a question.
MR. CHAIRMAN: Yes, ma'am.
MS. KREWENKI: When the legislation is introduced in the fall, is our section contingent upon the whole package?
MR. CHAIRMAN: I guess it is not really a question I can answer. The Legislature can choose to pass any provision to the Act, so theoretically yours could be the only issue that went forward, or all of the issues could be brought forward together. The government may bring forward a bill of its own dealing with the widows. I don't think I can comment on that, to say whether it will be connected or not.
Obviously, if the committee makes a report, we will be reporting on all of the things in the package, but whether it will be brought forward by the government as a single bill or if there would be a number of items in the bill, really, I don't think we can comment on that because that is . . .
MS. BAUMAN: Well, they are just amending the legislation, really, are they not?
MR. CHAIRMAN: Well, they . . .
MS. BAUMAN: Like, when they changed the law and they did not include us, they are just amending it to include us in.
MR. CHAIRMAN: Well, I guess the issue here is whether the bill proposing the changes that you ladies are looking for would be part of a single bill on its own or part of a bigger package, which is really what the question is you are asking, right? I guess that that is up to, (a) the committee to make a recommendation and, (b) the government to propose the legislation, or any member can always propose a bill.
I am not trying to talk around the question, it is just simply that it is impossible at this stage, I guess, to answer your question yes or no because we, obviously, have not made our decision as a group yet. It would be impossible for me to say yes or no because, obviously, we have not made a decision. It is not avoiding the question.
MS. BAUMAN: I understand it.
MR. CHAIRMAN: It is just one of those things that we have not made - there is no pre-decision made. That is the reason we are holding the hearings, so that people like yourselves who have concerns about changes to the Act can come forward. Because the process is completely - there are no pre-deals made, I cannot, therefore, answer your question, okay?
MS. KREWENKI: Okay. Maybe the committee could make a suggestion that this bill is separate? (Laughter)
MR. CHAIRMAN: I think I got your message actually; I understood the message.
MS. BAUMAN: We have been working on this for a year and a half now. With the way things changed and an election and everything put it all on hold.
MR. CHAIRMAN: Yes, I understand.
MS. BAUMAN: Mr. Burchell would have been here tonight except there was a death in his family, he would have spoke on our behalf. Of course, he would have gone into more detail than I can. I just think that the women that did not get the pension, like now, or back money, we lost just as much as the women that are getting the pension now, even though they have married. A lot of women were lucky enough to have good marriages, but some of us didn't. To be fair to the rest of us, I think we deserve it.
MR. CHAIRMAN: Yes, of course.
Ms. Godin.
MS. ROSEMARY GODIN: Yes, thank you, Mr. Baker. I am not clear on something, maybe Ms. Bauman can help. I don't understand what makes the 120 widows different than the others, was it the date that your husbands died that . . .
MS. BAUMAN: That was before they changed the law to include the women of today. I cannot remember exactly when it changed, in fact, I didn't even know it had changed until I got involved in this, that you could remarry and keep your pension.
MS. GODIN: So there is a certain date . . .
MS. KREWENKI: I think it is 1991 or 1992 . . .
MS. BAUMAN: It's 1992.
MS. KREWENKI: In 1992, that the law changed, then a woman could marry again and retain . . .
MS. GODIN: After 1985, if you remarried after 1985, you got your pension . . .
MS. KREWENKI: No. If you remarried after 1992 . . .
MS. GODIN: Help me out.
MS. KREWENKI: The 1985 is a fairness clause.
MS. BAUMAN: See, the thing is, like my husband died in 1960. Even though, if the government does pay me back to 1985, there are 21 years that I will not get paid for, but that is okay because at least I will be getting something; I would be treated as fairly as the women of today, and get my pension and some back money.
MS. GODIN: Okay.
MS. BAUMAN: Like I say, no, we are not going back to the time that we lost it, we are only going back to 1985.
MS. GODIN: The women who remarried since 1992 . . .
MS. BAUMAN: Keep their pensions, that's right.
MS. GODIN: Okay, thank you.
MS. BAUMAN: This is what we are asking, to be reinstated and compensated for some of the years that we have lost.
MS. GODIN: Of course, right.
MS. THOMAS: Excuse me. I read in the paper - I cannot remember just when - but in British Columbia and Ontario, they are getting it, all the widows.
MS. BAUMAN: Yes, right, they are.
MS. THOMAS: But why not in Nova Scotia?
MS. BAUMAN: Well, this is why we are here.
MS. KREWENKI: That is what we are trying to fix.
MR. CHAIRMAN: I guess we figured out why you're here.
MS. BAUMAN: That is why we are here, to amend the law to be fair to the widows of Nova Scotia.
MR. CHAIRMAN: Sure.
MS. BAUMAN: Where I got the 121 women was from David Stuewe of the Workers' Compensation Board. That is where I got the figure.
MR. CHAIRMAN: That is the number that Mr. Stuewe estimated were widows who were still living that would still be eligible to receive the money?
MS. BAUMAN: That's right, exactly.
MR. CHAIRMAN: You understood that was in all of Nova Scotia?
MS. BAUMAN: Yes, it is all of Nova Scotia. That is what he told us, yes.
MR. CHAIRMAN: Yes. Well, thank you very much, ladies, for taking the time to be here with us this evening. I apologize for the confusion over time but . . .
MS. BAUMAN: Well, that is okay.
MR. CHAIRMAN: You got to go earlier than later so that is a good thing.
MS. BAUMAN: Okay.
MR. CHAIRMAN: Thank you very much. Lockey MacLeod? Debbie MacKenzie? Donnie Ellis? Are any of those folks here at the present time? Just from the point of view of staff, were any of these people given a time to appear that would be, (Interruption) That approximate time might have been later.
If that is the case, we should recess for, perhaps, 15 minutes to give them an opportunity to be here. By my watch that is 8:40 p.m.
[8:22 p.m. The committee recessed.]
[8:50 p.m. The committee reconvened.]
MR. CHAIRMAN: We will resume now. Our next presenter is Donnie Ellis. Just have a chair there, Mr. Ellis.
MR. DONALD ELLIS: My name is Donnie Ellis. I am a former employee of Sydney Steel. On October 10, 1991, I was about my work and I had a serious fall. I was taken to the hospital in an ambulance. They could not get any X-ray that day because of swelling in my back, in that area. So they sent me home. That day I spent the whole day in bed. There was no one home at the time and a security guard from the steel plant had taken me home from the hospital and not until my daughter came home from work that afternoon could I get out of the bed anyway to go to the bathroom or anything like that. A couple of days later it was so bad they came and they took me back to the hospital and they got an X-ray and I had a compression burst in my vertebra in L5 in my back. Anyway they did not do anything about it. They tried painkillers on me and everything else.
MR. CHAIRMAN: Excuse me, what is a compression burst?
MR. ELLIS: It would be like say an inch of vertebra, it squeezed down and puffed out wider than the rest of them. It squeezes, it pinches the optical nerves going through the spine. Anyway after I had that X-ray, I seen a back doctor here in Sydney. On December 16th he put me in the hospital and he did a myelogram on me. After the myelogram I had to get a CAT Scan and I was in pretty bad shape after that. They had to keep me in the hospital overnight because I was having terrific pains in my head and everything else.
The next morning they sent me home. That was on December 16th when I went in. On December 17th they sent me home. I had to be helped into the house and right until Christmas morning I laid on the chesterfield and I had to be assisted back and forth to the bathroom, the pain was so bad in my head. They were calling the doctor about it and they said it would go away but after that I got lots of rest and everything else like they told me. Around the end of January - I was off approximately four months at the time - I was feeling better and I told my doctor I felt like I should go back to work because I wanted to work because at the time I was 53 years old and I had no plans on retiring or anything like that.
So anyway he advised I not go but I told him I wanted to go. So I went to the Workers' Compensation Office on Kings Road and I explained my situation. I said I want to try it because I do not want to quit work. So he wrote out a big letter and everything else that if it did not work out, that I would go back on compensation. I went back and on the 8:00
p.m. shift we had a major breakdown in the blooming mill of the steel plant. We were working the night shift and I just could not do the work no more. My back just went completely out on me and I had to go up to the locker room and a couple of guys helped me off with my Sheraton T-shirt and I left. I never went back after that.
They did put me on compensation for a short while. In May I had an appointment in Halifax because this guy in Sydney wanted to operate on me and I told him I wanted to get a second opinion. He told me he was the only neurosurgeon in Cape Breton that does that kind of operation. I said, well, before anyone cuts my back I want to get a second opinion. So me and him got in kind of an argument and I told him I was going to see someone. I said, Halifax is full of neurosurgeons. So I got an appointment. I had a hard time getting anyone to give me a referral to get to Halifax. Finally I got one and on May 25, 1992, I had an appointment with Dr. Roland Langille in Halifax. Just before I went there I received a letter from the Workers' Compensation Board that they were cutting me off compensation on May 25th. So I told them that I had an appointment in Halifax and could they assist me in getting to Halifax. They told me right out, no. If you want to go to Halifax, you are going on your own.
My vehicle was not that reliable. I had a truck at the time and I had to take an Acadian Lines bus to Halifax, pay my own expenses, and I had my X-rays with me. Dr. Langille looked at the X-ray and he said to me, you must have had some headache after you had this myelogram done. I said yes, I was down for about nine days. He said they put too much dye in your back. My injury is in the lower part of my back and he ran the dye up to the base of my neck. He said another inch and I would have been dead from this neurosurgeon in Sydney.
He asked me what kind of work I done. I told him that I was a mechanic at the steel plant. He asked me if I did much climbing. I said, well, 60 per cent to 70 per cent of my work is climbing on cranes and high heights. He told me right out, them days were over for me and any heavy lifting. He said that the injury to my back, he could operate on it, but he said he could not guarantee nothing and that I was liable to end up worse than what I am now. So his advice was that I not have the operation. So I told him about my situation, that when I went back to Sydney, that I would have to go back to work because I had responsibilities and that today was my last day that the compensation was paying for me. He said you go back to Sydney and don't worry about it. I will take care of everything. So I did come back home and the next week I received a cheque for my expenses for going to Halifax and they did put me back on compensation.
So I was on compensation for all of 1992 and in November 1992, I got called in to see the company doctor at the steel plant. He had the reports from the doctor. He told me that they were not going to take me back at the steel plant because of my injury and that there was a pension window coming up on the steel plant and his advice to me was to take that window and go on pension. I told him I did not want to go on pension. He said, well, there will be no work at Sydney Steel for you. So my hands were tied. I had to go and I told him I did not
want to go and I wanted it in writing and they told me they would put it in writing but they never did. I found out after that they didn't but after I went on pension I was still having all kinds of problems. I seen doctors and that. Dr. Langille took me back in January 1993, to Halifax. He had me in the VG and they did tests and they said there is nothing we can do for you. You have to live with what you got.
So a couple years ago I seen another specialist here in Sydney, that came to Sydney, Dr. Collicott. He said he could not operate, that I would have to live with what I have got, but he did recommend that I see a doctor in North Sydney at a pain clinic because my right leg was getting really bad. I couldn't sit down. I couldn't do nothing. First they tried nerve blocks. That did not work and I went 24 hours without being able to walk with my leg, with the nerve blocks. They tried several attempts at that but since that time, for the last year and a half I have been going over there every three months and they shove a needle, to freeze the vertebrae, into my back and they put cortisone in there. A lot of people tell me that I shouldn't be getting this cortisone, so much of it, but what can I do with the pain.
Furthermore, in 1993 I was sent to Dr. Murdock Smith for an assessment on my back. He had the reports that my accident was career-ending and he awarded me 6 per cent on my back and I had nothing until December 1996, the Workers' Compensation Board sent me a cheque for $4,300 and washed their hands of me. That was it. I left out one thing there. When I seen this Dr. Collicott in Sydney, I said to him that I was awarded 6 per cent and that was it. He said you should be getting a lot more than 6 per cent. I said, how much? He said, have you got a lawyer? I said, yes, I have a lawyer, Gail Chernin in Sydney. She had a grant to work on our cases. I think it was $1,250. He said, you go see your lawyer, get your lawyer to call me and for her to tell me that she wants a letter.
[9:00 p.m.]
I left his office, went to the lawyer's office and I told her what Dr. Collicott said. We can't do it. I said, why? He charges $550 for a letter and you haven't got $550 in your account. Have you got $550? I said, no, I don't. I don't work. I haven't got $550. And, oh, I wear a back brace.
In 1995, I was talking to Mr. Neville there about it and he told me I should be getting a clothing allowance, $350 a year. I didn't know anything about this. I went out to the Sydney office, I got forms, I filled them out, I sent them in and then shortly after, I got a letter back that I was turned down on it so I just let it go.
Until this year, I was up talking to Jimmy Neville there and he told me that I should be getting this. He filled out the forms and everything else, and sent them in, that I should have got a cheque for five years for the clothing allowance. They sent me a cheque for two years. They wouldn't pay any more than that.
I think I'm like the rest of the people that I heard here earlier this afternoon. I had three different specialists look at my back, X-rays, monograms, CAT scans, and they all said that it was career-ending for me, that I couldn't work anymore. Then I go to see the compensation, Dr. Murdock Smith, and he gives me 6 per cent.
Just recently, the five years was up and I had a reassessment done. Jimmy Neville had a reassessment done for me. I was kind of leery of going to see him because when I saw him the last time in 1993, I went out there, I had my back brace, maybe, two or three months and he asked me to take it off. I took it off and he said, you don't wear this thing. I said, what do you mean, I don't wear it? I wear it all the time. He said, it's not dirty. I said, why would it be dirty? I can't wear that thing next to my skin. I wear a T-shirt and I wear a shirt over it, and I don't work. Why would it get dirty?
This time, when I was going back out, I was kind of leery going there because I don't like getting in arguments because I can get saucy too. I was told to take someone with me so I took someone with me. He was very nice and everything else to me. He did give me 4 per cent, brought me up to 10 per cent, but it still doesn't give me anything because I need a 10 per cent increase. If anything, I still don't get anything for my back.
Then I find out what he put in the letter, that he still thinks I wasn't wearing my back brace. He said this T-shirt wasn't torn or anything. Well, before I went to see any doctor, I have a shower and I try to put on decent clothes to go to a doctor's appointment. If that is what he wants in the future, when he calls me for an assessment, I will go a couple of weeks without a shower and I will put on a dirty old shirt, (Laughter) - that is my advice to anyone - and go in and see him.
I still haven't received anything from them and I have been injured now seven years. That is about all I've got to say. I would just like to know where Dr. [Murdock] Smith gets all his power to overrule a specialist, you know, when there were three reports sent in to him.
MR. CHAIRMAN: I take it, sir, yours was one of the cases where you were told that you have to have a 10 per cent change before they will make the change in your . . .
MR. ELLIS: Right.
MR. CHAIRMAN: The 10 per cent rule, again?
MR. ELLIS: Yes. Another thing, if a person has their leg mangled or a guy gets his neck injured or something - like, I know guys who've got the same injury as me that are getting 20 per cent, getting the cheque. When it says, career-ending, how can they - even compensation - get to say, okay, 6 per cent is all right, when you have a career-ending accident?
MR. CHAIRMAN: The only payment you ever received from the Workers' Compensation Board was the buy-out on the 6 per cent?
MR. ELLIS: Yes. I received, in December 1996, a cheque for $4,300 for the last number of years. That is what I received. I received a cheque for two years for a clothing allowance, they will not pay back. That is all they would go back on it, for two years.
MR. CHAIRMAN: Thank you. Do any of the committee members have a question? Mr. Fage.
MR. ERNEST FAGE: Mr. Ellis, my question is, a number of respondents have talked about retraining, did they offer you retraining or any type of assistance or a workers' adviser?
MR. ELLIS: No. They didn't. I am too old to retrain now. I will be 59 in November.
MR. CHAIRMAN: I understand. Thank you very much. Do any of the consultants have a question? Thank you, Mr. Ellis, for sharing your story, and I really do appreciate, and I am sure the other committee members do as well, that you took the time to explain to us how it has impacted your life and how the system hasn't worked for you.
MR. ELLIS: Thank you for your time.
MR. CHAIRMAN: Is there a Connie Smith? Take your time Ms. [Connie] Smith.
MS. CONNIE SMITH: Hello. My name is Connie Smith. I just found out a few minutes ago that I was doing this, so you will have to bear with me. I was injured in 1982. After moving back home from Ontario with five children, I went out and got retrained, and I managed to land myself a job with the Canada Employment Centre as a Youth Outreach Counsellor. On that program, I spent my mornings in the office helping young people to try and find employment and I spent the afternoons seeing employers in the community to try and get some of the young people working. In addition to that, I was also a volunteer probation officer, at the same time. I did a double job. Plus I was still a single parent with four kids at home at that point.
In August 1988, I was out at the Woolco store at the Mayflower Mall, it is Wal-mart now, getting contracts signed for some of the clients that I had working at the Woolco facility. I slipped on something wet on the floor and fell. Who would ever know that you could do such injury to yourself by simply slipping and falling? I don't know how I did it. When I slipped, I consciously could see myself falling and hitting my head on the concrete floor. In some type of emotion, I don't even know how I did it, it happened so fast, I landed on my knee. My knee bled and it swelled up about yea high.
They tended to me in the office at the Woolco store, but said I should go to the hospital and have X-rays done. When I fell, we heard a crack, so we didn't know what it was. Anyway, I went to the hospital and I had X-rays done. They X-rayed my back, my hips, my legs, and everything. The doctor told me to go off work on bedrest. Bedrest, I was on bedrest until December 1989, when I had surgery.
I was seeing the local neurologist here, who . . .
MR. CHAIRMAN: Who was your surgeon . . .
MS. CONNIE SMITH: On my back. I forget his name, wanted to operate on me here. He called me December 24th at 3:00 o'clock in the afternoon, and said he was going to do my myelogram on the 26th and do back surgery on the 26th as well. I got awfully scared. I called my family doctor, he said, you tell him to go. There is nobody even working. All the operating room staff and everything else were all off for Christmas. This doctor, I guess, he didn't recognize Christmas because he was foreign or whatever, they celebrated Christmas at a different time, I don't know. Anyway, my family doctor told me not to go. He said, no, you call him back, and tell him you are not going. You are going to Halifax, as quick as I can get you an appointment in January.
I went to see Dr. Reardon in Halifax in February. Dr. Reardon had me up there in the hospital, I had all kinds of tests done, X-rays, CAT Scans, myelograms, you name it. I had crushed the discs in my back, L4 and L5, I guess, were crushed as well as all the nerve endings going to both of my legs. From the day I was injured, both legs, from my hips down to my ankles, just jumped and throbbed 24 hours a day, like a jumping toothache. I don't know how I didn't crack up. Darvon and pain medication and everything else, that is how you lived. That is how you were able to cope. Several of them, I became addicted to them, because I was taking so many of them just to help me through the day.
In December 11, 1989, I went to Halifax and Dr. Reardon operated on me on December 12th. He did a spinal fusion, a nerve root decompression and a laminectomy all at the same time. I was sent home from Halifax, I think, on the December 22nd or 23rd by ambulance. I was dying to go back to work. I begged Dr. Reardon every time I went, to let me go back to work. No, Connie, you will never work again.
I don't know how many times I was cut off compensation over the years, and it is a good thing that I remarried in 1989 as well, and it is a good thing that my husband had a paycheque coming in, because I don't know how I would have ever survived. I can't count the number of times that they cut me off. But with letters from doctors and that, they would reinstate it.
Eventually they put me on a 20 per cent disability pension. I appealed it and appealed it and appealed it. They gave me 25 per cent, which is what I am currently at. The Workers' Compensation Board, I forget what year it was, had meetings down here at the Holiday Inn, and of course, I attended. David Stuewe was there, and he told me, Connie, don't appeal your claim anymore. We are coming out with wage loss, you will be one of the first ones to go on it.
Sure enough, wage loss came into effect, and I was one of the first ones to go on it. They gave me back time from when they had last cut me off. They gave me an additional $300 a month added to my cheque, and told me in a letter that I would get another $750 in November when this bill passed through the House. Before the bill passed through the House, they changed the dates of eligibility, which meant that what they gave me in August, they were taking away from me again in February, which was exactly what they did.
I found out about this Law Amendments Committee and how to get there and what you had to do on the Monday morning. I called Halifax, and I said, listen, I want to make a presentation before this Law Amendments Committee, they are not taking my money away without a fight. I prepared a brief, I had it typed, I had it copied, 11 copies made, I made my husband take a day off work and drive me to Halifax. I made the presentation there. While I was making the presentation, several of the ministers had tears rolling down their faces. I finished my presentation and left the room. I went out and there was a couple of the local MLAs in the room when I was doing the presentation, they came out behind me. They said, go back to Sydney tomorrow and put an appeal in the system.
That is where it is. It is still in the system. Anything that you try, they keep turning you down. Like I said, I was a single parent with four children. My life just came to an end. I used to love to go fishing and hunting, take my grandchildren. I can't do anything like that. I go to Halifax four times a year to the pain clinic where they inject, do an epidural of steroids in my spine, nerve blocks in both of my hips, and joint injections.
Now the steroids, as you can probably notice, put 80 pounds on me. The doctors are saying, lose weight. Now both my knees are bad. I have had surgery on them. I had surgery on one of them in October. I need knee replacements. My knees are worn out. But, what can you do?
Like I said, my whole world came to an end. I go to Halifax, I have these injections, as a matter of fact, I am going again on September 10th for my second set, I was there in August, so that is usually what he will do. He will do me in August, again in September, and then not do it any more for another six months, and then I will go for another two series of injections. But, that doesn't take away the pain. It puts it down to a dull roar, so that you are able to kind of live with it a little bit easier, but it doesn't get rid of the pain. There is nothing that I can do. Absolutely nothing.
The doctor tells me, you pick up the broom and sweep the floor, or take the vacuum out, and stuff like that, you are only going to undo what I did. Which means, the only thing I am capable of doing is washing dishes and making meals. Even to go for a walk, I just can't do it.
I hope you people can make some changes or get them to put something into law, bring something into law that is going to deal with it. They brought it into law, they are dealing with them from 1990 on. What about us before 1990? Where do we fit? That is all I have to say. Does anybody have questions?
MR. CHAIRMAN: One of the presenters earlier today had described what happened as cruel. Is that a fair description of what happened?
MS. CONNIE SMITH: Cruel? It is criminal, what they are doing to us, really. They are forcing me to live on $445 a month; when I worked I made $2,000. It is ridiculous.
MR. CHAIRMAN: I take it that you never received an answer as to why you got the benefits and then they were cancelled?
MS. CONNIE SMITH: It just says you have reached a plateau, or we don't have any supporting medical reports from the doctor, or whatever. It was always an excuse. I have asked about retraining, but evidently I am too old.
MR. CHAIRMAN: What is your age, ma'am?
MS. CONNIE SMITH: I'm 55.
MR. CHAIRMAN: Does anyone have any questions? Ms. Godin.
MS. GODIN: Ms. [Connie] Smith, how long have you been waiting now for this last appeal? When did you appeal last?
MS. CONNIE SMITH: I don't know what year, I can't remember what year that was. Do you remember, Jim, when the Law Amendments Committee . . .
MR. NEVILLE: It was 1993 or 1994.
MS. CONNIE SMITH: It was 1993 or 1994.
MS. GODIN: So it has been years now that you are waiting?
MS. CONNIE SMITH: Yes.
MS. GODIN: This last time?
MS. CONNIE SMITH: Yes. My appeal is still in the system.
MS. GODIN: Have you approached the Workers' Advisers Program?
MS. CONNIE SMITH: Yes. I am involved with the workers' adviser, yes.
MR. CHAIRMAN: I take it your appeal is at the WCAT level, the Workers' Compensation Appeal Tribunal level.
MS. CONNIE SMITH: I think so. I think it was just a hearing officer that heard it the last time and rendered a decision.
MR. CHAIRMAN: Just at the hearing officer level.
MS. CONNIE SMITH: Now it has gone somewhere else.
MR. CHAIRMAN: Review officer and so on and so forth.
MS. CONNIE SMITH: Whatever officers.
MR. CHAIRMAN: Yes. It has many levels of appeal.
MS. CONNIE SMITH: Yes. Right.
MR. CHAIRMAN: Do any of the other committee members have any questions for this lady? Do any of our consultants have a question? Well, thank you very much for coming out and being with us this evening and sharing with us your story.
MS. CONNIE SMITH: Thank you.
MR. CHAIRMAN: A very big help. Thank you. Is there anyone else who is present who wanted to make a presentation this evening. Anyone else? On behalf of the select committee, I would like to thank all the members of the public who took the opportunity to be with us here today. We truly appreciate the interest in the community in this important problem and we would encourage you to come back on September 22nd when our hearings resume in Sydney. Thank you very much. Yes, sir.
AUDIENCE MEMBER: What time is your meeting on the 22nd?
MR. CHAIRMAN: I don't believe that the times have been set yet or the location. The staff would have to arrange to book a time. My understanding is that the times would be rebooked and the advertisement would be made in the local papers as to the time and place. If you have any questions, if you want a number, Mr. Hadley, the gentleman in the blue shirt with the long sleeves, in the corner there, can give you a number that you can check with to find out the time once it has been set. Thank you very much. We stand adjourned.
[The committee adjourned at 9:20 p.m.]
