SELECT COMMITTEE ON
THE WORKERS' COMPENSATION ACT
Mr. Michael Baker
MR. CHAIRMAN: I would like to welcome all the members of the public who are here with us this afternoon and thank you for taking your time to be with us. The first thing we generally do on our itinerary is to introduce the select committee members. I will ask the committee members to introduce themselves, starting with Mr. [Charles] MacDonald.
[The committee members introduced themselves.]
MR. CHAIRMAN: If Mr. Johnson would introduce himself, please.
[Mr. Gordon Johnson, Legislative Counsel, introduced himself.]
MR. CHAIRMAN: I would ask our consultants to introduce themselves, starting with Mr. Neville.
[The committee consultants introduced themselves.]
MR. CHAIRMAN: Thank you very much. For those members of the public who have not known the exact mandate of the committee, the mandate of the select committee was set by a resolution of the House of Assembly in the spring sitting. Our mandate is to report back to the House of Assembly, hopefully, for the fall sitting which commences on October 15th, to recommend changes to the workers' compensation system in Nova Scotia to enable the system to function better.
In that regard, we have encouraged all members of the public to come forward and express their opinions concerning the system and, also, in the case of injured workers or employers, their experiences.
For the benefit of those members of the public who may be injured workers, we are extremely interested in hearing from you with respect to your experience in the system so that we can learn how to make the system work better for you and for other members of the public. However, it is important to realize that we are not doing an appeal so that when people present their cases here today, we are not able to intervene directly in their case. However, of course, there may be changes in the rules that would affect them that might be beneficial.
Without any further ado, I would like to call on Mr. Rick Clarke, President of the Nova Scotia Federation of Labour and Mr. Alex MacDonald, the Treasurer. I don't think Rick is here, unless Rick has gotten thinner. (Laughter)
MR. ALEX MACDONALD: I didn't hear that last comment.
MR. CHAIRMAN: He's invisible.
MR. ALEX MACDONALD: Mr. Chairman, Rick will probably be making another presentation on behalf of the Federation of Labour at a later date, I think, maybe - I understand the committee might be meeting - in Sydney later in September?
MR. CHAIRMAN: Yes, September 22nd.
MR. ALEX MACDONALD: Yes. I think he is going to try to make the presentation at that time.
MR. CHAIRMAN: Fine.
MR. ALEX MACDONALD: He is now preparing to go to China on a 10 day junket.
MR. CHAIRMAN: Well, we appreciate you being here today and we would ask you to commence your presentation whenever you are ready.
MR. ALEX MACDONALD: Okay. First of all, I would like to thank the select committee for coming to the Strait of Canso area. My involvement in the labour movement has gone back quite a few years and I can never recall a select committee coming to the Strait of Canso area before, either on a provincial or federal level. Usually, here, we have to travel to Sydney or Halifax to make a presentation if we want to so I want to say that we really appreciate that.
I guess you have probably heard many of the stories since you started to meet, some of the things I might discuss will be repetition but I think they are important, certainly.
The backlog at the Workers' Compensation Board seems to be a major problem and it is has been an ongoing thing. Somehow, it has to be corrected and changed because when you talk to people on the street, when you talk to the injured workers, they are the people that are suffering the most from the backlog.
Something that has come up is the appeal. When you have a specialist's report, maybe two specialists' reports, and the specialists say that you are unfit, you should get a claim and then the medical examiner, or whatever you may call, that the board turns your case down, we don't think that that is right. When you get a couple of specialists that say that you are incapable of performing work and one doctor can say - from the Workers' Compensation Board - that you are fit, I think that that leaves a lot to be desired.
There is something that changed back in 1995, I think. It is called a top-up. I am going to read you my collective agreement, what it says in my place of employment. I don't do this for a living, I work at a pulp and paper mill full time. We have negotiated in our collective agreement and I will read it to you: "In the case of occupational injury, the company will pay the difference between the amount the Workers' Compensation Board and the amount the employee is entitled to under the weekly indemnity plan, commencing on the first day to a maximum of 52 weeks.". My union and the company I work for negotiated that. There is no cost to the Workers' Compensation Board for that. This collective agreement has now expired and according to the new law, we are going to lose that. That is wrong.
If my union and the company I work for decide to do that and sign a collective agreement, there is no cost to the Workers' Compensation Board or to government. That should definitely be changed because that is not right. I think that the Workers' Compensation Board has their nose in something that they don't belong in and that is between the employer and the union.
Previously, the employer would pay you if you were injured on the job the first day and then the Workers' Compensation Board would take over from there. Now there is a two day waiting period. That is wrong. That shouldn't be. The employer pays you if you are injured on the first day and before you used to start getting paid on the second day. That has changed now and I don't know why that changed. Previously, we had made presentations about that but it was still passed through and that is not right.
Now, there is one more subject that I am not completely clear on and you might have to help me out on this, some of the committee members. It is called deeming. I am not completely clear about it. But if I understand this correctly, deeming means that your injury has to be increased by a certain percentage before your payments will increase.
MR. CHAIRMAN: I am not trying to give you advice but I think you are mixing two things together. The deeming provision, as I understand it, is a provision whereby you can be deemed to be able to pursue another line of work or livelihood which may affect your ability to collect benefits for loss of income.
The other provision I think you were talking about is . . .
MR. ALEX MACDONALD: It is 10 per cent disability.
MR. CHAIRMAN: That's right. I think they are two important issues but they are different issues, as I understand them.
MR. ALEX MACDONALD: Yes, I wrote them down together.
Anyway, I guess the deeming, if I understand it correctly, is if you are retrained for employment - and I would like to try to get this clear in my own mind - if I am retrained as a service station attendant and it is $5.50 an hour in Port Hawkesbury but a service station attendant in Antigonish is $11 an hour, am I then deemed, am I cut back that much to the $5.50 from the $11.00 an hour? Is my workers' compensation pension cut back accordingly because somebody else pays more in another area, close by, in a certain radius?
I am asking the question. I don't need the answer but I am just telling you . . .
MR. CHAIRMAN: I think the issue you are raising, though, is an important one in how does the deeming provision work in practice? How does it really work for injured workers, which is really the issue you are raising?
MR. ALEX MACDONALD: Yes. I don't need the answer but what I was told by the deeming process and I was given the example about the service station attendant so I will just leave that with you but that would be a real problem or concern. I guess it probably is a problem now if that is happening.
I guess that is basically what I wanted to cover. Once again, I would like to thank the committee for being here. I hope that in the future the provincial government will deem fit or whatever committees that go on the road will remember the Strait area because we are an ultimate part of this province.
MR. CHAIRMAN: Well, thank you very much Mr. [Alex] MacDonald. There may be members of the committee who have questions.
MR. ALEX MACDONALD: I am not answering any. (Laughter)
MR. CHAIRMAN: I appreciate your expression of the importance of this area and I guess the reason that the committee decided to come to this Strait area was because it is a long way from the Strait area to either Stellarton, which is our next nearest stop in the other direction, or to Sydney. So, thank you very much.
I would ask if members of the committee have any questions. Mr. Fage.
MR. ERNEST FAGE: Thank you very much, Mr. Chairman. Mr. [Alex] MacDonald, one question. The Nova Scotia Federation of Labour, how actively do you pursue compensation cases on behalf of your members? Would you be an advocate or liaison in helping them prepare their cases? Do you get involved in that?
MR. ALEX MACDONALD: Basically, the Federation of Labour is made up of different affiliated unions in Nova Scotia. The affiliated unions mostly look after the cases for their members, themselves, but the Federation of Labour do some appeal cases for individuals. As a matter of fact, there are some on the go right now.
MR. FAGE: Yes, and that seems like a very proper advocacy role for the federation.
MR. ALEX MACDONALD: That's right.
MR. FAGE: Obviously, they would be involved in it.
I would like to set the record straight, though, on select committees stopping in Port Hawkesbury. I was on one last winter, the Select Committee on National Unity and we, indeed, stopped in Port Hawkesbury last winter. Maybe we started that tradition but we were here at the end of January and held hearings here in Port Hawkesbury.
MR. ALEX MACDONALD: Maybe you are the reason why the committee is back. (Laughter)
MR. CHAIRMAN: Yes, Mr. [Charles] MacDonald.
MR. CHARLES MACDONALD: Alex, on the top, up in your contract, Stora and the union, you top up the . . .
MR. ALEX MACDONALD: Up to a maximum of 70 per cent. The workers' compensation might only be, say, 65 per cent and then the other 5 per cent is added in to make it up to 70 per cent - it can only go to 70 per cent.
MR. CHARLES MACDONALD: It can only go to 70 per cent.
MR. ALEX MACDONALD: Yes. So if workers' compensation is 65 per cent, then the insurance would make up the other 5 per cent. But now that will be gone after this collective agreement is out with the changes that were made.
MR. CHARLES MACDONALD: With those changes in 1995 in the Act?
MR. ALEX MACDONALD: Yes, with the changes in 1995, we were allowed to keep them until the collective agreement expired on June 1st. Unless this changes or unless we can negotiate something different, that is the way it would be right now.
MR. CHAIRMAN: Mr. Fraser.
MR. HYLAND FRASER: Yes. Alex, I have got a question on the two day wait. Your company, I guess, now would pay the day of the injury and the next day?
MR. ALEX MACDONALD: What used to happen before is the company would pay the day you were injured and then you start workers' compensation the next day. Now, there is a two day waiting period which means that I got hurt today or if I get hurt at 3:30 p.m., then I would lose tomorrow and the next day. I would lose the two days. If I am a shift worker who works three on and three off, okay, I would only have seven hours into my first shift and I would lose 12 hours tomorrow and Wednesday and that could limit my week's pay. So I would end up with seven hours pay for the week.
MR. FRASER: Mr. Chairman, one other question. When these changes were made, I guess, did you or your union go to Law Amendments Committee and try to change that, and lobby for it?
MR. ALEX MACDONALD: Yes, we did a lot more than that. We went to Law Amendments Committee but we also went and met with the MLAs in the area at the time. One of those MLAs was a Cabinet Minister. We met with him a couple of times.
MR. FRASER: Thank you.
MR. CHAIRMAN: Mr. Corbett.
MR. FRANK CORBETT: Alex, just on the top off, was that based on gross salary or net salary?
MR. ALEX MACDONALD: Gross.
MR. CHAIRMAN: Do any of our committee members have any questions? I guess I had a question, Mr. [Alex] MacDonald. I understand that your present collective agreement provided that your employer would pay you the day you were injured 100 per cent of your salary . . .
MR. ALEX MACDONALD: Yes.
MR. CHAIRMAN: . . . and would also pay 70 per cent of your gross salary for up to a year to the extent that that wasn't paid by the Workers' Compensation Board?
MR. ALEX MACDONALD: Yes.
MR. CHAIRMAN: So that, for example, if 70 per cent of your gross was greater than 75 per cent of your net, which would almost unvariably be the case, then the employer would top up the workers' compensation payment to 70 per cent of gross?
MR. ALEX MACDONALD: Yes, that's right.
MR. CHAIRMAN: I know the two day waiting period and I understand that issue and what is going on there. Does the expiry of your collective agreement also affect the ability of your members to get top up for that remaining one year less two days?
[3:30 p.m.]
MR. ALEX MACDONALD: Yes. It would.
MR. CHAIRMAN: You are suggesting that it should be up to the members in a collective agreement to strike whatever deal they want with the employer over and above the workers' compensation payment?
MR. ALEX MACDONALD: All we are saying is, that if it comes up to the 70 per cent, like if I get injured and workers' compensation is due to me at 65 per cent, then if my employer and my union says we are going to add in the other 5 per cent, then it is not costing the government or the Workers' Compensation Board any money. Frankly, I don't think it is any of their business either, that is my opinion on that. They have got their nose in someplace that it doesn't belong.
MR. CHAIRMAN: I understand that. I just wanted to make sure that I understood the way your collective agreement had worked prior to that, that would be the collective agreement at Stora that we are talking about?
MR. ALEX MACDONALD: Yes. And the Communications, Energy Paperworkers Union.
MR. CHAIRMAN: I think those are all my questions. Do any of the consultants have questions? Mr. Erjavec.
MR. LUC ERJAVEC: The businesses that I represent are traditionally non-unionized, so I am not an expert in negotiations or negotiation tactics. So my question is an almost rhetorical question on the art of negotiation. With the elimination of the top-ups, there will be a savings to a company, to Stora, of some dollar value, because they won't be topping up or paying insurance or whatever. Would it be part of your strategy in the new collective agreement to win that back in some other wage or benefit to the workers, because there is a dollar value to it?
MR. ALEX MACDONALD: I am not going to negotiate a collective agreement here. (Laughter)
MR. ERJAVEC: I am just asking a rhetorical question. Because there is a dollar value, there are negotiations, you are trying to slice up this pie in various ways, is that what would happen?
MR. ALEX MACDONALD: Maybe, to be fair, maybe we would try to recoup that, but we don't want to recoup it some other way, we want it left the way it is, because it is a protection for our members. We don't want to take it in some other form, we want to take it the way it is in the collective agreement now. We have no desire to change it.
MR. ERJAVEC: Okay. That was just a question. Thank you.
MR. CHAIRMAN: Thank you. Do any of the other consultants have any questions? Thank you very much for taking the time to be with us here today, and we truly appreciate it. Hopefully, Mr. Clarke will be available to make a presentation later on. Thank you.
MR. ALEX MACDONALD: Thank you very much.
MR. CHAIRMAN: Our next presenter is Gordon Joshua. Mr. Joshua. Have a seat, sir.
MR. GORDON JOSHUA: What I have here is not too much. It is just that I am having a problem with the Appeal Board. This is not an Appeal Board, but if you have problems with the Appeal Board . . .
MR. CHAIRMAN: We would certainly be interested in hearing anything we can about your case. I have a list of questions, Mr. Joshua, that I generally ask just so that we can understand a bit about your case. What is the date of your injury, sir?
MR. JOSHUA: My last injury was April 28, 1991.
MR. CHAIRMAN: Who was your employer at the time?
MR. JOSHUA: Richmond Fisheries.
MR. CHAIRMAN: And you were involved in the fishing industry, were you? As a plant worker?
MR. JOSHUA: It would probably make it easier if I show you this letter.
MR. CHAIRMAN: Sure. Thank you.
MR. JOSHUA: Then I will show you two more letters after that.
MR. CHAIRMAN: Okay. Just for the other members of the committee and the consultants, Mr. Joshua was a deep sea captain, and he had an injury to his right knee on board ship on April 28, 1991. He has received treatment from a Dr. Amirault, an orthopaedic surgeon at Camp Hill. That answers some of the questions. Are you presently represented, Mr. Joshua, by a lawyer with the Workers' Advisers Program?
MR. JOSHUA: They won't let me have one.
MR. CHAIRMAN: They won't let you have one?
MR. JOSHUA: No, because I had an appeal before for another claim. I had one then, but they said this new claim here, they won't give me a lawyer for it. I called for one, but I never had an answer, so I assume, they told me before I wouldn't have one. Plus, I had an injury to my left knee and also to my back. Do you know what they told me? My back, I think I have it here, it was back in the 1970's and 1980's, that was October 7, 1980, and my left knee was October 29, 1988. They told me they don't deal with work-related injuries. That was Bev Macaulay, from Sydney. (Interruption)
MR. CHAIRMAN: I am sorry, who said that?
MR. JOSHUA: Bev Macaulay. She said, we don't deal with work-related injuries. So what are you supposed to have compensation for?
I have a few more letters to show you.
MR. CHAIRMAN: Just for the other members of the committee, Mr. Corbett was indicating that that lady is the area manager for the Workers' Compensation Board in Sydney.
MR. JOSHUA: Yes. Right. Anyway, about that letter in 1991, they sent me some forms for lost wages, right?
MR. CHAIRMAN: Yes.
MR. JOSHUA: I filled out the forms and I sent them in. That was July 4, 1996, and April 8, 1997, they wrote me that I wasn't qualified. I didn't qualify.
MR. CHAIRMAN: Thank you. This letter that you provided to me, Mr. Joshua, that is a letter . . .
MR. JOSHUA: From Dr. Dobson, Workers' Compensation Board.
MR. CHAIRMAN: Okay. I couldn't make out the signature. Doctors are renowned for bad writing.
MR. JOSHUA: Anyway. I got the lay-off from the company here and such. I don't think it is right. My last injury was in 1991. I think I should qualify, as a matter of fact, I should, because the law came into 1990, right?
MR. CHAIRMAN: Yes. So you made application for loss of earnings in 1991, and you said your case is presently in front of the appeal tribunal?
MR. JOSHUA: Yes. I called them the other day, and it is going ahead again there, but I am not making any headway.
MR. CHAIRMAN: I don't want to be technical, but when you say the appeal tribunal, you mean the Workers' Compensation Appeal Tribunal?
MR. JOSHUA: Right.
MR. CHAIRMAN: Who were you dealing with there at WCAT? Was it Judith Ferguson?
MR. JOSHUA: Andrea Smiley.
MR. CHAIRMAN: Andrea Smiley, yes, she is one of the commissioners of . . .
MR. JOSHUA: I must say she was pretty good. That was the last one I had in Sydney. She was pretty fair.
MR. CHAIRMAN: She said your case is still going to be going forward?
MR. JOSHUA: That is what she told me, yes. At first, anyway, Dr. Amirault - my first injury was in 1974 - Dr. Amirault had written to them and he said I should get disability from that time on, but they never acted upon that; plus, they had suggested retraining, and they turned me down for retraining also.
MR. CHAIRMAN: Mr. Joshua, what happened that you - and maybe you can't answer this - what happened that it took so long for your claim to go forward? Have you any . . .
MR. JOSHUA: That is what I would like to know.
MR. CHAIRMAN: I think that was a rhetorical question, as we said earlier, it has been seven years since you were injured.
MR. JOSHUA: Well, they sent me to a lawyer, lawyer MacCuish in Sydney . . .
MR. CHAIRMAN: Rick MacCuish?
MR. JOSHUA: Rick MacCuish. That was in 1992. He wrote to me in 1997 that they couldn't do anything about it. Why pay a lawyer all these years? We are no better off now than we were 25 years ago. Worse off. The last government passed legislation. I don't care what government is going to be, who is to judge that you don't deserve anything if you are injured or sick, not by your own fault? Nobody goes there and jumps in the machine to get hurt.
MR. CHAIRMAN: Mr. MacCuish now works for the Workers' Advisers Program in Sydney. Were you in contact with him recently?
MR. JOSHUA: No. I wasn't, because I wasn't pleased with the . . .
MR. CHAIRMAN: . . . the service you received. I understand.
MR. JOSHUA: But now I am due for a knee replacement pretty soon on that side.
MR. CHAIRMAN: Are you receiving any workers' compensation benefits at all at the moment?
MR. JOSHUA: Right now, I am getting $418 a month; that is a long ways from the $70,000 to $80,000 I was making.
MR. CHAIRMAN: And that benefit that you are receiving is relative to your old injury, the one to your left knee?
MR. JOSHUA: No, to the right knee too. But what happened here, the injury to the right knee happened back in 1974. I was operated on in 1987 and everything went fine, I never lost a day's work until 1991. But this happened a different way. A big bunch of rollers came along and smashed my knee against the structure of the ship. Then I was taken off work. They are trying to relate it to the first injury. I even have a letter here from Tony Bremner. My first claim was 1302533, and the last one was 5028848. Here is what Tony Bremner had to say. You are going to have to excuse me on the big words, I'm just going to skip them.
MR. CHAIRMAN: Yes, that's all right.
MR. JOSHUA: It reads: I recently had an opportunity to review your claim in relation to your updated medical information that has been submitted to us. That is on the old claim 1302533. It is noted that a letter has been sent to you on June 29, 1993 stating that we would not be reopening your claim for temporary total disability benefits nor accepting any physiotherapy, no treatments or any medical costs in relation to your present condition. This claim was reviewed once again, and the correction from Dr. Martell, and unfortunately I am still unable at the present time to relate your present condition as being associated to the incident of August 1986. This guy can't see it being related to the old one either. It is signed Tony Bremner.
MR. CHAIRMAN: But you had an injury, nevertheless.
MR. JOSHUA: I told them. I can break my leg here, right? Next year, if I go down the road and I break my leg again, I get hit by a car, that is not a re-injury. Is it? That is the problem in here. I think it is a problem, if you need surgery, you have to be fixed too.
MR. CHAIRMAN: I understand. I am not sure what help it would be, but there may be some advantage, Mr. Joshua, and there is a gentleman with a blue striped shirt on there behind the lady in the black dress, if after the session this afternoon, if you could contact him, he might be able to put you in contact with someone who might be able to give you some further information about your claim.
MR. JOSHUA: I must say, I was very pleased with Andrea Smiley. What I was going to do, this was all taped like you are doing here, I was going to appeal for a raise to my pension. She told me, I think you would be better off, because your last injury was in 1991, to apply for lost wages.
MR. CHAIRMAN: Yes. Earnings replacement. I think that was what I was concerned about, that you get the proper advice.
MR. JOSHUA: Like I said, no government can judge how you got hurt or why you got hurt. It's nobody's fault; it's not my your own fault that I got hurt. I don't like pain that much.
MR. CHAIRMAN: I understand. I guess our concern would be that - obviously, you are one of the many people who have been waiting a very long time to have your claim heard.
MR. JOSHUA: Too long. The problem here, I think they just wait until you die, and your claim dies with you.
MR. CHAIRMAN: In any event, I would encourage you to talk to the gentleman in the blue striped shirt. First of all, I will ask the other committee members if they have any questions for you, sir.
MR. JOSHUA: But the one there, when she said that, not dealing with work-related injuries, my back bothers me, I have osteoarthritis, in both knees and in my back. As a matter of fact, I was in Halifax last Monday.
MR. CHAIRMAN: I am going to return your papers to you, sir, because you may need them for your appeal.
MR. JOSHUA: I think so. But I am probably going to need more than that.
MR. CHAIRMAN: Thank you very much. Do any of the consultants have any questions? Thank you very much for taking your time to be with us. It was very helpful for you to relate your difficulties.
MR. JOSHUA: I hope that you people can do something about it, because we all know that all these appeals and the compensation is all government related. Hopefully they don't take the advice of the board or the appeals, they go straight with their information.
MR. CHAIRMAN: Thank you very much. Our next presenter is Mr. Harvey Short. Mr. Short, come forward. Good day, Mr. Short. Have a seat. Go ahead.
MR. HARVEY SHORT: I have been battling the Workers' Compensation Board since June 6, 1980, of my injury.
MR. CHAIRMAN: I am going to ask you the same kind of questions I asked of the other gentleman just for our information. You said you were hurt on June 6, 1980?
MR. SHORT: Yes.
MR. CHAIRMAN: What kind of injury did you receive?
MR. SHORT: I had an ankle injury.
MR. CHAIRMAN: And where were you working at the time?
MR. SHORT: I was working next door here at Breton Marine Point Tupper Limited, a shipyard in Point Tupper.
MR. CHAIRMAN: And you made a claim at that time for your injury, I assume?
MR. SHORT: Yes, I did. I got everything here. I was all covered for the dates and what I was on, et cetera. I can show it to you if you want to see it.
MR. CHAIRMAN: Do you presently have a workers' adviser or a workers' counsellor?
MR. SHORT: Yes, I have one in Halifax, the Workers' Advisers Program, Mr. William MacDonald.
MR. CHAIRMAN: Yes, fine. Did you ever have a workers' counsellor before under the old program where they had a private lawyer?
MR. SHORT: Yes, I did.
MR. CHAIRMAN: And who was that?
MR. SHORT: I had, he is from town, it was Harold MacIsaac, I had him a few years ago.
MR. CHAIRMAN: And where is your case in the system?
MR. SHORT: My case in the system right now is in with the WCAT. They had given my lawyer 21 calendar days to do up my medical report that I had done. I have been waiting for a decision on that since June 1996 and I still got no answer back.
MR. CHAIRMAN: When did you make your application for benefits the last time?
MR. SHORT: Let me see, it was quite a while ago for benefits. I was on temporary total disability benefits for the following periods: from June 6, 1980 to January 5, 1981; then I went from March 31, 1982 to February 1, 1984; from March 12, 1987 to November 1, 1989; and from May 17th to June 29, 1991. That is with the surgeries I had to my left foot, I had that done. I had a fusion to my left foot. They put three staples in and they took one out. They left two in, plus I had a fusion, plus they had cut me from here. I had - I can't pronounce what it is, but I show you the scars. (Laughter)
MR. CHAIRMAN: That's all right.
MR. SHORT: I had a sympathectomy. That was done by Dr. Wood and off and on I was on compensation. I had surgeries on top of surgeries. I had fusion. They drafted a bone out of my right hip and they put it in my left foot, plus the staples that are still in there.
MR. CHAIRMAN: Are you presently working at all, sir?
MR. SHORT: I was working and I got laid off. I was working at the Louisiana Pacific. Back then I was getting compensation and Canada Pension disability benefits and they wanted me to go back to school, go to train. The Workers' Compensation Board was going to pay me $162 a week and back then when I was getting Canada Pension disability, I contacted Canada Pension just to see if I could be retrained and get back some type of unemployment. I can read you a section that Dr. Petrie had wrote on it, unless you want to see the paper.
It says: I inquired as to why he has not gone back to be retrained. He says he was offered $162 a week to be retrained and that he would be out of money in comparison to his current situation. He cannot afford to go back. He knows that he would lose his Canada Pension if he gets involved in another retraining program. Unfortunately, this is a common problem in which the injured workman finds himself and this is very much a catch-22 situation and, hopefully, the government in their wisdom will see fit to change the rules. Again, if I would have gone back to school, I would lose Canada Pension and that would only mean $162 a week.
MR. CHAIRMAN: Because that was all the Workers' Compensation Board was paying you?
MR. SHORT: That's it.
MR. CHAIRMAN: So I guess from your point of view, have you any suggestions or observations that you would like to make on how the system could be improved or made better or changed?
MR. SHORT: Yes. Well, I've seen lots of doctors. I can show you the reports if you want to see them. I don't think the WCB should be able to overrule a specialist. There's lots of stuff here. Read this one here and see what he said. You will have to excuse the mess that I have there.
MR. CHAIRMAN: That's all right. So you saw Dr. Petrie?
MR. SHORT: Yes.
MR. CHAIRMAN: You also saw Dr. LeGay?
MR. SHORT: Yes.
MR. CHAIRMAN: Now, Dr. Martell is?
MR. SHORT: He was my family doctor back then.
MR. CHAIRMAN: And who was the Workers' Compensation Board doctor? I'm just trying to save time here. Their doctor came up with a different opinion I take it as to your condition?
MR. SHORT: Yes.
MR. CHAIRMAN: All the other doctors had one opinion and their doctor had another opinion?
MR. SHORT: Yes, right on. As you can see in the percentage of my claim . . .
MR. CHAIRMAN: What percentage were you given for your injury?
MR. SHORT: Well, right now I'm receiving for my injury $264 a month. That's what I'm getting right now and as you can see there, down on the page, where it says I was receiving 27 per cent but when they found out I was only getting 17 per cent, I'm not receiving 27 per cent. I got an 8 per cent increase, and the dates are there - I can't remember the dates - then I got a 7 per cent increase and then I got a 2 per cent increase and it gives me 17 per cent. They say I was getting 27 per cent but where they get the 27 per cent, I do not know. The only reason I could figure they were getting the 27 per cent, is where I was on compensation and getting my pension at the same time.
Now, for instance, there's a guy at the same place I got injured, I wish he was here today, but he couldn't make it. His name is Dennis DeLong. He told me to give his name. He got hurt the same place, almost the same type of injury, and he's getting 20 per cent from the WCB. He's getting $364 a month and they say I'm getting 27 per cent and I'm only getting $264. There has got to be a mistake somewhere along the line.
MR. CHAIRMAN: Just for the benefit of the other members of the committee, they have got the chronology here and the benefits paid. There was a 10 per cent increase in his permanent partial disability award made on December 7, 1989, and that was as a result of the fact that the board physician suggested that he should have 17 per cent but in point of fact - yes, I see. Yes, the calculations don't seem to match up with the doctor's recommendations. I guess that's the short summary of the problem. I'm sorry, I didn't mean to cut you off, sir.
Do you have any other concerns? You said you had some acquaintance that you knew that was receiving a different . . .
MR. SHORT: I was following the workers' compensation in the paper, in the Chronicle-Herald, and when they came out about this chronic pain suffered for the people in the 1990's, okay, how about the ones that got hurt before 1990? They aren't entitled to it. I don't think it's fair. I think we should all be entitled and I called them back up and I asked them was I entitled to it. They told me, I don't know what it is, but they told me no, I was in the window period. Can you tell me what that is?
MR. CHAIRMAN: I think you are in the window period. I'm not clear on what advice you are getting but I understand the Workers' Compensation Board policy, the one they have introduced on their own - and I want to make it clear to you that that is not necessarily what the select committee may or may not be dealing with - what the Workers' Compensation Board has said is that for injuries between March 1990 and February 1, 1996, that they have developed a scheme for dealing with chronic pain cases. I think what they are saying is that your injury is prior to the window period and that, therefore, you are not entitled to compensation. I'm not saying that that's the view of the committee. I am simply telling you what I understand the Workers' Compensation Board is saying.
MR. SHORT: I remember when I was working at Richmond Fisheries before I had to go in for surgery, what they done to me is, the accident happened over here at Breton Marine, and they never used to go back on my old claim to reopen my claim where my injury had happened. They had based it on Richmond Fisheries wages but the accident never happened at Richmond Fisheries. Maybe that's where the mistake is, but that's what they used to do. The accident never happened at Richmond Fisheries at all. That's what they based me on, Richmond Fisheries' wages. That's when they reopened my claim when I used to go back in for surgery all the time.
MR. CHAIRMAN: So you don't feel they calculated your wages accurately?
MR. SHORT: I don't think so. I can show you an ADR settlement where they wanted to settle, in New Glasgow.
MR. CHAIRMAN: So were you offered ADR, Alternate Dispute Resolution?
MR. SHORT: I can just show you a few letters, ADR settlement, the tribunal. That there is the same thing. You can take them all up and have a look at them.
MR. CHAIRMAN: So you had a settlement conference on December 19, 1997?
MR. SHORT: Yes.
MR. CHAIRMAN: Perhaps you could just summarize for us how you felt about that conference and how the process worked from your point of view?
MR. SHORT: From my point of view I didn't think it was fair. I walked in and I went in there and sat down. I was only in the room for about 15 minutes to 20 minutes at the most.
MR. CHAIRMAN: Who was in the room?
MR. SHORT: The lawyer was Anne Clark and there was a man, I forget his name, and there were two women on the opposite side.
MR. CHAIRMAN: Was one of the people in the room one of the appeals commissioners?
MR. SHORT: Yes, yes, it was. She was telling me that all they are going to offer you here today is between $6,000 to $8,000 and that was it. Then he called her outside and he said, he stated that he could not offer enough to meet my need, what I went through for my surgery I had done. So that was it. Then my file went back to the WCAT and that's where it stands at now. I am still waiting. Well, they told me I will hear the end of December.
MR. CHAIRMAN: The cost of the travel and so forth to Halifax, did you pay that or did they pay that?
MR. SHORT: No, as far as back and forth to Halifax my way was paid. They never paid my way to New Glasgow where I had to go on my own expense. They said they wouldn't pay it.
MR. CHAIRMAN: So your feeling with respect to the process as far as your case was concerned is it was a waste of time, in effect?
MR. SHORT: Right.
MR. CHAIRMAN: There may be questions from other members of the committee and I am going to give them an opportunity to ask questions at this time. Do other members of the committee have any questions for Mr. Short? Mr. [Charles] MacDonald.
MR. CHARLES MACDONALD: You didn't accept the offer, did you?
MR. SHORT: No.
MR. CHARLES MACDONALD: No, so you left it there. How much did you say the offer was for?
MR. SHORT: The offer she told me was between $6,000 to $8,000.
MR. CHAIRMAN: Who told you the amount of the offer? Was it . . .
MR. SHORT: It was Ms. Anne Clark that told me the amount of the offer.
MR. CHAIRMAN: Did she recommend you take it or not take it?
MR. SHORT: She said, well, she has recommended to me not to take it. She said it is left to me or it is not, or whatever. Then she recommended not to take it.
MR. CHAIRMAN: Fine. Do any other committee members have any questions? Yes, Mr. Fraser.
MR. FRASER: Thank you, Mr. Chairman. So you are getting $200-whatever now a month?
MR. SHORT: $264.
MR. FRASER: I know your former employer has closed up and gone away I guess, is it, Breton Marine are not in business any more?
MR. SHORT: Yes.
MR. FRASER: So are you able to do the same type of work?
MR. SHORT: No.
MR. FRASER: Were you retrained to do something else?
MR. SHORT: I was supposed to go back to be retrained and, like I stated earlier, back then when you want to be retrained, workers' compensation would pay me $162 a week. When you wanted to go to school back then, I was on Canada Pension disability, and back then, when I called them up and told them the situation, they said if you can be retrained, you can go back to work. In other words, case closed. There was no way I could afford a family and a mortgage on $162 a week.
MR. FRASER: So you say you are not working now but you had worked over the last year or so?
MR. SHORT: I worked, yes, I was laid off.
MR. FRASER: Are you able to do most types of work with your ankle the way it is?
MR. SHORT: Not most types, easy work and that.
MR. FRASER: Yes.
MR. SHORT: But I can show you my ankle and my foot if you want to see it, if you want to look at it.
MR. FRASER: No, that's fine. I am just wondering, will there come a time when you will have to get more work done to it again or do you think everything has been done to it that's going to get done in this final settlement?
MR. SHORT: Say that again.
[4:00 p.m.]
MR. FRASER: Do you expect that you will have to have some further work done on your ankle sometime in the future?
MR. SHORT: No, what they had done is, they put staples - they fused it, they dropped a balloon in from my right hip and they cut me - I just said the word I had - they cut me from here to here. That is what I had done. If I had known that, I would never have taken that again. It still bothers me today.
MR. FRASER: Okay, that's fine, Mr. Chairman.
MR. CHAIRMAN: Thank you. Mr. White.
MR. RAYMOND WHITE: Thank you, Mr. Chairman. Just for clarification, when WCB wanted you to go into training, you were caught with the dilemma that if you did then you would lose your Canada Pension?
MR. SHORT: Yes, back then you would.
MR. WHITE: So what is the status now? Are you still on Canada Pension?
MR. SHORT: No. I had no choice. I had to end up going back to work.
MR. WHITE: Okay, that is because of the direction from WCB?
MR. SHORT: Yes.
MR. WHITE: Now you're in the situation where you're waiting for your appeals to . . .
MR. SHORT: From WCAT.
MR. WHITE: Okay. Thank you, Mr. Chairman.
MR. CHAIRMAN: Thank you, Mr. White. Any further questions? Mr. Parker.
MR. CHARLES PARKER: Thank you, Mr. Chairman. So you are also now receiving unemployment benefits because you're off work?
MR. SHORT: Yes.
MR. PARKER: You expect to be recalled soon, or next year, or when?
MR. SHORT: Well, hopefully.
MR. PARKER: What is the nature of the work you're doing right now?
MR. SHORT: Well, I was at Louisiana Pacific, inside the building. It is labour work, gypsum plant. That is all it is.
MR. PARKER: So you're able to handle that? Are you able to do your regular work?
MR. SHORT: At times. A lot of times I had to sit down. They had fitted me with a brace. I didn't take it. I should have taken it. I forgot all about it. They were supposed to fix it but they never did fix it. It is a brace that I used to wear. There is an ankle bracelet that Dr. Mahar fitted for me. It goes up to my knee. They were supposed to take the plastic off because when I put it on, and I was wearing it, it used to draw tight to the skin and it used to cut my skin. Then I had to cut off a long john to put on over my leg so the boot wouldn't cut it. I should have taken it and I forgot all about it, to show it to you.
MR. PARKER: So were you working there, like, 40 hours a week or a full work week?
MR. SHORT: 35, 40 hours a week, yes.
MR. PARKER: Okay. How many weeks did you work or how many months?
MR. SHORT: It was over a year that I was there.
MR. PARKER: Okay.
MR. SHORT: I had no choice. You have got to work.
MR. PARKER: But you were able to do it?
MR. SHORT: Yes, I'm not going to lie to you. Yes, I was doing it.
MR. PARKER: Thank you.
MR. CHAIRMAN: Thank you. Do any of the consultants have any questions? Well, thank you very much for taking the time to be with us here today. I am going to give you back your papers because you have got a case presently under appeal and the chances are, maybe, that you might need some of these documents. By all means, I would ask you to take them again. I do appreciate and give our thanks on behalf of the select committee for you taking the time to be in with us today and give us your concerns.
MR. SHORT: Thank you.
MR. CHAIRMAN: Thank you. Would Ann and/or John Snyder be here? Mr. Snyder, Mrs. Snyder? Our next presenter would be Kenneth Burgess. Mr. Burgess, come forward. Have a seat, sir.
MR. KENNETH BURGESS: My name is Kenneth Burgess. I worked for Richmond Fisheries in Petit-de-Grat. In 1990, I fell and broke a bone in my back, and I have been fighting ever since.
MR. CHAIRMAN: What date in 1990 did you injure yourself?
MR. BURGESS: March 7, 1990.
MR. CHAIRMAN: Okay, March 7, 1990 you fell and . . .
MR. BURGESS: Injured my back.
MR. CHAIRMAN: . . .injured your back.
MR. BURGESS: Broken bone. X-rays showed a bone broken.
MR. CHAIRMAN: Okay. Have you ever received any benefits at all from the Workers' Compensation Board?
MR. BURGESS: The only thing I got was transportation to Sydney Mines.
MR. CHAIRMAN: That is the only benefit you received?
MR. BURGESS: Yes.
MR. CHAIRMAN: They have never paid you any pensions, even temporary, total disability, anything?
MR. BURGESS: No, nothing.
MR. CHAIRMAN: Okay.
MR. BURGESS: The best thing for me to do is read what I have got here.
MR. CHAIRMAN: Sure, by all means, sir.
MR. BURGESS: If I start going on, I will get astray.
MR. CHAIRMAN: Absolutely, go for it.
MR. BURGESS: Workers' Compensation Board Appeal information on behalf of Kenneth Burgess of D'Escousse, Richmond County. Accident occurred while getting off a fishing vessel M.V. Ellen Fletcher Richmond Trawlers Limited offshore fishing vessel at Petit- de-Grat. I, Kenneth Burgess, slipped and fell on my back on an icy area. The accident occurred on March 7, 1990. I attended Dr. Laurie MacNeil of Arichat at the time of the accident and the following day saw his co-worker, Dr. Robert Martell. Two fellow fishermen, crew members of the same vessel, witnessed the accident, Mr. Allan Savoury and Mr. Leonard Boudreau of Arichat.
I continued to perform my duties as chief cook on the vessel while I experienced severe pain in my back and continued on until April 17, 1990. Several visits to my family doctor, Laurie MacNeil of Arichat, and continued examinations over the course of the next several years indicated that the problem with my back was the result of the fall I took on March 1990. Documented examination forms from Dr. MacNeil are available.
It is well to note that I had to discontinue my employment as chief cook on the M.V. Ellen Fletcher on April 17, 1990 and could not return to work because of the injury to my back and other medical problems. Richmond Trawlers Ltd. eventually closed fishing operations due to the closure of the ground fishery.
Medical reports from Dr. Laurie MacNeil, Dr. R. Reid and Dr. Douglas Watts, all available to the Workers' Compensation Board all indicate that the injury occurred and it has been, up to the date of the most recent examination, deteriorating.
All of the foregoing information has been presented to the WCB and is readily available. Affidavits from the captain of the fishing vessel that I was employed on, Captain Ray Molloy's vessel of Arichat, has been duly sworn to and presented to WCB, indicating the extent of my injury and the subject and problems that I experienced trying to carry on my regular duties while at sea.
The aggravation got so bad that Captain Molloy had to land me at the nearest port to the fishing ground which was Sydney, Nova Scotia. There is some confusion regarding my entrance to the City Hospital in Sydney, Nova Scotia in 1990.
It was well to note that the visit to the hospital had nothing to do with my back injury and this is why I was turned down. I was in Sydney waiting for transportation from Sydney to Arichat because I couldn't perform my duties and, of course, I took a heart attack. I ended up in City Hospital. They wanted nothing to do with my back because I wasn't there for that. Anyway, this is the reason I was turned down.
They had to land me at the nearest port which was Sydney. To note that the visit to the hospital had nothing to do with my back condition, I was admitted to the City Hospital in Sydney, suffering from a heart disorder.
It has been brought to my attention that the WCB has been using a report from the City Hospital in Sydney which does not deal with the conditions surrounding my back injury but deals with the heart condition that had me admitted to the hospital at that time. I understand that the contents of this report was a determining factor in the rejection of my application for compensation in the past. I have been through the process with the Workers' Compensation Board relating to the matter after several appeals. I am back to where I started.
My opinion relating to this situation indicates that I had suffered an injury while disembarking from M.V. Ellen Fletcher at the Richmond Fisheries Wharf in Petit-de-Grat.
Several doctors can collaborate that the injury occurred and that permanent damage has resulted. Doctors' reports are available, doctor-related reports from crew members and the fishing captain relating to the accident and subsequent discomfort that I was experiencing while trying to work due to injury, resulting in the captain landing me at the nearest port, Sydney.
I would ask that you consider the information here in the extensive files available and come forth with a positive decision on my behalf. I thank you for your attention and I look forward to a response at your earliest convenience.
MR. CHAIRMAN: Thank you very much. I guess the first question I have, Mr. Burgess, is you said that you had some appeals. What is the status of your last appeal?
MR. BURGESS: I had an appeal in Antigonish. Evelyn Winters was the adjudicator then.
MR. CHAIRMAN: What year would that have been?
MR. BURGESS: I have got it in here. I can't . . .
MR. CHAIRMAN: No, that's all right, that's fine.
MR. BURGESS: Steve Woodman was my lawyer then. That is why I don't have a lawyer any more.
MR. CHAIRMAN: Okay.
MR. BURGESS: When we went in, I told him that Sydney City Hospital wasn't to be brought up because they had nothing to do with my case. He brought it up, I got up and he told me to sit down and shut up. I came back to Port Hawkesbury and picked up my file from his office and that was the end of him. That is the only reason that I was turned down. Evelyn Winters doesn't work for compensation any more but is telling people I would have got mine if it hadn't been for that.
I got letters right here from the doctor in Sydney. I was standing waiting for a drive home. The company had called me a taxi. The taxi ended up calling me an ambulance. When he got there and picked me up, I was on my back with a heart attack.
The doctor from Sydney is saying this. Like, you know, he didn't want anything - when I got there I said I was going home because I had a back injury. I don't want to hear about that. That is not why you're here. He didn't - you know, he didn't want to get too many doctors confused into it.
Then I went to a specialist, Dr. Watts, in Sydney, several times. He had X-rays. It showed where the bone is broken. I think it has dragged on long enough.
MR. CHAIRMAN: Is Dr. Watts a specialist?
MR. BURGESS: Yes. There is no doubt in his mind. The reports are here and I have got more of them home. There is too much stuff to bring. I have sworn affidavits from the skipper and the crew members. I don't know what they need for proof. The X-rays show and I have sworn affidavits.
The skipper is not going to get up in a court room and swear that I fell if I didn't and got hurt. And I tried to keep working because at the time we were making big bucks and I didn't want to fight with compensation. I worked as long as I could and then he had to land me. Out at sea it is not the same as here.
Now I'm trying to work again but . . .
MR. CHAIRMAN: What kind of work are you doing now?
MR. BURGESS: Cook on a boat. It is not in my backyard like this job was. I have to go all the way to the Caribbean to work now and I'm not having it easy. The doctor was saying, no, but I've got to live.
Canada Pension had no problem with my injury. Canada Pension gave me my Canada Pension. The workers' compensation - I was told I would never get Canada Pension but I got that, no problem. The workers' compensation - if I could have got the both of them I would not have to fight trying to work, travel two days by airplane to get to where I have to go to work.
The doctor is still saying I shouldn't be working so I hope you guys can help with this.
MR. CHAIRMAN: First of all, the committee members may have some questions for you. Ms. Godin.
MS. ROSEMARY GODIN: Hello. Do you have an appeal that is ongoing now?
MR. BURGESS: I was supposed to have a hearing coming up in Sydney. In fact, it went by. I was overseas. She has been trying to get me rescheduled. That is another thing. I asked her to reschedule it, like, right away so it would have happened while I'm home and now she is telling me it is going to take 45 days, at least.
MS. GODIN: Who is it you are working with, is it someone from the Workers' Advisers Program that is telling . . .
MR. BURGESS: The Appeals Tribunal. I have her name and everything home, and her phone number, but I don't have it with me. She said it would take at least 45 days to notify everybody. It only takes a punch in the computer to get my file so I don't know why it would take so long to get everybody together.
I don't say Richmond Fisheries are going to show up because they don't exist any more. There is no such thing so I can't see them showing up.
MS. GODIN: So, you don't have a workers' adviser right now?
MR. BURGESS: No.
MS. GODIN: Okay.
MR. BURGESS: If I don't get any money, there are no lawyers getting any. They have got enough that they could have paid me off. Steve Woodman told me to sit down and shut up.
I came back to Port Hawkesbury. I said, I am going to Port Hawkesbury to get my file and you are finished. I came here. They didn't want to give it to me, but when they called workers' compensation, they told them they had no choice, if I wanted my file taken from their office, they had to give it to me.
MS. GODIN: There is a Workers' Advisers Program that you might want to look into to help you.
MR. BURGESS: No. I think I have enough right there. I shouldn't have to have a bunch of people making the decisions.
MS. GODIN: It might make things easier for you. Anyway, the information on that is available from people here in the room, if you are interested.
MR. BURGESS: Do you guys want a copy of this? You can have it.
MR. CHAIRMAN: We would like that. Thank you.
MR. BURGESS: This is the only copy I have, you can have that. I have another one at home. I can get more copies made.
MR. CHAIRMAN: Thank you.
MR. BURGESS: What about this other stuff? Workers' compensation has all this, but if you want copies of it . . .
MR. CHAIRMAN: I was going to suggest that you might just, when you are leaving today, contact either Doug or Kim - I don't know which it is going to be - either the lady in the blue or the gentleman in the blue-striped shirt back there, and they may be able to take some further information and give you some further information.
MR. BURGESS: Is that it?
MR. CHAIRMAN: Mr. Power has a question.
MR. POWER: Mr. Burgess, can you tell me, do you recall if a report of accident was filed in your case?
MR. BURGESS: Yes.
MR. POWER: It was filed? Was it filed on the March date, or was it filed . . .
MR. BURGESS: Yes.
MR. POWER: It was filed on the first date available?
MR. BURGESS: Yes. I was told to stay home for three days. It was left to me when I told the doctor I wanted to go back. I insisted on going back to work. We were making $1,600 to $1,700 every four or five days. It was our season to make money - Mr. White is from Canso, he would know that - fishermen, when you have the chance to make big bucks, you take it. When the weather got rough, I couldn't do it any more; it was firing me around too much. I just couldn't continue. I went as long as I could, the the skipper said, I think I better take you in, you are in enough pain. I didn't stop fishing because I wanted to. Now there is no fishing, unless you get on a foreign vessel. Saving them for the foreigners now.
That is all I have. Anybody else?
MR. CHAIRMAN: Mr. White has a question for you.
MR. WHITE: First of all, Kenneth, I know what you mean by, there are certain times of the year it is more lucrative to fish than others.
One of the concerns that you brought up - and that may have to be clarified by someone - is that you said you had an initial injury when you fell but, then when they reviewed your case, they added the complication of the heart attack, is that correct?
MR. BURGESS: Yes.
MR. WHITE: What you are saying is that they should keep the two separate and just deal with the back injury by itself?
MR. BURGESS: I have a letter here from City Hospital where it says I was taken there because I had a heart problem; it had nothing to do with my back. The doctor there, he even stressed to me, he said, I don't even want to hear about your back, you are not here for that. He was right, I wasn't there for that. I was standing waiting for a taxi, because the boat dropped me off and left, and the taxi was supposed to be there waiting. I told the skipper to go on, I would be all right. I was there, pacing back and forth, first thing, I fell on my back with a heart attack. I am still taking the pills today for my heart.
MR. CHAIRMAN: Ms. Godin.
MS. GODIN: Mr. Burgess, just as a point of clarification, you fell on March 7, 1990, but you weren't able to get to a hospital on March 7, 1990?
MR. BURGESS: Oh, yes. They took me right to my doctor that night. We were just landing with a trip of fish.
MS. GODIN: Okay. So you didn't get to a hospital on that date?
MR. BURGESS: I fell getting off the vessel that evening; I went right to the doctor that night.
MS. GODIN: So there is a report.
MR. BURGESS: Oh, yes.
MR. GODIN: Okay. Thank you.
MR. BURGESS: Probably, I have that one in here, but workers' compensation has all that. I went to the doctor that night. They had to take me, I couldn't take myself. I was out for awhile.
MR. CHAIRMAN: Mr. [Charles] MacDonald.
MR. CHARLES MACDONALD: Yes, Ken, just to get clarification, you fell on the wharf, was that when you took the heart attack?
MR. BURGESS: No.
MR. CHARLES MACDONALD: That was a later date?
MR. BURGESS: I got injured . . .
MR. CHARLES MACDONALD: You were injured on the 7th.
MR. BURGESS: . . . getting off the vessel.
MR. CHARLES MACDONALD: Okay, and you have a doctor's report for that injury?
MR. BURGESS: Yes. Then I kept working, but my back got so bad, he had to take me into Sydney. I was supposed to go home to Arichat, and that is when I took the heart attack.
MR. CHARLES MACDONALD: Yes.
MR. BURGESS: That is the reason they turned it down. City Hospital, I have a letter here that says, nothing to do with it, and Evelyn Winters said that is the only reason he turned me down. He doesn't work for them now, but I am trying to get him for my lawyer, but he doesn't want to go. I am going to fight it without a lawyer.
MR. CHAIRMAN: That is your prerogative. Are there any other questions from committee members or consultants? Again, I just wanted to stress for you, Mr. Burgess, that this committee - you may have come in late - is not an appeal tribunal as such. Certainly we can listen and we are very interested in what you had you to say, because it points out some problems with the workers' compensation system but just so that you don't feel that someone has let you down, we are not able to directly intervene in your case. The reason I suggested that you speak to those folks at the back of the room is they may be able to provide you with some further assistance in pursuing your case. I understand that you have a case and you want to have the resolution of that case. Again, I understand that you don't want another lawyer at this time, and you have every right to do that, if you don't want one . . .
MR. BURGESS: If I am not getting no money, no one else is. That is the reason there is no money for us, workers' compensation wastes too much. We have a committee here, we met with them in New Glasgow, we met with them in Sydney, where they could have had the Legion for zero, no, they had a big hotel that probably cost thousands of dollars. They could have paid those thousands of dollars to us, instead of making the big hotels rich.
MR. CHAIRMAN: Mr. DeWolfe.
MR. JAMES DEWOLFE: Mr. Burgess, I don't think you understand that if you do qualify for a workers' adviser, that is a lawyer provided, there will be no charge to you.
MR. BURGESS: I know that.
MR. DEWOLFE: You know that, do you?
MR. BURGESS: I didn't have to pay Steve Woodman, but he lost my case for me.
MR. CHAIRMAN: Some things aren't worth having free.
MR. DEWOLFE: You are not sure what year that was?
MR. BURGESS: No. I can find it though. He doesn't even work in this province any more, they ran him out of the province.
MR. DEWOLFE: The Workers' Advisers Program probably wasn't in effect at that time.
MR. BURGESS: I can find it. I have it in here somewhere. I would keep you guys through supper trying to find it.
MR. DEWOLFE: I think it is important that you pursue this, and . . .
MR. BURGESS: I am not giving it up.
MR. DEWOLFE: . . . get information, talk to the gentlemen at the back.
MR. CHAIRMAN: Thank you very much for taking the time today, Mr. Burgess. We appreciate your effort in being here today. Thank you.
MR. BURGESS: Thank you. The reason I was late was that I had to take my daughter to Antigonish to the doctor.
MR. CHAIRMAN: That is a good reason.
MR. BURGESS: She is getting ready to have a baby.
MR. CHAIRMAN: That is a very good reason. Are Ann or John Snyder here? Ann or John Snyder? Are there any other presenters who want to present at the present time, who would like to come forward at the present time, before we adjourn for this evening? There being no presenters, we would then be adjourning and resuming at 7:00 p.m. this evening. Thank you to the members of the public, we appreciate your attendance. Anyone who would like to, we would appreciate it if you would be back this evening. Thank you. Members of the committee, if you could stay, there are a number of matters we want to talk about.
[4:23 p.m. The committee recessed.]
[7:09 p.m. The committee reconvened.]
MR. CHAIRMAN: Perhaps I will just ask the members of the select committee who are with us this evening to introduce themselves.
[The committee members introduced themselves.]
[Mr. Gordon Johnson, Legislative Counsel, introduced himself.]
[The committee consultants introduced themselves.]
MR. CHAIRMAN: Thank you very much. For the benefit of any of those members of the public, the Select Committee on Worker's Compensation was created by a resolution of the Legislature at the spring sitting of the House. The resolution was unanimously passed and directed that the committee would study amendments to the Workers' Compensation Act. As a result of that resolution, the select committee has been holding hearings throughout the Province of Nova Scotia to invite interested members of the public to make presentations on changes they feel would improve the workers' compensation system.
For the benefit of those members of the public that are present, we want to make sure people understand that we are not an appeal body as such. The purpose of our meetings are to identify the changes that need to be made to the workers' compensation legislation. Those changes, of course, may very well effect a change that would affect an individual worker but that we are not able to hear individual appeals.
There are some staff people present today, if people have a particular question or information they require about workers' compensation. They can talk to them after the meeting this evening. The gentleman in question is Mr. Hadley, who is the gentleman with the blue shirt who just raised his hand.
Without any further ado, I would call on our first presenter for the evening, Mr. Wayne Davis to come forward. Good evening, Mr. Davis.
MR. WAYNE DAVIS: Good day. How are you doing today?
MR. CHAIRMAN: Fine. It is very informal so whenever you want to start, you can start.
MR. DAVIS: Well, there are a lot of things over the past 11 years with myself since I became injured in 1987 and . . .
MR. CHAIRMAN: Perhaps if I could and I don't mean to stop you but there is sort of a list of standard questions about people who have outstanding claims that is helpful for our purposes. If you wouldn't mind, I would ask just a few of the questions. You will probably get to all these things anyway but the first question is, what date was it in 1987 that you had your injury? Do you recall?
MR. DAVIS: October 10th.
MR. CHAIRMAN: What type of injury did you suffer?
MR. DAVIS: I suffered major torn ligaments of the right leg and ankle.
MR. CHAIRMAN: What kind of work were you doing at the time?
MR. DAVIS: I was into heavy construction.
MR. CHAIRMAN: Who was your employer?
MR. DAVIS: Beaver Marine Construction.
MR. CHAIRMAN: Is your case still under appeal somewhere in the system?
MR. DAVIS: Yes, it is, major time. It is just totally idiotic and ridiculous.
MR. CHAIRMAN: What level of appeal are you at in the system, do you recall?
MR. DAVIS: Well, I have got several appeals in right now and they are all at different levels.
MR. CHAIRMAN: I won't even bother then. I will let you tell your story because I sense that there is a lot of complexity to it, so go ahead.
MR. DAVIS: I was injured in 1987 on the Grand Narrows Bridge, Iona. I had applied for workers' compensation. I continued to work at that present time. I was rejected from workers' compensation and they told me that I had to appeal it.
I had Wayne MacMillan here in Port Hawkesbury to look after my case. I finally won my case in January 1990 when the Nova Scotia Supreme Court had overruled workers' compensation for them to have another look at it and they took the responsibility for it.
I went in for surgery on my right ankle with Dr. Ian Holmes in Sydney. I have done everything possible that I was supposed to do. I went back to work after I had my surgery on my ankle and it continued to be worse so I went off again.
The representative at workers' compensation, he told me that it is going to take a while to heal up, so and so forth, so I kind of accepted that and I went back to work with my old employer, Beaver Marine. It just got to a point that I couldn't do anything else because of the injury that I had sustained.
I was taking my frustration, from sleepless nights, so and so forth, out on my - because I was a working foreman with Beaver at the time, I was not only endangering my life, I was endangering my co-workers.
I had decided to go back and see Mr. Pellerine, the representative I had in Halifax at the time, which he had told me that if it didn't work out, that he would highly recommend me for retraining. So I went back. November 1992 was the last time I was on a job site. I went back. He had been taken off my case and I was given another counsellor which she totally rejected me for voc rehab. Then she tried to take my case and send it back to New Brunswick because I was up in northern New Brunswick with the company at the time, working with them up in Miscou Island putting in some bridge abutments and that. I had made about five or six different trips to Halifax to get them to stop sending it to New Brunswick because it had nothing to do with it. It was a flare-up I had of the old injury. It just happened the last time I did go up it was in the mail to go out and I had another one of the representatives go down and haul it out of the mail and bring it up to have another look at it.
I was just so frustrated. I had to lie for a full year to UIC, unemployment insurance, because I had no alternative. That's degrading me because I had nowhere to turn to in order to keep afloat. So I had UIC benefits from November 1992 until November 1993 which in turn from, when that had ended I had put for another. It is just so frustrating. It has been 11 years now and I am forgetting a lot of things. It is really hard but I went several months with no income coming into my home at that particular time.
I was awarded rehab in February 1994, when I had won for retraining. So all that period of time before that I lost, when I was on UIC benefits, that shouldn't have been because when I had come off my last employment, I should have automatically went on to that for rehab, which I was promised, but that was denied.
Robert Johnson was my case manager in Sydney. I went and I spoke to him and I was after him and after him to get me into some retraining and he said, Mr. Davis, you are one of the very few people that ever approached us or meeting myself to come and try to get retraining as fast as you have done. He tried to rush me through a couple of things we had floating on the table that I basically wanted to do and that. They told me to go into a 12-week course that was at the YMCA in Glace Bay for starting up my own little business. I told him I wasn't quite sure if that was only the thing that I needed to get started and he asked me to go see CompuTel at the same time. I went over and I did a little tape test for them and they told me that if I wanted to continue to have a little bit of extra help, that they would accept me in too. So Mr. Johnson had told me to more or less go and sit down and take this 12-week course and then after that I could go into CompuTel for another year to get my Grade 12 and get some other computer knowledge, so on and so forth.
So like promise after promise after promise I have got from WCB and every one of them to this day, 11 years later, have been broken. It is not fair to myself, my family or anybody else. So after I got Mr. Johnson, he also told me that I would be getting my travel allowance, my room and board, so on and so forth. I was living in Arichat. I was commuting back and forth three or four times a week to Glace Bay at the YMCA. He told me I would be paid upfront, my first month; after he calculated what it would cost me per month, I would
be paid upfront for the course. A 12-week course come and went. I still didn't receive a penny. It was five weeks after the course.
I couldn't understand because my cheques were always irregular, that they weren't coming on a regular basis, that I didn't understand why my bank account was down so much. I come to find out they never paid me a penny. There are different cheques that were sent for three weeks; some were sent for two weeks and I thought that one cheque for three weeks included a one month travel expense but it didn't. Nothing was ever there for that and I had to call Dave Stuewe in Halifax in order to get this rectified. Nobody could do nothing down in Sydney here for me. I spoke with everybody that was in that office down there. If I knew that they said that, how was it that they only allowed $225 per month or something like this? My travelling time back and forth at 18 cents a kilometre was way over and above what them fellows even had suggested that they were going to pay me. I wouldn't have been able to afford to take the course to begin with. I went approximately $1,500 out of my own pocket, personal money, to take this course at the YMCA in Glace Bay.
I asked for an extension. I was denied because I had to get an engineer. I had $1,500 approximately spent out of my own personal pocket and approximately $3,000 from ACOA here in Port Hawkesbury to help me out with my business plan and they cut me off. They said we're not going to take you no further. So that was fine. I went back. I had to go back in for therapy. I went in for almost a full year of therapy on my leg and it led to deterioration of my right knee which led me to use my left knee a lot more, which led to deterioration of my left knee.
So you go up 100 feet high in heavy construction and them fellows, like WCB tells you to go back and do light duties in heavy construction. It's impossible, folks, and I know that some of you fellows sitting up there, you've got two good legs, good arms, so on and so forth, and it's really hard to explain. I have nothing against the people at workers' compensation so to say except for any of their representatives that go on the case, they are not work related, they have no clues whatsoever of some things going on in heavy construction. I would love to take a 24 foot extension ladder with three bundles of shingles and lay it up against one of their buildings and say to each one of them, carry that bundle of shingles up there for a six to eight hour period; just one bundle, it is just totally idiotic what they are asking people to do to go back and do these light duties in heavy construction, or whatever the case, or job related that they put on the cases.
Then after that I had been cut off at WCB again, shortly after this thing in Glace Bay. I went back to my doctor and I went back for rehab. I had done some other stuff, so this brought me up to 1995. December 13, 1994, I was cut off of workers' compensation after I had been in physio with Dr. Majaess in Halifax at the Rehab Centre there. He said there was nothing else he could do for me. He had done anything and everything, anything from acupuncture, to heat, to ice, to major therapy, to a warm pool, everything, and my pain was getting worse in my leg instead of getting better. So the only other alternative I had was to
see a surgeon. Dr. Majaess had suggested that my doctor refer me to Dr. Ross Leighton in Halifax, a surgeon. Of course, I couldn't get in to see him until April of the following year.
So David Hoddinott, when he had cut me off in Sydney, because he was looking after my case at the time, he had told me that if there was new medical evidence that could come up to show that I was still unable to go back to work due to the fact that my leg was still holding me back, my ankle and my knee on the right side, that he would reactivate my claim back to December 13th when he had cut me off. I went to see my MLA, Richie Mann. I went to see the Nova Scotia Ombudsman which a letter was sent out to Guy Brown. Then it went back to Dave Stuewe. Of course, time in between was just being gobbled up all along when I was doing this and a letter was sent back to Michael Belgrave in the Sydney office for him to get his representative that was looking after my case at the time to contact me again and call me back. Two months later, eight weeks later, I was called back in. They had asked me to go on a program - since it was late in the year and school was just getting out, there was nothing to do - to go on this here little thing to go out and find a job and to fill out a resume.
So I went on the thing, the course, more or less until another door may have been able to be opened for myself at this time. After that little course was done they told me to go find a job, a job search. I said, David, I have to go out and have surgery on my knee and on my ankle, I'm not able to work and it is in the documentation. So that was fine. He said, well, that's refusal. He said you can't get workers' compensation if you don't do this. He wanted me to go to Halifax. Up on North Street there's a place for finding out how much you're capable of doing and so on and so forth, the work hardening, or whatever the case might be there. He wouldn't send me on that until after I had my surgery, but yet he wanted me to go out, and embarrass myself, to all these businesses looking for a job. Like there is just no way that - and I had to tell the employer that I was looking for a job that I was not available to work because a lot of them were asking me if I was available for work - no way was I available for work.
I only had surgery on August 8th on my knee which, again, workers' compensation cut me off. I went from June, July, August, nothing coming in. So I went from December 13, 1994, to June 1995 with nothing coming in, approximately 12 weeks after they humiliated me - by going out and looking for this job - and I was told that I would be paid my 18 cents per kilometre, plus meals. Wrong. I was not paid my 18 cents a kilometre. I went around to all these businesses and down in Isle Madame. They ordered me to at least go to three different businesses per day, drop a résumé off at one, which I done. How many businesses are in Isle Madame? Not too many. So I had to go abroad.
So I went out. I have got all the paper work and I could submit something here tonight but it would be idiotic because my file is about a foot and a half to two feet high right now as it stands with all the stuff in it. My claim number is 1339030 and if anybody wants to have a look at it, just to see the stuff that is going onto it, because I couldn't prepare anything just to bring in tonight. It continued on that since WCB had taken responsibility for the ankle,
but not the knee - which it was on the same leg - the doctor, Dr. Ross Leighton says that they are both related. When I went back for the first opinion, Dr. Murdock Smith in Sydney, a family practitioner, overruled the surgeon. It went back to Halifax, to Dr. Ross Leighton. Dr. Ross Leighton sent it out again. It went back to Sydney and David Hoddinott, a case manager, overruled the surgeon.
It is my life here and it is just turned upside down, inside out, and it is just totally destroyed. My marriage is on the brink of - so, okay, August 8th I went in for surgery on my knee. I had to go for rehab. November 28th I went in for my ankle surgery again, for reconstructive ankle surgery. Again, WCB started up my workers' compensation again. I went on with workers' compensation without a hitch and my cheques started to come back in again, so on and so forth, on a pretty regular basis.
Then I went for my therapy. David Hoddinott had taken up the word from the therapist in the Strait area here - at the Strait rehab centre right here in Port Hawkesbury - Catherine, that there was more or less nothing else that she could do, but my surgeon had ordered me to take therapy for a certain length of time regardless of how I was doing, to give me this period of time before I went back to see him. She cut me off or she wrote a letter to David Hoddinott saying that there was more or less nothing else she could do. I was up to my maximum. So David Hoddinott cut me off again without me even going back and seeing my surgeon again to rectify what was the next step, so on and so forth. So back and forth, arguing back and forth again, David Hoddinott said, okay, I will give you another three weeks of rehab.
[7:30 p.m.]
There was no way possible that all these shenanigans should be going on throughout the period of time when somebody is injured. You go out and you are doing basically everything that they want you to do. You are giving them all the information that's required, so on and so forth, but up there, if they want to sign a paper, you're up, you're on, you get paid. If not, take a back seat and I pity help the poor fellow that has no education. I had Grade 10. Up to date right now I'm into voc rehab and I went back to school last year, after being out of school for 20-odd years and I got my Grade 12 here in Port Hawkesbury. I was hoping to go in for a construction safety officer. Again, that is all up in the air. I don't know which way I'm going. I don't know if tomorrow they are going to cut me off again or if they are going to - one thing Deborah MacVail had said when I said, well, I guess you guys don't want to put too much time into me because I'm 40 years old and if you've got to retrain me, it is going to take another five or six years and I will be just about ready to retire, and she said, yes, you're right, which is not right.
I had called her up one time asking about how come my travelling expenses weren't paid. She said, I have more important things to do than that right now. These representatives, so-called, are playing with our lives and if they are not accountable for what they do up there
in that office, or in Halifax, it's like a chain of command: one takes orders from the other, so it has to be followed right down through the chain of command so everybody has to answer for anything they sign or they say to somebody.
I just recently - I don't know if you guys recognize me - I did a one week sit-in in Sydney, myself, personally, looking for letters of refusal. I slept in my car. I washed up in a gas station that had cold water. The young lady, the receptionist there, the first day I was there, David Hoddinott came out and he said that I was humiliating her. I think it is the other way around; workers' compensation is humiliating me to the lowest.
I have tried. I have gone through all the avenues. I went to Halifax here recently and I talked with the Nova Scotia Ombudsman again. He said that there's nothing he can do right now until such a time as you guys put something together to go back to the House but, like I say, I'm owed a lot of money. In 1995, I made $5,000. The credit union in Petit-de-Grat - I was very thankful for them - they lent me $6,500 on face value, just to keep afloat. Everything I have worked for I'm losing and it is very frustrating and, hopefully, with some of the recommendations that people are being putting forth, it is going to come about.
One other little incident that I have had just recently here with retraining. I travelled from Arichat to Port Hawkesbury five days a week. I was under the assumption I was going to get my 21 cents a kilometre regardless of the distance, because if they send you out on a course for a week or something, themselves, they pay you your 18 cents or 21 cents a kilometre; yet when you are in school, they don't unless you come to a criteria that you are over 100 kilometres, or a minimum of 100 kilometres. I was 98.4 kilometres - 98.6 - I was 1.2 kilometres shy one way. I lost $2,500 at what they set their rate at. If I was paying my 21 cents a kilometre, I would have gotten $4,500, which I figure I should have. I don't know what they based it upon, if they based it upon a two day week that these people go out for retraining, or what. I don't get anything for all my retraining. They say, well, if you are going out to work, you would have to travel back and forth, yes, but I would be making a lot more money too, folks, than what I am making right now. When this new legislation came out, I lost my mortgage payment, then all this extra travelling around back and forth to go here and go there, I have lost that. Every time I go to see the Nova Scotia Ombudsman or I go to see my lawyer in Halifax, Bill MacDonald, I don't get paid for this.
But I have to do it. I have to do it, it is my livelihood, it is my life, that I have worked so hard for to try and keep afloat and put something back into the economy, and so on and so forth. These people that snap, I can see it. Some people sit back and say, well, I wonder why this fellow did this, or I wonder why that fellow did that, or this woman did this or that. I can truly understand. I show my emotions, I talk about it. I would talk about it to a stranger on the street, because I am so frustrated, but at least I get it out.
Some of my suggestions, the whole board has to be looked at. It is just not one little in particular thing, for example, my knee is in appeal for about 15 months. I was told by some people, look for 18 months, maybe two years before it is even looked at. The reason it was refused, there is this little black book, I guess a medical book or whatever they go with, the laws and rules and regulations, they took two words out, "could be". Then in place of those two words that they took out, "could be", they put in, "is not". They changed the whole policy all around. Bill MacDonald, he picked up on this right away, when the letter came in. Apparently, he was on the external appeal board for workers' compensation at one time. He went and got the book right away. He said look, I couldn't see it at first. But he said, they took those two words out and replaced them with these two words, could be related and is not related. It just puts my case in a prolonged, more time and more time period.
They say, go back and get retrained, don't worry about it, everything will work out. It is not working out up here, for some reason. How can a person concentrate on re-educating himself with all these other burdens that are in a person's closet? Like I say, my family life, I can't go skating with my young fellow any more, I can't play ball with him, because I can't run, catch a ball. When I go to the dances, my wife gets mad at me, because most of them, I can only dance the slow ones. It is very frustrating. If I do get up and dance a few fast ones, I suffer for about a week with my two knees.
My right knee is starting to invert the opposite way right now. I have to go up Tuesday and get some insoles for my shoes. If workers' compensation knew it was for my knees, they wouldn't be paying for it. I had to literally ask them to lie, because I can't afford whatever it is going to cost, anywhere from $100 to $1,000 for insoles or other things to put in my shoes or whatever the case might be. I feel that I am putting myself down by lying because of what WCB is doing. Like I said, if I ever won any amount of money, I would hire the best lawyer to fight these miserable son of a guns like you wouldn't believe, because it is not fair to an injured worker.
I know I have taken up quite a bit of time, and I know that there are some other people that probably want to say something. A person going away from his home, you travel and you can't be compensated for it, unless you fit their criteria, so called, when their criteria is not even within reality to what some people have to do. If I would have moved 1.2 kilometres down the road, I would have been able to get at least $2,500 out of them but because of this, no way, no way possible. They sent, Deborah MacVail, she come down herself. My old Cavalier that I used to have, I was within the 100 kilometres for some reason, I don't know if my odometer wasn't working right but Deborah MacVail, she come down with her car, the case manager. She came down and she clocked it and she said I'm not within it. So they take her word for it and it is just so frustrating, folks. Like I say, my life is just in total turmoil right now and not knowing where to go.
MR. CHAIRMAN: Thank you very much, Mr. Davis. I will let some of the committee members ask some questions. Mr. DeWolfe.
MR. DEWOLFE: Thank you, Mr. Davis, for a very sad tesimony of frustrations and humiliations you have suffered over a long time, 11 years. Unfortunately, your story is not totally unique. We hear a lot of the same types of things. Because we realize there are problems, that's why this committee is here, and one of your comments was that you would like to see the board replaced but what would you like to see it replaced with? You must have some strong views on it having gone through the donkey dance for the last 11 years?
MR. DAVIS: Yes, I do, I really do. I would say that law students, somebody that is going through Dalhousie, or whatever, I bet you they would be able to do a better job than some of these representatives. I had one, just briefly here, within the last year I had about five or six different representatives looking after my case. One of them was a young fellow, Chris. He fell asleep when we were discussing it. Every time I had a new one come on to my case, you would have to go in and sit down and talk your whole case all over again, reactivate it and talk to them about it. He literally was falling asleep, when I was there, playing with my life and my livelihood, and like some of the young kids that are in there, I don't know what kind of degree they got, that's handling different things, and I was told when I was doing the sit-in, I wasn't allowed to chat with any of the injured workers that were coming in and so on and so forth.
Some of the things that I was hearing I would not have given that advice to an injured worker myself, just where I was sitting that I could hear. Like I say, some of these people that if they knew that they had to be totally accountable for what they sign, the paper that they sign, they had to be accountable for it. David Hoddinott, when he refused the second refusal of the surgeon, when I went back for a second opinion, when he refused it, like he should be maybe suspended for six months or a year to show that it is not going to be tolerated because it only took another six to eight weeks before it got back again for another opinion. If these people are not accountable for what they do, and with a law student or something like that, that is going into a practice of whatever the case might be, knows the ins and outs, knowing I can't do this or I'm going to be sued, or I can't do that.
It's just like they are just taking this person off the street, like Dr. Murdock Smith, a family practitioner, who is overruling surgeons, and there is nothing being done because I've tried.
MR. DEWOLFE: I for the life of me can't think of anything that you should have done that you haven't done already.
MR. DAVIS: Well, I have seen everybody and anybody I possibly could and this is my last alternative, hopefully, maybe somebody else will say something and bring it up.
MR. DEWOLFE: I want to thank you for your testimony and hang in there.
MR. DAVIS: I'm going to try.
MR. CHAIRMAN: Are there any questions for Mr. Davis? I guess I had a question, Mr. Davis. You have told us you have had five workers' advisers or something like that?
MR. DAVIS: Yes.
MR. CHAIRMAN: Has anyone ever offered to come down to this area to see you or have you always had to go to Halifax to see your workers' adviser?
MR. DAVIS: I was changed to the Sydney office because I live in Cape Breton. So it was a short period after I was in Halifax because when my first injury happened, I was in Halifax, but it had been brought down through my case to the Sydney office. Some of them will come down. Theresa Daigle, she was an excellent representative. She came in with boxes of stuff, literature, so on and so forth, to go through at my home. Then other ones just call up, they're so grumpy so on and so forth, and they say meet me here. You got to do this. You got to do that.
So I have been basically doing everything that they have been asking me to do. I had three operations on my right leg so far with some success. My ankle has been welded. I can't roll over on it any more from the last surgery which has given me some stability in the ankle but my two knees are going on me now. I can't just go out and do any type of work. The surgeons have been telling WCB that I need this retraining, so on and so forth, and I finally, like I say, last year I went back to school with another expense out of my pocket. Chris, the young fellow that was there, he never come to my home. Some of them was on my case maybe about three weeks to a month and then they were taken off and put someplace else.
MR. CHAIRMAN: These are workers' advisers?
MR. DAVIS: Yes, workers' advisers, yes. It is just so frustrating when you have got to go back and explain and explain and then you've got another one. I had asked Deborah, I said, when are you going to be replaced? She says, well, I think I'm going to be with you for the duration of the period of time. When I was in Sydney doing the sit-in, she was writing up a letter of refusal for me and she had the nerve to sneak out the back door because she couldn't face me, to go on vacation. I only found out that Monday, the following Monday, when I went back up to sit in again because I was escorted from the place by the Sydney City Police twice and they told me I couldn't stay on the premises. I said to myself, if I get arrested, I am only lowering my standards to their standards and I said I'm not doing that. So I left at the time of closing but to sneak out the back door, not wanting to face your clients and be truthful, stuff like this, it has been all for 11 years. None of them have been up front with me except for, actually Theresa Daigle was about the only one that I have had that really did anything for me so far.
MR. CHAIRMAN: I'm asking a question about the Workers' Advisers Program. From your perspective, besides the quality of the advice, another problem has been the constant turnover, you have one workers' adviser, another workers' adviser. (Interruption) Yes.
MR. CORBETT: Mr. Davis, your sit-in was at what's referred to in Sydney as the Medical Arts Building, right?
MR. DAVIS: Yes.
MR. CORBETT: The people you're talking about, like Ms. Theresa Daigle, they work in that office?
MR. DAVIS: Yes.
MR. CORBETT: So I think what Mr. . . .
MR. DEWOLFE: Baker.
MR. CORBETT: Thank you. Excuse me. When do you know you're on a committee too long? (Laughter) When you forget the chairman's name. I think what he was getting at, a workers' adviser, you had Bill MacDonald. Is he still your workers' adviser, like your lawyer?
MR. DAVIS: Yes.
MR. CHAIRMAN: I'm sorry, I was using jargon. I should have never done that. So you're talking about your caseworker?
MR. DAVIS: Caseworkers, yes.
MR. CHAIRMAN: That's right, the caseworkers were constantly changing?
MR. DAVIS: Yes.
MR. CHAIRMAN: Okay, because I was asking a question about your workers' adviser, which is a lawyer, the lawyer in Halifax, yes.
MR. DAVIS: Yes, always been in Halifax.
MR. CHAIRMAN: And you've always had to drive to Halifax to see your lawyer?
MR. DAVIS: Yes.
MR. CHAIRMAN: And nobody, none of the lawyers in Halifax have offered to come out to Port Hawkesbury to see you?
MR. DAVIS: No.
MR. CHAIRMAN: That was the question I was asking.
MR. DAVIS: Yes.
MR. CHAIRMAN: But you did touch onto another issue.
MR. DAVIS: At the first I was with Wayne MacMillan down here in Port Hawkesbury for a short period of time but then it was put over to Halifax because they felt that there was nothing else that they could do here for me.
MR. CHAIRMAN: That's right. No, I understand.
MR. DAVIS: But every trip I have to go there.
MR. CHAIRMAN: Have the workers' advisers, the lawyers in Halifax, ever offered to come out to see you?
MR. DAVIS: No, none, because their caseload is so heavy and, you know something, I wouldn't expect them to. I would rather him do that because if he had to drive all the way down here when he could be helping maybe two or three other people at the same time, or maybe six people, seeing them in his office with his files, I would rather drive up there and waste my money to help out another injured worker.
MR. CHAIRMAN: I understand. I guess the question that you did touch on, not the question I asked but it's a very useful question, which is that your caseworkers, which are the people in Sydney, those are the people that you've been really frustrated with because there has been a constant turnover on . . .
MR. DAVIS: A constant turnover and when you sign a rehab program, they ask you that you have to keep in contact with them so many times a month and they'll do the same; once, all year long, did my representative come to the school and see me when I was in school, once. She was supposed to be on a regular basis getting in contact with me and it was never done. They don't have to do what they have to do but we have to do what they tell us to do. The literature she's coming up with now, I'm hoping to get in the safety aspect of retraining in that building inspector, whatever the case might be, because I figure that since I was in construction, in housing, so on and so forth, I've got something to offer back without being a total cripple the rest of my life, and this way here it will get me back out into the
workforce but not have to do the heavy manual labour of lifting and endangering my co-workers that I work with because that is one of my biggest fears.
MR. CHAIRMAN: Mr. Parker.
MR. PARKER: Thank you, Mr. Chairman. Mr. Davis, again, I too want to thank you for your testimony. It has been very heart-wrenching to sit here to listen to you. You've had a real 11 years of hardship, no question, but I wanted to ask you about your income. Does your wife work or are you on Canada Pension disability?
MR. DAVIS: I applied for Canada Pension but I was denied because one of the clauses is that I fell through all the criteria but I was willing to be retrained but one of the criteria on Canada Pension is are you willing to be retrained and I had put down go to the next question because they fall corresponding each other where are you being retrained by somebody and workers' compensation at that time was retraining me. I didn't apply right back in November 1992 when I first had left work because I didn't know how long I was going to be off work at this one particular time. I thought I was going to maybe get into some retraining right away, or whatever, or I was going to have surgery or get some therapy, so on and so forth, but when it was over a period of time, so when I did apply, they had asked me and I told them why I didn't and I told them I didn't know and my doctors didn't know at the time.
So when the surgeon did write to Canada Pension and my family doctor, Dr. Laurie MacNeil, did write to them, everything was copacetic, everything was great, fine. I went to the final step with Canada Pension with the external Appeal Board, or whatever, in Port Hawkesbury here at the Wandlyn. They just told me abruptly, no because I fell under all the criteria except for this one where I could be retrained. They wouldn't even reactivate to go back because they say you have to be at work for six months in order to be eligible for it and I was off three years or more. So that is gone and past now. I can't do nothing about that.
MR. PARKER: You may be able to reapply again if your circumstances are different.
MR. DAVIS: Yes, but then it only starts at that time. It doesn't go retroactive, they only go back 18 months, I think, or something like that. It is something idiotic. My wife, going to the second question, she started on at Clearwater here a little over a year ago. She went back and got on there.
MR. PARKER: Does she work full-time or part-time?
MR. DAVIS: It's seasonal.
MR. PARKER: Full-time seasonal?
MR. DAVIS: Yes. Like she's on a list where they have to require say 15 people before she, like she's the 16th person. So they have to have that amount of people. Last year she got about 400 hours in. My income has just been blown away because, like I say, they start me up and I'm just going day by day because I don't know when the next day that they are going to say you are cut off again.
MR. PARKER: But you certainly feel that you are capable of working in the right type of job?
MR. DAVIS: If I am retrained for the right type of work and then there's no guarantee with the way my legs are going. Like I figure if the rate of decline that my leg is going right now, I figure by 55 I might be in a wheelchair if there is not corrective surgery again maybe short down the road because like where I see my right leg is starting to invert back the other way. I have got to go for insoles to try and boost my heels up a little bit to correct it now because I've lost most of the muscle in the right leg and strength because I can walk down a set of stairs and I don't know if I'm going to make the bottom step or not without it collapsing underneath me which it did a couple of times there at the nautical school here in Port Hawkesbury.
MR. CHAIRMAN: Do any of the consultants have any questions? Mr. Power.
MR. MICHAEL POWER: Mr. Davis, did you ever receive a permanent partial disability?
MR. DAVIS: Yes, I did; 3 per cent, $65 a month, what a slap in the face.
MR. POWER: So 3 per cent, now, is that under appeal as well?
MR. DAVIS: Yes and no. With all the other paper work that has been tossed at me and it has just been idiotic and like apparently with the ankle it is 11 per cent. You need a minimum of 10 per cent before they even look at you but if I got 3 per cent, there's only 8 per cent available. So there's not 10 per cent there. So what is the sense of appealing it? If I get my knee, if the knee comes across and I win the knee, it's worth 25 per cent. They come up with a certain percentage to just allow you not to get that extra 10 per cent.
MR. CHAIRMAN: We have heard that before.
MR. DAVIS: It is so frustrating. When I went up to see Dr. Murdoch Smith for the 3 per cent disability, he got me to walk down the hallway, from the distance from me to yourself there and back, and he says have a good day. I went home and I found out I had a 3 per cent disability. So who do I turn to. It's hard.
MR. CHAIRMAN: A 3 per cent disability in your case is worse than if he had given you nothing because it capped you off. Now you can't go after the 11 per cent?
MR. DAVIS: Yes, exactly. That's one point but the thing is a lot of these people that take settlements, they often get a settlement of $8,000 which just blew me away at the time. I was talking with quite a few other people where they said that they had taken settlements and four or five years down the road when they had a flare-up of their old injury, that they tried to reactivate it and they had one hard, hardship time to reactivate it. So I figured if I was getting a small pension, $65 a month - that doesn't pay for the milk - would keep my claim open at all times because there's one gentleman had came into Sydney when I was there again, in the sit-in, he was looking for a back brace. He showed me the one he had. He had it for 10 years and he didn't know that he could get one maybe every one or two years. He had taken a settlement of $4,000 for his back and his case was dormant in Halifax somewhere. Nobody knew where it was and he came back two or three different times trying to see what was going on about it.
So it's people like this that I kind of feel sorry for too. Like, myself, I'm having hardships but I can just sympathize with some of these other fellows that don't know what's going on and are really having hardships, that's maybe getting, whatever.
MR. CHAIRMAN: Thank you very much, Mr. Davis. As other committee members have said, your story has been very heart-wrenching and certainly we do appreciate the fact that you did take the time to be here with us and tell your story. I can tell you that we certainly will consider your story in looking at what we have to do in our deliberations as far as the systems are concerned.
[8:00 p.m.]
MR. DAVIS: One other thing, like I was saying there at the very beginning, I greatly appreciate - there are a lot of things I've left out in my case because it is so intense and I don't know if you guys got a couple lawyers, or whatever, that's going to get something going, if you want to use my case as one of the examples to study, to see some of the things and if you're doing any kind of comparison with any cases, please, look at mine really because it is just so idiotic and the paperwork is just so foolish and ridiculous. In Sydney here there are some things and in Halifax where it went for appeals and it's just the people, the things that they're going by, it's just idiotic. It's just totally ridiculous. Well, I will give the floor to somebody else.
MR. CHAIRMAN: Thank you again for taking your time for being with us tonight. Are there any other members of the public who would like to make a presentation? Come forward, sir, have a seat.
MR. ERNEST CONNORS: My name is Ernie Connors.
MR. CHAIRMAN: Where do you live, Mr. Connors?
MR. CONNORS: Bayfield, Antigonish County.
MR. CHAIRMAN: Well, if you would like to start, any time you want.
MR. CONNORS: I was injured in 1984 at the Nova Scotia Liquor Commission.
MR. CHAIRMAN: What was the nature of your injury?
MR. CONNORS: When I first injured my back, I had a herniated disc, cracked vertebra and a pinched nerve on the spine. I injured it in June 1984. I got to the Halifax Civic Centre in October, Drs. Stanish and Alexander were my doctors. The injury was in the process of already healing, that they couldn't really tell what damage it really did. I had some therapy. They told me if they operated, that I could land in a wheelchair. So I told them thank you and that was it.
I just forget the dates which I went back to work. I think it was in December or so. So off and on from December on up through the years I had lost time due to back pain but I still continued to go on as best I could. In 1990, Christmas week, my back was very irritated. I continued, on January 1, 1991, I went back to work. I stood all day on the cement. I bent down for a $2 bill on the floor. I haven't worked since. I went to doctors. It was complete denial. I was told it was all in my head. I went to therapy from February 1991 through until June at my own expense, driving 40 miles three times a week with no pay from the Workers' Compensation Board, complete denial.
At one point I was off for quite awhile. The dates are all here. I was asked to try a work hardening course which I tried, working all day, go to bed 6:30 p.m. to try to get rid of the pain for the next day, numerous bottles of aspirin a week for pain. They hired a work rehab counsellor out of Halifax, I think it was through the Workers' Compensation Board and the Liquor Commission. I was going to therapy - first, when they hired this work rehab, counsellor, they made a deal with me that I could work in the morning for an hour and go to therapy afterwards and have a TENS unit put on to see if I could get rid of the pain. I tried it for three months. The woman there was a Mrs. MacKenna, she said they had a thing to regulate the pain on the TENS unit. The highest they had ever put it was 16. When she turned the gauge up for mine to get over and above the pain, it was on 46. So I would have to go back to work. So it kept on, I wasn't getting no sleep, trying to work, trying to function.
Finally, the manager told me to go home. He said, go and see your doctor. I went to see the doctor. He said, that's it. He said, you tried, you just can't work, that's it. So he said, call the rehab counsellor. So I called her. I said, go see the doctor, he has information for you. She went down and she got the information. She left Antigonish. She went to Halifax. She told them I was well and capable of working and I quit on my own, which I didn't. There is
the letter, they fired me. So I got the doctor and Hector MacIsaac, a lawyer, and Neil MacNeil, a government employees member. They got me reinstated.
I had a disability insurance through work and they quit paying me. So being they quit paying me, the Liquor Commission fires me again because I was disabled. There is the letter there on that. So that was two times fired. I might as well put a plug in because I owe it to him - Hector MacIsaac worked for me, a lawyer from New Glasgow, since I was injured in 1991 and to this day has never charged me a cent.
I have had calls from the Workers' Compensation Board to go to Halifax to see doctors. I went up one such time. I had to borrow the money from my family. I broke down in front of the airport and I had to put a fan belt on my truck, which I had inside the fender. I went up to see Dr. Loane. I was there for my back. He looked at my hands and said, straighten them out. I straightened them out. He has yet to examine my back. He wrote a letter to the Workers' Compensation Board that I couldn't have been too disabled because he found grease on my hands. I didn't know this until a Mrs. Middleton, she was a lawyer for the Workers' Compensation Board, they had a hearing and this come out. Everything was complete denial. As I say the dates are there. Everything was against me. I walked to the mail box six months, no cheques, no nothing.
In 1992 I took a heart attack. My doctor blamed it on stress and pain. If it wasn't for the Credit Union in Antigonish and my family, I would have starved. To this day I have no money out of them. Hector MacIsaac fought for my insurance for the disability. I got Canada Pension out of it but I can't see why the Workers' Compensation Board should escape from paying me. I have had three heart attacks now. I had open-heart surgery. I am disabled from working and I feel that I tried my best and I've been stabbed by the system. Thank you.
MR. CHAIRMAN: Thank you, Mr. Connors. Did you ever receive any payments under disability policy after they cancelled you the last time?
MR. CONNORS: I have a disability pension I get monthly now.
MR. CHAIRMAN: You have a Canada Pension, yes but I'm talking about the one through your employment with Crown Life?
MR. CONNORS: I get the Crown Life one, yes.
MR. CHAIRMAN: You get the Crown Life disability as well, do you?
MR. CONNORS: Yes, but I mean . . .
MR. CHAIRMAN: That Mr. MacIsaac got for you, did he?
MR. CONNORS: That's right.
MR. CHAIRMAN: Yes, plus you get the Canada Pension as well?
MR. CONNORS: That's right.
MR. CHAIRMAN: But you haven't received any payments from the Workers' Compensation Board?
MR. CONNORS: Not a bit. Everything was complete denial. They put me down as chronic back syndrome and that they didn't cover that. As I say, everything is there.
MR. CHAIRMAN: I think you have just answered one of my questions. You have been labelled as a chronic pain syndrome case, have you?
MR. CONNORS: Yes, I have.
MR. CHAIRMAN: Okay, that was one of my questions. I will ask other members of the committee if they have questions? Mr. Corbett.
MR. CORBETT: Mr. Connors, there was no mention in your letter there, but was there ever a term brought up during your dismissal that's called innocent absenteeism? Is that phrase familiar to you, innocent absenteeism?
MR. CONNORS: Never heard of it.
MR. CORBETT: Okay, the reason I ask you is just so you will know, a lot of times that's a phrase used around when they dismiss somebody that has a disability but they can't be carried on as a full-time worker because of their disability and that's how an employer gets them off the books, under innocent absenteeism.
MR. CONNORS: No, I never heard tell of it.
MR. CHAIRMAN: Do any other members have questions? Mr. Power.
MR. POWER: Mr. Connors, when you injured yourself in 1984, was that the original date?
MR. CONNORS: The original date?
MR. POWER: Yes, of your back injury?
MR. CONNORS: I think it was June 29, 1984.
MR. POWER: Now, when you had that back injury, was it a traumatic accident or were you simply bending over?
MR. CONNORS: No, no, that one there, I was pulling 2,200 pounds, a pallet of beer, and I hooked it on another pallet but the second injury in 1991 is just . . .
MR. POWER: That's where you simply bent over?
MR. CONNORS: That's where I bent over and it just all come in a pile.
MR. CHAIRMAN: Yes, Mr. [Charles] MacDonald.
MR. CHARLES MACDONALD: I guess on that, you are saying you were pulling 2,400 pounds . . .
MR. CONNORS: 2,200 pounds.
MR. CHARLES MACDONALD: On a pallet?
MR. CONNORS: That's right.
MR. CHARLES MACDONALD: Not the automated . . .
MR. CONNORS: No. We had the automatic one and they did the floor over and they didn't want anyone to take the electric cart out on the floor and we had to do it by hand. So I was doing it by hand and I didn't see the - one corner struck the other one and it just twisted me.
MR. CHARLES MACDONALD: Are you in the system now at all at the Workers' Compensation Board. Is that file still open?
MR. CONNORS: I have the letter. It's probably in there. The last letter stated that they give it to Mr. Lamey from Port Hawkesbury here, that they didn't cover chronic back syndrome as I was diagnosed with, and he left the appeal open for further options down the road. I think that's how it read. I don't know if that's after I'm dead and someone else gets it or what.
MR. CHAIRMAN: Mr. Neville, please.
MR. JAMES NEVILLE: Your second accident, did you file another claim?
MR. CONNORS: Yes, I did.
MR. NEVILLE: And they turned you down due to chronic pain?
MR. CONNORS: They diagnosed it maybe later on as chronic pain and that's why they - everything is right here, sir, if you wish to go through it. Yes, chronic pain syndrome was the downfall.
MR. NEVILLE: You are familiar with the Doward decision that chronic pain is going to be covered between 1990 and 1996, the court decision?
MR. CONNORS: I wasn't aware that it's going to be covered but I called the Workers' Compensation Board and they told me that certainly I was in the ballpark but he said he wasn't the pitcher. So would you say that I am covered?
MR. CHAIRMAN: I want to pipe in there. There is a question about whether or not you might qualify under the new policy the board announced. Have you been in contact with anybody at the Workers' Compensation Board in the recent last couple of months?
MR. CONNORS: Yes.
MR. CHAIRMAN: When were you in contact?
MR. CONNORS: Since I heard the radio.
MR. CHAIRMAN: Since you heard the radio announcement about the new policy?
MR. CONNORS: That's right.
MR. CHAIRMAN: I'm not trying to steal your thunder, Mr. Neville, but that's when they told you that you were close but no cigar, is that sort of . . .
MR. CONNORS: They told me that I was in the ballpark and I should qualify.
MR. CHAIRMAN: That you should qualify?
MR. CONNORS: Yes. I had my home paid for. I had to remortgage it. If it wasn't for family and the Credit Union in Antigonish, I would have starved, along with my children working to support me, and my wife.
MR. CHAIRMAN: Thank you very much for taking the time to be with us here this evening. We truly do appreciate how difficult it was. Thank you. Are there any other members of the public who would like to come forward? Yes, sir. (Interruption) No, you don't. Come forward and then the gentleman in the red shirt will be next. Thank you very much, sir, and what's your name?
MR. GERALD BOUDREAU: Gerald Boudreau from Frankville, Antigonish County. I'm one of those persons that's not very good in a crowd because I'm used to being alone. I travel alone and I live alone.
MR. CHAIRMAN: That's all right. We are pretty informal, sir. You have an injury? Did you suffer an injury?
MR. BOUDREAU: I got hurt at Maritime Steel in the construction of the bridge in Iona in 1992.
MR. CHAIRMAN: It must have been a dangerous bridge.
MR. BOUDREAU: I was directed, like you've got a ladder that comes across, at an angle it comes across and goes down. You put your planks down and when your other connection comes in, they're quite long, I went to lift it, to tie it to the next connection and it's a one-man thing. It's only one man can do it. The wind caught it and caught me off balance and twisted me but I never lost a piece. I got it hooked back on before I went down. I never fell off the bridge. I just couldn't move. I had a hard time getting off the bridge. A couple of guys helped me off on account of the spikes, like for the cement structure level, the cement to go on after. I went to the hospital. They took me to the hospital in Baddeck.
MR. CHAIRMAN: What year was that? I didn't catch the date.
MR. BOUDREAU: That was in 1992. The construction of the Iona, Barra Strait Bridge. They took me to the hospital in Baddeck. A Dr. Chow was my doctor that I had seen but he never X-rayed. At the time I was off, I think, three weeks or a month and I got compensated for that. At the time I was ready to go back to work they had pretty well finished up for that year. So I always had pain. I never had no pain up until then. I was always in good shape. Like I worked in the iron for 31 years. I travelled across Canada and I always kept pretty active and worked out. I was sore through the winter but I thought maybe I would work it out. The following year we had to go back and reinforce the bridge.
MR. CHAIRMAN: I'm going to ask you to stop. I am not sure if the train is coming through. If it does, the microphones stop working. Yes, the train is coming, so if you will just bear with us for a second.
MR. BOUDREAU: The following year we had to go back and reinforce the bridge. The structure had to be braced and stuff. They didn't think it was heavy enough and I fell again. I fell that time - I didn't fall the first time - on account of this injury because I was dragging my leg and that time I cracked my two wrists. Then I was, we had pretty well finished up. That was pretty well on the end of that one too, I fell inside. I tripped over something and I don't know if I knocked myself out or not because I was on the 12:00 to
8:00 shift at night. I would leave home and like I was on kind of a job, I wasn't welding or rigging or anything. I was just setting up for the guys on day shift.
I drew unemployment. I couldn't move. In the winter, I went down to Yarmouth with All-Steel there, to take some stuff out of the tin mines, some overhead cranes, and take a few buildings down. I worked up to seven weeks there and when I would get back to the hotel room, I would have to take my boots off right away, jump in the shower and go to bed because I would seize right up. I had one heck of a time getting down off this, where you're taking your beams off the columns and jump back on the column and slide down. I never give into anything in my life and I didn't like to give in. A fellow who owns the company, he said, Gerry, you're going to have to - it's getting too dangerous for you, you know.
So I went to see the doctor and the doctor put me off. Then I started seeing specialists in Halifax. I seen Dr. Majaess and a specialist, Dr. Alexander. Things kept going down from there. The Hibernia job in Newfoundland was starting. I went back to see the doctor to see if he would release me to go to Hibernia. He said, no, you couldn't do what you were doing. He said, I can't do that. I was getting a lot of anger in me because I figured I was going to retire this year coming up and I could have did that with no problem but I'm in a lot of pain all the time right now. There was never a thing wrong with me up until then. I feel I was very unjustly treated by the Workers' Compensation Board.
I had a lawyer here in Port Hawkesbury, Lamey, the lawyer, and the tribunal came out, they took everything from the lawyers in Halifax, and in the spring, in May, I think it was in May, March or May, they had a hearing there in New Glasgow at Stellarton, at the Heather, I think it is.
MR. CHAIRMAN: The Heather Inn.
MR. BOUDREAU: Yes, and I got $5,000 for medical expenses, that's my therapy and my trips to Halifax and whatever. What they are trying to say now, I had Christine Schultz, Christine Allen then, but Christine Schultz now, and I wasn't going to take it. She said, no, that's medical expenses. It has got nothing to do with time or anything. Now they're saying that I took a settlement which I didn't take no settlement and I don't see the justification for that. There's the letter here if you want to read it.
MR. CHAIRMAN: So that was at a hearing in New Glasgow?
MR. BOUDREAU: Yes.
MR. CHAIRMAN: This was part of the Alternate Dispute Resolution, the ADR process, and you took a lump sum medical aid in the amount of $5,000?
MR. BOUDREAU: Right.
MR. CHAIRMAN: I'm going to read the letter for the benefit of the committee. This is the Workers' Advisers Program writing a letter. It says:You address Mr. Boudreau's request for further benefits in stating that the agreement represents a full and final settlement of all outstanding appeal issues before the Workers' Compensation Appeal Tribunal and, therefore, you are unable to consider his recent request for further benefits.
Then they go on to say that the only issue on the appeal was the matter of temporary total disability benefits. So, obviously, there's a disagreement here between the Workers' Advisers Program, who say that all you settled for was temporary total disability benefits, and the Workers' Compensation Board, which is saying that you settled your claim completely.
MR. BOUDREAU: Right.
MR. CHAIRMAN: That's the nature of the outstanding dispute.
MR. BOUDREAU: There is quite a difference because if that was the case, then Christine Allen, it's Christine Schultz now, I mean I wouldn't have taken it, you know, but she said it has got nothing to do with it. She said this is medical expenses.
MR. CHAIRMAN: Yes, and, of course, Ms. Allen is asking them to reconsider their position and so forth. So it is at the reconsideration stage, I guess, just for the benefit of the members here of the committee. So I take it that you were told by Ms. Allen Schultz, that you clearly understood that all you were settling was your claim for temporary total disability and not permanent disability benefits?
MR. BOUDREAU: Right.
MR. CHAIRMAN: Yes.
MR. BOUDREAU: I mean I'm in a lot of pain now. I'm going downhill, you know. I have my house up for sale now as a matter of fact. I mean that's terrible because I built my house, putting that plant up at Louisiana Pacific here, at nights and on the weekends. I was always capable of working. I started work young. I was 16 when I started in the mines and worked 31 years in the iron alone.
MR. CHAIRMAN: Over the years what benefits have you gotten, sir, from the Workers' Compensation Board besides the $5,000 lump sum payment that you got as a result of the ADR process? What other benefits have you received?
MR. BOUDREAU: Nothing.
MR. CHAIRMAN: Have they ever paid you any kind of temporary pensions or anything?
MR. BOUDREAU: No. I spent my money right up to last year. I started getting Canada Pension a year ago in June, June past was a year.
MR. CHAIRMAN: Those are my questions. Do any other members have some questions? Ms. Allen Schultz is still handling your case as your workers' adviser, is she not?
MR. BOUDREAU: Yes. The only time I ever seen her was that 10 minutes before this hearing. I don't think a person is getting a fair shake in that aspect, do you know what I mean. I mean a person you never seen or talked to, five minutes before you go in for a hearing, I don't think that's justified.
MR. CHAIRMAN: Did Ms. Allen Schultz or anybody else from the lawyers in Halifax with the Workers' Advisers Program ever offer to come out to see you here where you live?
MR. BOUDREAU: No.
MR. CHAIRMAN: Thank you. Mr. [Charles] MacDonald.
MR. CHARLES MACDONALD: You said you are close to retirement, did I hear you say that, Gerald?
MR. BOUDREAU: I could retire when I was 55 . . .
MR. CHARLES MACDONALD: Okay, yes.
MR. CHAIRMAN: Thank you very much. I think those are all our questions. I truly appreciate you taking the time to be here and point out the difficulty you have suffered.
MR. BOUDREAU: She has all my documents in Halifax, you know. A person should get a fair shake and that's all I ask.
MR. CHAIRMAN: I understand and, hopefully, that's what will happen, sir. Thank you.
MR. BOUDREAU: Thank you.
MR. CHAIRMAN: The gentleman in the red shirt, could you indicate your name, sir?
MR. WESLEY GRAY: Yes, Wesley Gray, Port Hawkesbury.
MR. CHAIRMAN: Mr. Gray, go ahead.
MR. GRAY: I injured my back in October 1994.
MR. CHAIRMAN: Where were you working at the time?
MR. GRAY: At the time it was the Inverness District School Board.
MR. CHAIRMAN: What was your job?
MR. GRAY: Janitor.
MR. CHAIRMAN: How did you hurt yourself?
MR. GRAY: Lifting.
MR. CHAIRMAN: What were you lifting?
MR. GRAY: A floor machine at that time.
MR. CHAIRMAN: Yes, and perhaps you could just tell us what happened after that from your point of view?
MR. GRAY: I was paid temporary payments.
MR. CHAIRMAN: Workers' compensation?
MR. GRAY: Right. It ended up I went in physio and all through that and I ended up being able to go back to work. It wasn't right but anyway I had to go. I was going to lose and I worked maybe two months or somewhere along that line and I injured it again.
MR. CHAIRMAN: A back injury again?
MR. GRAY: Yes, lifting, this time it was five gallon pails. So I ended up back on workers' compensation. They sent me to the rehab in Halifax. I was there over three months. This time they put me back on an ease-back, working, the Workers' Compensation and the school board but that didn't work either. Once I ended up back full-time with my load it went again. So everything was cut off.
MR. CHAIRMAN: They cut you off after you went back to work?
MR. GRAY: And wasn't able to do it after maybe a couple of months, my back went again.
MR. CHAIRMAN: And you went off work again?
MR. GRAY: Yes.
MR. CHAIRMAN: But the Workers' Compensation Board wouldn't pay you at that point?
MR. GRAY: No. Well, they did until April; I was paid up until April 1996 when they cut me off then, when I couldn't handle it.
MR. CHAIRMAN: You couldn't handle working?
MR. GRAY: The work, right.
MR. CHAIRMAN: But after you left work again there were no payments from the Workers' Compensation Board?
MR. GRAY: No.
MR. CHAIRMAN: Did they give you a reason why they weren't covering your injury?
MR. GRAY: It ended up that they were saying that I should be able to work. Since then I had to go out of Nova Scotia to have the operation.
MR. CHAIRMAN: You had an operation on your back, did you?
MR. GRAY: In Saint John, a year ago last April.
MR. CHAIRMAN: How has your health been since the operation? Did it improve . . .
MR. GRAY: A big difference pain-wise. I was going through pain medication like - since the operation I haven't taken any. I didn't need any. So, now, I had an appeal hearing in June of last year.
MR. CHAIRMAN: June 1997?
MR. GRAY: Yes. I was told at that time there would be a decision in 30 days. I haven't heard it yet.
MR. CHAIRMAN: What was the name of the adjudicator who heard your case?
MR. GRAY: Well, it was a lady now.
MR CHAIRMAN: That won't help a lot.
MR. GRAY: I was out of town and I was trying to get back earlier and all my letters and everything are home.
MR. CHAIRMAN: It wasn't Judith Ferguson or . . .
MR. GRAY: Right, I think it was.
MR. CHAIRMAN: Your case was heard in front of Judith Ferguson? Was she the lady who actually heard your appeal?
MR. GRAY: Well, Ferguson is ringing a bell.
MR. CHAIRMAN: Yes, Ms. Ferguson, she is the chief commissioner. So it's possible you've heard that name before.
MR. GRAY: Yes, probably it is. That's right.
MR. CHAIRMAN: So you can't recall the name of the adjudicator?
MR. GRAY: Just offhand, no.
MR. CHAIRMAN: But you had the hearing. Where was the hearing held?
MR. GRAY: Antigonish.
MR. CHAIRMAN: You had a hearing in Antigonish and they promised you a decision within 30 days?
MR. GRAY: Thirty days.
MR. CHAIRMAN: And you're still waiting for it?
MR. GRAY: Right. Under the law, the Workers' Compensation Board and a compensation doctor in Sydney, which never ever, I asked to see.
MR. CHAIRMAN: He never saw you?
MR. GRAY: He never saw me. Well, there was pictures taken, I knew that. I guess he knows what I look like maybe.
MR. CHAIRMAN: What your back looks like anyway.
MR. GRAY: His name is Dr. Smith. Dr. Smith says this. Dr. Smith says that. They were diagnosing me first with soft tissue and chronic pain. I had three plates put in my back and a fusion. Now, this Downard, I'm in that group there now.
MR. CHAIRMAN: The Doward decision.
MR. GRAY: Doward, that's where they have me now which I shouldn't never been near. In April 1996 they cut me off. I never had one cent of anything coming in for a full year; I may as well say it. In March of the next year my Canada Pension disability went through.
MR. CHAIRMAN: So that's your income right now, is the CPP disability?
MR. GRAY: Right, plus I was married for 31 years. My marriage is gone. We are separated. She is still in the home. That's going to have to be sold. I have one child with me, a 16 year old girl, and she has the 14 year old boy.
MR. CHAIRMAN: Do any members of the committee have a question for Mr. Gray. I guess I have one further question, Mr. Gray. Have you been receiving any communication at all from the Workers' Compensation Appeal Tribunal, the WCAT, indicating what's going on with your appeal?
MR. GRAY: I called them maybe three weeks ago and they told me they was waiting this decision on the Doward, or whatever.
MR. CHAIRMAN: Thank you very much for taking the time to be with us here this evening.
MR. GRAY: Thank you.
DR. ANTHONY LAMPLUGH: Mr. Chairman, could I ask a question?
MR. CHAIRMAN: Yes, I'm sorry, Dr. Lamplugh.
DR. LAMPLUGH: Mr. Gray, you mentioned that when you needed surgery, you had to go out of the province?
MR. GRAY: Right.
DR. LAMPLUGH: Could you explain why that was so?
MR. GRAY: Because every time the Workers' Compensation Board heard - the doctors agreed to operate on me in Halifax and then the first thing the letter was coming, a letter was . . .
DR. LAMPLUGH: So you had the surgery in Saint John, New Brunswick?
MR. GRAY: Yes, under MSI.
DR. LAMPLUGH: It was paid for by MSI. Thank you.
MR. CHAIRMAN: Mr. [Charles] MacDonald.
MR. CHARLES MACDONALD: Would you clarify that for us? Are you saying that the doctors, or your doctors wanted you to go for surgery in Nova Scotia or . . .
MR. GRAY: At our first meeting or something, you know, there was one doctor almost opened the OR table, the first thing the letter . . .
MR. CHARLES MACDONALD: A letter came from the Workers' Compensation Board?
MR. GRAY: Yes.
MR. CHARLES MACDONALD: So you have to go to New Brunswick to get operated on and paid for?
MR. CHAIRMAN: I think what you're saying and I don't want to put words in your mouth, Mr. Gray, but the impression I'm getting, and I think that Dr. Lamplugh and Mr. [Charles] MacDonald have gotten as well, is that your doctor didn't want to deal with the hassles of the workers' compensation system which they would have had to deal with, is that what you're saying? They were telling you they didn't want to deal with the Workers' Compensation . . .
MR. GRAY: Well, something happened.
MR. CHAIRMAN: They were waiting for something from the Workers' Compensation Board, is that . . .
MR. GRAY: That's the way I . . .
MR. CHAIRMAN: You understood it and so the surgery got booked in New Brunswick because there was no question that that was going to be paid for by MSI?
MR. GRAY: My family doctor arranged for the operation in Saint John.
MR. CHAIRMAN: Thank you.
MR. CHARLES MACDONALD: I had another question on that.
MR. CHAIRMAN: Mr. [Charles] MacDonald, go ahead.
MR. CHARLES MACDONALD: Was that back surgery? It was an operation on your back?
MR. GRAY: Yes.
MR. CHARLES MACDONALD: And can you tell us, was it a vertebra or . . .
MR. GRAY: They put in three steel plates, they did a fusion and grafting . . .
MR. CHARLES MACDONALD: And that's when that was done, yes. Thank you.
MR. CHAIRMAN: Thank you very much, Mr. Gray. That is very useful. Thank you.
MR. GRAY: Thank you.
MR. CHAIRMAN: Are there any other members of the public? I don't see any here. I would just indicate to the members of the public who may not have done this yet, that if you're interested in receiving a copy of our report, there are forms that you can fill out at the back of the room with your name and address. At the conclusion of our hearings, we will provide you with a copy of our report because sometimes members of the public are interested in receiving that material. So thank you very much for coming this evening and we appreciate you being here. Could the committee members just stick around for a few minutes afterwards.
[The committee adjourned at 8:39 p.m.]
