HALIFAX, THURSDAY, SEPTEMBER 3, 1998
SELECT COMMITTEE ON
THE WORKERS' COMPENSATION ACT
Mr. Michael Baker
MR. CHAIRMAN: Ladies and gentlemen, on behalf of the Select Committee on the Workers' Compensation Act, I would like to welcome you all to our meeting here today in Stellarton. As most of you would be aware, this is a series of meetings that are being held throughout the Province of Nova Scotia. We are pleased that so many members of the public could be with us here today. The first part of our agenda is to generally ask our members to introduce themselves.
[The committee members introduced themselves.]
MR. CHAIRMAN: We also have a panel of consultants and I would ask them to introduce themselves.
[The committee consultants introduced themselves.]
MR. CHAIRMAN: For the advantage of those members of the public who have not been following our committee, although I am sure there aren't many of those here, our committee was struck by a resolution of the Legislative Assembly in June of this year. Our mandate is to study the Workers' Compensation Act of Nova Scotia and to recommend changes to that legislation for the fall sitting of the Legislature, which is scheduled to commence October 15th of this year. Our committee's mandate has taken us to a number of communities throughout Nova Scotia, and we have a number of further dates for public hearings.
It is important for those members of the public who wish to make presentations to remember, first of all, that our presentations are public and the record is public. So anyone who wants to talk about personal matters, should understand that those are going to be on the public record. Second of all, it is important for people to realize that our committee's mandate is to recommend changes in the system. We are not able to hear individual appeals from particular decisions, although clearly, if there is legislation proposed, it may have the effect of making a change in a person's individual case. We are not able to intervene and make a positive decision in a particular case but, as I said though, clearly if there are changes in the rules, that may have a positive effect in someone's case.
It is also important to remember that we are not an arm of the Workers' Compensation Board or the workers' compensation system. We are completely independent. We are all members of the Legislative Assembly. We represent all three parties in the Legislative Assembly equally. Without any further ado, I would like to call upon Mr. Bob Baudoux. How are you?
MR. ROBERT BAUDOUX: Well, if I was real good, I wouldn't be here.
MR. CHAIRMAN: That's true.
MR. BAUDOUX: I would like to start off by just giving you a very brief background on my own experiences with the Workers' Compensation Board. I initially injured my back in February 1988. I was off work for approximately four months, therapy every day, muscle relaxers, painkillers, the whole bit. When I returned to work, four and a half months later, I went back on painkillers, still on anti-inflammatories, wearing a lumbar support. I was in a job that comprised of a great deal of lifting in the run of a day.
MR. CHAIRMAN: What kind of work did you do?
MR. BAUDOUX: I worked for a bakery company, doing deliveries. The way that I had initially injured my back was, I slipped on a frozen floor in a truck, did facet damage and some disc herniation. When I did get back to work, as I say, it was painkillers, the painkillers I took for approximately five years that I did remain working. I gave it another twist in February 1993, and was off work for only two weeks, but I sought immediate medical attention. I was given more painkillers, more anti-inflammatories, more muscle relaxers, and complete rest for the two weeks. By the time I went back to work, the pain levels kept escalating, my back kept getting worse until it got to a point, come December 1993, I could no longer do my job.
The problem that I ran into with workers' compensation was that when I applied, I was told that since I could not relate it to any specific incident that happened, that it was non-compensable. Since 1993, I am still in the appeal system with the Workers' Compensation Board. I have received no monies from the board since that date. It's a hard pill to swallow.
What I am proposing is that the members of this committee give very serious recognition and consideration to the implementation of a body to oversee the operations of the Workers' Compensation Board on an ongoing basis, a watchdog if you want, to ensure that the Act is being followed, that the policies are being adhered to, thus alleviating a lot of the pressures on injured workers, ensuring that injured workers are going to get fair and impartial treatment from the Workers' Compensation Board.
For the rest of my presentation, I will attempt to outline, to the best of my ability, other examples of areas or practices of the board which should be monitored. I am confident that you have probably already heard most of these as you travelled the province, and I am more than confident that you are going to hear them here today.
I will begin with the term, accident. As defined in Section 2(a) of the Act, it is an event or circumstance causing or leading to an injury arising out of and in the course of employment. It also includes occupational disease but does not include stress, other than an acute reaction to a traumatic event. In Falconer vs. Workers' Compensation Appeal Board of Nova Scotia in 1992, the court held that the term, accident as used in the Act was sufficiently broad to encompass injuries that did not arise from a specific incident at work. Does that sound familiar?
One of the reasons for my claim, and I am sure many more being denied, was because there was no specific incident. In one of my decisions that came down from J. David Connally, hearing officer for the board, included in my report, stated, "Accordingly, the Worker in the present case does not have to prove the occurrence of a specific incident on December 4, 1993 in order to succeed with his claim.". So, no benefits were awarded.
Another term that is frequently associated with the Workers' Compensation Board is, benefit of the doubt. In Section 187, this is defined as a legislative decision-making guideline, which requires that the board, where there is doubt with respect to an application for compensation and the evidence for and against the worker's claim is evenly balanced, decide in favour of the worker. Well, it is my opinion that the Workers' Compensation Board, the more workable definition they use is if they have a doubt, we lose our benefits.
The Workers' Compensation Act of Nova Scotia is a law. It is not a handbook to be used as a guideline. The Act should be treated the same as any other law. If you or I violate any of the laws of this country, we are held accountable, and we suffer the consequences thereof. To whom is the board responsible? Who are they accountable to? We have had situations, through our injured workers' group, we sent a letter to the Minister of Labour asking him, who holds the Workers' Compensation Board accountable? Do you know where our response came from? David Stuewe. Correct me, if I'm wrong, but isn't the Workers' Compensation Board under the Minister of Labour's portfolio? Then he should be well aware. I have spoken to different members of the committee at different times, I know the extent that
you people had to go to in reviewing the Act in order to be out here today. If you guys can do it, so can he.
In other words, we are held accountable for our actions, to whom is the board accountable? Do you as a committee feel it is reasonable, responsible or acceptable to send injured workers to five, six, seven doctors, until the board finds one that says it is non-compensable? You will hear all of this stuff documented throughout the day. Is it not a violation of the Act? These are the things that amaze me, since I have been involved with this group. The board has to come under some kind of accountability.
The only solution feasible, in my opinion, is to have a body overseeing the operations of the board. This accountability should encompass not only compliance with the Act, but financial as well. If you send someone to seven, eight doctors, is that not incurring unnecessary expenses?
I know I was allotted 10 minutes and I had no idea in this world, because public speaking is not one of my attributes, but I wrote down what I figured would take me approximately 10 minutes. Apparently it didn't. I would like to thank the committee for giving me the opportunity to speak here today. I appreciate the fact that you folks are travelling around the province to hear the woes and the devastation that has been reaped on injured workers and their families. Keep up the good work. Thank you.
MR. CHAIRMAN: Thank you very much. There is an opportunity for questions, if it is all right with you. I guess my first question for you would be, you have been labelled as a chronic pain case, I would guess, have you?
MR. BAUDOUX: Yes. I have.
MR. CHAIRMAN: I assumed that. What level of appeal are you at in the system now, the WCAT?
MR. BAUDOUX: No. At one point when I had a workers' adviser, I was at the point for an oral hearing. As Ms. Lloyd can attest, on one of our trips to Halifax, I made a phone call to the Workers' Compensation Board to find out where my claim sat, internal appeals. So, I have gone full cycle and I am back in the system again.
MR. CHAIRMAN: You are back at the . . .
MR. BAUDOUX: I have had no correspondence from compensation in quite some time.
MR. CHAIRMAN: Again, with respect to your particular claim, what benefits did you receive from the Workers' Compensation Board, if any?
MR. BAUDOUX: I received my benefits when I initially injured my back in 1988. I again received benefits when I was off for two weeks in April 1993. When I saw Dr. Dhawan in Halifax, he ran me through the mill. I had CAT scans, I had myelograms, the whole nine yards. Ironically, the areas of my back that are affected are the same areas that were affected in 1988. He then referred me to Dr. Holness, a noted neurosurgeon in Halifax. Dr. Holness' findings were, his professional opinion was that any attempt at surgery on my back would most certainly result in total failure. Right now, I can walk. When I can't walk anymore, then he can take the pain away.
MR. CHAIRMAN: I understand. Am I also understanding from your presentation, that you have been forced to go to multiple experts to try to satisfy the Workers' Compensation Board?
MR. BAUDOUX: Oh, absolutely.
MR. CHAIRMAN: How many doctors do you remember being to?
MR. BAUDOUX: The main specialists were Dr. Renald Simard, Dr. Dhawan, on several occasions; Dr. Holness, on two or three occasions; plus the doctors I dealt with at the hospitals for testing and what not. It's an unfortunate thing, I have gone through more GPs than I have specialists. I think I had three GPs in the first 40 years of my life, and I have had four in the last six. And I haven't got one now.
MR. CHAIRMAN: Mr. DeWolfe.
MR. JAMES DEWOLFE: Hello, Bob. It's nice to see you again. Bob, you have made essentially one recommendation, that a watchdog-type group should be in place to oversee the Workers' Compensation Board. Having heard your presentation, your presentation sort of indicated that there are some other recommendations underlying your thoughts that perhaps you would like to bring to the table today.
MR. BAUDOUX: Not really. I think most of my concerns would be addressed by an organization overseeing, because it is going to clarify the terminology, it is going to ensure that the Act and policies are being followed. Overall, I would say that would be the fundamental solution that I can come up with.
MR. CHAIRMAN: Mr. [Charles] Parker.
MR. CHARLES PARKER: I guess I just wanted to follow up on that, Bob. We have heard a lot from injured workers all over the province about the fact that there is nobody accountable in the workers' compensation system, that they are answerable only to themselves. This does seem like a really good idea, but do you have any suggestions on who
they should be accountable to, is it a board made up of injured workers and employers, or is it an all-Party committee of the Legislature, or just who would you recommend?
MR. BAUDOUX: Actually, if you were going to set it up, I would say to basically amalgamate what you have just stated, because obviously the employers are paying premiums to the compensation board, their premiums are being collected. If the claims aren't being paid, what is the point in paying the premium? I think yes, the employers should have some input into it. I think, yes, it should also involve injured workers. I'm not a politician and I don't have the organizational skills to say, this is how you should set your committee up.
MR. CHARLES PARKER: But you feel definitely there should be some group that the Workers' Compensation Board is responsible to?
MR. BAUDOUX: Absolutely.
MR. CHARLES PARKER: And that it takes direction from?
MR. BAUDOUX: Yes.
MR. CHARLES PARKER: Okay. Thank you.
MR. CHAIRMAN: Mr. [Hyland] Fraser.
MR. HYLAND FRASER: I'm just wondering, are you on CPP disability now?
MR. BAUDOUX: Yes, I am.
MR. HYLAND FRASER: Did you have any problem getting that?
MR. BAUDOUX: No, I did not.
MR. HYLAND FRASER: No hassles at all?
MR. BAUDOUX: I went through the normal procedures with CPP, almost 100 per cent are refused on their first application, the reason being, of those that are refused, probably 60 per cent will appeal it. A lot of times, on the second, on the appeal, you are denied because of the balance that are refused, only a percentage of them will. It breaks down to dollars and cents. I was awarded my Canada Pension on my appeal.
MR. HYLAND FRASER: Thank you.
MR. CHAIRMAN: Ms. Godin.
MS. ROSEMARY GODIN: Hello, Mr. Baudoux. Thank you for coming before us today. You spoke about an oral hearing. Did you actually have that?
MR. BAUDOUX: No, I did not.
MS. GODIN: You were slated to have that?
MR. BAUDOUX: I was slated to have it, but it never materialized.
MS. GODIN: It never materialized? Was that your doing, or did you receive a letter cancelling it?
MR. BAUDOUX: I received nothing. Now, I will point out that the workers' adviser I had, I was not overly impressed with, because I think almost every appeal that went in was a case of, I walked into his office and said, hey, you are getting close to getting that appeal in, aren't you? One was faxed in at 4:20 p.m. and it was due that day. So, if I wasn't monitoring what was going on, then I would have been out of the system completely.
MS. GODIN: You said, one that you did have, does that mean that you don't have a workers' adviser at this . . .
MR. BAUDOUX: No, I don't.
MS. GODIN: Well, I am making an assumption here, so first I will ask you, are you a member of the Pictou County Injured Workers Association?
MR. BAUDOUX: Yes, I am.
MS. GODIN: Are you finding that you are getting more help from the injured workers than you ever did from the workers' adviser?
MR. BAUDOUX: Most definitely.
MS. GODIN: So, you have turned to the injured workers?
MR. BAUDOUX: Yes, I have.
MS. GODIN: Okay. Thank you.
MR. CHAIRMAN: Mr. Corbett.
MR. FRANK CORBETT: A quick one, Bob. Good to see you again. You spoke about having a workers' adviser, was that from the Workers' Advisers Program, or was that a private lawyer?
MR. BAUDOUX: That was a private law firm, done through the workers' compensation.
MR. CORBETT: Okay. Thank you.
MR. CHAIRMAN: Do any other members have questions? Our consultant, Mr. Neville.
MR. JAMES NEVILLE: Your first injury in 1988, did you receive a PMI pension for it?
MR. BAUDOUX: No, I did not.
MR. NEVILLE: You weren't reassessed for no disability whatsoever?
MR. BAUDOUX: I was assessed by Dr. Dhawan in my last, at having a 10 per cent to 15 per cent PMI.
MR. NEVILLE: The Workers' Compensation Board never . . .
MR. BAUDOUX: I have received nothing from compensation, not five cents, since the first week of December 1993.
MR. CHAIRMAN: Thank you, Mr. Neville. Do any of the other consultants have any questions? Thank you very much for taking the time to be with us today, Mr. Baudoux. I hope you can take some time to sit through the rest of the afternoon.
I would also mention for members of the public who are interested in receiving a copy of our report, when the committee is finished its deliberations, there will be a report prepared, and there should be forms on the table at the back of the room. Mr. Hadley is with our staff over there in the corner. If you have any questions at any point about anything, you can address them to Mr. Hadley, and we will do our best to answer them. But I would encourage anybody who is interested in receiving our report to fill out a form, and we will send one to you when it is finished. Thank you.
Our next presenter is Mr. Stephen Nicholson. Mr. Nicholson.
MR. STEPHEN NICHOLSON: Good afternoon. Excuse me for the unpreparedness. I just got home from Halifax, I was up to that plane disaster last night.
MR. CHAIRMAN: That's all right, take your time.
MR. NICHOLSON: What I did was I put mine into a kind of story form, to make it a little bit more interesting.
In today's society, we know how important it is to have a job. Everyone who is in this room today, or most, knows that if they have a job, they are lucky. It's nice knowing that you have a job to support your spouse and dependants, pay for your home, car, put food on the table and pay your bills. However, if you are unfortunate enough to be hurt while on the job, your sense of security is ripped from you.
[3:30 p.m.]
For those of us who have been hurt on the job, we have a long painful road ahead of us, financially and socially. Our security is gone. Emotionally, we are drained, and the pain is on top of it all. So what can we do? We look towards the Workers' Compensation Board for support and direction, not because we want to feel pitied, but because we worked hard, made contributions toward it, and it was supposed to be there to help us, but it's not. So we started on a long journey, the one on physically getting better, emotionally feeling worthwhile again, and getting to a point that we feel we can support our families. We didn't ask to be hurt on the job, however, somehow workers' compensation seems to find that it's our fault that we did get hurt on the job.
The board was originally designed to help the injured workers. In my case, the first thing they did was they put me on a work hardening course. I was taken away from my family for 22 weeks, sent to Halifax on a course that I could have done at home, because there were 30 of us in a room with three physiotherapists. We did everything ourselves. We did all our own treatments, wrote our own times down, and looked after ourselves. For that 22 weeks, we were put up in a lodge up there, Point Pleasant Lodge, at a higher expense than any other hotel around. When questioned, they said, that's the policy, that's where you stay. We looked around and found other hotels that were more comfortable, but they wouldn't let us go there. We had to stay at Point Pleasant Lodge.
Now to get back to the story here for just a second. Not only was the pain from the work hardening course physical pain, it was also emotional, because you were torn away from your family for that length of time. Now, when we finished the work hardening courses, some people were cut off completely right there. Others were granted pensions. Other ones, like myself, were told by our rehabilitation counsellor that we were going to go on a vocational rehabilitation.
I had six weeks to come up with a course that I was interested in or they would find me one, and their finding one is a computer course. I can't even turn a computer on. I'm not even interested in a computer. I looked around, I came up with a course that I thought was
a good one for me. I then had to go back to my rehabilitation counsellor, told him where it was at, who to contact, and the rehabilitation counsellor then contacted the instructor to see if he would take me on the course. When it was agreed upon, that they would take me on, I started a course and just about when I was ready to finish, less than roughly a month to go, I got a letter from workers' compensation that effective that day, I am cut off. Now, there is a whole waste of money.
When I asked them why, I was told that the rehabilitation counsellor had been in contact with the instructor, the instructor said I was doing really good, that I was completely done in my course, and that they had met all obligations. From that time on, they weren't financially responsible for me. Now, to get into that, I talked to the instructor, my counsellor had never talked to him in the whole time I was on the course, other than to get a report filled out. They had made several promises of financial help past the course, assisting to set me up in my business, that I never got. The course could have been had for $2,000 until my counsellor said, well, there is $10,000 a year available to you, why don't you take it? I had mentioned it several times to the Workers' Compensation Board, nobody held that man responsible. He wasn't accountable to anybody. He is accountable to himself.
At that time, I went to an independent lawyer, paid by the Workers' Advisers Program, and I'm not a smart person by any means, but I figured a lawyer is. He didn't bother appealing my case for me. I figured, well, I was just in that long waiting period. Two years later I was in Halifax, so I decided to drop into the board and see where my case was. I found out my case was dead. I have no further recourse. So, I went to the Workers' Advisers office in Halifax, a year and a half ago. They said, oh, we will look into it. I am still waiting to hear from them. Nobody is accountable in this government. As of now, I'm a burden on society by being on the welfare system.
MR. CHAIRMAN: Thank you. I guess my first question, Mr. Nicholson, I take it that you didn't receive any warning from your caseworker that you were going to be terminated, you just found out that, bang, you were gone?
MR. NICHOLSON: Yes. I was told I would be cut off, and on the following Friday I got my final cheque. I was told on a Wednesday, and I got my cheque through the mail. It was probably in the mail when they told me.
MR. CHAIRMAN: Within a day or two, it was the last cheque.
MR. NICHOLSON: Yes.
MR. CHAIRMAN: Sir, what was the date of your injury?
MR. NICHOLSON: October 19, 1989.
MR. CHAIRMAN: The general nature of your injury, again, was?
MR. NICHOLSON: I smashed up my knee.
MR. CHAIRMAN: What kind of work were you doing at the time?
MR. NICHOLSON: I was a calender operator at Michelin Tire.
MR. CHAIRMAN: Okay. As far as the benefits you would have received, you said that the work hardening, I guess, I don't want to surmise this, but I take it you didn't find the work hardening terribly effective in your case?
MR. NICHOLSON: No. Like I said, there was 30 of us there, at different times, but the group that was there, we got to know them all. We basically did our own therapy, and it didn't do us any good, but we couldn't leave because we were told that if we left, then it is a refusal of the system and we would be cut off.
MR. CHAIRMAN: You did your time, your 22 weeks . . .
MR. NICHOLSON: Well, I had longer than most people that were there. They had left me there for 22 weeks, I don't know why.
MR. CHAIRMAN: The course you took, what kind of a course was it?
MR. NICHOLSON: Gunsmithing course.
MR. CHAIRMAN: The gunsmithing course, was that taught locally or in Halifax, or where was it?
MR. NICHOLSON: In Truro. I had to travel back and forth.
MR. CHAIRMAN: Did they provide you with transportation money back and forth to your course?
MR. NICHOLSON: Yes. Transportation money and I was on benefits then. I was on benefits for four and a half years, until they decided - well, I don't know what they decided, I guess.
MR. CHAIRMAN: When they terminated your benefits, you no longer went to the course, you couldn't finish the last month?
MR. NICHOLSON: Well, there wasn't much sense, because I wouldn't have the money to set myself up, and the agreement was with my caseworker that they would assist in setting me up.
MR. CHAIRMAN: That's what I was wondering about, because you said it was starting a small business. Thank you. Those are my questions.
MR. NICHOLSON: That agreement was made in front of three other people, where he agreed that they would do that.
MR. CHAIRMAN: But they never delivered on that promise, of course. Ms. Godin.
MS. GODIN: Mr. Nicholson, you say you received only about two days' warning that you were being cut off your benefits?
MR. NICHOLSON: I was talking to my counsellor and he just told me that I would be cut off, this would be my last cheque.
MS. GODIN: At that time, did you ever, shortly thereafter, receive what we have heard from other people as being a cardboard box with your files? Was that ever sent to your home?
MR. NICHOLSON: My files, I sent for them and got them myself.
MS. GODIN: You got them yourself. So, you do have all your files?
MR. NICHOLSON: No, I gave them to the workers' adviser in Halifax a year and one-half ago.
MS. GODIN: Okay. As far as that goes, the Workers' Advisers Program, you said you haven't heard from them?
MR. NICHOLSON: I haven't, no.
MS. GODIN: You probably would have a lot of recommendations to make, but among them would be that you think that the communication should be better, because it sounds like you were in the system and you went months and months, if not years, hearing from nobody.
MR. NICHOLSON: Yes. The main thing is, nobody is held accountable, the lawyers, the workers' compensation, anybody. Like I said, I'm not a smart person, that's the reason I went to a lawyer and he just let it drop. He never told me he was going to let it drop. As far as I knew, he was working on it.
MS. GODIN: Have you contacted the Workers' Advisers Program yourself, recently, or not, in the past year and one-half?
MR. NICHOLSON: Not since I put my files in, they said they would get back to me.
MS. GODIN: Okay. Thank you.
MR. NICHOLSON: I mean, I was told straight out that I was out of the system. The workers' adviser thought they might be able to get me back in. They didn't guarantee that they could.
MR. CHAIRMAN: Mr. [Charles] MacDonald, did you have a question?
MR. CHARLES MACDONALD: I guess part of it was answered with the question Ms. Godin asked. I was interested just in that final chapter in your training. They terminated you, but told you on a Thursday afternoon or a Friday that you would be finished the following week. The course was not finished, the course that they initiated with you, or you had to go through them to initiate.
MR. NICHOLSON: Yes. There was no advance notice. Even the person that was instructing me, they never even notified him. I had to notify him that I would no longer be coming back. He was still sending the forms in to be paid.
MR. CHARLES MACDONALD: Okay. Thank you.
MR. CHAIRMAN: Mr. [Charles] Parker.
MR. CHARLES PARKER: Stephen, I just wanted to ask you a little bit about your work hardening. You were told, or you had the choice that you could go to Point Pleasant Lodge and stay there and take the program. Was that part of your rehabilitation, you had to take it?
MR. NICHOLSON: I was told I had to take work hardening, and they put you up at Point Pleasant Lodge.
MR. CHARLES PARKER: Who paid for that?
MR. NICHOLSON: Workers' compensation.
MR. CHARLES PARKER: But you had to stay at that particular lodge, you couldn't stay at another hotel or motel?
MR. NICHOLSON: I asked them about that, because the Lord Nelson, up the road, was only $31 a night and Point Pleasant Lodge is $48 a night. At the Lord Nelson, you got your meals; Point Pleasant Lodge, your meals are separate again.
MR. CHARLES PARKER: Were meals provided to you?
MR. NICHOLSON: There was a meal allowance after a while, because I found out I didn't have to eat their food at Point Pleasant Lodge.
MR. CHARLES PARKER: There were about 30 of you staying there at one time?
MR. NICHOLSON: I don't know how many were staying there. Some were staying at home, some were travelling. There were three or four of us who stayed there. Then they also supplied taxis from Point Pleasant Lodge to Gladstone; $7.00 each way, is what they paid for taxis.
MR. CHARLES PARKER: But you had no choice in your accommodations, if you were staying in the city. That was where they told you you had to stay?
MR. NICHOLSON: Yes.
MR. CHARLES PARKER: Do you know who owned the Point Pleasant Lodge?
MR. NICHOLSON: At that time, I didn't. I do know, from research. It's owned by a group of doctors that are connected with the Workers' Compensation Board.
MR. CHARLES PARKER: Do you feel there is a conflict of interest there?
MR. NICHOLSON: Yes. I feel there is, but if they can do it, they can do it.
MR. CHARLES PARKER: Okay. Thank you.
MR. CHAIRMAN: Mr. DeWolfe.
MR. DEWOLFE: Stephen, I just have one quick question. The files that you sent to the workers' adviser, did they request those files?
MR. NICHOLSON: We were at a meeting with the Minister of Labour and Anne Clark was there, and I mentioned my case to Anne Clark and she said, well, we'll look into it. She said, if you want us to, we can have a look into trying to get you back into the system, if we get hold of your files. I said, well, I have my files right here. She said, well, we'll take them and see what we can do.
MR. DEWOLFE: Have you contacted Ms. Clark recently to find out what the status is?
MR. NICHOLSON: I called up once. I forget her name, some lady lawyer has my case, but she hadn't gotten around to working on it yet. I have the name home.
MR. DEWOLFE: Thank you.
MR. NICHOLSON: But it has been pretty near a year since I've contacted her.
MR. CHAIRMAN: Do any of the consultants have a question for Mr. Nicholson? Mr. Neville.
MR. NEVILLE: I have two questions, Mr. Nicholson. Did they assess you for your disability with your knee?
MR. NICHOLSON: No, I've never been assessed.
MR. NEVILLE: Never?
MR. NICHOLSON: Never.
MR. NEVILLE: Are you receiving Canada Pension disability?
MR. NICHOLSON: Not at this time. I was receiving it, and they discontinued it saying that I could possibly be employed doing something else. I have that in appeal now with them.
MR. CHAIRMAN: Thank you very much, Mr. Nicholson, for taking the time to be with us today. We appreciate you sharing your insights with us. Thank you very much, and I hope you can stay around.
MR. NICHOLSON: Thank you for hearing me.
MR. CHAIRMAN: Our next presenter is Mr. Barrie Carruthers. Have a seat, sir. Start whenever you like.
MR. BARRIE CARRUTHERS: I belong to the Pictou County Injured Workers Association, I am the Vice-President. I would like to maybe prove how hard it is on your body when you are hurt at an industrial plant. I refer to my experience, it takes place over the last 25 years. Most people in this framework have gone through some kinds of these problems.
I was hurt in 1973 and fractured bones in my back and leg. I received a settlement or a pension, in 1974. Now, on the bottom of this it stated: In accepting this payment, in no way do you lose any rights to further consideration from the board should your condition change. I fell again in 1991, and hurt my back again. I was given a new claim number. The claim was referred back to the old claim of 1973, and because of this, I couldn't receive wage loss. The board will not pay any claim of wage loss, back of 1990.
When I was hurt in 1973, I was forced back to work because of financial difficulties. From 1973 to 1990, I had nine claims on my back and leg. This also happens to 90 per cent of the people that are doing this over the years. With my accident in 1991, I received a pension of $52 a month. Along with other people on workers' compensation, I was cut off benefits and had to go back to work. The pensions are not enough to live on, and people have lost everything, including their marriages. Where is the justice here? That's it.
MR. CHAIRMAN: I guess I have a number of questions for you, sir. The first one would be, you said you were hurt in 1973?
MR. CARRUTHERS: Yes.
MR. CHAIRMAN: In 1974, you received a pension?
MR. CARRUTHERS: Yes, I took the settlement then.
MR. CHAIRMAN: You took a settlement. Then you went back to work, and you said you had a number of falls in the period up to 1991?
MR. CARRUTHERS: A number of hurts, I had about nine claims, I think.
MR. CHAIRMAN: There were sort of related, where they?
MR. CARRUTHERS: They were related, mostly. Mostly it was to do with my back, pulled muscles. I went through the whole system with them. I can't remember them all. Those are too far back.
MR. CHAIRMAN: Where did you work?
MR. CARRUTHERS: It was Hawker-Siddeley at the time.
MR. CHAIRMAN: What was the nature of the work that you were doing?
MR. CARRUTHERS: I was an electrician.
MR. CHAIRMAN: Finally in 1991, you . . .
MR. CARRUTHERS: I fell again, and really did it. I was off for six years. I finally got back to work about a year and a half ago.
MR. CHAIRMAN: If you had a recommendation for us, based on your experience with the system, what would it be or what would they be?
MR. CARRUTHERS: Recommendations? Easier to get through to these people. These are hard people to deal with down there. They are completely ridiculous. You fight and argue and go on, you get lawyers to help you, but it's just a complete hassle. If there was some way we can get that straightened out. It is awful hard on the system, your own system, plus hard on your families.
MR. CHAIRMAN: Now, obviously, you are the Vice-President of the Pictou County Injured Workers Association, from your experience with your claim and other claims, have you found that assistance from the injured workers' groups has been more helpful than dealing with the workers' counsellors and workers' advisers? How do you rate that?
MR. CARRUTHERS: I tell you, I found a big difference when this happened. I was one of the original ones in the injured workers. The simple reason we went into it, we couldn't get anything through the Workers' Compensation Board. So we decided we would get an injured workers going, and see if we can't get some people to listen to us, anyway. Yes. I found that I got backing from my own people, or my own injured workers, or whatever, which made me feel a little bit better and this type of thing. Before that, it was a matter of, they were fighting with everybody down at the Workers' Compensation Board, and anybody else that came along, until injured workers, then at least you had somebody to talk to. Somebody that had the same problems that you had, if that answers your question.
MR. CHAIRMAN: Yes. I think it does. How many people are now members of the Pictou County Injured Workers Association?
MR. CARRUTHERS: There are over 100, but I'm not sure exactly how many.
MR. CHAIRMAN: That gives me an idea.
MR. CARRUTHERS: Around 100 to 150. You can ask the current president, she will be up later on. She has the figures.
MR. CHAIRMAN: Thank you. Are there questions from other members of the committee? Mr. [Charles] Parker.
MR. CHARLES PARKER: Barrie, I would like to come back to what the Chairman was just talking about, maybe the role of an injured workers' association. I am sure you are there for support for each other, and back each other up, and some of you become pretty
good experts in the system after a bit. Do you feel that there should be funding available to the injured workers' associations to help each other, to perhaps better prepare their cases before the board?
MR. CARRUTHERS: Yes, definitely. This is one of the biggest problems we have right now, especially in Pictou County here. They took away our lawyers that we could go to. My lawyer was Ian MacLean in Pictou. I could go over and talk to him anytime. Now they have taken them all to Halifax, and they only have so many down here, I think it is 16. They cover the whole province. You have nobody to talk to, you have nobody really that you can sit down and say, hey, here is my case, here is what is going on. I think there should be some money given to the injured workers over Nova Scotia to help out in this way, in their area.
MR. CHARLES PARKER: Secondly then, is on the workers' advisers, they are in Halifax. Do they ever come to you?
MR. CARRUTHERS: No. We have to go to them. As I understand, I haven't been to them, this is something new that came in the last year or so, but I understand you go to a compensation hearing, or whatever, you give them a call, or they call you. You get there, they have 15 minutes, they talk to you. Then you go in. In 15 minutes, you don't even know a person, you don't have much faith that they have faith in you. This is the problem with it right now.
MR. CHARLES PARKER: So do you see more merit in the old system or private lawyers or do you prefer the present system?
MR. CARRUTHERS: Well, it is a lot better than the last system, as far as I am concerned. But it still wasn't any good. Let us put it that way. I am not recommending the one we just came through. This new one is worse. To answer that completely, I think we should have access to our own lawyers, not just somebody you go to that you have to explain the whole thing. Our lawyer usually knows what is going on, and has dealt with us over the years.
MR. CHARLES PARKER: So you feel there should be a choice then, of which lawyer you can use?
MR. CARRUTHERS: Yes. There never was in the board. You always went to their lawyer. They assigned a lawyer to you that is who you talked to, on the old system, and I guess this new system is a little different, but it works out to be the same thing.
MR. CHAIRMAN: Thank you. Any other committee members have questions? Mr. Erjavec.
MR. LUC ERJAVEC: A quick question. You said your accident in 1991, you received a $52.63 pension. Did that amount change when you went back to work in 1997?
MR. CARRUTHERS: No. That is for a lifetime.
MR. ERJAVEC: Okay, that is under the old Act.
MR. CARRUTHERS: This is why I couldn't get wage loss, they put it under the old system.
MR. ERJAVEC: It's under the old system. Okay, thanks.
MR. CARRUTHERS: I have 18 per cent on me, in case you're asking, all together.
MR. CHAIRMAN: Any other questions? I would like to thank you very much for taking the time to be here today and I hope you can stick around for a while.
MR. CARRUTHERS: Thank you very much.
MR. CHAIRMAN: Our next presenter is Mr. Barry Lawrence. Would you come forward.
MR. BARRY LAWRENCE: First of all, I would like to say that the appeal system is not working at all for the injured workers. It seems like a game that the compensation board plays with you. When they figure you have drawn long enough, they send you to a compensation doctor and when you leave his office, that is usually the last compensation you will receive.
Then you are given a lawyer who is supposed to fight for you but I do not think it is in your best interests. It seems they are only interested in the money they are allowed for each case. When that gets used up they tell you, I don't think you have a chance of winning. I think we might win a few more appeals if they would put a little more time and effort in it.
Sometimes the lawyer don't tell you in time to appeal and the compensation board sends you a letter back that you did not appeal in time. Then you have to start and fight to get another appeal. If you go to different doctors for X-rays and examinations, it doesn't seem to mean anything. No matter what they say, the compensation board does not agree with their decisions.
I do not think an appeal officer has the right to overrule doctors' decisions and turn you down. Some people in the appeal system are in the appeal system for years. I do not think it should take so long to get an answer, whether you win or lose.
I do not understand why Canada Pension has no problem agreeing with your disability but the compensation board does not agree with it. I do not think you should have to wait 6 to 12 weeks to get a decision on an appeal.
A lot of cases - when you read your decision - you think that you won your case, only to turn the page and read, but due to circumstances we do not believe it is job-related. A lot of injured workers have anywhere from 1, 10, 12 or more claim numbers with the same injuries, so how do they have the gall to say it is not job-related?
It seems the injured workers' cases are a big piece of pie and everybody gets a piece except the injured workers. It seems all we get is a lot of running around and no money.
In closing, I would like to see injured workers get respect and treated fair. We are humans just like everybody else. Remember, every worker is just one step away from being an injured worker. Thank you very much.
MR. CHAIRMAN: Thank you very much, Mr. Lawrence. With respect to your particular injury and your experiences, perhaps you could indicate, what did you find was the biggest problem with this system for you?
MR. LAWRENCE: Well, I will tell you a little story. This here is true, or the Lord strike me dead if it is not. I went into a doctor's office. I took all my X-rays in with me. I walked in, I sat down, the doctor took the X-rays and he put one up of my neck. I said to him, I said, that's not the one of my back. He said, it doesn't make any difference. Now, that is what the man said to me right there. He said, it doesn't make any difference. I said, well, it certainly does to me.
[4:00 p.m.]
The day I came out of his office, I never got any more compensation. The man, he did next to nothing to examine me. I was very disgusted, I'm telling you. Before I went into his office this young fellow came out - I would say he is no more than 25 - and he looked over at me and my wife. He shook his head like that. I never knew the man from Adam, but I knew when I came out of the office what was going on I'll tell you that. Later, I found out from different ones that this man is nothing but a cut-off doctor, that's all he was. When you walked in there, you were done.
MR. CHAIRMAN: This particular doctor, I take it you were referred to him by the Workers' Compensation Board?
MR. LAWRENCE: Yes.
MR. CHAIRMAN: Was he a specialist or general practitioner?
MR. LAWRENCE: Well, he was supposed to be a specialist. He was in that medical . . .
MR. CHAIRMAN: The medical arts centre there on Spring Garden Road?
MR. LAWRENCE: When you come up Robie Street, that big professional one there.
MR. CHAIRMAN: Yes, the corner of Spring Garden and Robie.
MR. LAWRENCE: Yes.
MR. CHAIRMAN: What kind of specialist was the doctor?
MR. LAWRENCE: Him?
MR. CHAIRMAN: Yes.
MR. LAWRENCE: He was supposed to be for back and that, I guess, but what he did, my wife could have done better.
MR. CHAIRMAN: So you say you didn't feel he looked at the right X-ray?
MR. LAWRENCE: He didn't; I know he didn't. He put the one of my neck up. When I said that is not the right X-ray, I'm here for my back, oh, it doesn't make any difference, he said. But I thought it did.
MR. CHAIRMAN: Yes. What examination, if any, did he do to you when you were in his office?
MR. LAWRENCE: What did he do?
MR. CHAIRMAN: Yes.
MR. LAWRENCE: He tapped my knee and asked me to bend down. That is what he asked me. That is not very much. I was only in there, I figure, two to three minutes and that is about it.
I went to see another specialist and he was quite a gentleman, Dr. Loane. He gave me a pretty good thorough, that man. I respect a man like that.
MR. CHAIRMAN: The other doctor you went to, Doctor Loane, you said?
MR. LAWRENCE: Dr. Loane, yes.
MR. CHAIRMAN: Did Dr. Loane do a report and send that off to the compensation board?
MR. LAWRENCE: Yes, he did. He sent reports to them and back to my own doctor, and everything. Canada Pension, too. At that time I was fighting Canada Pension.
MR. CHAIRMAN: Let me guess. The Workers' Compensation Board preferred the opinion of the doctor that you had seen who said there wasn't anything wrong?
MR. LAWRENCE: I say he is the one they go by. My own doctor - in fact, I had two doctors. One fellow left to go to the States and I had to change doctors - I mean, that fellow overruled everything they said.
MR. CHAIRMAN: Are there any questions from any members of the committee?
Mr. [Hyland] Fraser.
MR. HYLAND FRASER: Mr. Lawrence, the nature of your injury, when did it happen?
MR. LAWRENCE: Well, I have probably around 10 numbers with, mostly, my back, always my back, except one time I got split open with a grinder and that, but it was mostly always with my back. Twelve years ago I had a heart attack and I went back five years after that again to work. The last time I came out of there, well, I didn't know if I was ever going to walk again but I came back pretty good.
This here, I don't understand why they say it is not job-related when they have got proof right there in front of them. Well, what do they want, anyway?
MR. CHAIRMAN: Mr. [Charles] Parker.
MR. CHARLES PARKER: Thank you, Mr. Chairman. Barry, I guess one of the biggest complaints we have heard about over the last couple of weeks is about doctors - maybe right up there with lawyers, I am not sure which we have heard more complaints about - many times a general practitioner will make a recommendation you should be allowed a certain percentage, but then it is often overruled by a specialist or another specialist, or in some cases, overruled by the caseworker. How do you feel that system can be corrected? Do you feel that there should just be one doctor making a recommendation or do you have some other suggestions on how best to correct what is happening here?
MR. LAWRENCE: Well, I think the doctor, he should have the biggest say but I also think there should be a couple of more impartial people in there too. I don't think that it should be a doctor from the compensation board. To start off, I would say an outside doctor
that has no ties with them at all and is going to give his honest opinion, I mean, the ones they send you to, I don't know if they are checked into, you are going to find a lot of hanky-panky there, I will tell you right now. (Laughter) I don't like that.
MR. CHARLES PARKER: You feel it should be a neutral or an unbiased physician that would make an honest judgement of opinion without being . . .
MR. LAWRENCE: I think so, yes. Like, I went to one appeal there - just the girl there, that was all. The way she was talking to me, I thought I won my case when I came out of there. Then you get a letter 12 or 14 weeks later, you get nothing. You don't understand this stuff. You keep fighting and fighting but they will not listen to the truth. That is the size of it, I find.
MR. CHARLES PARKER: How do you prevent, like, a caseworker not taking the recommendation of a specialist or a GP and overruling their decision? How could that be corrected?
MR. LAWRENCE: Well, I mean, these doctors, now, they go to college, medical schools and everything else for so many years, all right? Then they come and tell you, you cannot go back to work, your back is too bad, your leg, whatever part it is, anyway. Then you go before this board and somebody sits down there that has no knowledge, that I know of, of medical - they never went to medical school and then they overrule the specialists and say, no, you do not qualify for it. So it should be somebody that has the knowledge, has had the training and knows what he is talking about. His word should be next to God, as far as I am concerned, not these caseworkers.
MR. CHAIRMAN: Mr. [Charles] MacDonald.
MR. CHARLES MACDONALD: Mr. Lawrence, what type of work did you follow most of your life?
MR. LAWRENCE: Well, I did a lot of work over the years but the last while I was a high pressure welder. I was in tanks a lot, things like that. We were in small places and I hurt my back quite a few times. That is the only time I ever missed work, if I was hurt. I never missed it otherwise, never.
MR. CHARLES MACDONALD: Your claims would have been with different companies then, it was not just one single company?
MR. LAWRENCE: No, it would be like Hawkler-Siddley, Lavalin, whoever had the plant at that time.
MR. CHARLES MACDONALD: Thank you.
MR. CHAIRMAN: Are there any other questions from members? Mr. Neville.
MR. NEVILLE: Mr. Lawrence, did you ever get assessed by a compensation doctor for all your accidents for a PMI pension?
MR. LAWRENCE: Never did.
MR. NEVILLE: Did you ever apply to have it done?
MR. LAWRENCE: Well, I wrote letters and things like that there but they just keep telling you that you do not qualify. You know, that is what I don't understand. What do you have to do to qualify for anything?
MR. NEVILLE: You received Canada Pension disability for your disability?
MR. LAWRENCE: Yes, I did.
MR. NEVILLE: That is all, Mr. Chairman.
MR. CHAIRMAN: Thank you, Mr. Neville. Thank you very much, Mr. Lawrence, for being here.
MR. LAWRENCE: Thank you very much.
MR. CHAIRMAN: Our next presenter will be Mr. James Fitzpatrick. Have a seat, sir.
MR. JAMES FITZPATRICK: First off, thank you for letting me have this opportunity to speak to you. I am an injured worker and I have been through the system. I do receive a PMI and a lot of what these other folks have been speaking on, I have witnessed myself.
Today, what I would like to talk on is confidentiality. Confidentiality is defined in Webster's dictionary as told in confidence, secret of or showing confidence and, lastly but I think very important, entrusted with private matters.
Now, would not our personal files at WCB be covered by part of this definition? It is quite obvious to myself, and I am sure a lot of others here, that some members of the staff at WCB are not familiar with this definition.
I am going to relate this, I guess, to the best way I can. A request for one's file from WCB often makes for some interesting reading, especially if you happen to be a little on the nosy side which we all are, myself included.
Stapled in with your file is a complete mental report belonging to someone else. A letter from WCB, along with the claimant's number explaining why the request for medical aid was denied. Still, another letter with personal file number denying his request for travel expense. These pages now become part of your file. So I mean, this is something that just irks me to no end. If I am reading somebody else's file then somebody else is reading my file. Well, do you read them? I do.
After going through your file, you find it is not complete. You call WCB requesting the missing pages of your file. Usually, this nets you the answer, sorry, sir, or ma'am, we have no record of that particular date or occurrence. A more honest answer for these people to tell you would be, quite frankly, your file is likely in with somebody else's that is entrusted with private matters.
Now, does this lack of confidentiality ever cause undue hardship to claimants and their families?
Canada Pension disability requests an applicant's medical file from WCB to help establish whether or not the applicant is entitled to receive Canada Pension disability benefits. The applicant is denied CPP. The medical evidence does not meet the criteria for total disability benefits. A request is made by you to go before the independent tribunal.
Upon your request being granted, CPP sends you your complete mental file which was used by them to reach their decision. Now, you sit down and read why CPP did not find enough medical evidence in your first instance to support your claim. In the first and foremost paragraph it will start with, not your first name but Mr. or Mrs., et cetera, in my case, Fitzpatrick, was seen by Dr. So and So on this date. You recognize your surname but you do not recognize the doctor this letter is written to, you do not recognize the doctor that you have supposedly seen, or you do not recognize his diagnosis of your medical condition.
Now, this paragraph refers you to the page in your medical file where the doctor's report can be found. You find this report but cannot believe what you are seeing. The unfavourable medical report which was used to deny your CPP benefit is not yours, but that of your older brother. Someone at WCB crossed out your brother's WCB file number, inserted your number and then sent it to CPP as part of your file.
Now, a personal letter, as well as one from your local MP, is sent to Canada Pension advising them of this error. When you attained your tribunal, the panel chairman advises you they were made aware of this error. The CPP advocate, however, reads the commissioner's argument for refusing benefits. The first reason is, once again, based on your brother's medical report. The tribunal finds in your favour but their decision is appealed by CPP. In all the following CPP correspondence, they keep referring to your brother's medical report and the fact that the specialist only found him to have minor medical problems. CPP then requests
that you see another specialist of their choosing. You must comply with this request or your appeal is over.
Your visit to the specialist starts with his request to photograph you. He informs you this is done at the request of CPP to make sure you do not send someone else in your place to be examined. (Laughter) I find that very humiliating, as well as sick.
You call WCB to find out how this kind of mistake could have happened and who at the board took it upon themselves to alter medical documents. Their usual answer, we don't know who altered the report, or who included it in your file. WCB will write a letter explaining the error to CPP made by WCB. Once again, there is nobody here that can answer your questions.
You receive a phone call from the WCB's CEO apologizing for his error. Sorry, that is not good enough for me because right now I have got no income. Cash would have been better so get this thing straightened out.
Like I say, no one was held accountable for their actions. These actions cause undue mental, physical and financial suffering to myself and my family. It took a year to remove my brother's medical report from my CPP file and receive my disability benefits.
If you are wondering, well, I guess you know, this is me I am talking about. All these events took place because some person or persons at WCB did not take time to ensure that both my brother's and my right to confidentiality was adhered to. My brother, to this day, has not even received as much as an apology for them using his medical file. I mean, if it was up to me, well, we are on good terms but what if I wasn't on good terms with him and there was something there I could use against him? No one is held accountable.
Here are some more on confidentiality which I would like to speak on. These are not my cases. Of course, it just happens. A claimant from Pictou County finds out by accident that someone at the WCB has assigned his claim number to a person in the Valley. This person in the Valley is receiving a pension under the number. The gentleman from Pictou County is not receiving a pension. He has not to this date been able to receive a satisfactory answer from WCB as to how this situation arose or what, if anything, is being done to rectify it.
Now, here is another. The employer's right to information on the claimant's injury. Should this right include the results from a pap smear, a breast examination and a mammogram? Such was the case of a lady here in Pictou County. Her injury was her shoulder, her throat and her neck. This was a physical attack where she worked.
The employer's right to sit in on the claimant's hearing. They have the right to listen to medical evidence pertaining to the claimant's injury or injuries. This right should not include their being privy to that part of the hearing that most often deals with the intimate
details of spousal relations, how the injury, medication or a combination of both have left them unable to have normal, intimate relations with their spouse. The humiliation of discussing this in front of the panel and usually one's spouse most often brings tears.
The chairperson should have the right and decency to ask the employer to remove themselves from the hearing while these issues are being discussed. If any of it is pertinent to the employer, then the chairperson could discuss it in private with the employer after the hearing. This would grant the claimant a little more privacy and a little more dignity.
We have a case here of a private citizen requesting a meeting with someone at WCB to discuss a lady's claim and injuries, and being granted this. This was found out only by accident by herself. This, again, entrusted with private matters.
If it was a nurse that was working in the doctor's office or a nurse working in the hospital and they discussed my case, they are gone. Compensation, nothing happens. They are rewarded. They get a pay raise and get another step up the ladder. This is some examples of it.
I know that the suggestion - this is only one suggestion I am going to make, it is not a big suggestion - just take that little definition, put it on a placard, put it on their desk and make every one of them recite it each day, that definition, and especially underline entrusted with private matters.
Once again, thank you for allowing me the opportunity to speak. I hope this committee can and will make a difference and ensure that all injured workers in the province are treated justly and with dignity. Thank you very much.
MR. CHAIRMAN: Thank you. Mr. Fitzpatrick, I just wanted to ask one question about your particular difficulty with your file. I take it that it was you who discovered in your review of your Canada Pension material that had been sent to Canada Pension that your brother's information had been put in your file?
MR. FITZPATRICK: That is right, yes.
MR. CHAIRMAN: Because Canada Pension provides you with a full case summary and in that case summary there was material that did not relate to yourself. That's when you discovered it?
MR. FITZPATRICK: That is right. They supply you with a refusal, why you were refused and your complete file they have on you.
MR. CHAIRMAN: If it wouldn't have been for that, you would never have discovered that the information was in there?
MR. FITZPATRICK: No, sir, I wouldn't have. If I hadn't bothered reading it, I would have never known it was there.
MR. CHAIRMAN: Thank you. Do any other committee members have questions? Okay. Do any of our consultants have any questions? Just one last question, then.
You said that you did receive a call from the Workers' Compensation Board apologizing, however, for the mistake that was made?
MR. FITZPATRICK: Yes, Mr. Steuwe called me.
MR. CHAIRMAN: He did finally call you. Was that unsolicited or did you call him? How exactly did that conversation occur?
MR. FITZPATRICK: I think word trickled down to him through the grapevine that he wasn't being very well thought of at the time, because Mr. Tim McInnes did write a letter from me and I think Tim got in touch with Mr. Stuewe and Mr. Stuewe called him.
MR. CHAIRMAN: How long was it after the Workers' Compensation Board became aware of the problem that you got the call?
MR. FITZPATRICK: Oh, God, that I wouldn't be sure of. It would be at least two months or more and then he did write me another letter explaining that he figured everything was taken care of. Any of these things that I tell you, like on my own part, any of it that I have documentation, this stuff here that . . .
MR. CHAIRMAN: Thank you very much, Mr. Fitzpatrick, for taking the time to be with us.
MR. FITZPATRICK: Thank you very much.
MR. CHAIRMAN: Is Mr. Lyle McGillivray here? Mr. McGillivray, come forward. Good day, Mr. McGillivray.
MR. LYLE MCGILLIVRAY: Hello. My letter is not very long. My accident happened in 1968 and I am getting a pension of 7 per cent based on 1968 wages. When I was getting compensation, they based my compensation on my 1994 wages. How can they pay to suit themselves? They can't have it both ways, I don't think. In December 1994, I had an X-ray done on my knee. If it wasn't bothering me, I wouldn't have had the X-ray. So how do they figure I should get paid to only December 1994?
They sent me to Truro, to Fundy Training, for approximately two weeks. I have a Grade 7 education only. They put me on computers for a couple of days. They saw I couldn't learn that. Then they put me on résumé writing for a few days. How long do you think it should take to write a résumé? I was supposed to look for a job at three or four places a day. I asked my case manager for upgrading in school or to learn some kind of a trade, but they said I was too old; there would be no advantage to them. I call that discrimination.
I complained to my case manager every time I seen them and I called often. I had pains in my knee and I told them I didn't know if I could finish the job. I was having recurrence, but they paid no attention to it. I was supposed to get rubber mats so it would be easier for me to stand. Yes, I got the mats, but it was four months later. It was just a little too late, I was running a saw and taking pills and standing on a cement floor for eight hours a day; I couldn't finish the job.
My doctor recommended orthotics for my shoes. My case manager at workers' compensation said they couldn't see any advantage to me as I was not on the job anymore. What gives her the right to question the medical doctor? I got them later, no advantage to her. They won't take your doctor's word unless they hear something they want to hear. There is more than 7 per cent pain. It robbed me of my job and other things I used to do. They don't mind wasting money but don't want to give the injured worker any more than they can help. Thank you.
MR. CHAIRMAN: Thank you. I have just a few questions about your claim. When did you cease working for the last time?
MR. LYLE MCGILLIVRAY: 1996.
MR. CHAIRMAN: Where did you work?
MR. LYLE MCGILLIVRAY: At Rocky Ridge Woodworks, then.
MR. CHAIRMAN: You were doing woodworking with woodworking machines, lathes and saws, that kind of material?
MR. LYLE MCGILLIVRAY: Yes.
MR. CHAIRMAN: You said you had a knee injury in 1968?
MR. LYLE MCGILLIVRAY: 1968, yes.
MR. CHAIRMAN: And over the years, I take it, you were dealing with the Workers' Compensation Board?
MR. LYLE MCGILLIVRAY: No, from 1968 to 1994, I wasn't doing nothing with them. I was working.
MR. CHAIRMAN: It wasn't bothering you at all, I take it, at that point.
MR. LYLE MCGILLIVRAY: No, it wasn't bothering me at all. I went and got an X-ray in December 1994 but it must have been bothering me before that or I wouldn't have got an X-ray then. Do you know what I mean?
MR. CHAIRMAN: Yes, I understand. So it was 1994 to 1996, in that period, that they were giving you the run-around.
MR. LYLE MCGILLIVRAY: Yes. No, 1994 until now, really.
MR. CHAIRMAN: Are you receiving a permanent pension now?
MR. LYLE MCGILLIVRAY: Yes.
MR. CHAIRMAN: What percentage pension have they given you?
MR. LYLE MCGILLIVRAY: It is 7 per cent of my wages in 1968. I wasn't making very much then, really.
MR. CHAIRMAN: So what is your monthly pension?
MR. LYLE MCGILLIVRAY: It is $89.
MR. CHAIRMAN: You bought the special shoes, I take it we are talking about, that you got for your feet? Lifts in your shoes?
MR. LYLE MCGILLIVRAY: The orthotics or whatever. I didn't buy the shoes, no. They fit inside the shoes or boots or whatever you want to wear.
MR. CHAIRMAN: Have you found they helped?
MR. LYLE MCGILLIVRAY: Not really.
MR. CHAIRMAN: Thank you. Those are my questions. Do other members have any questions? Mr. [Charles] Parker.
MR. CHARLES PARKER: You said you were living on 7 per cent of your 1968 wage? So what would that be in dollars and cents?
MR. LYLE MCGILLIVRAY: It is $89 a month.
MR. CHARLES PARKER: $89 a month?
MR. LYLE MCGILLIVRAY: Yes.
MR. CHARLES PARKER: How do you get by on $89 a month? Do you have other income in the family?
MR. LYLE MCGILLIVRAY: I have another little pension, too, from when I used to work up in Ontario.
MR. CHARLES PARKER: Is there other income from any other source?
MR. LYLE MCGILLIVRAY: No, just the two.
MR. CHARLES PARKER: How do you get by? How are you surviving?
MR. LYLE MCGILLIVRAY: Very carefully, I guess.
MR. CHARLES PARKER: It must be difficult, I am sure. I guess the second question, you said you were working for Rocky Ridge Woodwork.
MR. LYLE MCGILLIVRAY: Yes, then. I wasn't working there when I got hurt.
MR. CHARLES PARKER: No, no, but were you working there just as a regular employer/employee relationship?
MR. LYLE MCGILLIVRAY: The compensation, they paid my wages there.
MR. CHARLES PARKER: So sort of under a rehabilitation program?
MR. LYLE MCGILLIVRAY: Yes.
MR. CHARLES PARKER: So the employer would have been receiving some money to help employ you? Is that the way it worked?
MR. LYLE MCGILLIVRAY: I think, yes.
MR. CHARLES PARKER: So you got a wage, whatever, but your employer also got a subsidy.
MR. LYLE MCGILLIVRAY: I didn't get no wage, I just got paid my compensation, like.
MR. CHARLES PARKER: So were you getting equivalent to what you would have got as a regular wage or would it be more or less?
MR. LYLE MCGILLIVRAY: Less, a little.
MR. CHARLES PARKER: It was less than a regular?
MR. LYLE MCGILLIVRAY: Yes.
MR. CHARLES PARKER: Roughly, what would that job be worth if they hired somebody off the street?
[4:30 p.m.]
MR. LYLE MCGILLIVRAY: Well, I would be getting the same like from them, I would be getting the right wages, I imagine, but I was making less than I was making working in the woods.
MR. CHARLES PARKER: So normally the job would pay $8 or $10 an hour or what?
MR. LYLE MCGILLIVRAY: Close to $8 likely, $7 or $8.
MR. CHARLES PARKER: Your workers' compensation was not too far from that $7.00 or $8.00 an hour?
MR. LYLE MCGILLIVRAY: It wasn't too far from that, no.
MR. CHARLES PARKER: But it was a retraining or a rehabilitation program you are under?
MR. LYLE MCGILLIVRAY: Yes.
MR. CHARLES PARKER: In time you found it just wasn't working for you? You couldn't handle the job?
MR. LYLE MCGILLIVRAY: No. If they got the mats sooner, I might have, but I don't know.
MR. CHARLES PARKER: So were there other people employed there by that company under the same program or were you the only one?
MR. LYLE MCGILLIVRAY: No, there were a few. I forget their names, but there has been a few.
MR. CHARLES PARKER: Okay, so it is fairly common, then, that employers hire people back through the WCB system for retraining?
MR. LYLE MCGILLIVRAY: Yes.
MR. CHARLES PARKER: Okay, thank you.
MR. LYLE MCGILLIVRAY: I don't know if there are any there now or not. Thank you.
MR. CHAIRMAN: Thank you very much.
Mr. Ernest Stroud would be our next presenter. Is Mr. Stroud here? Have a seat, Mr. Stroud.
MR. ERNEST STROUD: I am a member of the injured workers group. I don't know how long we were into injured workers but anyway, to start the story. I was in the army. I came out of the army and I went into the mines. I worked in the mines for 25 years. I got hurt, my right leg was fractured, the fibula and the tibia was sticking out through me. They took me to the Aberdeen Hospital. They kind of set the leg. I was off for two years with it. The first year I was off, the doctor told me - Dr. Fraser was my doctor then, he is retired now - he said, Ernie, you will only be off for a year, you will be forced back to work, and the man was right.
I was off a year and shortly they called me to go back to work. They cut my compensation off, so I had no other choice. I went back to work. The first night they put me pegging timber in the top roadway, in a wall. So down I went again; called the ambulance; took me back to the Aberdeen. So I was in the Aberdeen for awhile and I started getting my pension back - not my pension - my compensation cheque. After awhile - I got that for a few months - they cut me off again and starved me, me and the family. So I had to go to the next thing to welfare, the soup kitchens and everywhere else I had to go; only for the Legion, I would have been starving to death. They even had to buy my coal for me.
Now I will tell you a story. I am suffering with the leg, in pain every night, continuously; in other words, I am losing the enjoyment out of life. I used to like to go to dances. I am going on 77 now, I am 76, to tell you the truth - when you get up in those years, you are starting to lose your dates and stuff - so anyway, I went to a specialist in Halifax, I
went to doctors all over the country. I had lawyers and I went to appealments and that failed out. So one day I got a letter from the compensation board; they said you are to meet at the Heather. We are going to have a board there.
I went down there and two doctors, one doctor I couldn't make him out, he was a foreign doctor. I don't know what he was saying, but he said step in the room; he says take down your pants, I want to look at your leg. I pulled my pant leg up, said what the hell - excuse my language - what the hell do I have to pull my leg up when you can see with your own eyes? Mr. Stardy says, you go home, in two weeks time you will hear from us. I went home. They sent me 5 per cent disability. That is all I heard, so now I am taking pain pills, Tylenol, you name it, I take it. I used to, like I say, walk down the street. I used to lik to go skating with the boys. I used to like to go to the dances. You know, I can't even enjoy my life with my family any more.
Just like a fellow here belonging to the injured workers group we belong to, the man did away with himself, committed suicide. You know, after awhile, it gets to you. So what are you supposed to do? I went to appealments, I went to this, I went to that, everything. My left leg is carrying my right leg now. It is hellish, what you have to put up with. I think the injured workers here in town are behind there doing a darn good job, and we are trying to do our job, but nobody will listen to us. I feel like a dumb fellow in the back of the alley, in the doorway. That is all I have to say, right now. I am no good at writing, I didn't bring a write-up, Charlie, you know, but I am just speaking my mind.
MR. CHAIRMAN: You did a very good job. Don't worry about that.
MR. STROUD: I went to Dr. Hamm. I don't know how many letters, I wrote a letter May 27th, or my doctor in Westville did. I just got the letter last week. They are backing up on us. They are pushing us back in a corner as far as they can push us. We haven't got a chance in the world. How are you going to survive? A fellow from where I worked called me the other day, Ernie, how are you enjoying your retirement? I had to go up to the Valley View. Retired, I said, I am retarded, man. I am not retired. Someday, I don't know if I am going or coming. Some night, I think the wife is going to leave. I can't keep up my sex life at night. You know what I mean? It is getting out of hand. You fellows can laugh but I am telling you the truth. Anyway. That is all I have to say.
MR. CHAIRMAN: Mr. Stroud, you indicate they gave you a 5 per cent pension, a PMI. When did they see you at the Heather? You said they saw you at the Heather.
MR. STROUD: Well, I got a letter, like I said, it is in my pocket. Oh, God, I forget the date, see I get forgetful, it was so far back.
MR. CHAIRMAN: Was it just a couple of years ago, or a long time ago?
MR. STROUD: Oh, no, it was more than that. But see, I got a letter in the mail, say in 1994, for chronic pain. But that is all I have.
MR. CHAIRMAN: You have a letter saying that you had chronic pain?
MR. STROUD: It said, thank you for your letter of May 28, 1998. Mr. Stroud examined by our board medical adviser on December 1, 1994, and based on that examination, was assessed as having a permanent medical impairment rate of 5 per cent for his right leg. A department has been set up to review chronic pain and Mr. Stroud's will be reviewed sometime in the future and we will notify you of their decision.
MR. CHAIRMAN: You are still waiting for that notification? You are still waiting to hear from them with the rest of that? You haven't heard from them since?
MR. STROUD: I have been waiting since 1961, I am still waiting.
MR. CHAIRMAN: I understand.
MR. STROUD: Like I said, the wife is going to leave me, if I don't . . .
MR. CHAIRMAN: We would like to be able to help you. So would your wife. (Laughter)
MR. STROUD: Yeah. Right.
MR. CHAIRMAN: Are there any questions from members of the panel? Dr. Lamplugh.
DR. ANTHONY LAMPLUGH: Do you have a date for the injury?
MR. STROUD: 1961. That is a long time to be battling them bunch.
MR. CHAIRMAN: Are there any other questions from members. Mr. [Charles] Parker.
MR. CHARLES PARKER: I just want to ask one question.
MR. STROUD: Don't give me a hard time, Charlie.
MR. CHARLES PARKER: I can't help it.
MR. CHAIRMAN: Charlie is going to give you a real hard time.
MR. CHARLES PARKER: It is good to see you kept your sense of humour. I am sure this is not easy, it is a difficult thing that you go through. You have been at it for almost 40 years, I guess, since 1961. So it is a long time, and I guess a sense of humour keeps you going. You might as well laugh at your troubles, as get down . . .
MR. STROUD: I have had a hard time, you know, on a fixed income. You have to battle sometimes.
MR. CHARLES PARKER: It is a serious issue. You brought up that there was a suicide somewhere along the way . . .
MR. STROUD: That is right. There was. . . .
MR. CHARLES PARKER: . . . of an injured worker.
MR. STROUD: . . . I forget his name, he was on crutches.
MR. CHARLES PARKER: It is in truth, a very serious issue. Is that a feeling with injured workers, that is there, I am not getting anywhere, I am discouraged, I am giving up? It is not worth it anymore? That happens?
MR. STROUD: That is right., a fellow says, what do they have to live for? After awhile you get disgusted. Something has to go. Cracked.
MR. CHARLES PARKER: Do you feel there is a need for some type of support group, should the Workers' Compensation Board be providing counselling to people who perhaps are in a state of depression or having individual problems? Is there a need for such a service, do you think?
MR. STROUD: You might have heard about the fellow on the other side of Halifax. He went home and he shot himself. Told his mother, can't make it. It was just getting out of hand. When you have a bunch of bills facing you and mortgages and you have to live and you have oil to buy and electric, bills are coming upon you, like I said, a lot of the injured workers, poor fellows, have nothing coming in. They can't even get Canada Pension. What are you going to do? Say, well, the hell with it, I am out. . . .
MR. CHARLES PARKER: A counselling program of some type offered by the board then would be beneficial, you think, to individuals that perhaps are in need of counselling, or could really help?
MR. STROUD: Like I say, this is the best thing I have ever seen, a committee set up, and see if we can drive something in them noggins up in Halifax. I don't know if you can or not, nobody else can.
MR. CHARLES PARKER: We are going to try. Thank you.
MR. CHAIRMAN: I think those are all the questions, Mr. Stroud. I would like to thank you for taking your time to be with us here today. I appreciate your sense of humour, for all your difficulties.
Is Ms. Jane Farrell here? Ms. Farrell, come forward. Have a seat.
MS. JANE FARRELL: Hi. I wasn't expected to speak today. I didn't put my name down or anything, but when I keep hearing these cases, I just feel I want to tell what the government is doing to us.
MR. CHAIRMAN: We appreciate that. You go ahead, and take your time.
MS. FARRELL: I might get emotional, because this is the way I have been since last year.
MR. CHAIRMAN: Perhaps if you could speak up. You can slide up a little closer to the mike there, because we have a hard time hearing.
MS. FARRELL: Okay. I worked 30 years as a graphic designer, ad composer, typesetter at the local evening news. Eleven years ago, the hands became injured due to carpal tunnel syndrome; I worked 40 to 50 hours a week. I applied to the WCB, but the board said, no, it was not job related. I had four specialists. I had surgery on both hands. I had my family doctor. I have never been seen by the board; never assessed by the board. They sent me an appeal letter and denied me because I am a female with hormones. Dr. Dobson put it in writing that that was why I was declined my claim; in writing, from your board.
Then I asked them, I said, I tried to work. I continued for the next 10 years to work because the board would not accept me as an injured worker. They are supposed to give the benefit of the doubt to the worker, or show the contrary. I have never done anything for 30 years but work day in and day out, 40, 50, 60 hours a week at times, under speed, under the old Linotype, under the old ticker tape. When I went to an appeals hearing, you have young people on that appeal thing, the young girl - I forget the lady's name - this lawyer, she doesn't relate to what a Linotype is or what the ticker-tape machines were, or what it is to pound holes for eight and nine hours a day; I did it non-stop. We did maybe have a half hour dinner break and that was it.
The board, they just continued to keep refusing. They don't assess you; they don't see you; they don't realize. Then two years ago, I lost my employment; I had surgery again. Now my employment and my home, which was the only income we had coming in, the $30,000 a year is gone. I don't have any income now coming in. We used our daughter's education fund. This year she is 18 years old. She needed a grant to go to college. They would not even
accept my name as reference anymore. I am a nobody because I don't work. I don't have any income. They would not even accept my signature on a claim because of the Workers' Compensation Board, they will not accept me as an injured worker and because I am a female. That is not right.
Then the board, they pass policies. My husband, we have been married 27 years, but there was 17 years in the difference. He got smashed up 15 years ago. I continued to work even after the board denied me because I needed the job. I ruined the hands even worse. Two years ago, the board passed a policy, No. 3.72 that allowed injured workers to commute sums, if they were in dire financial straits, to pay off bills that we got behind on because I hadn't worked for two years. We took that commuted sum to try to stay, to keep our home, and everything else. The board does not even keep up on legislative changes. When my husband took it at 66, we have lost his Old Age Pension this year, we had to repay all of last year's. WCB money, compensation money, is a non-taxable income, but not to the federal government, it is not. You pay and you lose. They could have at least informed us that we were going to be penalized.
My home has no income. My self-esteem, I have been in mental health at the Aberdeen Hospital three times because I have acute depression and it is all over finances and losing everything I worked for 30 years. I do not understand how a government, where your Premier will look you in your face - and I sat in front of Mr. MacLellan - to tell me that he was disgraced by my case and that I would get my case appealed, and decisions made within two weeks.
That was back in February. My home, I have lost everything into my home. It is just a matter of who do you believe. You can't believe your Premier. I go to the MLAs; I go to the MPs; I go to Mr. Clark, I go to everybody, but nobody listens to you. Nobody seems to care that your home is lost. They just don't. I get emotional over it, and they will say, don't get upset, tomorrow is another day. Well, in my home, it is not. We are losing everything I worked for.
I am not very good at talking, I know. If you people were in our positions, most of these injured workers, and it is through no fault of my own that I became injured; not my own fault. When my four specialists and my family doctor says it is job related, how can the WCB, who has never seen me, never assessed me, tell me that it is not? I don't understand.
MR. CHAIRMAN: The doctor who said it wasn't work related, it was a doctor who worked for the Workers' Compensation Board?
MS. FARRELL: Yes. Dr. Dobson, at the compensation board. He said because I was female, is why I was not entitled to my claim, with hormones. That is exactly what he wrote and sent me in a letter. Then the next, they even said in the next letter, it is because the qualifications that I might qualify under is because, if I was an alcoholic, obese person or drug
user. I have never drank a day in my life, I have never smoked a day in my life, and I am not the smallest person, but I am not an obese person either. He wrote that in a letter. He went to textbook policies to deny me my claim. That is what he has done and they are doing it all the time.
I went to the Human Rights Commission. The board is not stupid. They keep me in the system for 11 years. They have kept me in there for 11 years. As long as they keep me there, denying me, I can't get a private lawyer, I can't get Human Rights to fight for me, nobody, because until you have exhausted all means at the WCB, you are not entitled to anything. I am not entitled. My daughter's education is paying for it this year. My home is paying for it. We are losing everything we own. It is not right, I don't care, I worked 30 years.
I figured out the other night, in taxes, I paid over $300,000 to government in 30 years of my employment; I paid UIC, which I have never drawn; I paid your MSI hospital tax. I have never abused the government or any of the system in my life. I have never taken anything from them, and this is the way you get treated for working all your life. It is not right. I don't care. It is just not.
MR. CHAIRMAN: Ms. Farrell, I guess one question I have for you, about your case. You said you are still in the system. Where in the system, are you backed up at WCAT?
MS. FARRELL: Leave to appeal. Waiting for a grant to leave to appeal. It is not even granted yet, the leave to appeal. On the first case, the lawyer I had the first time, workers' adviser lawyer, he didn't even bother to send the appeal in the first time. I had to find out that I was allowed to do that, four years after the fact, to reappeal it again. That is why I am even further back now.
MR. CHAIRMAN: You have a workers' adviser now, do you?
MS. FARRELL: Yes. In Halifax, Mr. Bill MacDonald. He is very good, his assessment of things. He said they are wrong; they are definitely wrong. When I call the board here every month, they just say to call back in eight months. I called the other day, call me back in nine months. We are on June 1, 1996, files, they told me. That doesn't help me after 11 years, and it doesn't help me in the last two years that I have no income in my home.
MR. CHAIRMAN: I take it, the other tragedy was that your husband took a commuted payment and that meant they took away your Old Age supplement?
MS. FARRELL: No, not the supplement, his Old Age Pension; they took it. The Old Age Pension that he gets because he is 67. We had to repay it all last year, plus they took it from us this year. The only income we have in our home right now is his Canada Pension. You try living with a daughter trying to go to college, with your bills and your mortgage, on
$500 or $700 a month. It is nearly impossible, and they do not seem to care. Your life means nothing to anyone. When our daughter, they said, if I don't work, and I don't have an income, my signature is not worth anything anymore.
MR. CHAIRMAN: I understand.
MS. FARRELL: In most cases, people feel their life is not worth anything anymore, and that is exactly how I feel. I worked hard all my life. That is just the way it is.
MR. CHAIRMAN: Thank you. Mr. DeWolfe.
MR. DEWOLFE: Hi, Jane. I certainly commend you for having the courage to continue with all this. Were you aware that the workers' adviser would come to the area if you requested it? Was that ever brought to your attention, or to the attention of the injured workers' group?
MS. FARRELL: No, I was not told.
MR. DEWOLFE: It appears - and I don't want to put words in your mouth - that you consider the WCB, sort of an overall lack of fairness . . .
MS. FARRELL: It is discrimination on my part.
MR. DEWOLFE: . . . and an uncaring attitude, do you get that?
MS. FARRELL: Yes. It is totally discrimination in my case. They have written it; they are discriminating because I am a female. When they write it, it is bad enough; you see cases over the years that maybe they hint at it, but they don't put it in writing and send it to you like Dr. Dobson did to me. He wrote that was why I didn't get claim. They have nothing to the contrary, that has caused my problems, but my job of 30 years. I didn't move around to different jobs, I did one thing all my life and now I don't have that job.
MR. DEWOLFE: Yes. I know. I certainly thank you for bringing that aspect to our attention. It is very important that we hear these stories. Thank you.
MS. FARRELL: And that other one, on the bottom, that policy, I think you should make it very clear to any gentleman orally, anyone, female or gentleman worker over 65, if they qualify under that policy, that it be told to them that they are going to lose their Old Age Pension. It is not right.
MR. CHAIRMAN: A very good point.
Ms. Godin.
MS. GODIN: Hello, Ms. Farrell. I appreciate that it was difficult for you to do this. I am glad you are here today. I just want to clarify, you have a letter that states that you have been denied benefits because you are a female with hormones?
MS. FARRELL: That is right.
MS. GODIN: Do you have a copy of that letter?
MS. FARRELL: Mr. [Charles] Parker has a copy of it, and Ms. Lloyd, Mary, has a copy of it.
MS. GODIN: I would also like to have a copy of that letter and I will be in touch with you to try to get a copy of that letter. I wanted you to know that you are not the only woman who is dealing with the WCB, as I am sure Mary Lloyd can tell you.
I am a female with hormones, and I think it would be a pretty sad sight to see a female without hormones. Right now, mine are probably middling to raging. I don't want to put words in your mouth, either, but would it be fair to say that - and thank you; for those of you who haven't noticed, these are recommendations that Ms. Farrell would like us to take back to Halifax - perhaps one other recommendation that you would like us to take back is that the WCB, and specifically its doctors, should drop their insulting, sexist attitudes and take some sensitivity training?
MS. FARRELL: Exactly, and definitely not be allowed to assess you if they have never seen you. I have never been seen by them. I have never received compensation, ever, from them. I have never been assessed or seen or even asked to come and be seen. How do they have the right?
MS. GODIN: If I may say, I don't think anyone has a right to say that, to deny anyone on the fact that they are female with hormones.
MS. FARRELL: I thought, sex, gender, age had no bearing on it, but it seems to be with the board, when they can put it in writing and send it to you. I continued to work because I was denied until my hands are now non-workable. I do not have an income now. It is a loss in my home.
MS. GODIN: Thank you, Ms. Farrell.
MR. CHAIRMAN: Mr. [Hyland] Fraser.
MR. HYLAND FRASER: Ms. Farrell, thank you for coming. Just a short question, have you applied for Canada Pension disability?
MS. FARRELL: Yes. I have.
MR. HYLAND FRASER: And has it been turned down, or where is it?
MS. FARRELL: It has been turned down because Canada Pension claims I am on an appeal system, but they claim, because of 30 years at that job, they claim, well, find something else and do something light. Then, I have had bouts with my nerves because of that loss of income and everything else, but they say nerves are treatable, look somewhere else.
I am 50 years old this year and I don't mind admitting it. I have filled out 22 applications this last year and a half, and have been denied by every application for employment because of age. Not knocking Tim Horton's - God help them, because everybody works hard that works there - I have even filled out an application even though I am a graphic designer. They told me I am not employable because their insurance will not cover me because I am a high-risk factor. With my hands, I could spill a coffee on one of the people, and they will not hire me. Valley View, I applied there, and they would not hire me because I might drop a patient. No one will hire you when you are classed as an injured worker. One employment place told me that I was damaged goods. I filled out 22 applications, but nobody will hire you after you have been injured. That is the way it seems anyway; that or I haven't hit the right place, that is for sure.
MR. HYLAND FRASER: Thank you for bringing that up Ms. Farrell.
MR. CHAIRMAN: Thank you very much, Ms. Farrell, and on behalf of the committee, I would like to thank you for coming forward. I know it has been very difficult today, and we truly appreciate the time you have taken to do this. Thank you.
We have come to the appointed hour to recess. We will be resuming at 7:00 p.m. this evening. We would encourage members of the public to be back at that time. Thank you.
[4:57 p.m. The committee recessed.]
[7:01 p.m. The committee reconvened.]
MR. CHAIRMAN: Ladies and gentlemen, I would ask you to take your seats, please. I would like to call this evening's meeting to order. I would like to, on behalf of the Select Committee on Workers' Compensation, welcome all the members of the public that are here this evening. Some of the faces I recognize from this afternoon but, for the benefit of those folks who were not here earlier, I am going to ask the members of the committee to introduce themselves, starting with Mr. [Charles] MacDonald.
[The committee members introduced themselves.]
MR. CHAIRMAN: I would ask the consultants to introduce themselves, starting with Dr. Lamplugh.
[The committee consultants introduced themselves.]
MR. CHAIRMAN: Again, for the benefit of those of you who were not here earlier today, I would like to explain the mandate of the committee. This committee was struck by a resolution of the Legislative Assembly in June of this year. We were charged with the responsibility to review the Workers' Compensation Act and to make recommendations to the Legislative Assembly for changes. Hopefully, those changes would be introduced into the fall sitting of the Legislature which commences on October 15th.
The committee is composed of members of all three political Parties that are represented in the House of Assembly, equally by all those members, and the committee's job is to hear from Nova Scotians. We have conducted hearings throughout the province and we will be conducting more to determine what changes should be made.
As part of that process, we would encourage those people who are injured workers to come forward, because it is by hearing the difficulties that they face that we can best determine where some of the problems lie in the system. However, we must caution people that we are not hearing appeals as such, so the changes that we would be making in legislation, or recommending in legislation, may very well affect their case, but that we are not able to intervene directly in a particular case. I should also indicate, on a procedural note, that there are forms at the back of the room, I believe, where individuals can fill out and request a copy of our report once it is finished. I would encourage members of the public who are interested in receiving a copy of our report to fill out that form.
I should also indicate that our committee is completely independent of the Workers' Compensation Board. For those people who hear the Select Committee on Workers' Compensation, and because in the past the Workers' Compensation Board has also gone around the province, they feel that we are in some way affiliated with them; we are not.
The last thing is that, just as a matter of information, in order to allow everybody to be heard this evening, we are going to have to be quite rigorous in holding to our schedule. Presenters will generally be limited to 15 minutes, so that we can get through the schedule. I should indicate as well that, as people get to the end of their time, I will give them a little heads up, so they can make sure they have an opportunity to close.
Without any further ado, I would like to call on the Pictou County Injured Workers Association and in particular Mary Lloyd, President, to come forward. Good evening, Ms. Lloyd.
MS. MARY LLOYD: Good evening. I would like to start with a brief history of workers' compensation.
In 1917, the no-fault legislation came into effect in which the worker gave up the right to sue in return for their benefits and medical aid. Often referred to as the historical compromise, this legislation prevented employers and employees from seeking redress from workplace injuries through the civil courts. Eighty-one years later, it would appear only one portion of this agreement has been held up. We, the injured workers, cannot sue but are denied the rightful benefits and medical aid we are entitled to.
The former Act, the most important gain for workers in the past, was the provision of the right to appeal from decisions of the Workers' Compensation Board and an independent appeal board. The appeal board was given the full authority to receive the evidence and take the same action that would have been taken by the Workers' Compensation Board. The appeal board was independent from the Workers' Compensation Board and did not hesitate to allow appeals where the decisions from the board were wrong.
The appeal board was independent of WCB, but was subject to the control of the courts. An appeal of any question of law or jurisdiction from a decision of the appeal board could be made to the Nova Scotia Court of Appeal. The court of appeal had a very active role as a check on the activities of this appeal board.
Under the former Act, Section 45, we, the injured workers, have always been entitled to an earnings loss system. Ignoring this section, the Workers' Compensation Board instead adopted a meat chart system, awarding only permanent impairment awards, a pittance compared to an actual wage loss.
March 23, 1990, the Hayden court decision. A worker is to be compensated when he or she has lost, in whole or in part, capacity to earn by reason of personal injury caused by accident arising out of, and in the course of, employment in an industry in which the Act applies.
The court found that for decades the Workers' Compensation Board had wrongly been making awards on the meat chart plan, a percentage basis rather than on an income loss. The board then narrowed this application of the Hayden court decision to March 23, 1990, and later to avoid any further unfavourable decisions. In recent amendments, the board and this government have removed the right of appeal to the Supreme Court. The result is workers have lost all protection of the courts and the board has become a law unto itself.
Solution: We want the application of Section 45, in which all injured workers receive an earnings loss. This section also would ensure the benefits would be a true representation of the actual lost wages, 75 per cent of the gross.
Instead of abiding by the Hayden court decision, the new Act was born. The former Act, which should have been enforced, instead was scrapped. The solution the board and this government came up with for pre-Hayden cases is the supplementary benefits; this is the equivalent of adding insult to injury. Whereas the board would top up the Canada Pension disability benefits to the Guaranteed Income Supplement of the Old Age Security Program the amount $11,064, it is now $11,567.
Requirements to be eligible for this supplementary program: you must be injured prior to March 23, 1990; receiving Canada Pension Disability benefits; and receiving a monthly pension from WCB.
Please note that under the former Act, the WCB forced lump-sum payments on permanent disability benefits under 15 per cent. No monthly pension, therefore you are denied supplementary.
It begs the question of how a combined income of Canada Pension disability and supplementary benefits could be perceived to be a substitute for wage loss. Most injuries occur when we are in the prime of our lives, when our earnings would be the greatest. How can anyone expect us to raise a family, pay a mortgage, car, bills, medical, children's education, et cetera, on this meagre income?
Statistics Canada reports, as of 1996, that the poverty levels were distinguished at the following income levels based on the location and members per family. City/urban, one person, the poverty level in Canada is established at $17,132. That same one person in a rural area is $11,839. Two persons, the poverty level is established at $21,414 for city and urban; in rural, $14,799. Three persons, $26,633 for city/urban; rural, $18,406. A four-person family, $32,328, city/urban, and for rural, $22,2279. These amounts increase with the additional family members. As you can see from those stats, the first level, the single person living in the rural, is $800 more than what this board has expected injured workers to survive on, and that is the poverty level.
This is not justice nor is it wage loss, that all injured workers are entitled to. Everyone deserves the right to an adequate income. This would mean that there would be enough at least to meet the basic needs. Nobody should live in enforced poverty because of a workplace accident or illness.
The new anti-injured Workers' Compensation Act was proclaimed on February 1, 1996, but the board and this government were so anxious to stick it to injured workers that, on June 1, 1995, they enacted three portions of the new Act.
First, they abolished our independent external appeal board in lieu of an appeals tribunal that is bound by board policies and is not impartial nor independent, nor was it ready; in fact, this appeal tribunal was not even up and running some 11 months after. We appealed to name only.
The second thing that they enforced in June 1, 1995, was the two-fifths waiting period: injured workers are punished with a two day pay loss for being injured. How does this resemble justice? The WCB and this government have lost sight of why the WCB was established in the first place. The administration costs of monitoring to determine if a worker is entitled to a reimbursement after five weeks may very well exceed the amount saved in the first place.
We suggest that WCB employees who have made mistakes in processing claims be penalized a two day pay wage loss. As a result the unfunded liability would be fully funded in two weeks. Another option is where fault could be attributed to an unsafe workplace, work conditions, the employer and the Department of Labour pay the first two days wages of the injured worker so involved. This would certainly impact upon how safety in the workplace would be enforced. We need only say one word, Westray, to show how the Labour Department has failed us in the past, and two words, Sysco Clean-up, to say that nothing has changed today. This section must be eliminated, it represents nothing more than a penalty to injured workers.
Third, the system changed from 75 per cent of gross to 75 per cent of net; 85 per cent after 26 weeks. This represents a 25 per cent cut in the cash flow. Bills still must be paid, even though the worker has been injured on the job. A cut of 25 per cent of take-home pay at a time a family is already in crisis due to injury/illness, the pain, the job uncertainty, has put an intolerable financial burden on the families of the injured worker. The former Act maintained the take-home pay of the injured worker.
In effect, there should be no interruption in the worker's take-home pay as the result of an injury. Also with this came the inclusion of the UIC benefits in the pre-accident earnings, changes in what are considered post-injury earnings. The board and government seem to have some silly notion that the cost of living decreases when you become injured; nothing could be further from the truth. Solution: re-instate all benefits to the former Act, 75 per cent of gross actual earnings.
Temporary total disability benefits. The former Act calculated temporary total disability benefits on the worker's average weekly earnings during the previous 12 months. Section 62 allowed the Governor in Council to deem certain earnings and make provision for the computation of earnings where it was impractical to compute the rate over a 12 month period. Section 52, in those circumstances the board would pay the benefits the same as those paid to a person in the same grade, employed at the same work, by the same employer, or
where, in any case, it seems more equitable the board may award compensation having regard to the workers at the time of accident.
These provisions were very important in determining benefits paid to workers when they suffer short-term injury. For example, construction and seasonal workers would be compensated on the basis of the earnings at the time of the accident.
The new Act has dramatically reduced temporary disability benefits to injured workers who are injured on the job in Nova Scotia. The reduction in benefits goes much further than the 25 per cent reduction represented by the change from gross to net earnings. Benefits were further reduced beyond that 25 per cent by changes in the approach to calculating the earnings to which the percentages applied.
By including UIC and other unspecified income in the average earnings, the benefits payable were diluted wherever a worker is not employed on a continuous basis. By extending the average earnings period from twelve months to three years, a further dilution in benefits was achieved. These reductions in benefits are compounded by the deductions from earnings, the various amounts referred to as collateral benefits, most importantly benefits paid to workers who enjoy a top-up provision to supplement WCB benefits. Even non-taxable insurance benefits purchased and paid for by the worker may be deducted as average earning figures.
Reduction in benefits is the solution for the failure of the Workers' Compensation Board to charge market rates for workers' compensation coverage in the 1970's and 1980's. This failure created the unfunded liability, which now must be retired over the next 45 years by the payment of 49 cents per $100 of assessment. Slashing temporary total disability benefits will save the equivalent of 36 cents per $100 of assessment according to WCB's own stats. This represents 75 per cent of the unfunded liability is being imposed on the worker in the area of temporary total disability benefits alone.
The injured worker did not cause the unfunded liability. Administration or, should we say, lack of, caused it. What reduction in pay or benefits has the board endured as a result of the unfunded liability? Quite the contrary, they have been paid quite well and maintain the best perks and benefits. According to the 1996 Auditor General's report, salaries rose by 92 per cent while the complement of staff rose by 62 per cent.
Reinstate the former benefits and calculations that represent the true take-home pay. We did not get injured while on UIC or other collateral benefits, we became an injured worker as a result of workplaces, where we were earning a living and providing for our families.
Permanent Disability/Permanent Impairment Benefit. The former Act, the payment of permanent partial disability under the clinical rating schedule compensated workers for their loss of earnings capacity for their lifetime due to the percentage of total body impairment caused by the accident/illness. In effect, the system provided fair compensation for workers who lost parts of their bodies, function, loss, movement and pain - yes, chronic pain- and I will go into that later.
Under the new Act, compensation for such workers has been reduced significantly and dramatically based on the following outrageous calculations: 30 per cent of 85 per cent of net earnings, multiplied by the permanent impairment percentage. These calculations represent a 70 per cent cut in the disability award. In addition to reducing benefits, Section 34 also eliminated the clinical rating schedule. The board was given the authority to establish a permanent impairment rating schedule and determine the worker's permanent impairment, which they have proven even incapable of following their own meagre guidelines.
There is no logic or consistency in the denying or issuing of PMIs. It would appear the board operates on a quota system. Issuing of PMIs is ultimately the non-medical case manager's decision. In doing this, the board violates their own guidelines for the issuing of PMIs, where it is defined: this is a medical matter to be carried out by board physicians with years of specialized training and experience in this particular field and occupational and compensation medicine. We question what board and what doctors they are referring to here. The board we deal with, they are GPs and do not or have not practised medicine since the dinosaur era, yet they overrule specialists and family doctors and objective medical evidence.
The so-called PMI examinations are basically a joke. The examination lasts approximately two to three minutes, resulting in reports consisting of anywhere from 15 to 22 pages of so-called findings and examinations. Injured workers have experienced whiplash from these brief encounters and they have reported these examinations have never been done. This, ladies and gentlemen, is fraud, yet, these doctors are protected under the WCB umbrella.
WCB, having their own doctors on staff and retainer, can only bring to light the bias that could be construed to exist in any decision they might hand down in regard to an injured worker's condition.
Section 71 defines the compensation payable to an injured worker will only be reviewed when there is, in the board's opinion, a change in the worker's condition; also, there must be an increase of 10 percentage points in the worker's PMI. This section must be eliminated.
Solution: Establish a PMI guideline based on the American Medical Association, with the permanent impairments determined by treating physicians. Permanent impairment awards be based on the 75 per cent of gross, for the lifetime of the worker, with elimination of this
10 percentage points, allowing the injured worker to be compensated for any change in their condition. By no stretch of the imagination were we overcompensated in the former Act; in fact, we were under-compensated if you suffered a disability as well as a loss of earnings.
Permanent Total Disability: Under the former Act, the worker who is permanently and totally disabled was entitled to 75 per cent of their average weekly earnings for life; the average earnings were, of course, gross earnings. This ensured the worker would continue to receive their take-home pay for life if permanently and totally disabled. The pension was subject to indexing to maintain its value. In addition to the pension, the worker was also entitled to $196 a month for dependent children under age 18.
Under the new Act, the amount of compensation to a worker who is permanently and totally disabled is dramatically reduced. As discussed above, they did the same deductions as the temporary total disability.
This is very sad indeed, to see the most seriously injured penalized this way. The reductions of their benefits by 15 per cent by using the 85 per cent of net formula, then subtracting 50 per cent of Canada Pension benefits, and then subtracting the amount paid under the former Act for dependents, in addition to the various other reductions resulting from the change in average earnings.
Extended Earnings Replacement Benefits. Ignoring Section 45 of the former Act and the Hayden court decision, the new Act would only recognize the date of that decision, March 23, 1990, as the date earning loss would commence. The pre-Hayden cases will be dismissed. As the wondrous CEO of the Workers' Compensation Board has stated on numerous occasions: "wipe the slate clean and start anew." If anything is to be wiped clean, it should start with a complete housecleaning of management at this board.
First of all, this benefit is paid on the same definition of average earnings that is used to compensate workers for temporary disability. All the problems inherent in the calculation of average earnings are duplicated in this calculation by extended earnings replacement benefits, the use of the UIC, 85 per cent of net, and collateral that were described earlier under temporary total disability.
In addition, two other aspects of Section 38 trouble us. The first of these is the Canada Pension Plan offset. The worker is considered to have earnings after the accident equal to one-half of their disability benefits for which the worker is entitled to receive or is receiving pursuant to CPP. The CCP is a statutory program to provide retirement income and other social benefits, it has nothing to do with the employers' responsibility for workplace accidents. Canada Pension is not earnings from employment. It is inappropriate to deduct CPP benefits or to consider them as earnings after the accident.
Deeming. The second additional problem is the power of the board under Section 38 to deem earnings on the part of the disabled worker. This section permits the board to deduct amounts that it considers the worker capable of earning in suitable and reasonably available employment. Injured workers are denied wage loss because the board has deemed some outrageous amount instead of the actual earnings of the injured worker. We strongly urge that there should be no deductions from compensation based on, hypothetical, suitable and available work.
Life. The workers' compensation should pay the PMI awards based on the calculations of the former Act and the clinical rating schedule for the life of the worker; this would mean 75 per cent of gross multiplied by the PMI.
Benefit of the Doubt. It appears the thrust of the new Act was to limit the rights of workers from the former Act; virtually every change in this Act reflects this intent. None of the changes, either to the administration of the Act or to the benefits provided by this Act, better indicates that intent than the repeal of Section 24.
Section 24 says that notwithstanding anything in the Act, on any application for compensation an applicant shall be entitled to the benefit of the doubt, which shall mean that it shall not be necessary for the applicant to adduce conclusive proof of his right to compensation applied for, but that the board shall be entitled to draw and shall draw from all the circumstances of the case, the evidence and medical opinions, all reasonable inferences in favour of the applicant.
Section 187 of the new Act is the replacement. By way of contrast it provides that where there is doubt on an issue respecting a claim for compensation made pursuant to this part, and the disputed possibilities are evenly balanced, the issue shall be resolved in the worker's favour.
Section 187 signals the general legislative intent that the benefit of the doubt ought not to be given to the injured worker. It is a clear denial of the principle that all reasonable inferences should be drawn in favour of the worker. It is a direction for the board not to draw reasonable inferences in favour of the applicant, to be more stringent in dealing with claims, and to deny compensation where it would have been granted under the former Act.
The intent of the board and this government is unmistakable and is contrary to the interests of injured workers. With the removal of the benefit of the doubt, slashing of benefits, the introduction of an adversary system and the abolition of the right to appeal to an independent tribunal are major setbacks for the rights of injured workers in Nova Scotia. Reinstate Section 24.
[7:30 p.m.]
Rehabilitation/Re-Employment/Early Assistance. The Pictou County Injured Workers Association formed March 2, 1993. The majority of our issues related to the WCB rehab programs. Our group registered 24 complaints with the board in April 1993 and later, on numerous occasions, to all former and present Labour Ministers as well as the former and present Premier; to date they remain unaddressed and the same problems exist.
Rehabilitation centres around incentives to employers versus injured workers. The employer is given any number of incentives which include total reimbursement of wages, generous expense allowances in terms of equipment, office facilities, release of liability for additional injuries. Members of our group, who have had the misfortune of being in a WCB rehab program, speak of abuse by the rehab councillor, trainers and employers. Functional and medical assessments are not followed and there is a total lack of concern for the injured worker's condition. Injured workers are placed in hazardous, labour-intensive conditions, which leads to further injuries. Although reported by the injured workers, they are not reported by these so-called authorities, causing years of appeals to get these injuries recognized.
Little or no training is provided to injured workers, but the board will pay excessive amounts for this. It amounts to employers and trainers milking the system with total disregard for the injured worker. The rehab programs are the equivalent of throwing money away, in consideration of how many people who are ever able to work or found work as a result of these training programs. Rehab is essentially used by WCB to get injured workers off their benefits at any expense; whether or not an injured worker was even a candidate for rehab and the quality of training is of little concern. Again, it is the injured worker's life being toyed with here. The pain, suffering and abuse are of no concern to this board.
Quotes from the Workers' Compensation Board's CEO and managers in regard to rehab: "Injured workers are set up to fail in rehab", and "means of deferring our benefits at any expense" speak volumes of the abusive, sadistic tactics employed by this board.
Solution: The rehab programs need careful scrutiny and a method of total accountability. We recommend the rehab programs must adhere to strict guidelines relative to safe work conditions, qualified training programs, strict rules and regulations to hold the employer, trainers, and WCB accountable. The abilities and suitabilities of the injured worker to these programs must be determined by the treating physicians.
Re-employment and early assistance are a paper concept only. Injured workers are not involved in any decisions; employers and WCB are calling the shots. There is no such thing as a safe and successful return to work when an injured worker is forced back before medically able and the unsafe working conditions that caused the injury in the first place are not rectified.
Solution: Enforce the Act and policies, suggest the board read their very own policy definition of suitable employment before placing injured workers in these rehab and re-employment programs.
MR. CHAIRMAN: Ms. Lloyd, I am just going to caution you. You have got about five more minutes left of your half hour time, so you better move it along here.
MS. LLOYD: Okay. Definition of Suitable Employment. Suitable employment is any employment which the worker has the necessary skills to perform, is medically able to perform, and which does not pose a health or safety hazard to the worker or co-worker. For employment to be suitable for a given worker, it must be in keeping with the worker's physical and mental capacities. The employment cannot involve adverse consequences for the worker's health, either immediately or in the long term.
Chronic Pain. Again the magic date of March 23, 1990, appears in the board's new policies on chronic pain. This time the date is based on the ludicrous notion, according to the Functional Restoration Program Regulations, that chronic pain has not been recognized under the former Act. Chronic pain has always been recognized and permanent impairment awards given.
Decision 93-165 of the appeal board dealt with a personal care worker who sustained a back injury. Accepted by the WCB as arising out of and in the course of employment, benefits were paid for one year. The claim was appealed seeking further temporary total disability benefits and the pain management clinic.
The appeal board reviewed the extensive medical and considered the following decision, 915 of the Workers' Compensation Appeal Tribunal of Ontario: Falconer vs. Workers' Compensation; and Hubley vs. WCB. These cases dealt with chronic pain and attendant issues and the following sections of the Act: 2 (a), 24 and 37. The appeal was allowed and the workers received their benefits as well as the treatments.
Decision 93-165 stated that neither the Act, regulations or published WCB policy exclude benefits on the basis of a worker developing chronic pain or on the basis that there are no organic problems.
Decision 93-333 involved the case of a sheet metal worker who suffered an upper back and shoulder injury while removing pipe which was encased in a brick chimney. WCB accepted the claim but denied further responsibility for the worker's condition, which had been diagnosed as fibromyalgia, finding it was not an occupational disease. Rehabilitation was also denied. The appeal board reviewed the file and considered the following cases: Decision 18 of the WCB Appeal Tribunal of Ontario; Decision 93-165; and Falconer.
The appeal was allowed noting the direction in Section 24 to draw all reasonable inferences from the evidence in favour of the worker. The question to be asked was, on the balance of probabilities, was it more likely than not that the worker's ongoing symptoms were related to his work? The appeal board found that given the state of knowledge respecting fibromyalgia, the evidence presented in support of the claim, the methodology employed by experts in ruling out other causes, that it was more likely than not that the worker's ongoing symptomology arose from work.
Boutilier. A case of a forestry worker who slipped and fell on a stump in 1988, perforating his bowel. The board accepted his claim and paid for more than a year, and then cut him off after a board doctor concluded his injuries weren't permanent, even though he had not worked sine the accident. This decision contradicted the conclusion of his treating physician, and Dr. MacDonald wrote the board stating that Mr. Boutilier had chronic left lower-quadrant pain which stops him from gainful employment. In March 1994, the Workers' Compensation Board's physician, E.B. Johnson, examined Mr. Boutilier, after he appealed and he quoted: "Based on my examination, I would assess this client's P.M.I. at five per cent, strictly on the basis of constant, unexplained pain," Dr. Johnson wrote.
I could go on and on quoting case after case, but it is obvious that there is nothing in the former Act, nor in any section of the new Act, that allows the exclusion of chronic pain. There is only one exclusion in the new Act and that is stress, other than the acute reaction to a traumatic event, Section 2 (iii). This exclusion is wrong. If the condition arose out of and in the course of employment, it should be compensated. We feel this exclusion should be eliminated.
MR. CHAIRMAN: I will give you the two minute warning.
MS. LLOYD: Okay. Chronic pain has become the scapegoat of the 1990's. The board's view is to label all cases as chronic pain, ignoring the objective findings and disregarding the Functional Restoration Program regulations. These regulations clearly define what is and what is not chronic pain, but ignores pre-Hayden cases, which is wrong. The regulations also define who would be a candidate. No worker may be designated as a participant in the Functional Restoration Program if more than 12 months have elapsed since the worker's date of injury. Yet the board, through policy, has determined this would mean March 23, 1990, forward.
Case scenario: injured March 23, 1990, would fall under this program approximately October of this year. That would mean eight years, seven months post-injury and now the board, under the expert guidance of non-medical case manager, is going to become proactive in the prevention and management of chronic pain.
The new policy on chronic pain states if there is no existing PMI, the client would be assessed under the Marked Life Program. If the client has an existing PMI, no increase or change. This is ludicrous; it is quite possible to have a PMI on objective findings and develop chronic pain as well. Example: multiple injuries, surgeries, amputations, et cetera. This process would allow the board to ignore the overall disabilities experienced by injured workers and keep the PMIs under the magic 30 per cent, forcing lump-sum payments and deeming some fairy-tale job to deny wage loss. The whole system is a guise to label, cure - in four to eight quick counselling sessions - and dismiss injured workers under the facade of justice. The only sure thing this will accomplish through the re-employment and rehab aspect would have injured workers lose their Canada Pension disability that, ironically, recognizes these conditions are disabling and permanent.
Solution: All injured workers who develop chronic pain as a result of their workplace should receive fair compensation regardless of the date of accident; the Marked Life Disruption Assessments be conducted by treating physicians; PMIs based on the whole person, with recognition of all impairments and awards for the same, up to a maximum 100 per cent total disability.
Accountability. There is none. The new Act has given the board more authority to conduct itself on a daily basis. This is the very board whose ineptness and mismanagement has been the contributing factor in the $0.5 billion liability. This is the very board which outlines outlandish operating expenses and provides overly generous incentives to employers through their rehab programs, and these in turn provide many loopholes for employers to abuse and supplement their salary requirements by charging the good old WCB. This is the very board which accepts excessive and questionable expenses from their field training contractors. This is the very board which has historically demonstrated its inability to follow the Act, rules and regulations, and make a decision based on the facts and merits of a case, but instead has sought any reason to disallow it. This is the very board that allows case managers to overrule medical doctors, specialists, and make medical decisions. This is the very board that punishes 98 per cent of injured workers, based on their own stats that the fraud ratio is 2 per cent.
We, the legitimate injured workers, are presumed guilty until proven innocent, which takes years and at great human cost. This is a total contradiction of the justice system, whereas you are presumed innocent until proven guilty. Something is very wrong here.
Through this select committee, we could write the perfect Act that would be fair and just to all involved but, without enforcement and accountability, it becomes merely a piece of useless paper.
Solution: The Workers' Compensation Board must be subject to strict rules and guidelines, forcing them to be accountable for their actions and decisions with no tolerance for any violations. Reinstate the independent appeals board and full access to the civil courts to provide those constant checks and balances. We also suggest the appointment of an
independent impartial watchdog to oversee the operations of the board. Introduce the Workers' Compensation Board to the following words and their meanings: justice and accountability.
It is our heartfelt wish this presentation today will stir the emotions of each and every one of you, the members of the select committee. In doing so, the injustices of the present system will be brought to light and effective measures taken to undo the wrong. Thank you. (Applause)
MR. CHAIRMAN: Thank you. Are there any questions from any members of the committee?
Mr. [Charles] MacDonald.
MR. CHARLES MACDONALD: Just a fast one, Mr. Chairman. I think she has covered all the basic points that we've heard in the last number of days, which is good. It's all condensed here for us, Mary. Perfect. Just beyond that, would you like to see any funding for the injured workers' groups so that you could carry on some of the work, or the groups could carry on some of the work in helping their clients?
MS. LLOYD: Well, it is the injured workers in this province that are doing the work in representing injured workers and providing the only justice so, yes, it would be very beneficial to injured workers' groups to have any resources or monies available to them.
MR. CHARLES MACDONALD: Thank you.
MR. CHAIRMAN: Thank you. Any further questions? Thank you very much.
MS. LLOYD: Thank you.
MR. CHAIRMAN: The next presenters are the United Steel Workers Local 1231. I think there are a number of presenters from the committee. Come forward, please. I might also add that if you have a written presentation that you would like to provide to us, then you can perhaps summarize it rather than reading it to us, because sometimes that's helpful. If you would like to do that, that would be greatly appreciated.
MR. ERNEST MACINNIS: I have three topics here to talk on and there are two very short ones, the last two.
MR. CHAIRMAN: Very short is good, go for it.
MR. MACINNIS: Good evening.
MR. CHAIRMAN: Good evening.
MR. MACINNIS: My name is Ernie MacInnis. I'm a steelworkers' representative for Local 1231, United Steelworkers. That is the union representing 1,200 employees down at Trenton Works. I am the chairman of the Compensation Committee for the union. I am also speaking on behalf of the injured workers. I'm part of the injured workers as well. I hope Mary doesn't get mad at me, but this first thing I'm going to talk about has Trenton Works in it, employees, but also it's for the Pictou County Injured Workers and every other subject here I'm talking on. So, anyway, we will get started on it.
A request for the workers' advisers regional office in Pictou County, or if you want to call it a satellite office, that's fine with me, as long as we get one.
"Dear Sirs:
With the shifting of W.C.B. 'Appeal' cases being handed over to a handful of Worker Advisors in Halifax and Sydney, our Union would like to request a 'regional' office be set up in the Town of New Glasgow, Pictou County, N.S.
Some reasons we ask this of the Select Committee, are as follows:
There are a lot of people in this area affected by that move . . ., in that they feel they do not get the same representation they have received in the past, with their past counsellors. Having said that, not trying to put down the 16 or so good people in Halifax, who were selected to fight for the injured people of Trenton Works Ltd. . . .", and that's everybody else too, Mary - ". . . we find it hard to believe that 16 people can handle all these cases, when a province full of lawyers who worked on these cases in the recent past, struggled to get Appeal hearings heard in a timely fashion. As I stated in the first sentence, in our opinion, the right to fair representation can only suffer if this doesn't change in this area. It's only common sense, we feel, as there would not be enough time allotted to each case to do it justice, and even if there were enough time allowed, the rest of the people (with their cases waiting to be heard), would probably suffer longer waiting periods than those we have now.
The understanding we have is that claimants would be able to call a toll-free telephone number to get in touch with their worker advisor in Halifax, but we've had a lot of experience with the lawyers we were afforded before, on a face to face basis and that's the only way some people can communicate. Other people can't communicate face to face, so they do it by phone. They have an option. If this change takes place, this option will be lost.
Some people are not as educated as others. What I mean by that is that the industry we work in at T.W.L. didn't require the education 20 years ago, that it does now. You could basically get work here with little or no education. Now, a High School or equivalent is needed. There are still people working here in Pictou County, that can't read nor write their own name. This move, that shifted all W.C.B. claims to Halifax would only encourage these people to drop their appeals, as they would be too embarrassed to have someone from Halifax realize their shortfalls in this area. They had just gotten comfortable with their lawyers.". Now they are gone.
"We feel that New Glasgow would be a central area between the two other offices (Sydney and Halifax), and it's the most 'Industrial' area in Nova Scotia, other than Halifax and Sydney, that could better serve the people. Antigonish and Truro claimants would only be 40 to 45 miles away, if they needed to see a worker advisor. Also, there are about 50,000 living and working in this area and that's a lot of miles for them to travel to Halifax, which the W.C.B. would have to pay, in most cases, 22 cents per km., if their claims were approved, at least.
We realize that the W.C. B. 'Act' calls for these changes and there's probably not much anyone can do to stop them, but if this Regional Office in New Glasgow could be added to the changes, there's approximately 1200 workers at Trenton Works Ltd. who would appreciate it and I'm reasonably sure workers at Kimberly-Clark, Nova Scotia Power, Michelin Tire, Maritime Steel Ltd., Hawbolts Machine Shop, Pictou Industries Ltd., the Mining and Forest industries, to name a few, who like us, wouldn't feel so much like we are being abandoned by a system that is supposed to be our sole source of representation, in our persuit for a fair and just hearing, when we suffer an injury working for our employers.
In closing, this change in the W.C.B. 'Act' and policies is devistating, that's true, but if the request we just gave you was granted, it would soften the blow enormously and reinstate some faith in the system. Please give due consideration to this request and pass it on to the powers that be, other than the Chief Worker Advisor and the Minister of Labour's Office who denied this same request in 1997, before the change was made. They told me that there were only 200 claims in our area and no need for a regional office.". I think that's a bunch of crap. "I believe they're only talking about the 'Active' claims, not claims that were denied or awaiting a review from their 'specialists'.
Section 263(b) of the 'Act' states that 'The Chief Worker Advisor may establish other offices in other parts of the Province. I believe we have more than enough Workers' Compensation problems in this region, to justify an office in New Glasgow. Thank you.".
That is on one section. I've got two more to go and they are only short. I just copied the pages right out of the Act there about the . . .
MR. CHAIRMAN: . . . read those.
MR. MACINNIS: Okay.
MR. CHAIRMAN: Thank you.
MR. MACINNIS: All right, now medical assessments. After an injury, you are requested to go down to the Workers' Compensation Board for a medical assessment. In order to receive a permanent pension or a lump-sum payment from the board, which is supposed to recognize the fact that you can't work like you used to be able to, you are rated at percentages. Here is the problem, you have to sit in a waiting room for upwards of an hour or more, and it is usually more. Then when you finally get called in for your assessment, the doctor checks your range of motion, and sends you on your way, and writes that you had a 5 per cent assessment. You are not in there five minutes and he comes up with 5 per cent. This is after having back surgery, in my case. I expected to go for another test or something, so I was sitting out there waiting, until they said, that is it, Mr. MacInnis, you can go now.
There wasn't any consideration for the loss of enjoyment of life, no questions about any pain I might be experiencing, nothing. It was a very cold and uncalculating experience. The decision was made before I even got there, as to what percentage rate I would be receiving. I wasn't even aware that I could appeal that decision until it was too late. So the 5 per cent stuck. Anyway, that has to be changed.
That last thing here is Section 10.3.1, WCB Policy Manual, quality of service assurance. I don't know if you heard this one before or not, but I am going to say it again anyway. I have an example here for you. I just got the answer on this one last week. A case worker denied a compensation claim. There was no correspondence from the board for over three and a half months to this client. When a steelworker representative, myself, called her and asked her for some type of letter, she said, well, I don't have it dictated yet. I said, well, I think it is about time he got something.
I am going to ad-lib here a little bit. The reason I wanted some kind of a correspondence from them was because down at our plant, you can apply for weekly indemnity while you are waiting for your compensation claim, if you are going to fight it or not. You could be getting some kind of money from somebody. Anyway, she still didn't give
them any letter. I asked her to do it right away, and fax it up to me, I will fax it down to the Trenton Works, or take it down to them, they can fax it down to Great West. Get this guy's claim started. Okay.
So, when I called her, she reviewed the Workers' Compensation Act, and decided to pay the claim under Section 187, the benefit of the doubt. She should have done that three and a half months ago, I would say. That is three months after the claim was initially denied. This person was made to wait a long time for a caseworker to finally look at the Act, and say, oh, we are going to pay you now. Accountability reigns through there too.
That is about it. Thank you. (Applause)
MR. CHAIRMAN: Thank you. Sir, there may be some questions. We are hurrying, but we are going to give people a chance for questions. Are there any questions from members of the committee? Mr. Fage.
MR. ERNEST FAGE: Just one quick question, Ernie. How much advocacy role do you end up doing at the steelworkers' shop on behalf of your membership with workers' compensation? A fair amount of your time spent?
MR. MACINNIS: A lot of time. I would say, sometimes I get called out of the office and I have to work, I usually weld in the plant. I usually have to take a day or so a week in the office to go and work on somebody's claim. The union has to pay me for that.
MR. CHAIRMAN: Thank you very much, Ernie. Our next one would be Mr. Fielding Smith.
MR. FIELDING SMITH: My name is Fielding Smith. I am a counsellor with District 14 in the Municipality of Pictou County to start with. I am also co-chair of the Pension Benefits, WCB Committee of Trenton Works. I work a lot with the chairman on cases at the plant. As he said, he spends a day a week, that is not counting the day or two a week that I spend. I have lot more free time in the office than he does. We put a lot of time into it. You only spend five minutes in the office, maybe you should have stayed ten, maybe you would have gotten 10 per cent.
Anyway, we have a lot of problems with the workers' compensation, and I am going to go through this presentation I have here very quickly. The Workers' Compensation Board of Nova Scotia is a no-fault insurance agency established by the provincial government in 1917 to administer the Workers' Compensation Act which was passed in 1915. The Act, until 1996, was designed to protect Nova Scotia workers and employers from financial loss, due to workplace accidents and industrial disease.
In 1996, the Workers' Compensation Act became the employers' protection agency, as everybody refers to it. We now have an Act that is employer driven, with little or no protection for an employee. The WCB or the employer decides to protest a claim, and bang, the injured worker is cut off from any protection at all, and enters into what is usually a long, unbelievable fight to try to prove that he has a legitimate claim.
This time period can often lead to months and years of hardship with little or no income. People have been known to lose their homes, they have families break up. This has to change. This is 1998 and things are, by the use of computers, supposed to move faster. They sure as heck don't have any at the workers' compensation unless it is to cut off your benefits, then their computers move very fast.
It says, "The Workers' Compensation Board strategy is to provide an effective administration in order to co-ordinate all of the partners in the workers' compensation system to focus on building a healthy, working Nova Scotia.". No one told the Workers' Compensation Board about this, because they sure don't know it. It goes on to say, "The mission . . . is to assist injured workers and their employers by providing timely medical rehabilitative support to facilitate the efforts of injured workers to return to work; . . .".
Take notice of the first word, it is 'the', the mission not their mission. Ownership is what should be at the first of a sentence like this, to show some commitment. There is no commitment here. The sentence goes on to say, ". . . providing timely medical and rehabilitative support to facilitate the efforts of injured workers to return to work; . . .". Somebody should inform the people at the workers' compensation of this. They just fight and fight, by the time you get treatment, you are beyond help. The best chance for therapy to help is during the first couple of weeks of the injury, or as soon as the doctor says the patient is ready for therapy. When you spend this valuable time fighting over the claim, the best time for help is gone. People cannot afford physiotherapy on their own at $35 a shot.
The cost of physiotherapy and drugs brings us to Section 37. Earnings-replacement benefits, subsection (4). This says that an injured worker will lose two-fifths of their pay for the first week of their waiting period. Why should a person who gets injured be penalized for getting injured? This is without a doubt a penalty.
For example, a person who has a net pay of $450 per week while working will receive 75 per cent of their net earnings, which will be approximately $337.50 for compensation pay per week, of which they will lose two-fifths, which will give them a cheque for about $202.50 in the first week of their injury. They will have their income reduced by $247.50. This is quite a reduction from their regular weekly income of $450, and quite a penalty to pay for getting injured on the job.
Do they think employees get injured on purpose? This is the way they are treated. When the employee first gets injured, is when they need their money most. It is bad enough that you have to wait four to six weeks to get any money, without having it reduced by two-fifths.
Where is the incentive to return to work after four weeks? Where is the incentive to return to work before five weeks, if you know you are going to lose two-fifths of your pay. This has to change, and the injured employee has to be fully compensated from the first day of injury. Who is rich enough to give away two-fifths of their pay?
In one section of the Act, the provision for calculating wages requires the averaging of wages over two to three years. This is not reasonable. If Innis Christie was going to work tomorrow, and I hit his car on the side door, and I was in the wrong, they would not calculate his earnings over the last two to three years, it would be calculated on his earnings at the time of his accident or on his potential earnings in the future. Why are other injured workers not treated the same? Their wages should be calculated on what they are earning at the time of their accident.
Why does the wage-loss period only apply to the time the employee is working? For example, if an employee is laid off from his job, needs reconstructive surgery, there is no compensation for him or her. In a lot of cases, the employee is left with no pay, no way of support. Some will say, that if there is no unemployment insurance being paid, there is no loss of wages. This is not accurate. If a person is not able to get a job elsewhere because of their injury, there is a loss of wages here as no one wants to hire someone else's injured employee.
[8:00 p.m.]
The injury has to be compensated for until the injury is better, if it gets better. There is no other solution to this problem. Everyone wants to remember that if something is giving you a problem long enough, soon it will be done away with, then the protection for the employer will possibly not be there. You say the injured employee will not have any protection either. Well, the feeling out there is that they, the injured workers, have no protection now. A lot of them feel they would be better off if they could sue the employer, at least they would be assessed by their own medical doctors, also by specialists who have examined them, and know their business, not by someone at the WCB that is picked out of a general practitioner service somewhere, and has never seen the patient.
At this time, the WCB and all the people who work for them are above the law. This should not be, as even the government is subject to the ruling of the Supreme Court. Injured workers should be allowed to file for leave to appeal through the justice system. These people should be subject to prosecution if they make a misdiagnosis and an injured employee is caused further harm or damage. This has happened in our plant, and gosh knows where else. Things have to change.
The injured worker will also get a fairer and speedier hearing from the courts rather than from a system that is the direct employer of the people who are giving you the hearing. Everyone feels there is a conflict of interest. The interest of the employees has to lie with their employer. Mama minds the store.
In closing, I would like to say that the Workers' Compensation Act needs to change to make them accountable and to have speedier hearings that would be more fair to injured employees who are not able to return to work. When the WCB says you are ready to return to work as a forklift driver, and your hand is still half hanging off, something has to change. The concern for the employees' health and welfare is not there. The concern for accidents in the workplace is not there, as much as it could be.
When is the last time you heard of ergonomics in the workplaces of Nova Scotia? When is the last time that the WCB came to a plant, looked it over and made suggestions as to how jobs could be done more safely? Why do we not have some sort of arbitration system that could possibly clean up some of the back cases, or help at the ADR stage? This arbitration board could be made up of labour, WCB and an independent chairperson. The appeal system has to change. When is the last time you heard of an incentive plan to promote workplace safety to help avoid accidents?
An ergonomics program can be an inexpensive, effective method of preventing accidents. While there are many ergonomic products on the market, it will just take a little co-operation and creativity of the labour force and management to come up with a solution that meets individual needs of the company or industry people working to ensure that we have less accidents in the workplace and a safer, healthier place to exist in. This will make for a more productive and efficient atmosphere for the workers, the Workers' Compensation Board and the companies.
Injured workers are your bread and butter, stop taking theirs away from them. Thank you. (Applause)
MR. CHAIRMAN: Are there any questions for Mr. [Fielding] Smith? Thank you very much Mr. [Fielding] Smith.
MR. FIELDING SMITH: Thank you.
MR. CHAIRMAN: Our next presenter is Mr. [Hubert] MacGillivary.
MR. HUBERT MACGILLIVARY: My name is Hubert MacGillivary. I am a representative of my local. I sit on the Workers' Compensation Committee. I am also here as President of the New Glasgow District Labour Council and I sit as the steelworkers' representative on the Federation of Labour.
My topic is light duty. We were going through the manual, and the first thing I found is that as you go through the policy in the Act, you will find that there is no policy on light duty. As I understand, this light duty program is a program set up by companies to save on workers' compensation premiums. There should be a clear definition in the manual. It should be put in the manual, light duty, a clear definition, if the WCB is going to sanction the light duty programs these companies set up.
We're not saying that the light duty program is a bad program but we're saying that it should be regulated and that union workers and worker associations - because we realize not every workplace is a unionized shop - should have input into light duties and of how it is being run. They should have input into setting up light duty jobs. If you put a person on a job who is on light duty, you don't put him on a job that's going to further his injury. Placing injured workers; helping to develop the light duty program; helping the companies, if there is going to be a program there, develop it and have input into it; working with the company, the injured worker and the Workers' Compensation Board, they all should be involved; and returning an injured worker to his pre-injury accident. Would you put someone back on a job that he injured himself in if he got further injury? Meaning like in our shop if he hurt his back building an underframe, you wouldn't put him on that job if you knew he was going to re-injure himself and further that injury.
There should be a follow-up done on the injured worker. The rehabilitation of an injured worker should be more important than saving companies' premiums on their WCB. Light duties should be incorporated in the WCB policy, as I stated earlier, and should be regulated as the other polices are regulated by the board. Thank you very much.
MR. CHAIRMAN: Are Mr. MacKenzie or Mr. Carruthers ready to go yet?
MR. DONALD MACKENZIE: I think I'm ready.
MR. CHAIRMAN: Good. Go ahead.
MR. DONALD MACKENZIE: I'm Donald MacKenzie. I'm a member of Local 1231 and I sit on the compensation committee. My pet peeve is Section 185 of the Workers' Compensation Act, decision making. Exclusive jurisdiction of the board means the board has full powers to determine eligibility, maximum compensation, power to withhold, deny or reduce compensation. Of course, Section 186 clearly states that the decisions of the board shall always be based upon real merits and justice of the case.
The ordinary injured worker would be led to believe that his or her case is decided upon by a board consisting of more than one person which is not always the case. Too many times the decision is made by one person, and by too many times I mean once is too many. No one person should be permitted to make decisions that affect someone's livelihood. We ask the select committee to take a hard look at this practice. There is far too much power
given to the board to consist of one person's decision, especially when the decision throws the claim into the appeal process which causes unnecessary hardship for the injured worker.
Although we understand and accept that there are gray areas, in some cases, it is very unfair to starve out the injured worker while waiting on medical evidence that sometimes takes months to obtain. We ask the board to adhere to Section 187 of the Act and afford the applicant the benefit of the doubt in this area. We are also concerned that when the adjudicator goes off on vacation the injured worker's claim is thrown into limbo until he or she gets back. No one else can gain access to files. Once again, there is no decision made until one person returns to work. Aside from being unfair to the injured worker, this is not a good practice for anyone. We feel that if there was a board making these decisions instead of one adjudicator, the system would work more efficiently and possibly lighten the loads on the appeal committee. We feel that the board consisting of more than one person would afford us the accountability we require in this section of the Act.
We have documented proof that the board does not base all their decisions on real merits of the case. We ask the select committee to take these concerns and recommendations back to the Legislature when the House sits in October. Remember, no one asked to be injured. Thank you.
MR. CHAIRMAN: Are there any questions for Mr. [Donald] MacKenzie? Thank you.
MR. DONALD MACKENZIE: Thank you.
MR. CHAIRMAN: I believe the last presenter on behalf of the USWA is Barrie Carruthers.
MR. MACINNIS: I will have to apologize, it's my mistake. I left Barrie's material down at the union office, but if I can forward that stuff down to you people later on, will that be okay?
MR. CHAIRMAN: That will be fine. That is very acceptable. If you have got written materials, we will receive written materials at any time. So, please, do that. Thank you very much. Mr. Carruthers' thunder has been stolen, I think.
Our next presenter is Jackelene Vandermeer. Ms. Vandermeer, have a seat, please. I'm sorry about that false start for you.
MRS. JACKELENE VANDERMEER: That's okay. Good evening, gentlemen. I'm a personal-care worker and have been working since I was 17 years of age without problems for 43 years. On October 6, 1996, I injured my back lifting one of the guests at a local nursing home. One of my co-workers assisted me putting him back to bed. Since this I have not been
able to work. It has severely limited me in my daily way of living. It has been difficult in many ways - mentally, physically, socially and, most of all, financially.
It has brought many changes to my life. After being very active I had to give up my job and since my injury I have seen several doctors and have gone through the work hardening program in April 1997, in Halifax. I had to travel from my home to Halifax for four weeks every Monday. While there I had to go to the Halifax physio clinic for therapy with Mr. Tom Stanley and one and one-half hours with Dr. Sperry. He is a psychologist for pain management. At what cost to the WCB? I did not benefit. My benefits were stopped in June 1997.
The only person who really has cared and still does is my family doctor. He has done more for me than anyone else. He sent me to the pain clinic in New Glasgow. I have had three nerve blocks, October, November and December 1997, with little effect. The pain clinic in New Glasgow referred me to Halifax for treatment and in February 1998, I had treatment there which has been a big relief but is not permanent. It has to be repeated on August 25th, which was last week. It is the cauterization of the nerve endings, a radio wave to kill the pain.
At the advice of my family doctor I applied for a disability pension in September 1997, and now receive a pension from CPP disability. Where is the justice? Why does the WCB not recognize my injury when CPP does? Why does the WCB refuse to recognize chronic pain when CPP does? The WCB employers have benefit packages. Where are the benefits to the workers who are injured? There is no justice for injured workers. WCB is making decisions regarding my health and I'm just another number to them. The caseworker who saw me in New Glasgow twice, has since left the WCB and the people at WCB are making decisions without knowing who I am. They are not working for us but they are against us and in the process are causing a lot of undue hardship to people who deserve better than having to go through all of this. How much longer is the WCB willing to put us through this agony and at what cost to me and many others?
MR. CHAIRMAN: Thank you. The members of the committee may have some questions for you, Mrs. Vandermeer. I guess I have one question. Your injury is under the new policy, the one as of February 1, 1996, so I take it what happened with you, and you said you were paid for six months. They sent you to the work hardening (Interruption) No work hardening?
MRS. VANDERMEER: Yes, April, and it didn't work. I landed in the hospital.
MR. CHAIRMAN: That's right and then after that, that was it?
MRS. VANDERMEER: That was the end of it.
MR. CHAIRMAN: Then they stopped paying you and that was it?
MRS. VANDERMEER: Yes.
MR. CHAIRMAN: Do they cover the cost of any medication or anything of that kind for your condition?
MRS. VANDERMEER: They did at first but not all of it.
MR. CHAIRMAN: But now for medication that's connected with your chronic pain?
MRS. VANDERMEER: No, I'm not getting anything from them. They wouldn't even pay my last medical bills. That is even under appeal.
MR. CHAIRMAN: Sorry?
MRS. VANDERMEER: Some of that is on the appeal now.
MR. CHAIRMAN: Okay. This an appeal in the system somewhere?
MRS. VANDERMEER: There is an appeal there, but I haven't heard from them.
MR. CHAIRMAN: Do you have a workers' adviser, one of the lawyers in Halifax, at the Workers' Advisers Program?
MRS. VANDERMEER: Yes. Jane Spurr.
MR. CHAIRMAN: Have you seen that person in Halifax always?
MRS. VANDERMEER: No.
MR. CHAIRMAN: They have seen you here?
MRS. VANDERMEER: No. On the telephone.
MR. CHAIRMAN: You have never seen them?
MRS. VANDERMEER: No. You don't see anybody. Everything is done by phone. The people who have dealt with me in Halifax from workers' compensation, they are all Frenchmen to me, as far as that goes, because I wouldn't know them if I met them on the street.
MR. CHAIRMAN: No one from workers' advisers has ever offered to come to this area to see you?
MRS. VANDERMEER: No.
MR. CHAIRMAN: Thank you. Do any of the other committee members have any questions? Do any of the consultants have any questions? Thank you very much for taking the time. (Applause)
Our next presenter is Dale MacLennan. Have a seat Ms. MacLennan.
MS. DALE MACLENNAN: Hi. My name is Dale MacLennan, and my husband is an injured worker. My husband first started experiencing back problems after an accident at Michelin on December 11, 1988. At that time, he received his compensation for a couple of months and then went back to work prior to seeing a specialist. Over the next 10 months, he managed to work, with a lot of support from the people he was working with, but at no time was he ever 100 per cent recovered.
Then in January 1990, he could go no further. He did not have another accident. It was just his problems from December 1988 had intensified to this degree. We have medical reports stating that he was never fully recovered for the 10 months he did work. He was on light duty jobs and had problems continually.
No one had informed him that he should have filed a reoccurrence report with the Workers' Compensation Board. His reoccurrence was reported to his employer, but they did not file a report with the board. Michelin just put him on short-term disability. We were not aware that his employer had not reported this reoccurrence, because he was still receiving a cheque.
My husband ended up having surgery on his back in May 1990, so he could walk again. He returned to work three months later. Then on August 24, 1995 while working on a light duty job in the lab, he was injured again.
My husband's life has steadily gone downhill. He received compensation for two months, and was cut off before he had even seen a specialist. In February 1997, they extended his benefits up until December 29, 1995. Since then, he has not received any more benefits, even though he remains disabled. Workers' compensation is trying to blame all his problems on his 1990 surgery, which is a direct result of the December 11, 1988 workplace injury. This is well documented with ongoing medical reports.
His benefits were discontinued in November 1995. He started the appeal process. Instead of the 28 days it was supposed to take, my husband waited until February 25, 1997 for that decision. They reinstated him for two months. The issues we appealed then were temporary total disability, PMI assessment and rehab. The review officer chose to ignore two of the issues and would only deal with temporary total disability. The review officer's decision was appealed on the three issues in March 1997.
In May, we received a letter stating that they would only proceed with the temporary total disability as rehab and PMI was not before the review officer. We further corresponded that this was untrue and referred them to our first appeal. In January, we received a letter from the acting chief hearing officer indicating that we were right, but the hearing officer, for whatever reason, decided to deal with just one. This was wrong. Therefore the hearing officer would deal with the three issues.
In July 1997, we received a letter from the acting chief hearing officer indicating they were sending the whole file back to deal with the issues of rehab and PMI. The issue of total temporary disability was to remain on hold until the case manager dealt with the other issues. It took until November 1997 for the case manager to deny my husband rehab and PMI, but it is obvious that she didn't review the file, because no reference is made to the medical evidence that linked my husband's surgery to his accident of December 1988.
That was appealed in December 1997. What we find ludicrous is, it was returned to the same case manager under the new reconsideration. We questioned the internal appeal. On March 12, 1997, he was denied again by the same case manager. In any of the decisions my husband has received from the board to date, no reference has been made to sections of the Act. One would question what rule book they follow. We appealed to the hearing officer on March 29, 1998, and had an oral hearing in June 1998.
To our amazement and surprise my husband's case is now split into two different issues. The issue of temporary total disability, the board proceeded with, but not with rehab and PMI. Because of this, you can only argue some of the issues when they should be heard together. My husband received a supplementary decision on July 3, 1998. To date, we are still waiting for some final decision from the internal review board. Since my husband has started appealing the board's decision in November 1995, his is not even out of the starting gate. It has been a long 28 days already.
Mr. MacKinnon, Minister responsible for the Workers' Compensation Act has said he is taking a deep interest in workers' compensation, and he is committed to eliminating backlogs and unnecessary delays in claim approval. This will never happen until there are major changes made to the Act and the board is forced to follow these changes. It is one thing if a person is slightly injured, they do receive their benefits fairly quickly, but if you do not get better when the WCB meat chart says you should be, that is when your major problems arise. You could have five doctors or more saying you are not capable of working, but the board will still deny benefits.
At times, it seems that you are diagnosed by the board over the phone. The doctors' reports mean nothing to them. The board must be forced to wait for specialists' reports and listen to them. It is not our fault that to see a specialist could take months. That is our health care for you. In the meantime, you are suffering in pain every day and worrying about your finances. Some people have waited 7 to 10 years to be heard. What does your family do in
the meantime? Your savings are gone, you are losing your home, and your children are denied an education. All because you were injured on the job. How long do we have to try and hang on? Indefinitely?
If you could say that this will be straightened out in a reasonable amount of time, we will be able to survive, but it is not. You just keep waiting and appealing the same issues time after time. If we could have a system that was fair, user friendly, and we were treated professionally, and the policies didn't keep changing, an injured worker might have a chance.
Does the board think we are just putting ourselves through this physical, mental and financial hardship for the fun of it? When a person has been a productive member of the work force for years and then you are forced to endure these hardships, it is very difficult for you and your family to bear. It is time the WCB should be held accountable. Rather than have a system that aids and assists us, we have a system that crushes and defeats us. Thank you. (Applause)
MR. CHAIRMAN: Thank you. I have one question, ma'am, about the appeal process. I was reading, following along with you, and I take it, what happened is that the thing just went full circle. It went up, they said that they should have been heard together, it went back down, and they heard it again, and they split it up again.
MS. MACLENNAN: Unfortunately, most of the things at the Workers' Compensation Board, it is just a vicious circle.
MR. CHAIRMAN: So you just went around and around, never a permanent resolution, just constant rehearing and reconsideration followed by appeal followed by rehearing and reconsideration.
MS. MACLENNAN: Exactly.
MR. CHAIRMAN: Okay. Thank you. Do any of the committee members have questions? Do any of the consultants have any questions? Thank you very much for your presentation. Our next presenter is Mr. Myron Marshall. Is Mr. Marshall here? Yes. Good day, Mr. Marshall.
MR. MYRON MARSHALL: Honourable members, ladies and gentlemen. I got to wondering why we are all here tonight, because our politicians, in the past would not listen. Perhaps they will listen now.
For many years in the past, and still today, our Nova Scotia Workers' Compensation Board have held the livelihood of each individual worker in the palms of their hands. I ask myself, what was the WCB set up to do?
Well, I only have Grade 5 education, ladies and gentlemen, but I thought it was supposed to help the injured workers of Nova Scotia, either by vocational training or in some way get the injured workers back on their feet, if possible. If this person has become disabled due to his accident, then he should be granted PMI. How many assessments would this person have to have? Where is the line drawn on assessments now? Myself, I had, personally, nine.
To cut off these injured workers, our compensation board will spare no expense. I, personally, have spent five years and six months of my life dealing in good faith with doctors here in Nova Scotia, between the doctors who are specialists, my family doctor and all the occupational therapists and physiotherapists at the Nova Scotia Rehab, plus the Aberdeen Hospital. There have been well over 40 professionals in the field of medicine that have worked on me, have stated that I am totally unable to work on account of my injuries.
Our workers' compensation case managers and staff still refuse to accept all these specialist reports. Then the WCB set up three more appointments for me; two more in Halifax; one in Chicago, Illinois in the U.S.A.
Do you, ladies and gentlemen, realize what effect that these tests can do to a person psychologically? Well, if you have never been injured, then I guess you will never know. To have your brain picked apart time and time again after nine assessments, not to mention my physical disabilities and steady testing by psychologists daily at the Nova Scotia Rehab for six months, then five years back and forth to the hospitals, I say to this committee that the WCB could not find where I lied or did anything wrong.
They thought that after a few assessments I would give up and go away. They, the board, needed something in some way to justify cutting my benefits. That is why Dr. David King's report came into effect, to send me to Chicago. They, the board, decided to attack my character and that of my wife's.
Still thinking I would not fight back after the Chicago trip, here is the board's catch-22, ladies and gentlemen. The board clearly stated that, based on this doctor's assessment of me, I may or may not receive my benefits but if I refuse to go to Chicago I would be cut off permanently. I call this, ladies and gentlemen, blackmail, out and out.
Their letter to this board doctor in Chicago clearly states that they, the board, would only send to this doctor what they felt was pertinent to the case. This doctor tested me for four hours. My wife was directed by this compensation doctor to do the rest of the assessment on me in his waiting room in Chicago while he went in his office and closed the door. It lasted six hours, ladies and gentlemen, that my wife tested me and my wife is a non-medical person.
I received a letter after returning home from Chicago from the WCB based on this Dr. Hartman's assessment. He recommends to the board that my benefits be cut off and that the board no longer hold responsibility for my accident, that based on his opinion, I was fraudulent and malingering. Well, the board didn't take very long in cutting off my benefits, believe me. They did it exactly two weeks before Christmas, great timing.
[8:30 p.m.]
About this time our government of the day, through the Department of Labour, stops all the Department of Labour lawyers from working on behalf of injured workers. So this lawyer I had, sent my file to the Workers' Advisers Program in Halifax. Three days later I receive a call from a gentleman. He said he's going to be my white knight in shining armour. Well, I told him if he won my case, I would buy him a horse to go under it. (Laughter) It wasn't until three months ago I found out that I was left out of the appeal system altogether with no way to fight back.
I state to you, ladies and gentlemen, here and now that there is no democracy or democratic equals when injured workers are dealing with the Workers' Compensation Board of Nova Scotia. Their doctors, managers and caseworkers interpret the truth and facts as they see fit, to suit each individual case before the board. I have written several letters to members of the board and to Mr. Innnis Christie, chairman of the board, asking that they lay the proper charges against me for fraud. I have done this time and time again, ladies and gentlemen, but they avoid the question of fraud. I will stand up in any court of law. It is not nice to be labelled for something that you're not, believe me, and it is something that I had to live with for a long time now.
So I received a letter from Mr. Christie dated March 11, 1998. He, Mr. Christie, now apologizes and he and the board and none of his staff now believe that I have committed fraud, nor do they believe now that I'm malingering, he says, but I do have a letter from one of his staff in my briefcase here stating otherwise. If anyone has committed fraud, it is their doctor in Chicago for taking our Nova Scotia employer's money for sitting in his office while my wife did most of the assessment on me in his waiting room there in Chicago and Innis Christie, chairman of the board, be considered incompetent for negligence in allowing his staff and doctors to slander and to persecute my character and for wrongful denial of my benefits as laid down by law. I'm asking you as honourable members of the House to call for the immediate resignation of the Chairman of the Workers' Compensation Board of Nova Scotia. If there is any justice in Nova Scotia, then let it prevail. If you, honourable members, want to do the right thing for the injured and disabled workers of Nova Scotia, I ask you in all respect to leave no loopholes for the Workers' Compensation Board to squeeze through. We would not be here tonight if there wasn't something terribly wrong.
Our employers are of the opinion that we receive our benefits. Well, ladies and gentlemen of the committee, very few receive anything, if any at all. Why, I ask? One only has to look at the pie. This gets better. Please forgive me, honourable members, if I leave a few departments off my list as I go through it concerning the Workers' Compensation Board. First, we have the board of directors. This is my understanding. I don't understand everything that goes on at the Workers' Compensation Board. The board of directors internal Appeals Board, the CEO, the manager, the caseworkers, the adjudicators, the doctors in Nova Scotia, the doctors across Canada they use, the doctors in the U.S. and others that they use, the lawyers, the vocational counsellors and, last, the injured and disabled workers, well, my count comes to around 12, ladies and gentlemen, departments. I don't really think that 12 slices from a piece of pie leaves very much for these injured workers in this room or across Nova Scotia. I really don't believe this, with all my heart I don't.
MR. CHAIRMAN: I will give you the warning gun there, Mr. Marshall. You've got a few minutes yet but I just wanted to encourage you to wrap up. Thank you.
MR. MARSHALL: I'll just figure out where I'm at here. Okay, or we would not be here tonight, ladies and gentlemen, and our employers' rates would not have tripled the last few years. Please take a good hard look at the volume of people at the Workers' Compensation Board. Their salaries, their expense accounts, and if this does not open your eyes, with all due respect to the committee, then nothing will. I have a few suggestions to make if I may throw it at you: Establish a new board to replace board managers at top level; to hold the board managers' staff accountable for their actions; to select a three man committee from government, one from each Party, to protect the workers' rights; that the Workers' Compensation Board doctors be abolished from the workers' compensation system; that our family doctors and one specialist's assessment be enough to rule; if a worker is injured or disabled, then and only then can he be sent out of the province by his family doctor or a specialist referred by his or her family doctor; to grant the right to sue our employers if they have been found negligent and causing injury to his employees; to grant the right to sue the Workers' Compensation Board and its employees if we can prove beyond a doubt that we were wrongfully dismissed; to provide legal counsel to each and every injured Nova Scotia worker upon request; that each and every injured and disabled Nova Scotia worker be given a direct line to legal counsel; that each and every disabled and injured worker be granted hospital beds, braces, canes, et cetera, if the family doctor deems it necessary.
I would like to thank you, ladies and gentlemen, members of the committee, everyone for coming here tonight, for taking the time away from your families and friends, and whatever else you had to do. I know it is very hard travelling around the country but I'm very sincere in what I'm saying here. I have the facts to back them up and may God go with you when you go into the House to lay this down. Thank you.
MR. CHAIRMAN: Thank you very much, Mr. Marshall. Are there any questions from members of the committee? Thank you very much again for taking the time and I hope you can spend the rest of the time this evening.
MR. MARSHALL: Thank you.
MR. CHAIRMAN: Our next presenter is Mary Lloyd. Mary, can I ask a favour? When you do your presentation, if you didn't read it, just if you could summarize it, if it's written, because we went a little bit overtime last time. If you could just summarize, that would be great and you would probably do a better job because we certainly have the material in front of us and sometimes we may have questions.
MS. LLOYD: Okay.
MR. CHAIRMAN: Thank you, so if you just want to give us a general outline.
MS. LLOYD: Yes. This one is on appeals and basically the most important gain for injured workers in the province since the birth of the Act was the right to appeal decisions of the board.
Now, with the new Act, Section 183 gives the board its policy right to overrule legislation and this is totally wrong, or the board can question the legality of policy and refuse to apply it. The solution is that legislative law should rule and that no policy should be able to overrule it. In the place of an independent impartial appeal board, we in turn were given an internal appeal board that is bound by board policy. The appeal board we have now personifies administrative abuse.
You have heard representations here tonight from injured workers who have gone through the treadmill, so to speak, where they have been in the appeals system for years and years and years and haven't even basically got out of the starting gate. When decisions, which are very rare, in the internal stages are overruled and a hearing officer finds in favour of an injured worker, most times that decision goes back to the case manager or adjudicator, as it would have been in the former, who overrules the hearing officer and refuses to implement that decision.
Also in this process, when you get to a hearing officer level, although you have started out with all your issues before the appeal, when you get to the hearing officer, a case manager, an adjudicator, review officer or reconsideration officer had dictated to a hearing officer what they could and could not hear on your case. So you are split. They hear one segment and you go back to the starting gate to get the second and the third. So it takes maybe seven tries to get your original issues addressed. This is years and years of abuse and financial hardship to injured workers and it has got to stop and it has got to stop now.
MR. CHAIRMAN: I take it that is the same thing that Ms. MacLennan was referring to, the same problem?
MS. LLOYD: Very, very much so. The old external Appeal Board has demonstrated with the statistics that 93 per cent of board decisions were overturned, not because they favoured injured workers like it appears the government took it as, but because the legislated law had not been applied in the decision-making process, 93 per cent of these cases were overturned. So with the new Act it appears that the new appeal system rather than take a look at that statistic and say 93 per cent of the time, what the heck is that board doing, and go back there and address the real issues, they punished us because maybe 7 per cent of the time they had it right, which statistics will prove you further that the court of appeals and the courts saw that they didn't even have that 7 per cent right.
So the whole system is wrong. The whole system needs to be addressed. It needs to be overhauled and it certainly needs to be streamlined. The board and the basic problems here in the whole appeal process is that no one is accountable. No one is held for their actions and their decisions and there is no means right now to hold these people accountable.
The no-fault was supposed to abolish the adversarial system where employers and employees fought it out in the system but, hell, with this new legislation the employer has every right to appeal at every level along with the injured worker. The employer should have no right to appeal. We gave up the right to sue. We didn't but it is the legislation and the no- fault, that provision was put in but it is not being enforced. We are not getting the other end. For the not suing we are not getting the benefits. So the employer should have no access to fight right along with you, and I mean is this going to eradicate and expedite the process? I think not. It is adding to the delays. It is adding to the problems.
The Alternative Dispute Resolution right now it is set up for the people who had absolute right to tribunal from the former appeal board. As we see it, it is anti-injured worker to the hilt. It is set up with three personnel from the board and an Appeal Tribunal Commissioner, the injured worker is not permitted to have a spouse, a workers' advocate, even their own workers' adviser cannot represent them. One adviser or two advisers, I guess is the case in this province, are picked from the Workers' Advisers Program to travel the province. They meet with the injured worker for 5 to 10 minutes prior to these ADR processes. Now, don't tell me you can prepare someone's case in 5 and 10 minutes and know the full value of that case.
The injured worker is taken in there. It is nothing but a tactic to intimidate. There are five people, strangers to those injured workers, and most injured workers have no access to a policy or a manual or a book, or even if they did have, they wouldn't understand it anyway. They are put in a situation and it maddens us beyond comprehension to think that for seven, eight years you've been told there is no permanent impairment, denied that this medical
impairment existed. Yet when you come to this ADR, all of a sudden you have one but we are only going to give you a pittance of what you are entitled to. So it has to be revamped.
I received a pamphlet in the mail from the Workers' Compensation Board that they have been in town this past week and they want employers to sit on the ADR. Just add another insult to injured workers and the injured workers, they're strictly to be intimidated, given the least amount of benefits and dismiss them.
According to the new Act, Section 203, the Medical Review Tribunal, the Minister of Labour has indicated his intent to establish this board. We are totally opposed to another level of appeal. We question where in this province would you find doctors to sit on the board - well, that is reputable doctors. The doctors that we would see sitting on this board would be the retired warhorses from the board and they're not sitting there for our benefit. Any decisions from this Medical Review Tribunal would not be subject to appeal, so it would be final, and we are totally opposed to adding any more levels to the appeal.
This Act represents all the fundamental changes that are very hurtful to the injured worker. We urge you to re-examine the whole appeal process. We think the new system of appeal should be removed from the Act and we would like to propose our mediation process at the front line, to hold the original decision makers accountable for their actions and their decisions, in place of the internal appeals, the right to appeal to an independent appeal board be restored and the backlog of appeals be eradicated immediately.
The mediation process we would like to put in place is a mediation process that would be enacted as soon as a decision is rendered from the board. At this process it would be like a round-table discussion, where all involved parties within this forum - the case manager, unit manager, rehab counsellor, the board doctor, whoever rendered that original decision - would have to justify from where that decision was based, what sections of the Act and anything else. Whereas the WCB decision maker, they would have to show these applications and sections of the Act. The injured worker, their advocate, their adviser, doctor, could argue the real merits of the case and show where the board was wrong. We feel this process would be a means of holding them accountable. We feel it would be a means of simplifying the process and certainly streamlining.
We also request that where it be shown at this mediation process, now or whenever, where the rules, the Act and the policy have not been adhered to, that a penalty be put in place and the first offence would be a severe reprimand to the board member, a two-fifths deduction in their pay, and an apology to the injured worker with this offence remaining on their work record; the second offence, fired for incompetence. This may appear harsh, it may seem extreme, but it's not nearly as harsh and extreme as the penalties and the punishment and the abuse that injured workers suffer daily.
With this process in place, we are figuring approximately 90 per cent of cases would be dealt with right there because the decision was wrong to start with. That would leave 10 per cent who may need the appeal system and with an absolute right to an independent appeal there would be justice. There would be time, there would be swiftness and it certainly would be cost-efficient. So this process has to be dealt with and I think it would be a lot fairer and it certainly would end the misery and suffering inflicted on injured workers if the board was held accountable for their decisions.
I appreciate the opportunity of being able to make this presentation today to the select committee. I hope the information that I have provided will assist you in introducing the necessary changes that will benefit each and every injured worker. Thank you.
MR. CHAIRMAN: Thank you very much, Mary. I guess I had one question from your presentation that appeared to me. Am I understanding you correctly that when an injured worker's case is going to the ADR process, that the workers' adviser who represents the injured worker at the ADR hearing is not their regular worker's adviser, but someone who does nothing but ADR, so they may never have met that person before?
MS. LLOYD: Never. Five minutes before. We even have one case where an injured worker was kept out of their own ADR process, because one of the board staff had a problem with the injured worker. This adviser was relaying messages out of this mediation process, the injured worker is in the hall, and they are relaying messages out to him. I know it is ridiculous, but that is how ludicrous this whole system is.
MR. CHAIRMAN: It does sound a little unusual, yes.
MS. LLOYD: Yes. Fair, no.
MR. CHAIRMAN: I guess the other question I had, and I take it that it is also board policy that the injured worker can't take someone else with him or her, who is familiar with them, for example, a spouse or a friend, somebody from the injured workers' groups, that kind of thing?
MS. LLOYD: No support persons. In one case, a lady came to me, she was the very nervous type, and she asked me, would I go with her. I spent two weeks preparing her case with her, picking out what you are entitled to, what you should have, what we are going after, and nothing less. This was all okayed by the tribunal and the advisory program, up until 11:30 p.m. of the night before, and then, Mary Lloyd is not going with you. No one can go in that process with you.
The injured worker went in there, they have a very big difficulty in speaking on their own behalf, doesn't understand the rules and process, and ended up coming away with a 5 per cent PMI, lump sum, go away. By doing that, they lost out on their supplementary
benefit, because this person received the Canada Pension disability, and 5 per cent is nowhere near the recommended 40 per cent PMI that the specialist said.
MR. CHAIRMAN: Thank you. How many people from the Workers' Compensation Board are in the room as well? Do you know?
MS. LLOYD: Three. There is a lawyer and two either case managers or regional managers. There is usually a case manager that is involved in the case. It is nothing more than intimidation tactics. Stack the deck.
MR. CHAIRMAN: Thank you. Mr. Corbett.
MR. CORBETT: Good to see you again, Mary, under these great circumstances. My question is around ADR also. I ask you this as someone who is experienced around the process. I can appreciate that you have not been involved in every case, but I am going to ask you about the cases that you are aware of. Have you ever had the occasion to see where an ADR process would go through and a person would get a permanent pension out of this as opposed to just a one-time lump sum payment?
MS. LLOYD: One case. A lady, after this situation happened, I prepared her, and she could speak for herself. She went in there and the adviser offered nothing, no encouragement, no preparation, nothing. They offered this lady, I think it was 6 per cent, and she said, no, I'm entitled to 14 per cent, that's what the specialist said. They said, oh. They were kind of taken aback. Okay, they came back after a little chat, we will give you the 14 per cent. She said, I'm not taking it in a lump sum either. She said, I will take it, you can give me a lump sum from today's date, back to the date of my injury, but from here forward, I want a monthly pension, which will entitle me to my supplementary. Who are you talking to? That is what they wanted to know. She ended up coming away with her supplementary, and at least the PMI that was recommended by the specialist involved.
MR. CORBETT: Just one more thing around the ADR, and that is, one thing they keep telling us is the fact that through the ADR process that they put a figure on the table, and there is no low-balling, if you will.
MS. LLOYD: Oh, no. Take it or leave it.
MR. CORBETT: But as we see here, there was probably some form of low-balling, when the lady comes in and she knows where her PMI is at and then they come up with another figure.
MS. LLOYD: They were educated by the next injured worker that tried it though. It only happened once. One time, Frank. They put a policy in place to close that loophole, right quick.
MR. CORBETT: Thanks a lot, Mary.
MR. CHAIRMAN: Thank you very much, Mary.
MS. LLOYD: All right, thank you. (Applause)
MR. CHAIRMAN: Our next presenter is Lorne Heighton.
MR. LORNE HEIGHTON: I'm talking a little different than the rest, I guess. I'm talking about how they did retrain me in my job, which they didn't.
Almost five years ago, I had a good job at Michelin Tire as a manual BU weigher. Jobs before that, I have worked since I was 11 years old, and they were all off and on, and stuff like that. So I thought, good deal, I got into Michelin, this is great. I had medical and dental benefits which alone mean a lot when you have a young family, starting out. Through no fault of mine, on March 5, 1994, my arm was pulled into a conveyor belt and crushed. It was a terrifying accident in itself, dealing with Nova Scotia Workers' Compensation was worse. As a result of my accident, my arm now has pins and plates in it, and I have no bones in my wrist, it is just pinned on there. It will never be the same, and it will get worse over time.
My last annual income at Michelin Tire was, I didn't write it on my own here, I think it was around $40,000. Also as a result of my accident, I could no longer do the job that I was doing at Michelin. Looking back, I think they could have found me something else, but they came to them and told me that since I couldn't do it, that I better get out and get something else.
They were supposed to find me a suitable job, retrain me in a suitable job, compensation was. So I went to Gerard Benoit, after Michelin telling me I could no longer be employed there, and I was quite concerned. He said, you will never lose, you will still have your money, you will never be without money that you made at Michelin. I thought, okay.
My first choice was carpentry, no. He said, couldn't do that, you couldn't lift the lumber and stuff like that that you build. It doesn't say in here, but I said, electrical, which I had done some electrical through the winters part time. He said, no you can't pull wires. So he said, here is what you have, you can take heavy equipment operator. Okay, so I was going to become an excavator operator, dozer and truck driver so I could haul the equipment around.
I got the excavator, I got my truck driving, and Mr. Benoit called me while I was waiting for my dozer, and said, you are cut off. You can take your dozer course if you want, but you will have no money to do it. This was September, my dozer course was in November.
I jumped on the bandwagon, and said, I have to do something so I got a job with Countryview Trucking over in P.E.I.
Coming home was well out of my way. I was away for five weeks at a time, living on the road. They took one week's cheque, that I had done really good, I think it was a two-week cheque for $825, and I had to eat on the road for three weeks at a time, at least, and sometimes five, so you did your laundry on the road, you did your eating on the road, and showers, and keep a wife and family going at home, things were getting pretty slack. They seemed to think that I was going to make $49,000 a year at this job. Well, if there was that much money to be made at this job, Countryview Trucking would still be on the go today, but they lost all their drivers and had to fold up business because everybody was going broke. When I was doing that, I was sitting for three days and then running - I saw me run - 36 hours straight one time. No sleep. That is how I did it. That wasn't safe, so I got out of it.
Presently, I am employed with Gerald Battist Trucking, and my annual income last year was pretty good, it was one of my top ones, I made, I think, it was $28,000 before deductions. This is a very reputable company in this field, I think. Everybody probably heard of them around this area. But it is still not the money.
Of course, I am getting $34.19 a month to make up for the that wage loss of $18 an hour down to $10 an hour, so that is pretty good. It is getting up there. (Laughter) That amount stays the same, no matter if I take home $800 or $1,600 a month, which still isn't much, but at $10 an hour, it is about all I can earn. The earning loss board has to be accountable for this mess. Every day I live with the pain of my arm, also our lives have been going through just a downhill slide mentally and financially.
Presently, we are fighting even to keep our house. We have been called. Things are not that good. Not to mention trying to pay for lights, phone, food. When you get so far behind in your bills, you cannot catch up. Our families help us very much, which is kind of embarrassing to go and ask mommy and daddy for a loan of money when you have kids of your own, you are supposed to be trying to give them money at this time of our lives.
Our two boys, they love playing hockey. It is hard to tell two boys, they don't understand that they can't play hockey anymore, because we just can't afford it. We just live from day to day, waiting for the next person with their hand out for some money that we owe and sometimes can't pay, because we don't have it.
My wife and I work very hard, and still cannot get a foothold. I feel all of this is a direct result of my accident at Michelin Tire and the Workers' Compensation Board's inability to do its good, fairly and properly. They failed in many ways to follow and carry out the guidelines as stated in the Workers' Compensation Act. In closing, I would not wish any of this on anybody, except for maybe the people at WCB who are responsible for what is
happening to me and my family. I would like to see them walk in our shoes for a few days, and just see what is going on. (Applause)
MR. CHAIRMAN: Thank you very much. There may be some questions from committee members. I don't know if any of the committee members have any questions? No. Well, thank you very much for taking the time to be with us sir.
MR. HEIGHTON: Thank you.
MR. CHAIRMAN: Our next presenter is Leo McKay. Good evening, Mr. McKay.
MR. LEO MCKAY: Thank you, Mr. Chairman. I heard you ask someone to summarize their presentation. My old friend, J. K. Bell and I were appearing before a committee of the House, and Fraser Mooney was chairing it, and J. K. said, Mr. Chairman our presentation will take 15 minutes to read, perhaps I better summarize instead; a half hour later he ended up. (Laughter)
MR. CHAIRMAN: That wasn't exactly what I was hoping for.
MR. MCKAY: Fraser Mooney said, you taught me a lesson tonight, J. K., you will never summarize anything in front of me.
MR. CHAIRMAN: You learn from the master. Maybe we will do the short summary instead of the long summary. Thank you. Go ahead.
MR. MCKAY: You have a copy. I am retired after 17 years working on the steel track in the Car Works, 32 years as an employee of the Nova Scotia Federation of Labour. Perhaps I shouldn't be interested in this thing anymore, since in that 49 years of my work life, I never drew workers' compensation. I appeared before the board, claims officers and workers' counsellors, and employer commissioners, dozens and dozens of times. I don't understand the new Act. My experience was with the old one.
But the reason I wanted to appear here is that I have confidence in these all-Party committees. The best legislation, amendments that were made to the Act in my time, and as you can see from this bit of a history by the Workers' Compensation Board, since 1915, were from the two committees similar to yours, in 1973 and 1974. The most progressive changes to the Act. The changes that provided justice for workers in the province came from the recommendations of that committee. That committee had to have guts, they had to have backbone and stamina to get around the way they did in the face of the opposition that was there, but they saw the injustice.
When I went to work, representing workers before the board, there was no appeal board. There was a thing in the Act called a medical review board. This was, by some convoluted method, you could get a medical review board consisting, I believe, of three doctors, one of whom had to have worked on your case, and so on, but it didn't matter how the thing was set up or established, it never existed. There was never a medical review board set up in this province.
Tom McKeough became the Minister of Labour, and we went to him and said, look, this is a farce. McKeough said, if that Act says there is provision for a review board, there will be review boards. Then he saw, I mean you couldn't do anything with the way the thing was worded, the medical review board that was then legislated was going out of existence.
The very best piece of legislation that has been legislated into the Act for workers is the appeals procedure. The appeal board that was established before the 1996 Act. I appeared on behalf of a woman in this county, and I took her case, her husband worked in one of the foundries here, and had died from the silica dust in that environment. I took her case, and worked on it, and worked on it and then I came to a stalemate, where I couldn't do anymore.
Workers' counsellors had been set up to go to the appeal board. I turned the case over to Raymond Larkin, probably the best labour lawyer in Nova Scotia and asked him to continue it on from there. He won the case five years after the person had died.
That workers' counsellor in combination with the Appeal Board gave workers something to seek justice with. But what happened to it? What happened to it? I think the last year I worked, one law firm in this province took $325,000 out of that fund. Then you look at the other law firms that were dealing, working or had been named as were supposed to have been, and that used to be done by politics, the same way the board chairmen were set up, were appointed, by politics. The Party in power appointed the chairman, when they were out, a new one was in, of the Party that was in power. The workers' counsellors were named in that manner, but the workers' counsellors worked, because they knew the way to get in to make those appeals.
We fought with the government to allow trade union representatives to appear on behalf of workers. In the end, they worked around that, where they would allow you to go in, but you just didn't get anywhere with it. The lawyer, if it is a dedicated person, working on your behalf as a counsellor was the answer that really benefited the worker.
I am disappointed as well, to see the benefit of the doubt provision taken out of the Act, or in there in a manner that doesn't mean anything. There are sections in the, I think, as I stated in here, what was done in 1996, to me, they threw the baby out with the bath water. If they were trying to do something to clean up the Act, then they went about it in the wrong way. And they threw the whole thing out, and started another process.
The way they should have done it, I believe, would be to work, if they found fault in, and everybody knew. I went here when I retired, I was asked what I thought of the idea of an injured workers group. I said, I think it is a great idea. Well, come on out, we want you to help us. I said, well, I will go help, but that is all I will do. I will just give you a little advice. The first thing I told them that night, I said, if you are going into this, be on your guard, because the word is out, the Workers' Compensation Appeal Board has to go, and that is what is going on in Halifax.
It wasn't too long before that board was gone. Then when that board went, and you have what you have now, justice for workers went down the tubes with it. You heard tonight, the last chap that spoke, you can see the kind of justice that workers are getting. You heard Mary Lloyd, who represents workers. You see the kind of justice that she has seen.
If they are going to have an Act, the Act is the Workers' Compensation Act, workers', it was put there to protect employers from being sued. That is why Meredith set the thing up when it was set up. What happens to it now? The worker becomes the victim again. He was the injured worker, now he becomes the victimized worker.
There is no fairness in that sort of thing. Like I say, I am retired but I couldn't sit home and allow something like this to pass by without making some point to you. When you are making your decision, read those 1973 and 1974 Acts, and see what they had, and why they did what they did, because there was no justice for workers, and they saw that that committee, that all-Party select committee was going to be the vehicle which provided workers in Nova Scotia some form of justice.
I will be looking closely to see what kind of a decision comes from this board, if it is going to be something that workers can say, well, there is someone that we finally got through to, that can see the injustice of what has happened, or if it just going to be another report that will be pigeon-holed somewhere, like dozens of other ones in this province and country.
After saying that, I summarized. I missed some of the things that I wanted to say, but I think you have the drift of what I want to say, that there has to be justice for workers in Nova Scotia and the only vehicle that injured workers have of getting it is through the Trade Union Act. A good Trade Union Act will provide it, a bad one will send them running around and you will see what has happened here by the witnesses that appeared before you tonight.
I am appealing to you to do what that board did, that select committee did in 1973 and 1974. Thank you very much. (Applause)
MR. CHAIRMAN: Mr. McKay, just one second. Let us see if any members of the select committee have a question. No. That is fine. I might say that I appreciate that you gave us the short, succinct version. I appreciate that you brought your very considerable experience here this evening. It is a very useful thing to hear from someone who has had experience with the process over a number of years. Thank you again for coming. (Applause)
I think, ladies and gentlemen, we will have a five minute break. It will be a five minute break this time, to 9:20 p.m.
[9:15 p.m. The committee recessed.]
[9:27 p.m. The committee reconvened.]
MR. CHAIRMAN: I call on Mr. Dave MacKenzie. Good evening, Mr. MacKenzie.
MR. DAVID MACKENZIE: I have no written presentation to pass around to you.
MR. CHAIRMAN: That's okay.
MR. DAVID MACKENZIE: I just came here, I wanted to say a few things. I assumed that this was a select committee to hear some suggestions.
MR. CHAIRMAN: Absolutely.
MR. DAVID MACKENZIE: Well, first of all, I would like to tell you that I was the President and the founder of the Pictou County Injured Workers Group. I formed that group, personally, by myself with no help from anyone else. Yes, I am still a member of it but I just do not attend the meetings. I haven't got the money to attend the meetings because I live so far out of town.
First of all, I want to tell you - and I want you to pay close attention - that the compensation board is not the worst thing in the world. The Workers' Compensation Board of Nova Scotia is not the worst but don't get me wrong, it is not the best either.
I hope this select committee has some thoughts that if there is ever a suggestion put to the House - and if you know anything about compensation boards across Canada, there are studies done and there are private insurance companies who would dearly love to get into the business. I hope this committee never, ever, or anyone in the government that is elected to represent the people, ever abides by that situation and puts that into the hands of private enterprise. If the people think we have problems today with the Workers' Compensation Board and it goes to the hands of private enterprise, well, they are really in trouble, I'm going to tell you.
My own personal case, the last 25 years that I worked up until 1991, I never drew a cent for 25 years out of the unemployment insurance commission. I had an injury in 1991. I drew compensation for two years; one year on total temporary benefits and the other year as rehabilitation which Gerard Benoit did absolutely diddly squat for a year.
After that time I was cut off. When I went to apply for unemployment insurance which I paid into for 25 years previous to that, I wasn't entitled because under the Act you have to draw your UIC in the first 12 months. You can apply for an ante-date form if it is within the second year. I was beyond the two year - I lost 25 years of UIC that I never drew a cent from them. I have still got the separation slips home and they are not worth the paper they are written on, a lot like some of the papers and the letters that you get from the Workers' Compensation Board.
[9:30 p.m.]
I am going to tell you that the biggest problem with the Workers' Compensation Board is the fact that no one at the compensation board is accountable.
I have made suggestions to the Workers' Compensation Board previously but they laughed at me and thought I was a little silly, I guess. One of the suggestions I made to them at one time was for them to set up a dummy case and have someone administer that dummy case, let that person call the compensation board - some of their own people, let them call them, find out what the hell is going on, find out what injured workers get in response. Oh, I'm sorry, that person is not in today. Oh, the other person? No, they are not at their desk. Those people are never at their desk, they are never in. They have got the best friggin' job in the world. You guys are stupid sitting here. You guys should get a job in the Workers' Compensation Board. You only have to work one day a week and I'm doubtful if they work that.
Since 1991, when I was injured, on compensation for two years after that, from 1993 on, I haven't drawn a cent from the Workers' Compensation Board. I have lost an A-1 credit rating that I had because I extinguished every avenue of money that I could get my hands on waiting for an appeal. I lost a credit rating; I lost a house; I lost all my self-esteem. For people to think that you sit there - and they say, oh, there is nothing wrong with that guy, well - I've had people even within the Workers' Compensation Board that are out there saying things like that, there is nothing wrong with him. Well, I wish they were inside this carcass for two weeks and they would know better. The same goes for the Workers' Compensation Board.
Until such time that the Workers' Compensation Board, the people that work there are accountable, there will never be a change. It is not this past previous government or the government before that, it is every government before that. The Liberals and the Conservatives have had control over the years to do something and when they were there, nobody did anything. Everybody is scared to open their mouth.
The Workers' Compensation Board, they have control. They are not scared of the government because the government cannot tell them what to do. They go on and do as they want. The Workers' Compensation Board is the only organization in the world that for every mistake you make, you are given a level higher, you are getting a promotion.
You can go back and check people's names and records. Every time they made a bad decision or they got in trouble on something, they would pull them out of that department, shove them in a new department, put them at a higher level. They would go from managers to case managers. It is the same continuous thing.
At one time, I told David Stuewe, I said, look, the big backlogs you have of people in appeals - whenever someone makes an appeal, put them back on their total temporary disability benefits until their appeal is heard. I will bet you right today that when I applied for my appeal in 1993 - and this is 1998 and I call the Appeal Board today. No, there is no decision on your claim yet.
I have been five years; I have lost my credit; I have lost a house; I have lost everything. I'm telling you, if everybody was put back on their benefits, there would be no friggin' waiting around for five years to have an appeal heard. I hope you people realize that.
What makes me wonder is, I was talking to a gentleman down back here and he said, injured workers are second-class citizens. I said, that's a fact. It's not hard to see that either, is it? That's visible here tonight. I said, I don't know, what do you mean? I didn't get the drift. He said, they have us sitting on the old hard chairs. The chairs that the select committee are sitting on are nice, comfortable chairs. I think he had a damn good point.
What I wonder is if the select committee that's sitting here, that are so interested in trying to get some changes, if you weren't elected, would you be still as interested? If you weren't an elected representative, would you still be as interested in an injured worker? I don't think so. I know you have a job to do. You're elected and your Party tells you what to do when you go to sit and everything. This is the way it is. You know what it is and I know what it is too, but this is what's wrong. Nobody listens to nobody. Every time there is a suggestion put forth, it just falls on dead ears. Every Minister of Labour that we've met with was gutless, wouldn't stand up for his rights, and this is what's wrong with the system.
I wrote a letter to the Minister of Labour one time and gave him a suggestion. I said the biggest problem in the workers' compensation is the appeals. You go to an adjudicator, to a case manager, to - you go through the process. I told him, I said it puts me in mind of a person that went in and robbed a corner store, only to go to court to find out that the judge is the owner of the store and the jury is all family members. Do you believe that this guy would get a fair trial? That's the way it is with the Workers' Compensation Board. Nobody gets a fair trial because we've been told, the group has been told - I've been there - that the case manager will not go against the adjudicator's decision.
So the Workers' Compensation Board was set up to help people but they're not only helping people and going against people, they're hurting employers. When they put this stupid thing in the paper that the going rate of compensation is based on an average of $2.49, well, that's a bunch of malarkey because there's people that's only paying perhaps 60 cents on the $100. I got a friend of mine that's in the lumbering business that's paying well up into $12 or $13 on a $100. So they're misleading the public. It's misleading. Why did they put it in the paper and publish it and tell them how much each individual or which group pays which?
But there has to be changes and you can walk away from here tonight and you can say that guy is full of it but I don't care. You have the power. You guys got the position right now to go back and recommend changes and if you don't recommend the changes, the hell with your political affiliation, use your own judgement. Make your feeling, what do injured workers get? Nothing. When you go to the doctor, he gets paid. The lawyer gets paid. The Workers' Compensation Board gets paid. Everybody gets paid. Who doesn't get paid? The injured worker doesn't receive one nickel. The hell with him and they're waiting and hoping that someone will die so they don't have to pay it anymore. Get rid of that person and I'm likely one that they're hoping that I'll die. I've got nothing from them but this is the system. Thank you. (Applause)
MR. CHAIRMAN: Thank you, Mr. [David] MacKenzie. I don't know if any of the select committee members have any questions for you. If you would just come forward one second, I had one question. It's about your particular case, sir. You said that you are waiting five years at the WCAT level now, are you?
MR. DAVID MACKENZIE: No, I've been through all the appeals and it's in with the WCAT now since June 1996, or something, when they made this big decision that the appeal board was all over. In fact, the day that they made the decision, I think we were here meeting with the Workers' Compensation Board, or something and were never told that this was coming into place and it was the next day that the announcement was made. This is the underhanded stuff that they do.
MR. CHAIRMAN: I guess just following up on that question about your particular case, are you one of those people that has been labelled as a chronic pain case?
MR. DAVID MACKENZIE: I don't know whether I'm a chronic pain or what but I will tell you, you know, I worked all my life and I have lost everything that I ever worked for. If that isn't chronic pain, it certainly works in your head if you would like, you know, . . .
MR. CHAIRMAN: No, I was just wondering if that's the label they used?
MR. DAVID MACKENZIE: I don't know what they've got me labelled as. I imagine that they have a file on me and there's no doubt about that and it's not likely good.
MR. CHAIRMAN: Thank you, I understand. I was just curious as to why your case, like many others, hadn't been resolved.
MR. DAVID MACKENZIE: I'm just like the rest of them. Everybody is in the same position. They haven't made a decision in the last year and a half, I don't think, at the WCAT office.
MR. CHAIRMAN: I don't know if any of the other members have any questions for you. Thank you very much, Mr. MacKenzie.
MR. DAVID MACKENZIE: You're welcome.
MR. CHAIRMAN: Our next presentation will be from the Athol Forestry Co-operative and Mr. Warren Murley I guess is the spokesman. Thank you very much. I see you have a written presentation. I would give the instruction that I gave before, that if you're able to, if you could summarize it, it would be of great assistance to us. I don't know if that puts you in a bind or not but I take it that it's just the three pages there in any event?
MR. WARREN MURLEY: Yes, and if I can quote my secretary, I'm not known for my brevity. So I had better stick to the text.
MR. CHAIRMAN: Okay.
MR. MURLEY: Mr. Chairman and committee members, my name is Warren Murley. I'm the manager of Athol Forestry Co-op in Amherst, Nova Scotia. Athol Forestry is a group venture cooperative started in 1977 by 12 private woodlot owners in Athol, Cumberland County. Athol Forestry is owned now by 193 private woodlot owners who own forested land in Cumberland County. This ownership or members do not necessarily live in the county but are people who were brought up in the county and have moved away for work reasons. These people do not want to sell off their heritage but they require an agent in the county to manage their properties in their absence. About 25 per cent of the membership of Athol Forestry is this type of woodlot owner. The balance of the members are those who do not have the time or the knowledge to improve their woodlots so they join Athol Forestry to take advantage of the experience and knowledgeable staff so they can have their woodlots managed in a sustainable manner.
One important point that I would like to make is that since June 1995 all the expenses for the operation of Athol Forestry have been paid by the member landowners. In 1977, when Athol Forestry was started, there was government assistance available to pay for salaries, office space rental, travel and other expenses associated with the operation of the cooperative. At a meeting in Halifax in June 1995 we were informed that there would be no further financial assistance available for the administration of this group venture company. It was time
to make it on our own. With a staff of four people, a strong membership of 193 woodlot owners and an area of 40,000 acres to manage, we accepted that challenge.
To give you an idea of the duties of the staff, I have enclosed copies of their job descriptions. The present staff consists of myself, as manager. I'm a graduate of the Maritime Forest Ranger School in Fredericton and have over 30 years experience working in the woods industry in Nova Scotia and the rest of the Maritimes. Our forester, Glen Speight, is a five year graduate of the University of New Brunswick and has been working in the forests of Cumberland County for 13 years. Our field supervisor, Neal Hewett, is a forest technologist having graduated from the Fisher Institute of Applied Arts and Technology in Cornerbrook, Newfoundland. This is a two year course. Neal has been working for Athol Forestry for the last five years. The office administrator's position is held by Carlene Whidden who was a graduate of Miss Murphy's Business College with a legal secretarial course and has taken accounting courses working towards her Certified General Accountants designation.
Athol Forestry owns an office building in Fort Lawrence on Route 2, just outside of Amherst. It also owns an ATV, six computers, a global positioning system, desks, chairs, filing cabinets, aerial photographs, LRIS maps, and 364 management plans. The reason for being so detailed in outlining the equipment owned by the co-op is that you will realize that we do not own power saws, spacing saws, trucks, harvesters, skidders or forwarders.
Athol Forestry will hire a contractor who owns this equipment to work on our members' land. The staff go out and ribbon out an area for the contractor to work in. They will cruise this area for the landowner so that they will know how much volume of wood can be expected from the harvest and they will inspect the job periodically. Not at any time during the harvest or during the forest improvement work does the staff operate any forestry equipment. We are an adviser to the landowner or the more common technology today is forestry consulting. In support of this statement I have enclosed copies of the clearance letters that we have on file from each contractor who works on land managed by Athol Forestry. The board of directors of the co-op has passed a motion stating that we have to have this letter on file before a contractor can go to work for us.
We have also just recently embarked on an extensive support program for our contractors so that they can become qualified under the new Occupational Health and Safety Act. Our office has been offered at no charge to the contractors to hold their WHMIS courses and their standard first aid two day course. This is in compliance with a policy adopted by our board of directors.
This brings me to the reason for appearance before you this evening. Historically, Athol Forestry Co-op has paid 47 cents per $100 of assessment on the above four salaries that I have outlined. As a result of the adoption of the new SIC, Standard Industrial Code system our rate per $100 of assessment has gone to $9.92. Our present salaries are $146,873.78. We should be paying $690.31 but instead we have to come up with $14,569.88.
The new SIC coding system has three categories for forestry - 0411, lumbering and logging; 0511, silviculture - thinning out of trees; 0519, silviculture - tree planting. Athol Forestry has been placed in category 0511, silviculture, thinning out of trees. This category covers people using power saws and spacing saws to thin trees. It does not have anything to do with forestry consulting. We used to be in Division 31 Code 7771 and paid that rate of 47 cents that I previously mentioned.
After going through the appeals process three different times, and that covered a span of two years, without having any success, the SIC system has not been changed nor looked at. As a purely desperate move I contacted the Workers' Compensation Board organizations in other Maritime Provinces to see what would happen to Athol Forestry should we be located somewhere else. If I move across the border to Sackville, New Brunswick, I can become a code 7739, industrial code 771, and I have the books here to support that. My rate would be 15 cents per $100 of assessment. If I go to Prince Edward Island, I would be SIC code 7759, industrial code 108, with a rate of 25 cents per $100. In Newfoundland I would be a code 6, industrial code 613 with a rate of 67 cents. If I was in Quebec, I would be classified as office employees and a rate of 94 cents. I don't have the book from Quebec but what I did do was contact one of our similar agencies there and because of the language problem I had a letter from them, the problem being mine, of course.
Looking at the above rates it would pay Athol Forestry to relocate to Sackville, New Brunswick, or Borden, P.E.I., pay their staff a travel allowance and put the balance to paying bills. The cost of operating a small business in Nova Scotia has gotten too high and in order to meet my competition that is coming from out of province, I have to do something. We are presently losing consulting jobs to New Brunswick groups that obviously have an advantage over Athol. Compare the 15 cent rate to the $9.92 rate that I have to pay. The SIC system as it is used in Nova Scotia has to be changed to allow more codes for the forest industry, or the private woodlot owners of this province will find themselves dealing with New Brunswickers if they want consulting information on their woodlots.
In closing, I would like to draw your attention to the WCB letterhead which states, TOWARDS A HEALTHY, WORKING NOVA SCOTIA. The new SIC system is putting small business out of business, a totally opposite direction from their letterhead. Gentlemen and ladies, thank you very much for your time.
MR. CHAIRMAN: Thank you. You indicated, Mr. Murley, that you had three appeals?
MR. MURLEY: Yes.
MR. CHAIRMAN: Perhaps you could just summarize briefly - I, obviously, can guess the conclusion of the appeals but can you indicate what you were told on those appeals?
MR. MURLEY: Basically the system can't be changed. It is a system that was adopted by the board. Everyone agrees with it and there is absolutely no option. We have one of three choices to be put into. I have made suggestions time and time again. I have a file I would need a U-Haul to get here. They will not look at it. It is not an option of any employer in Nova Scotia to have that code changed, a very frustrating experience I assure you. I take two a day as a result of it.
MR. CHAIRMAN: I guess one other question I would have about the experience is have they got you in the "lowest" rated category in . . .
MR. MURLEY: I'm not sure of the other rates. I know that some of the companies similar to ours are paying more. In a little discussion in the back here a while ago, I found out that our rate was lower than another rate here in the county but our rates should be at maximum 40 cents to 50 cent per $100 of assessment.
MR. CHAIRMAN: So you're rated as silviculture, thinning out of trees?
MR. MURLEY: Correct.
MR. CHAIRMAN: Is the rate for silviculture, tree planting, lower, the actual rate that you would pay?
MR. MURLEY: I couldn't give you that answer right now, sir, but I would assume it's in the same range but maybe it is a bit lower, probably it is. You're probably looking at maybe a $6.00 rate in that category and that's a guess on my part.
MR. CHAIRMAN: Okay. I was just curious by what arbitrary method did they determine that you were in SIC 511 as opposed to SIC 519?
MR. MURLEY: I'm not sure but I would pay to find that out.
MR. CHAIRMAN: Thank you. Those are my questions. Mr. [Charles] MacDonald.
MR. CHARLES MACDONALD: Over the years your staff hasn't relied on workers' compensation? You haven't had any claims in your company?
MR. MURLEY: No, we haven't, sir.
MR. CHARLES MACDONALD: And they haven't reduced your rate for . . .
MR. MURLEY: No. Like I say, our rate has gone up, big time.
MR. CHARLES MACDONALD: Well, some companies, they reduce them when the use of compensation is not high, they rate you.
MR. MURLEY: I think when we were paying that 47 cents per $100, I think in the category we were in at that time that was the lowest rate we could get because we have not had an accident, unless one of us has fallen over a filing cabinet and not reported it.
MR. CHARLES MACDONALD: Thank you.
MR. CHAIRMAN: Mr. [Hyland] Fraser.
MR. HYLAND FRASER: Mr. Chairman, just a suggestion. The name of your company probably dictates the rate. If you changed your name to consulting services, or something, you may get the 15 cent or 40 cent rate?
MR. MURLEY: That thought has crossed my mind, good point.
MR. CHAIRMAN: A rose by another name.
MR. MURLEY: True.
MR. CHAIRMAN: Mr. Fage.
MR. FAGE: Warren, a very good presentation, and a few members have been making light of a very serious situation and you know, as well as I do, New Brunswick is the main competition for consulting, legal fees and various other services in the northern part of Nova Scotia. When we see situations like this and we've had another couple of presenters across the province in other industries where WCB is arbitrary in instituting the standard system that they put in, with no reflection, even on appeal, to the real work associated, and I mean, obviously this one is much more associated with office work, sales positions, and not the thinning of forestry as you have stated. That is all contracted out. These situations here border on the absurd by the time you go through a situation and you are paying a cutting fee, is what you are paying.
MR. MURLEY: That is right. I think one of the most heart-breaking experiences I had, we moved into a new building in December, which took the membership 20 years to save for - it is mortgage-free, I am very proud to announce - and the day we moved in, we got a bill from the Workers' Compensation Board for back what we owed, $29,500. That hurt. Especially when I can't go to my membership and say, okay gang, 193 members into $29,500, everybody cough it up, I have to go out and earn it.
MR. CHAIRMAN: Mr. [Charles] Parker.
MR. CHARLES PARKER: Mr. Murley, the contractors that work under you in the forest, are they, by any means, considered subcontractors? Is that a factor, maybe, in why your rate is so high?
MR. MURLEY: Yes. They haven't used that, but under the new Occupational Health and Safety Act, the way it is set up, they are classified as subcontractors but they are independent. There may be 20 out there, and I could choose any three based on the qualifications that we need, the standards the co-op has set, I could hire.
MR. CHARLES PARKER: So are they actually working for you, or are they working for themselves, and do they also pay WCB rates?
MR. MURLEY: They are working under our direction, we do pay them but they have their own rates, they pay their own compensation. That is why we have to have the clearance letter on file.
MR. CHARLES PARKER: They are paying premiums as well?
MR. MURLEY: That is correct.
MR. CHARLES PARKER: Okay. I have heard of that happening before, like when you hire somebody to do some work on your house, if you are an employer, you have to be covered, you are covering the subcontractors as well.
MR. MURLEY: That is right. I think it is a liability issue too. I think that is part of the reason why we have to have that clearance letter on file, to make sure that they are paying their workers' compensation, because we become liable, if they are not.
MR. CHARLES PARKER: Secondly, is it a real option, that you could or may move out of the province to New Brunswick?
MR. MURLEY: If they don't change the laws, I could. Evidently, you can work in the Province of Nova Scotia for six months, now, and I hear there is some discussion to have that law changed to two weeks.
MR. CHARLES PARKER: Yes. That is true.
MR. MURLEY: It is possible. I could move to Sackville. If I wanted to work in New Brunswick, I would go there but I want to work in Nova Scotia, and I feel I am being penalized because of that wish. We service membership in Cumberland County, and there is a border thing there. I would probably lose members if I did that. I really don't want to do that. I want to stay in Nova Scotia. I was born and brought up here and I want to work here.
MR. CHARLES PARKER: Thank you.
MR. CHAIRMAN: Do any of the consultants have any questions? Well, thank you very much for your truly compelling presentation. Our next presenter is Mr. Ivan Stulac.
MR. IVAN STULAC: My name is Ivan Stulac. I am here on behalf of my wife, Ann Stulac, who was employed at the Nova Scotia Hospital as a registered nurse with a post-graduate in psychiatry. She was injured in 1986, which destroyed her career.
Since that time, it has been nothing but fighting with workers' compensation. It is kind of interesting to hear some of the comments here tonight but I view the workers' compensation as a private members' club. It is a job for life, where you don't have to work, not subject to election, not subject to any kind of approval ratings, it is just a club where you go in and put in time.
As far as the dispute resolution mechanism, I was allowed in, to clarify that. Before, when the issue came up, I asked for a copy of the guidelines. I had them fax them to me. When I was told I could not attend, I said, show me in the guidelines where it says I cannot. It is not a firm rule, there is nothing in the guidelines that says a family member cannot go. I had a harder time getting my private lawyer to be admitted than I did to have myself admitted. Anyway, it does not resolve anything, but for what it is worth.
[10:00 p.m.]
The problem with the Workers' Advisers Program is it is paid by Worker's Compensation. You are not necessarily dealing with a lawyer. In most instances, I knew more about the Act than they did. You meet a lawyer when you go to a hearing, that is the only time you see a lawyer. That is why we chose the private route.
The private club tends to have a way of dealing with things. When you go to the hearings, they don't look at the issues that are before them, they run you - I have heard Mr. Chairman address it as, let my find it in my notes - full circle. Well, they keep running you the full circle. This has been going on for 12 years. I don't give up though.
We had a hearing on April 4, 1997, and approximately 18 months later, no decisions. Their by-laws state that they have 12 months to render a decision. Why is it? My wife was classified with chronic pain syndrome. I live with her. I know what she puts up with. I am in business. To me, everything is clear-cut. Chronic pain syndrome, in my opinion, there is a cause for everything. Either the person is an all-out liar or there is a cause for it. Just because you can't find the cause doesn't mean that the problem does not exist.
We have gone and requested MRIs to be done, to no avail, just been turned down. We had it done in Buffalo, which we paid for ourselves, $3,000. We didn't tell them what the problem was, we just told them she has a problem in a general area, and let us see what turns up. The MRI comes back and they outline, without getting into specifics, where the problem is, and gee, you know, every specialist that she saw from here to Ontario to northern New York State, go to the same spot. Workers' compensation says it is all in your head.
I have a problem with, we have a decision from the Workers' Compensation Appeal Board, which states, she can no longer be a nurse. That was dated back in 1989. A workers' adviser, at the private club can come out and say, "Since you are not able to participate in a vocational rehabilitation program at the present time, your benefits will not be extended.". I guess, if you could do it, then you get paid. If you can't do it, and they paid for numerous examinations and vocational assessments and physical assessments that lasted three days and they all came back saying, five minute limitations on sitting, standing, et cetera, but the private members' club says, since you can't do it, you are cut off.
Fortunately, or unfortunately for my wife, she was a government employee. She has a good benefits package from the hospital. The only problem is with our present government, the Liberals and the supporters, the PCs, they changed the Act, so their pension plans were changed. Back in 1986, this was before the PCs, but anyway, sorry about that, I have to correct on that note, the Liberals passed the Act, so not only is she not entitled to workers' compensation, but then they changed the disability package and said, well, retroactively we are changing it. That means, if you have an accident and you have insurance, well, you didn't have it, forget about it.
Then the fine government, the Liberal Government goes and terminates my wife's employment, so that on top of that, she loses all her medical coverage. What a great government we have. Now we have the PCs supporting it. That is all I have to say. (Applause)
MR. CHAIRMAN: Does anyone have any questions for Mr. Stulac? Thank you. Ms. Marie MacDonald.
MS. MARIE MACDONALD: My husband and I are involved in the inshore fishery. Number one, I am not a public speaker.
MR. CHAIRMAN: You don't have to be, don't worry.
MS. MARIE MACDONALD: I am nervous. We became involved with the Workers' Compensation Board in 1996. Our rate was $7.41 per $100 of wages paid. How was this rate determined? Was it that we own and operate our own vessel? No, it was not. We fish from mid-April to mid-November, weather and ice permitting. That wasn't a factor. We are involved in a day fishery. That wasn't part of the decision making. I have been told that the
only criterion or category is fresh or salt-water fishing. Therefore, we are included with the mid-shore and off-shore vessels, which fish year round and at sea for extended periods of time.
I believe if we were classified as an inshore fishery, our rate would be lower. The accident rate along the shore is low. I can think of only two major accidents in the past 20 years, one being the loss of fingers and the other, a broken leg and ribs.
My second comment is on the practice of assessment. In February, we were sent a form and told to estimate the amount of wages we will be paying for the year. We are to have this paid by March for the total year's wages to be paid. This is very unfair to us and all seasonal businesses. We do not make money until May or June. If we are unable to pay in March, we are charged interest on money that we haven't earned or wages that we haven't paid. I would like to be able to go to our fish buyer in February and say, well, I am going to catch this amount of fish and I want to be paid in March, and if you don't pay me in March, I want interest on that. That would be a pretty good deal. I think it is totally unfair.
I would like to recommend that we, as business owners pay as we do for UI and Canada Pension, monthly, and if work is done, you pay for it, not on something that you think you may get down the road.
I also would like a better classification of workers and sectors. This would reflect the safety records of those involved. We are not a winter fishery. We are a day fishery. We own and operate, we are aboard our vessels, we know what the problems are and they are repaired. We don't have to go through seven or eight people and then it may get done. I think that is why the rate of accidents is lower. As I said before, in 1996 our rate was $7.41; in 1997, it dropped to $6.98; and in 1998, it is $6.53. In the past three years, there has been an 88 cent saving. I still feel it is too high.
I would also like to recommend a blanket policy which covers all accidents, for a set fee per year, and a set pay to the injured person per month, as we have in our own policy with another insurance company for accident benefits. Having heard some of the previous speakers, I just thank God none of our crew have ever been hurt.
Having just read in the paper today at 2:30 p.m. that this hearing is going to take place, those are my comments. That is all I have to say.
MR. CHAIRMAN: Well, thank you. I have a question. How many employees do you have, Ms. [Marie] MacDonald?
MS. MARIE MACDONALD: It depends on what species we are fishing at the time. Sometimes two, three, and some are paid per week for whatever species, others are paid a percentage of the catch. It can vary. In fishing, it is a gamble. You may do well, or you may
do poorly. It is not just us, but all small businesses, have to come up with a lump sum of money in March, especially someone that is a seasonal business. We don't see any money until probably the third week in May, if we get out, if there is no ice. Prior to that, we are trying to get our gear ready, which is added dollars.
MR. CHAIRMAN: Do any of the other members of the committee have any questions? Mr. Corbett.
MR. CORBETT: Do you think it would be more advantageous for businesses like yours to be able to pay your assessment on a quarterly basis as opposed to a one-shot a year?
MS. MARIE MACDONALD: Oh God, yes. I mean, it is the same as you, would you rather get paid every month or every four months.
MR. CORBETT: I think I knew the answer.
MR. CHAIRMAN: Mr. Fage.
MR. FAGE: Just in that regard, you were suggesting in your recommendations that you would like to see it paid after the end of each month, not quarterly in advance?
MS. MARIE MACDONALD: Yes. One month, say in May and June, we lobster, maybe July, there is nothing. It is up and down, it is a roller coaster.
MR. FAGE: Thank you.
MR. CHAIRMAN: Yes. Mr. Erjavec. Ma'am, there is more.
MR. ERJAVEC: Just one or two quick questions. Do you have any idea how other provinces, particularly say Newfoundland or P.E.I. or New Brunswick treat inshore fisheries?
MS. MARIE MACDONALD: No. I hadn't time to research it, because I had heard on the radio the other day that the hearings were going to be in Sydney, Port Hawkesbury, and then Truro last week. It was just at 2:30 p.m. when I read the paper today that I heard of this hearing here. If I had had more time, I could probably have looked into that.
MR. ERJAVEC: It is maybe something I can do, and I will check out. The second thing, I don't mean to put words in your mouth, but it is quite interesting as a small business, the people I represent are small businesses, and we have sort of the same problem with the rates, and your rate is set and you have seen it go down a little bit in the last two years. It is my understanding that is not because the rates are going down, it is because you don't have any claims against you.
MS. MARIE MACDONALD: Correct. And I think this is just coming into effect, maybe because we have just became involved 1996, that this is starting.
MR. ERJAVEC: But what we see as part of the problem, and would you agree that, because you are a small business, you don't pay $20,000 of assessments, so you do not get to take full advantage of experience ratings, so that is why the increases and decreases you see are only minimal. Would you agree with that?
MS. MARIE MACDONALD: I don't know.
MR. ERJAVEC: Okay. Thank you.
MR. CHAIRMAN: Thank you very much. You are free to go now. (Applause)
Our next presenter is Mr. David Parker. Good evening, Mr. [David] Parker.
MR. DAVID PARKER: Good evening. Mr. Chairman, honourable members, ladies and gentlemen. I guess, like the last two presenters, I am coming at this from a little different angle. I am here as an employer. A little over three years ago, another brother and myself started a wood harvesting business, and yes, we do run chainsaws with a manual crew, and we have a machine to extract wood from the woods. We also, in the course of our business, acquired a small sawmill, and put that back in shape, and we occasionally run that. Of course, as soon as you register a company or apply for an employer's number, the Workers' Compensation Board is out to see you.
I have a series of complaints, I guess, and then I have some recommendations. My complaints are quite similar to Mr. Murley's. When we were sawmilling regularly, in fact more than half our payroll would have been in the sawmill, I enquired as to whether or not it would be appropriate to have a different rate for that portion of our payroll. I had enquired with other people in the sawmilling business as to what their rates where. Their response was just basically, no, we only have one rate, and whichever is the highest, that is the one we stick on you. I asked the lady, maybe I should appeal that. She said, go ahead, no one has ever overturned that on appeal. In other words, you are wasting your time. Mr. Murley has confirmed that statement, I think, this evening.
The net result is that for the sawmilling end of our business, our compensation rates are 400 per cent what our competition is. Our sawmill is not running. This is absolutely a job killer. It is not difficult to come look at our payroll records. The guys paid by the hour are working in the sawmill, the guys paid by the cord are working in the woods. We have it all detailed there. I can show it right to the penny. But it made no difference. We don't even consider it, don't waste your time, was her attitude.
Our rate is just under $12 per $100 of assessment this year; 12 per cent of our payroll, of our gross payroll. We did have one minor claim in our first year of operation. I didn't have a chance to work out the actual percentages, but I know that the money that was received by that injured worker, who worked for us for an hour and a half by the way, is less than 5 per cent of what we have paid in in the last three-plus years.
I want to know where the money is going. We are paying tens of thousands of dollars a year into this. Where does the money go? If it is not coming back to these people, and they have many valid points, where is it going? Is it a bottomless pit? It has to be going somewhere. There needs to be a serious audit done on where the money is getting spent.
Last year, just to add insult to injury, they formed something called the Nova Scotia Forest Safety Society, of which we were automatically a member, it cost us several hundred more dollars. I told the lady, and I am quite convinced it is unconstitutional, myself or our company cannot be forced to join any association. It is in our Constitution. It didn't matter. She said, take us to court. We are not worried. That is their attitude. I haven't got the time, I haven't got the money, I haven't got the energy to fight them in court. Just pay up is their attitude.
My other concern is the level of the premiums themselves. As we heard earlier this evening, for a long time the Workers' Compensation Board was underfunded, in the 1970's and 1980's, and now they are trying to address that situation. New employers, such as ourselves, are being penalized because long-established employers got a break in the 1970's and 1980's. That is not fair nor reasonable. I am paying for other companies that did not have to pay on their payroll 10 and 20 years ago. It is hurting us. It is directly a tax on new jobs.
We have a tax that kills jobs and we have a tax on new jobs. Don't dare to expand or increase your payroll. It will kill you. The net result of this, for our business and for most manual crews, is that you mechanize. I would mechanize tomorrow, if I could afford it. I never can, because I always owe money to the Workers' Compensation Board.
To give you an example of how they operate, I think it was two years ago, come March 25th, the magic date, it is a terrible time for the forestry industry, because we are just going into our shut-down period, we are looking at two-plus months where we have no income, and of course, our bank payments continue to come due. They want $18,000, $20,000, $25,000, depending on how high you dare estimate your payroll, and they want it now. And you don't have it. I asked for terms, for consideration, I paid a portion of it, and a lady called, and we made arrangements and everything was fine. Come June 2nd, I think it was, I was supposed to pay in three equal instalments at the end of June, July, and August, come June 2nd, I got a registered letter citing that the sheriff would be out to seize my assets. I hadn't paid.
That is the way. They don't even call you. They just, the sheriff is coming. Of course, you have to act on it rather quickly. It is their high-handed attitude. They don't listen. They don't meet your concerns. It is the same on both sides of the coin clearly. They are not interested in your concerns.
So, I have some recommendations. I guess the first one I will put down is, put the workers' compensation on a very short leash. You need to get a very sharp knife. You are our elected representatives. Remember that. They should answer to you, as you must answer to us. Get a sharp knife, cut it way back. Cut their budgets way back. They obviously have too much time to dream up ways to frustrate injured workers. They must be accountable to the Legislature. The Legislature is obviously accountable to us.
The second recommendation, the premiums need to be based on occupation or industry, not these broad categories, and, oh, you have that in your name, we will throw you in that category. Surely, a phone call to find out the nature of the business, as in the case of Mr. Murley, is not out of order. Surely, if we used to have 18 group ventures, and we have a fair number of private forestry consultants, surely there is enough there to warrant a category, that is reasonable.
We should be able to have a sawmill rate for our sawmill payroll, and a logging rate for our logging payroll. It is not difficult to keep separate. They have the right to audit our books, which they have. We actually pay more for our sawmill employees, because our woods crew, a portion of their salary is deemed to be to pay for the gas and oil in the power saw, which we are allowed to deduct. In fact, our sawmill employees cost us more per $100 of assessment than our woods workers.
The third recommendation is that premiums for new companies should not reflect the unfunded liabilities that were built up in the past. I should not have to pay for someone else's bill and someone else's negligence. If you start a company after the unfunded liability was built up, you should have a different rate.
I guess that is about it.
MR. CHAIRMAN: Thank you very much Mr. [David] Parker. Are there any questions from any of the members? I guess the only question I had from your presentation, Mr. Parker, is, you are paying a higher rate for the sawmill operation or for the woods operation?
MR. DAVID PARKER: Sawmill, because woods workers, a portion of their pay is deemed to be for gas, oil and power saw expenses, 25 per cent of it. So in fact, we pay $9-something per $100 of assessment for woods workers, and I have no doubt that is more dangerous, I don't dispute for a minute that it is a dangerous occupation. The sawmill
workers, because they are getting an hourly wage, they don't have to supply gas, oil or a power saw, their full salary is subject to the $12 rate, $11.97, I think it is this year.
MR. CHAIRMAN: Thank you very much. Mr. Erjavec.
MR. ERJAVEC: Just one quick question, the committee is looking at a whole range of different issues and some of them could lead to increased premiums. What would the impact be on your business?
MR. DAVID PARKER: It means fewer jobs. It may mean the end of our business. We are already uncompetitive with most other jurisdictions.
MR. CHAIRMAN: Thank you very much. Mr. [Charles] MacDonald.
MR. CHARLES MACDONALD: Just a clarification, Mr. [David] Parker. You said that your premiums were 400 per cent above your competition, or other people in similar industries?
MR. DAVID PARKER: In the sawmill industry, yes. I have checked with some of them, they were as low as $3 per $100, we are at $12 per $100.
MR. CHARLES MACDONALD: That is here in Nova Scotia?
MR. DAVID PARKER: That is correct.
MR. CHARLES MACDONALD: But you are there because they won't let you separate your sawmill from your woods operation, is that what I understand?
MR. DAVID PARKER: That is correct.
MR. CHARLES MACDONALD: Thank you.
MR. CHAIRMAN: Thank you very much. (Applause) Ladies and gentlemen, I believe that brings us to the end of our list of presenters for this evening. On behalf of the Select Committee on Workers' Compensation, I would like to thank the members of the public - many of you have been here all day - for attending our proceeding. We particularly thank those people who took the time out of their schedules to make some very thorough presentations. Thank you very much. Good evening.
[The committee adjourned at 10:24 p.m.]
