Affiliation: Workers' Compensation Board

Staff Present: TR, GG, OE, GS, SN, PL

Notetaker: Steven Noble

Date: Thursday, April 16, 1998

• GENERAL REBUTTAL DISCUSSION: OCCUPATIONAL DISEASE
• ALAN WINTER
• I’ll be attempting to cover three topics this morning on occupational diseases and the three topics I’m going to deal with this morning – the first one I’m going to start with I’m going to put under the heading of workplace stress, the second topic I’ll deal with is section 61a and there the issue is the words – thereby disabled from earnings and wages at the work in which the worker was employed; and then I’ll end with some discussion on section 6.3 and Schedule "B".
• Starting with workplace stress; I went to the Canadian Mental Health Association – they have all sorts of brochures on stress, etc. This is the opening of their brochure called "stress" it says – we all talk about stress but we are not always clear about what it is. This is because stress comes from the good and the bad things that happen to us. If we did not feel any stress we would not be alive. Stress becomes a problem when we are not sure how to handle an event or a situation. Then worry sets in and we feel stress. The things that cause stress to you may not be a problem for your neighbour and things that bring stress to your neighbour’s life may not worry you at all. It’s how you think about and react to certain events that determines whether you find them stressful or fairly easy to deal with.
• I think in lay language that tries to set out what we are going to be talking about – I’m going to be talking about this morning. When I speak of stress I’m talking about a person’s reaction to events and stimuli and what we will be focusing today is the mental, psychological stressors, which produce a mental, psychological disability. It has been referred to as a mental – mental claim. And you’ll see the different categories of physical-physical, physical-mental, mental-physical, mental-mental discussed in the discussion paper of the then Chief Appeals Commissioner, Connie Munroe, it’s reported and it was a 1993 decision and it’s in 9 WCR and I don’t have the rest of the cite right here but – sorry – 10 WCR 257.
• To start with what the employers are seeking and then to get to the discussion of why. What the employers are seeking is that the Act should specify the claims based on workplace stress – psychological claims – based on workplace stress are only compensable if the stress is an acute reaction to a traumatic workplace event.
• And why is the employer community seeking that provision to the Act? The employer community believes that compensation benefits should only be payable to the worker when the disabling injury or disease is directly related to the worker’s employment. As I think I’ve indicated as the two weeks have gone on –over the last two years the employer community perceives that the Workers’ Compensation Board has significantly broadened the parameters of potential entitlement to benefits so as to effectively blur the significance of the employment relationship as being the causal factor leading to the worker’s injury or disease.
• Q: When you say there should be a direct causation to the workplace you don’t mean by that that the workplace should be identified as the sole cause of the stress?
• A: No, not the sole cause –but there would have to be a direct link if you could point to the work and say – I think we’ve talked before about significant causation.
• The employer community believes that compensability of workplace stress – psychological claims is a compelling illustration of how the entitlement under the Workers' Compensation Act has been broadened. We identify some of the direct concerns and then turn to one of the decisions to show where the concern comes from. First - stress is a part of life as I just tried to indicate through the Canadian Mental Health Association. Chronic stress arises from a variety of factors. Some of which may be related to the worker’s employment but many of which are related to the worker’s private life. And the problem with stress and chronic stress – I think it is similar to chronic pain as I talked about a couple of days ago. In that it is usually a multi-factoral circumstance. You can’t just pick out one factor – and say there it is – that caused it. It is normally a combination of a variety of factors working together over time that result in chronic stress. In our submission the workers' compensation system was not designed to deal with the psychological disability which arises from multiple psychological influences. Rather this kind of disability has multiple psychological factors, both work and non-work related, should be considered a public health issue not a workers' compensation issue. It is not a matter within the control of the employer.
• Second – chronic stress claims are very subjective to the particular worker – again as I tried to indicate to you through the Canadian Mental Health Association’s guide.
• What one person may find stressful, another may not. Individuals will react differently to stress factors – some of those arise in positive situations – we normally think of stress coming from negative situations but that is not accurate – again it is an individual reaction. For example when you turn to the workplace a positive stressful reaction may be an upcoming promotion. Going to a new job that has new skills that you find a stress related anxiety about how you are going to do in that job.
• Getting married –we all hear stories about the nervousness of the bride or groom the night before they get married. Buying and moving into a new home can be a stressful situation but of course there are always a lot of negative situations that also cause stressful situations - overwork in the work in the work environment, stuck in traffic as we’ve had a couple of times this week can cause stress, conflicts with family members can cause stress – there are long term stressors - financial pressures, health pressures - all of these things in different people have different reactions for that person. And it is very difficult to establish any objective tests for determining the role of any of these stressors will have –let alone any particular workplace stressor may have subjectively on that individual.
• Q: Perhaps you could just clarify it for me - two elements of what you’ve said in my mind seem to have some element of conflict – on the one hand you’ve said that if there is a direct linkage to the workplace using the causative significance threshold that it should be compensable. On the other hand you’ve said where it is multi factoral that it should not be compensable but rather should be considered a public health issue – isn’t there some element of conflict in those two statements?
• A: When we talk acute I think there will be some element of conflict because you normally have an incident that you can point to and you have a cause/effect relationship. I think when you have chronic stress and the multiple factors that do that I think the cause and effect blur to the extent that it becomes most difficult if not almost impossible to try and get it to show causative significance at the level that you need to to be able to compensate. I don’t think causative significance means at any level. If – if you take a hypothetical and I don’t know what the event would be but if this has a 1% causative significance – 99% was elsewhere I don’t think again that was intended to be covered by the workers' compensation system.

Q: So how do you measure causative significance to determine compensability?

A: I think what the Board does is use a balance of probabilities.

Q: Well, just a minute – a balance of probabilities as a standard of proof or a balance of probabilities as a degree of contribution?

A: I’m sorry – I got the first part – the standard of proof – I didn’t hear the second part?

Q: Degree of contribution? In other words are you saying it’s got to be at least 50% responsible - the workplace? Or you have to be at least 50% sure that there was some lower level of contribution by the workplace?

A: Well, again I think the problem we get to is an all are nothing system. We chatted a little bit about this before – let’s switch to a different kind of example just to explore it – so take lung cancers and you work in an environment that you have exposure to work that can cause lung cancer and you smoked for 40 or 50 years – hack years –that is where I think they apply the balance of probabilities and they do it on a setting standard. They both may have causative significance but it is an all or nothing. You don’t get it that’s fine or this is a 20% causative significance so I’m going to give you 20% compensation or this is an 80% – when they do that balancing they find out what is on the balance of probabilities the causative significance that resulted in the disability. I think when you get to psychological it gets even harder to try to identify what the different causal factors are; when you get to some of the occupational diseases at least you have an idea of what the causal factors are and you can try to weigh the two or three that you know are there and which one was the most likely – I think that’s the test they use – most likely that caused the situation.

Q: If you look at the tort analysis and perhaps Mr. Robertson can correct me if I misstate the law here –if there are a number of different contributing factors or let’s say tort feasors contributing to a given condition – each and every one of those tort feasors are individually liable to compensate for the full amount of the condition if they had to use your words –each on their own – individually causative significance in producing that condition. How they sort it out between themselves is another matter.

A: If they have fault I assume with the tort because you may have causative significance –but the machine by itself may have had some malfunction that could not have been known or should not have been known by the employer and was a factor in causing the injury – you would take out part – maybe that factor too – you are saying tort feasors – I see a bit different than when I see….

Q: Yes, I agree with you in the tort system – I am assuming fault has been established – so it is simply an issue of causation and all tort feasors, fault aside, that have contributed beyond some kind of diminomus capacity to the condition are individually liable for the full amount.

A: That’s correct; other than under workers' compensation when you get into court they don’t do a joint and sever. But yes I understand your point but I am not sure it has application here when we are looking at what the cause was. Again I try to put it to your example of tort feasors where you have three tort feasors, you’re suing and one is found not to be liable at all and they are taken out. You still have the other two responsible and then you have contributory negligence – the person – the victim is claiming that the injury was caused by others but it is shown they had a cause too if I understand tort law – that is deducted. How does that all fit into Workers' Compensation Board– I’m not sure it does. I have a difficulty when trying to see when you have tort feasors that are joint and several – is that how you work when you have four different factors that cause lung cancer and they are all joint and several. And so that’s all you have to do is find that work had a part and the work then gets 100% of the factor. I’m not sure that’s how the system is supposed to work. I know I have one client which is the Employers' Coordinating Group which has come to the Royal Commission and asked for proportional entitlement – Alcan has come and said well why is it an all or nothing situation. That I think would start to answer the causative significance as a much deeper impact in the system because we have to look at any factor that had causative significance whatever that was – and then attribute the employment side to the compensation it’s going to pick up and not for others but when base compensation system on an all or nothing I think you have to have a line on causative significance; I don’t think the intent was no matter how small the causative significance it’s 100% compensation. I think that goes against the standard that is used to weigh compensation’s balance of probability. Again, I think it’s easier to focus on that when you look at it – it’s the lung cancer situation. And if everybody agreed that it was 80% smoking and 20% work I don’t think there are many people and I’m sure Mr. Sayre and Mr. Steeves may well disagree with me but I don’t think there’s many people who would fight that case.

Another concern of the employer community when we get to these chronic stress cases – there are many valid labour relation or employment decisions which must be made by employer which may certainly cause a stressful reaction by a particular worker. For example – the impending lay off of employees for economic reasons certainly has the potential for creating a stressful situation for that worker. The worker then does suffer severe stressful reaction due to the upcoming financial upheaval in his or her life which disables him or her from working it is difficult to see why the workers' compensation system is the one in society that is expected to bear the cost of that labour relations decision. In fact when we talk a little bit later most jurisdictions when they were asked to put it in legislation exclude that aspect from compensability – labour relations, employee relations and decisions such as demotion/transfer/termination/lay off.

Another aspect is the employer community does have a general concern with respect to the potential misuse of the workers' compensation system by workers who are not satisfied with their work environment and who utilize workers' compensation claims to express that dissatisfaction. I have had employers advise me and I have been involved in some cases where the timing of the claim certainly is coincidental to the anticipated termination or lay off and certainly I’ve had cases where there is very bad personality conflicts between either cons-workers, or worker and supervisor and we see that displayed in many ways; one of them being a workers' compensation claim.

Finally, if chronic stress claims become generally acceptable under the workers' compensation scheme in BC the employer community has the genuine concern the number of such claims will significantly increase. And the cost implications to the system are potentially staggering. And we do ask the Commission to inquire into and review the California experience. I think Mr. Steeves has continually referred to – I can’t remember who it may have been – maybe Mr. Burton’s article about that it is an inflated amount that is being put forward as the cost in California. Mr. Rolland when he presented on behalf of the Board – page 24 of the transcripts on the afternoon of occupational disease – he says he was in California for a seminar and had discussions with various California Board people and they advised him that stress claims over a few years the costs went to 40% of their total overall costs of the system. Now the policy and the practice of the Board is clearly are supportive of the employers’ position. Prior to November 1993 when Ms Munroe prepared her discussion paper the most common reading and interpretation of the Board policy as regard claims involving psychological aspects of the work environment were fourfold. And it is set out on pages 266 and 267 of the decision for your future reference.

First - the Board does not recognize any form of psychological impairment as an industrial disease; second to be compensable the psychological impairment must come within the meaning of the word personal injury or alternatively be the consequence of a compensable physical injury or industrial disease. Third the definition of personal injury includes psychological impairment but the psychological impairment must be traumatically induced to be compensable, therefore the stress of work could not give rise to psychological impairment and fourth – a state of emotional and physical exhaustion due to the stress of work overtime is neither compensable as an injury nor as an industrial disease. It is not compensable as an injury because it is not traumatically induced and it is not compensable as an industrial disease because the Board does not recognize any psychological or emotional conditions as industrial diseases. And it is noted by Ms Munroe on page 267 that it is my understanding that this interpretation of the governors’ policy is generally consistent with the Board’s current practice. So in other words, the practice at that time was an acute psychological reaction to a traumatic event would be compensable. Such as a worker who suffers depression after having an arm amputated because it was a work related injury the depression is compensable or a bank teller who suffers a psychological reaction after witnessing a fatal shooting –that’s a mental-mental but it had an acute traumatic incident so that’s compensable.

Q: can I just get you to go back to Number 2 – you listed four points there?

A: Number Two?

Q: Yes.

A: To be compensable the psychological impairment must come within the meaning of the word personal injury or alternatively must be the consequence of a compensable, physical injury or industrial disease.

Now it’s clear when you read the discussion paper – which is clearly more than a discussion paper when you look at the other cases that have followed it but Ms Munroe obviously disagreed with the common interpretation of the governors’ policy. It was her view that the Act placed no apparent limitation on the compensability of what she refers to as "truly work-caused disabilities" – and that included chronic, non-traumatic, psychological impairment. Nevertheless as we heard from the Board’s presenters – the Board’s interpretation of the existing policy under adjudicative practices remains the same as it did before Ms Munroe’s discussion paper.

I’d like to spend a couple of minutes on one of the first cases that raised the alarm bells in the employer community’s mind. And I have provided you with that – this is the November 1991 decision of the Appeal Division called:

A Claim for Suicide.

It is reported in 7 WCR 223; this is 6 months after the advent of the Appeal Division.

What happened in this case was the deceased was employed in a senior management capacity for the government. On a Sunday he went in twice during the day to get ready for interviews to fill staff vacancies that were going to occur the following week. During the evening session in the office he had a 2-hour phone call with his wife. The Appeal Division panel found there was absolutely no indication during that phone call of distress or any indication of what was about to occur. Some time after the phone call the person committed suicide by jumping over an internal staircase. On the first page of the case – well first off the Appeal Division found in this case that it would be speculative – there was no indication the person had stress from work that caused the suicide and she went through all before – the discussion with the wife, other circumstances and concluded that it would be purely speculation to decide either way –that it was personal factors, that it was work factors and that you cannot accept the claim just on speculation. That was all was acceptable – the part that gave the employer community concern is at the bottom of page 223 – the first page. And I provide you with the case, at the very bottom it says this

• In determining the compensability of any death the operative section of the Act is section 5.1 which requires where a death arises out of or in the course of employment compensation shall be paid by the Board. [here is the key sentence] Death by suicide is therefore compensable if [and underlying the words] occupational stress was a significant causative factor.

That was a whole new area for us. She tied it into the claims manual, which she sets out right above – it says in the case of a suicide death benefits are payable if it is established that the suicide resulted from a compensable injury. No where before the case and are we aware of in the employer community that a compensable injury included occupational stress. And so that was the jump that raised the concern in the employer’s mind. Now the case was denied so that was the end of that matter so we thought. But what I’d like to do for a couple of minutes is go through some of the factors that the dependents were relying on to say work did cause the stress because I think that’s going to again help the Royal Commission focus on what are some of the stressors that are being relied to say that workers' compensation should step in and compensate in that situation.

If you turn to page 225 – they had two pieces of evidence that they had to weight; the first one was in the 2^nd paragraph on that page. It says – the contention on behalf of the appellants is that the evidence is overwhelming that the deceased was driven to commit suicide by work pressures. It says the appellant contends and the employer is in substantial agreement that the particular workplace was the subject of considerable disruption. The demands made upon employees, particularly upon senior management were significant and many employees faced uncertainties regarding future employment. So that’s what we are told about the nature of the evidence and so if I understand the disruption they are talking about, it was understaffing which they tried to fill and overwork resulting from that – especially in senior management. Then if you turn the page you have a psychological assessment that was filed on behalf of the appellant – on page 226 and it is in the quotes. – I’m sorry this is the coroner’s information – it says – several of the individuals interviewed by Mr. West reported that perhaps the deceased was in over his head in his new position as he did not feel comfortable making decisions as well as various other top level management responsibilities. And then the next paragraph – Mr. West reported that this must have troubled the deceased and we need only to reflect back on his need for perspection. It was entirely possible that the deceased was experiencing feelings of unrelenting pressure and tension coupled with the loss of personal self-confidence. It is generally perceived in much of the research that jobs perceived as highly demanding lead to both dissatisfaction and psychological anxiety.

Now again the Appeal Division found that all speculative so that is why they didn’t have to weigh whether that would do it but that was the nature of the evidence that was being argued caused occupational stress that led to suicide. And again we are back into a person who is in a job that they seem to be dissatisfied with for whatever reason; overwork, they don’t have the qualities or they perceive they don’t have the attributes to be leader to do the job well as they would like to do. I think everybody realizes that that would cause a stressful reaction. But that is not the question you have to answer. The question you have to answer is is that kind of stressful reaction to what would appear to be a normal work environment intended to be compensable under the workers' compensation system?

If it is that’s where we get back to our concern. The employer community are saying where are the limits? Where do we stop? Where does the system ever say I understand that you find that stressful but that doesn’t fall under our system? It seems that there wouldn’t be a line. That every case of an employee coming forward and saying I just find this stressful – would be compensable.

Q: I just picked up on a phrase you worked in there –reaction to what would be a normal work environment. What is a normal work environment? It seems we started out with this Act that compensates for – that compensates for unforeseen accidents – physical trauma and it seems to have gradually moved towards, including compensation for injury arising out of doing the very thing you have been hired to do. And in other words being compensated for factors increasingly that are intrinsic in work itself as opposed to being fortuitous and unforeseen accidents. Isn’t stress really one of those – workplace stress one of those factors?

A: I think it is one of those factors, and again the complicating problem is that each person is going to take that factor differently. Some people may have been thrilled to have this job – to have the leadership ability and think they can do it and maybe not even do it as well as this person was doing it but thinking this is great; I’m doing it. And that’s where I think we get into problems. Some of the reading I was trying to do on California – the problem they identified I think which I think you’ve just identified Mr. Chairman is the Act came in in 1917 when we were dealing primarily with traumatic injuries. We weren’t dealing with occupational diseases and psychological illnesses. And trying to apply concepts in the Act today to these kinds of illnesses is difficult and I think that’s one of the reasons why you’re finding some jurisdictions going in and legislating of what they intend. Some have legislated that you don’t have stress altogether, others are putting in the predominant factor or other parameters around how you are going to compensate this kind of issue. And I think that’s the issue that you’ve just raised. The way the employer community is advocating to deal with that on the stress side is that unless it is an acute traumatic event it should not be compensable.

Q: Mr. Winter, what do you say about a situation where a supervisor has taken a dislike to an employee under his supervision and over an extended period of time is abusive and deliberately seeks to break the person down to get rid of them – that’s a cumulative stressful environment in the workplace that takes place by virtue of – and it takes place by virtue of the power given the supervisor for the employee – do you say that that is not a compensable situation – that the employee in fact breaks down and becomes disabled?

A: I do – and let me say what I think should happen there – but just to highlight that point –that is what I had in my mind when I used the phrase - normal usual work environment –you are going to get into harassment and sexual harassment. A lot of these cases that I’ve been involved with are harassment and sexual harassment – I’ve had the opportunity to deal with both counsel on that kind of case. And those are very difficult ones - why do we say – why do I say that that is not compensable? Again I think what we are looking at is chronic, psychological illnesses that arise from psychological stimuli – the ruler the employers are trying to set is it should not be compensable. We recognize that there are certain types of disability that may arise from actions that are not part of the normal work environment and I put harassment, sexual harassment in that situation. When you exclude chronic stress I agree with the premise that is raised here and is in the Briefing Paper – that opens up the ability to sue. Opens up tort action because it is not something that is covered under the Act. And that is where that lies; harassment and sexual harassment – why do I say that? Those cases involve allegations of fault. To establish the case of harassment and sexual harassment one must establish intent and fault to some degree. It has connotations of wrongful action. And that has to be established. And unfortunately a lot of those cases have the flip side of what would be considered negligence in tort law. Hey you do it too. This isn’t me this is you. You caused this problem. And those are the types of cases that I’ve had here. The claimant throws it at the supervisor; the supervisor throws it right back at the claimant. And we are putting the Workers' Compensation Board in adjudicating fault. And that was never what the system was based on and there are alternate systems that are better able and would be barred from considering those cases if the historic compromise stays. Or else you get into multiple choices on suit. And Human Rights is the main one; we’ve talked about sexual harassment. I see too many cases where you get the harassment charge and if it is sexual harassment we get three – at least three – sometimes four concurrent actions all going at once. You’ve got the Workers' Compensation Board claim, the Human Rights claim, and constructive dismissal in court, and if there are – we get some labour relations or collective agreement claim.

So my answer Mr. Robertson is we are getting into fault based areas and the workers' compensation system is not geared to deal with that. Nor should it in my submission. And that is where – because it would be excluded from the Act those are proper to be dealt with in those other forums.

Q: Is there a common law cause of action against an abusive supervisor that inflicts mental suffering and causing disability?

A: There is certainly constructive dismissal. And law – so that is how they deal with harassment but I’m not sure if there is a –certainly sexual harassment has Human Rights prospect. Some Human Rights Acts I don’t think are – I know the Yukon does – actually has harassment as well as sexual harassment but the harassment common law that I’m experienced with would be the constructive dismissal case.

Q: But constructive dismissal wouldn’t necessary compensate for the psychological damage would it? An action for constructive dismissal?

A: It depends; I mean it’s contract so it’s based on putting the person back in the position they were in as if the contract wasn’t breached.

Q: So you would get the appropriate notice?

A: But see if it is harassment that leads to a psychological disability notice doesn’t run during that period of time and whatever you would have got from the employer for the disability you are still entitled to and notice is on top – after that. So it depends on the benefits of the contract and what the person would or would not get. If there are no benefits then it is just a notice matter. Okay, that’s enough of that topic.

Back to the case – what happened then is - a Medical Review Panel was request was made by the dependents from the decision that the suicide wasn’t caused by work and again as I said yesterday it was the Medical Review Panel that overturned that decision – you’ll see that; I’ve given that to you also. It was attached to the document by paper clip.

And they made a finding and this is the consideration yesterday – this would be a contrary finding of fact. But regardless they made the finding; and it’s point 3 of this finding that’s a concern – it says – the worker’s employment had caused significance in the suicide. The worker had an obsessive personality structure; this resulted in a maladaptive response to stress. The panel is aware of multiple stress factors including those in the lengthy telephone conversation with his wife immediately preceding his death – which is interesting because if you read the Appeal Division decision it doesn’t find any indication of stressful factors from the phone call. Nevertheless it is the opinion of the panel that the major stress factors in his life arose from work. The combination of the obsessive personality and the atypical work environment from gross understaffing and undiminished demands for performance led to a crisis which the worker apparently concluded he no alternative other than suicide.

And that was that. Now the employer community believes out of all that it seems to be a totally unacceptable concept for the workers' compensation system of BC to be held responsible as to provide compensation benefits which is as the result of a very personal and very subjective decision of someone to commit suicide. And especially when the person was described as being an obsessive personality structure. Again this is where we try to – you look at the person as a whole and not try to dissect one part here; one part there; one part here and say – well okay now we are going to say work had a – here they said 50%-50% aspect to it. Again the employer community believes that there has to be some level of acceptance of responsibility for people for their own serious, personal and far-reaching actions such as a suicide. Now the other point to note with respect to stress, which will be my closing point on this is that other jurisdictions have all contemplated this issue one way or another. And the Briefing Paper on stress in Appendix A deals with it. All Canadian jurisdictions with the exception of Saskatchewan and maybe the Yukon preclude recovery of workers' compensation for chronic stress. And we say maybe the Yukon because they had that policy and their Act changed. And so we are not quite sure what that did. Saskatchewan is the only one that has a policy that provides compensation when certain factors are met. Manitoba passed legislation in 1991, New Brunswick in 1992, Prince Edward Island 1994 – and that was to apparently get around a Court of Appeal decision in Dowling where similar legislative provision – the worker had a reactive depression and the court of appeal found the policy was unlawful to deny compensation and then within a couple of months the legislation was changed to say no compensation for stress unless it is for acute, traumatic reaction, Nova Scotia in 1995, and lastly Ontario in 1997. I’ve provided you the Ontario Hansard transcript; I won’t read it but I’ve highlighted on the third page about the discussion by the Minister of moving the original mandate of workers' compensation as workplace accident insurance plan.

Q: If I could just ask you to clarify your position on the vulnerable worker –if you have a workplace event that according to your proposed criteria would qualify for a psychological disability –let’s say there was a bank robbery or something that was a traumatic workplace event. That event could affect different workers differently so something like that caused one worker to need some time off work and another to commit suicide –would the suicide be compensable?

A: Under what we propose the answer would be yes because we have an acute traumatic reaction – there is a cause-effect link that is much more obvious and determinable.

Q: So the fact that you have the "thin skull" worker in a legal sense doesn’t preclude that – compensation from being provided accordingly?

A: I don’t think "thin skull" is applied much differently under workers' compensation other than the relief side or the section 5 than it would be in tort law. Again, I think the concern is not the "thin skull" – the concern is the causative significance. You start on chronic – gradual long-term build up of psychological-psychological and that’s where you start getting into the cause-effect problem.

So if I may I’m going to turn to Section 6.1 which should take two minutes. And then finish on section 6.3.

The issue of 6.1a which is occupational disease –section 6.1a says that in order to receive compensation if you have an occupational disease the worker has to be thereby disabled from earning full wages at the work in which the worker was employed. And the example is a fire fighter suffers a heart attack after a time – no compensation only healthcare benefits. Same with – I’ve been involved with several cases that the Board has adjudicated for ALCAN where bladder cancer was a known cause and effect relationship from working in the pot rooms at ALCAN. If the bladder cancer occurs after retirement again section 6.1a kicks in and healthcare benefits are paid. So assuming that there is a work related condition for the situation – a fire fighter who has a heart attack, after retirement the ALCAN employee develops bladder cancer after leaving the workforce – the issue that is being raised here is well should the worker get compensation benefits – not just healthcare. The employer community answer is clearly no. And the reason for that is the discussions we’ve had in earlier days –if the Royal Commission accepts the principle at the end of the day that the intent of the Act is to provide financial protection from loss of earnings – economic earnings resulting from the injury or illness there is no justification for compensation after retirement – after leaving the workforce because there are no loss of earnings. I don’t think there can be any dispute that the current focus of the Act is economics – all you have to do is look at section 33 which we’ve talked a lot about – average earnings. And then section 22.23 which is the permanent disability section and 29 and 30 which are the temporary – they are all tied into loss of earnings. And so if you did provide compensation beyond the retirement years; when it occurred after retirement you’d be providing for a non-economic loss. You would basically be paying for loss of enjoyment of retirement years. My submission is that is not compensable under the Act.

Q: What if the person, although retired had dependents?

A: Okay, now that is where the anomaly under dependents. What happens under our Act is dependents have a separate right. Once the death occurs and the problem is that dependents do receive compensation if the death was work related. Regardless on the loss of earnings if any for the worker. And the anomaly flows from section 17 which has the words – where compensation is payable as the result of a death of a worker and then in section 5.1 says death arising out of and in the course of employment is compensable – there’s no economic tie there. The employer’s community view is that is the anomaly that should be fixed. That if the worker was not entitled to receive any compensation because they were in their retirement years they had no loss –the dependents should have no loss that the workers' compensation Act should step in and compensate for.

Q: Am I correct that if it is a functional pension that it continues on beyond retirement to death?

A: A functional pension that was awarded before retirement – yes – if the functional impairment occurs before retirement – yes – it is paid for life.

Q: That is not economic loss after the effective retirement date is it?

A: And again that’s true and we well could make an argument that that should be looked at too but I accept the philosophy behind that and that is the functional is not given on the individual it is given on the average. You look at a thousand workers – each losing a finger or hand – some are not going to have any impact; some are going to have a significant impact – when you put them all together what they would have is the average and that is what everybody gets subject to loss of earnings. And then it takes into recognition what is the impact on such a thing as retirement funds, etc. etc. and it’s paid for life – the Act mandates that it is given for life.

Q: That seems to undermine your underlying principle of what you are saying?

A: No, I don’t think it does because if you go and explore why that was done it was done to cover an economic loss that was on average was anticipated for life. That is all I have to say about section 6.1 if I have 5 minutes I will deal with section 6.3.

Q: We are just discussing Mr. Winter whether the deceased worker who developed symptoms of a latent disease caused in the workplace after age 65 would have any bar to a tort action? Presumably not.

A: That is a very interesting question.

Q: If he wasn’t entitled to compensation but it was exposure in the workplace that caused the disease and there was negligence presumably he wouldn’t be barred under a Section 10?

A: I’m not sure about that; the reason for that is the Act still applies to some degree – you still get healthcare benefits under Section 6.1 regardless. So once we have the act apply to that person in some way I’m not quite sure if the bar applies. I think that is different than when we are talking about chronic stress and we say take it out all together.

Q: Perhaps that’s a bit esoteric for us to take your time up with today. It is an interesting idea.

Q: Indeed, or whether the dependents would have a Family Compensation Act claim against the employer?

A: That is a logical discussion because they don’t get healthcare if I understand how this works – I really don’t have an answer to say I agree or disagree with that. More food for thought.

Section 6.3

A couple of quick issues – there are two in section 6.3 itself - the words at or immediately before to even get the presumption to apply – those words came in 1917 and they have been in the Act ever since. There were no cancer concerns addressed through the Act in 1917 that we could see and clearly cancers are in Schedule "B" and cancers have latency periods. The way the Board tried to rectify that was by policy and they put in an exception to at or immediately before by saying if there is medical evidence to show long latency period for cancer we exclude that period. We took that on in the ALCAN case – there was a 19 year absence – it was a 19 latency period and the Appeal Division agreed that it was an unlawful policy; you could not interpret the words immediately before to include 19 years. Regardless the employer community that I’ve talked to – certainly ALCAN – but again I’m not representing ALCAN here but they are part of Employers' Coordinating Group if I understand it - believe that that it is something that the Act should look at. At or immediately before should – if cancers are going to stay in Schedule "B" at or immediately before should have an exception for latency periods. Or else there is no reason for having cancers on the Schedule "B" except for the people who are still working there but they are still going through the long latency period.

The other issue in 6.3 is unless the contrary is proved. And that is the standard to meet the presumption. There is no doubt when you read the manual; I think most people agree the standard is the balance of probabilities to meet the presumption. The problem is how that standard is applied. At least from the employer community it looks to be applied to a test of certainty. I won’t go through the graphs because I don’t have time but the two I raised during presentation day were the situation where there was an alternate cause raised – and the fire fighter heart – there was a Review Board decision in 1993 that had all sorts of other symptoms; smoking, hypertension, elevated cholesterol – and two medical opinions, both saying that the presumption still couldn’t be rebutted. I asked if they were aware of any fire fighter case – cancer – heart that wasn’t accepted - I think they may have said there was one; I don’t recall. And so meeting that test – even when you show another cause is very difficult if at all possible; the same thing on lung cancer and smoking. The other factor is that when there is no other cause – the issue is cancer of the skin and coal tar. And the issue that the employer put forward in that case was well melanoma can’t be caused by – isn’t known to be caused by coal tar and we put in all the evidence – we thought we met the presumption and as you heard many times already and we went through court that it wasn’t good enough.

I think the Review Board explained it best. You’ll see in the claims manual in section 26.21 – they talk about what the presumption is for. At the Review Board decision XY86114652, dated November 28, 1990 – it was one of the fire fighter cases talked about the standard and I think they say it right and we talked about it yesterday – so I won’t spend time on it today but what the presumption does is takes away the odds of any evidence. Nobody has to put any evidence in – it starts with – this is compensable – fire fighter heart compensable -

Q: What is that decision again?

A: XY86114652. November 28, 1990 – Review Board – the Appeal Division cases are reported but not the Review Board.

What they said was –all the presumption does is you don’t know this to put in any evidence –but it still has to be weighed by the balance of possibilities – the person coming in and arguing against the presumption has the onus – for want of a better term – in this case to meet that presumption - the balance of probabilities. And that in my submission is the proper focus. That’s what the presumption does; it takes off any – to put in any evidence that’s already established that there is a connection. But doesn’t take away the onus of the tribunal to weigh the evidence that is put forward on a balance of probabilities has the presumption been rebutted. And if you accept that logic in my submission there should be no difference whether it is shown as an alternate cause or it is shown as no other cause that that cause couldn’t be.

Two small points on Schedule "B" and then I’m finished. Schedule "B" - I know both Mr. Steeves and I Mr. Chairman were perturbed when we talked about the fire fighter heart case – I was not seeking the Royal Commission and I do not seek the Royal Commission to adjudicate that issue. It’s on Schedule "B" so it comes off; it gets revised; it stays – it is on Schedule "B". The point was the same as the Roger’s Classification – it was first raised by the Board in a letter from Dr. Whitehead – the controversy was acknowledged back in February of 1989. The Board had an opinion from Dr. Misgawa in November 1994 and the issue is still there. What the employer community was seeking was a resolution of the issue. And to make it stay out for ten or eleven years is not appropriate. If the employer community is correct then it has to be determined. That there is not a connection – people are still receiving compensation for what appears not to be a compensable injury. If the employer community is wrong it is going to stay in the schedule anyways. What we are looking for is a similar request as the Commission did when it went rate review. We think there has to be a mandated legislated requirement that the listed items on Schedule "B" are reviewed on a regular basis. We are proposing two years for continued relevancy and inclusion. Similar to what the Royal Commission has recommended on rate review. And that is a bigger process. And there it was three years.

Lastly, Schedule "B" uses a variety of different terminology; I went through that with the witnesses – prolonged exposure, accepted exposure, repeated exposure, close and frequent contact, established contact, prolonged contact, and just to confuse us – prolonged exposure to excessive noise levels. We must have to have some consistent terminology. Prolonged seems to be length of time; excessive seems to be sufficiency of exposure, and then you get into the problem of identifying the fire fighters and you use as a surrogate the length of time that they were a fire fighter and that’s prolonged but it doesn’t help us on sufficiency and when we get into issues like benzene there are acceptable limits to exposure to benzene on a daily basis – an 8 hour shift but prolonged doesn’t cover that. And so the recommendation is we need consistent terminology and maybe define it; may be prolonged can be defined in both length of time and sufficiency of exposure.

Those are all my submissions.

I’m going to talk about a couple of problem areas concerning industrial diseases and since it’s been raised in that context I’m going to talk a bit about the comments that Mr. Winter made about what he termed stress cases. I’m not sure that they are properly categorized as an industrial disease; I’m not sure – I have submitted to you before and will continue to submit to you that stress is not an appropriate term for the types of conditions that the Board would properly be dealing with. So arising out of psychological disabilities but in any event that’s the term that everyone seems to be using so I may fall into using it myself.

Before getting to that though there’s a couple of relatively brief points regarding occupational diseases that I want to address. I’m going to leave a good deal of detail to Mr. Steeves – he is the expert in this; knows more about it than I do. As far as the language is concerned in section 6.1; the point that was made of whether the worker should be entitled to compensation if they’ve retired by the time that the disease manifests itself. I suppose one could analyze it both ways – the concern that I have and I would ask you to consider on behalf of injured workers – is that their perception of the present situation is that they have a clearly disabling condition that can end up shortening their lives and certainly end up affecting their lives and the quality of their lives which arose out of the workplace and which is acknowledge to have arisen out of the workplace and the consequence of the language of section 6.1 is that they receive no compensation for it whatever - that seems discriminatory – it seems unfair. And I don’t think that any rationale that any of us could give based on the historical compromise or the fact that they have already retired so they are not losing any wages on a day to day basis is going to make seem any less unfair and discriminatory.

If the Royal Commission were to accept my submission that the Act should allow an award for non-pecuniary losses for serious conditions that might well may be the most appropriate response to this situation –is to say the worker will get a portion of money as a lump sum in compensation for the impact which an occupational disease has on their lives and if they are in their 70’s or 80’s when the disease manifests itself and have retired for some time are continuing to get their pensions so they haven’t really lost any income as a result of the disease. Otherwise it would be our position that that language should be removed form the Act so that compensation can be paid based on their wage rate and based on a functional pension basis as if the disease had first arisen while they were still employed.

The second point relates to a letter – a memo actually that I received from Mr. Chrismer that I just past out to you. This came to my mind as a result of the – attending that session on the employers’ services strategy proposals and a comment was made during that session that industrial disease claims were not allocated to the accident employer because of the long latency periods. That issue arose earlier. It struck me that – it was surprising to me and I wanted to get further information so this memo that I’ve passed out is Mr. Chrismer’s response to my request for further information. It appears that most industrial disease - or occupational disease claims – still using the old term – are allocated either directly or indirectly to some subclass that may be responsible for that type of exposure. The Board appears to use dummy employer numbers as they call it – I’m not exactly sure what that means and in some cases the classes that are being allocated – some portion of the occupational disease costs are being allocated to the general accident fund or being distributed over all subclasses. It doesn’t appear to be a really large percentage – the point that I wanted to make however is that seems to be quite inappropriate when we are examining the nature of an occupational disease and the concern that the Board should have for determining what the cause of that was and trying to motivate employers to spend the amount of money that may be necessary which may be quite a large amount of money in some instances to end the exposure that led to the disease or to change the work process in such a way that the disease is less likely to occur. But this is one type of instance which the motivation which employers seem to favour that results from experience rating assessment and you know from linking the cost if possible to the individual employer but if that is not possible for some reason at least the class that consists of all those employers involved in that industry - if we don’t do that what motivation is there to spend what could be hundreds of thousands or millions of dollars in some cases to change the workplace in such a way that people won’t be exposed and won’t continue to contract these diseases. So if anything there should be an enhanced link to the cost of claims based on the fact that the occupation is at fault – I don’t feel that’s inconsistent with the position that we’ve before that consequences to individual employers should be based on employer responsibility. Once it’s determined that a condition of the workplace leads to a certain type of disease whether it is 20 years later or not that employer should put on notice that that should be changed and if the employer for economic or whatever reasons doesn’t want to change it – even if the law allows the employer not to change it and we are talking here about violation of the regulations necessarily but still there should be some recognition that the employer should be responsible for that condition and there should be an economic impact that flows from that.

Q: Before you move on to your next point I had a question on section 6.1 for you to clarify something – if the latency period occurred but the disease symptoms of the disease were contracted 6 months before retirement and that individual got a functional pension – that functional pension would remain for their lifetime as I understand it?

A: That’s correct.

Q: However, if the disease manifested itself 6 weeks after their retirement they would get nothing?

A: That is the way the Act operates, yes. That is the inconsistency; the discrimination as workers would see it that exist in that situation. Victims of disease are not being treated the same way as victims of injuries whose condition becomes disabling immediately and who therefore get compensated for whatever they’ve lost.

Q: Where you’ve got an individual who and comparison of either a functional or loss of earnings pension is taking place and you’ve got six months before you retirement when your loss of earnings pension would cease anyway what criteria does the board look at to determine whether they should have a functional pension or a loss of earnings pension? Obviously the functional pension would be of much greater value than the loss of earnings pension in the long run? Do they make the same adjudication and even if the person is near retirement?

A: Yes, I believe the proper approach there is at the date of plateau – the worker becomes disabled by reason of disease or injury they are initially entitled to wage loss benefits anyway so I guess what you are saying is suppose the plateau date occurs 6 months or 6 weeks before the person would have retired – I think theoretically the person should be entitled to a loss of earnings pension for that 6 week period. Now the present policy is to presume an age 65 retirement for all workers. So you say would have retired if you mean 6 weeks before their 65^th birthday that is they way that would operate.

Q: The functional pensions would have been of much greater value to the worker in the long run because it would continue for their lifetime?

A: I think there may be a misconception here – I was going to raise this the other day when we were talking about pensions. It’s not a question of either/or –all workers with permanent disabilities receive a functional pension. There are some very complicated calculations that we get with a pension decision and I’ve often struggled to understand them but what the Board does is to give everyone a functional pension for life and then give them a loss of earnings pension if they are entitled to one. Which represents the difference between the functional pension and what the Board acknowledges to be a loss of earnings. So they get two separate amounts in their cheque each month; the loss of earnings portion ends at age 65, normally – although there are certain policies that may allow it to continue beyond that age; depending on the age of the worker when the pension started. The functional pension continues for life. So the worker may get a cheque for two amounts showing $200 for the functional pension and an additional $500 for a loss of earnings. In the instance you talked about where the pension starts just a few weeks before age 65 - the $500 amount would cease almost immediately and then after that the worker should continue to receive $200 a month. So I wouldn’t have to make that choice of which is better for me.

Q: I understand.

I want to turn now to the question of stress – and a related issue which has been raised by the West Coast LEAF organization which concerned the compensability of sexual harassment. The Royal Commission has detailed written submission from LEAF asking that sexual harassment be recognized as a compensable condition in and of itself. My view is that that raises some difficulties potentially for the victims of harassment because of the point that Mr. Winter raised – that if these conditions are compensable it may be that the section 10 bar applies and that the victim will be unable to sue in the civil courts or to make a Human Rights complaint which potentially could lead to a lot more complications than the Board is like to pay for a harassment incident unless the consequences of the harassment are extremely serious for the victim. Sexual harassment is compensable now by Board policy – claims like that are handled by the sensitive claims department at the Board – I think that was described in the Board’s presentation but it is only compensable if the person can demonstrate that they suffered an injury as a result of it. So if it takes the form of physical assault for example, and the person is physically injured then it would be compensable and I suppose logically and I would hope the Board would recognize this – that if the injury was a psychological one resulting from the harassment then provided there is medical evidence of a psychological disability that that be recognized as compensable as well. The LEAF submission went beyond that to suggest that all cases of harassment should be recognized as workplace injuries under the workers' compensation Act. And that was – led to the concern I just raised. But I think there are some very good points in their submission which have a bearing that goes far beyond the area of sexual harassment to a number of complex including, particularly occupational diseases. The argument that LEAF made in favour of recognizing harassment as compensable is that that would lead employers to recognize that they had a responsibility to prevent harassment in the workplace and to take immediate effective and appropriate action when it occurs.

And it would also leave the Board to develop practices that would prohibit harassment and attempt to regulate workplaces in a way that stops harassment from occurring just as they do with other injuries. The argument was made that the Board has – is in the best position and has the best personnel to be able to conduct that kind of an educational process. I think those are good points; I don’t know that that changes the fact that the victims might well get better compensation than if they are outside the system. I’m not going to argue that you should accept the LEAF submission; I think you should read it and weigh it on its merits and make your own decision in that regard.

As far as a general compensability question is concerned. I suppose a way of trying to balance the two and achieve a the best of all possible worlds is to be able to recognize that some undesirable activities and sexual harassment is undesirable by anybody’s definition – can be regulated by the Board in a prevention sense without necessarily being automatically leading to a compensable claim if it occurs. In fact prevention generally focuses on activity that can lead to a harm. That doesn’t necessarily mean that every time that activity occurs somebody is entitled to make a claim. For example – let’s take an obvious example – lock out procedures in a saw mill are designed to prevent people from being injured while they are working on a machine. That doesn’t mean that a person who locks out a machine or the management has decided not to lock it out has a compensation claim. They have a claim if they were injured as a result of the machine starting up while they were still working on it. So the Board could develop policies to try to prevent the occurrence of sexual harassment in the workplace; doing so recognizing for one thing – that’s another good point that LEAF made is that when workers – primarily women are being harassed on a regular basis they are likely to be distracted on what they are doing and injuries are more likely to occur. And depending on their job they may occur to the victim herself or it may occur to other coworkers if the victim is running a machine and is distracted from what she is doing and makes a mistake that injures someone else. So there would be some general, preventative goals that would be served by the Board regulating and attempting to prevent sexual harassment in a preventative sense even though claims are not automatically accepted for compensation unless there is an actual, provable, physical injury as a result of it.

So I think I’ll leave it at that –it is not a really firm position for you but I think illustrates an issue that the Royal Commission should look at in the course of your deliberations.

Now as I said it seems to me that some of the concerns that were raised by LEAF in this connection has some relevance for us in considering occupational diseases generally. And I want – I’m probably not the person who should be talking about the fire fighters case because I was the only one hear that wasn’t involved in it. But it struck me in hearing about all of the litigation and all of the appeals and so on that has gone on why are the taxpayers – why are the municipalities – the employers of fire fighters focusing all of their energies and resources on fighting these claims as opposed to dealing with the causes of the cancers that are resulting from people protecting our lives and our property at risk to their own by fighting fires? That is – it seems ties this in with the LEAF observation that only when employers recognize a responsibility and unfortunately even in the political arena apparently the responsibility may have to be financial before they really realize it for the consequences of workplace injuries and diseases that they are likely to take the prevention aspect of it seriously. Now, I don’t know – I’m not saying municipalities aren’t trying to prevent these diseases but if their argument is that the diseases are unrelated to the workplace then why would they be spending a lot of money trying to reduce the exposure to chemicals at the same time they are arguing to the Board that there is no connection anyway. Logically, it is one or the other.

And it would be my observation that disease claims are inherently complicated and it’s hard to figure out what’s causing them and in a lot of cases we soon reach the limits of scientific knowledge that we can’t really determine for sure whether a particular workplace exposure has caused a particular kind of disease or not. Is that a reason – if one looks at the broad policy goals of the workers' compensation which I would describe as preventing people from being hurt or made sick as a result of their work and compensating them if they are. If one looks at those broad goals does it make sense to be more concerned with absolute link between things that are probably harmful and work? Or to devote our attention, if there is significant reason to think something’s harmful to devote our attention to how can we reduce the harm? In the fire fighters’ case there’s – it’s inherent in that kind of work that the Board can’t regulate every building that catches fire; there’s going to be some exposure – I suppose the focus ought to be on better protective equipment and possibly on better immediate treatment might counteract the effect of exposure when it does occur. I don’t know if such things exist or do exist but it’s certainly something that could be looked into. I would hope employers and our fire fighters and the municipalities that we all live in would be supporting such an endeavour but it may be that no one of them has enough motivation and that that’s something the Board should take a lead on. And by recognizing the conditions of that nature where the cause may not be quite scientifically clear but we’re pretty sure there is some connection to the workplace by accepting that as compensable and the Board responsibility and by doing research on it ultimately we are going to have a safer province for everybody that works in it. So one of the recommendations that I didn’t put in the written material but I’m going to make it to you now is that you consider recommending that the Board had a research facility which would be somewhat arm’s length from the rest of the Board so that they are not under – no in any way influenced by the concern that well if we do research and prove that a certain disease was caused by work then we are going to have to pay a lot more money to compensate people that are the victims of it. I mean there is a potential conflict of interest there – some mechanism should be built into this process to make sure isn’t - that that doesn’t inhibit the research. But to a research facility that would be directed at determining what are – what does cause workplace diseases; what does cause injuries where they may be multi-factoral situations as we’ve been talking about this morning and more relevantly hopefully or positively what can we do to stop it? What can we do to make the workplaces safer?

I guess my final comment on this area; I want to talk directly about the stress claims because Mr. Winter spent a good deal of time on them. But as I said I’m not sure they are really disease claims anyway but they clearly pose a particular problem for the Royal Commission if you were going to consider the employers’ request but before getting to that what we all know is that occupational disease claims raise complex problems of proof. It’s harder to prove causal links in cases of disease than it is to prove a causal link if somebody falls down the stairs and breaks their leg; that’s self-evident. And in some cases it may be harder to measure the loss the person has suffered as a result of the disease that arose many years after the exposure. It may be a more complicated intellectual exercise to calculate how much – what the wage rate should be; what the percentage of disability should be – that’s sort of related to the section 6.1 that we have already talked about. In my submission those are not reasons to deny the claim for a condition that arose out of the workplace. The fundamental purposes of the Act still remain and unless the Board starts excluding conditions because it is not easy to deal with them a great many workers and in some cases with physical condition as well as mental conditions are going to – are going to be left without any compensation and as a result of that probably left without any effective preventative action because the board will also not see it as their role to regulate the industry to prevent those kinds of conditions.

So that would be a general observation that I’d make on all of these more complex types of injuries than might have been thought of back at the turn of the century when workers' compensation was first being developed primarily in response to immediate, traumatic injuries that occurred in physical workplaces. People were being hurt by dangerous machines and the cause was self-evident and the consequences were self-evident.

To deal with then stress and then briefly with the suicide case –I listened to Mr. Winter’s observations on the decision of the Appeal Division in the suicide case and the statements that he is objected to and I don’t see what he’s objecting to. It seems to me that those statements that the Appeal Division made are quite consistent with the overall way in which the workers' compensation Act works. And if anything the Appeal Division in that case, leaned quite consciously away from the medical evidence, which is probably why the Medical Review Panel allowed the appeal. The Appeal Division was faced according to its own decision, with two pieces of evidence regarding the causation – two pieces of expert evidence – one was the coroner’s report which said that it was related to work and the other was a psychologist’s report which said that he thought it was related to work. They decided to reject both of those on their lay analysis that those were both speculative and therefore they didn’t accept that expert opinion. Well, once again if the Board took that approach to a physical condition and to expert evidence relating to the cause of physical injuries, I think we’d all feel that the Board was erring. That when you have uncontradicted medical evidence - even if it doesn’t approach 100% certainty – then generally the Board has to accept that. So the Appeal Division if they erred at all it seemed to me was in the outcome of the case as opposed to the general comments they made which suggests that if the medical evidence was there, and was conclusive then they would accept the claim for suicide as being compensable. I don’t see how you can avoid that result – I guess the employers are recommending the

Act be amended to accomplish that but certainly an amendment would be needed because otherwise it would clearly fall within the basic definitions of section 5 and section 6 of the Act.

Turning then to stress more generally and to the reasons given by the employers for arguing that it should not be – that there should be an amendment to make it not compensable. I want to go back – start by repeating a point that I made earlier which is that I think stress is a misnomer. People don’t come to the Board saying I am tired; I’m exhausted, I need a holiday – therefore I want compensation. And if they do they will be rejected and they should be rejected. People come to the Board saying I have a psychological disability. I’ve seen a psychiatrist or a psychologist or medical practitioner and I have been diagnosed to be suffering from a disability. It’s a disability in my mind, not a disability of my body but the result is that I cannot work. Not that I choose not to work; not that I choose to take some time off and I’m mad because my employer won’t let me but I can’t work. And that – for that disability to be compensable it has to be diagnosed and specifically diagnosed and it may be an anxiety disorder – there’s a variety of those – it may be one of any number of any other kind of psychological disorder. I very much doubt that a worker that comes in with a statement from a family doctor scrawled on a piece of paper saying that this worker is stressed out he should take some time off; that that would be considered by the Board on the basis of a compensation claim; nor should it be. So we are talking about conditions which disable people and that is what the workers' compensation Act is all about. I think that that focus has to be maintained and that the unfortunate use of the word stress as a kind of shorthand label for this whole cluster of psychological disabilities made distract us from the seriousness of some of those conditions.

It make us that all that person really needs is some time off; let’s not make it a compensation matter. But if all they need is time off it is not going to be recognized as a compensation disability anyway.

Second point I wanted to make; I’d like to – I didn’t give it to you but – I don’t know whether you have a copy of the Act in front of you or not – anyway I wanted to refer to section 10. I recall Mr. Bates saying in the presentation on Section 10 and 11 – I think I was the one that asked the question -whether the confines of section 10 exactly correspond to the confines of sections 5 and 6? In other words could we say with assurance that anything that is not compensable under sections 5 and 6 would therefore not be the subject to the bar of litigation in section 10; and he said that was his understanding. And I think Mr. Winter if I understood him right said that he also agreed with that viewpoint a moment ago.

As a matter of law I’m not sure that that follows from the language of section 10. If you look at section 10, what it says is really quite broad; it says that the provisions of this part or in lieu of any rights of action, statutory or otherwise, based on a breach of duty or care or any other cause of action whether it arises by reason of law or contract; express or implied. So that – very broad. The types of litigation rights that are covered by section 10 are just about every kind that one could imagine. I think that is what clearly the legislature was trying to do with all that language. To which a worker, dependent, or member of the family is or may be entitled against the employer or any employer or any worker – so that’s the scope of the bar – it’s very broad. But now we are getting to the part that I’m concerned about – in respect of any personal injury, disablement, or death arising out of and in the course of employment and no action in respect of it lies. So the unique question that would be posed – if you were to accept the employers’ recommendation and amend the Act to say that people who suffer mental-mental claim – mental-mental disorders or a mental disorder arising out of a non-traumatic event at the workplace are not entitled to any compensation – is that the employer might well come to court if and when they were sued – this could be the kind of harassment situation that Mr. Robertson was posing in his question – and say well look at this – section 10 says – this worker is saying they are suffering a personal injury and disablement as a result of being harassed and section 10 says they can’t sue me. I’m the employer, it says it is in lieu of any kind of causes of action – express or implied – duty of care or any other cause – that includes any cause of action that might be related to stress. They claim that their damage is that they’ve been injured or disabled and that’s clearly covered by section 10 and I’m very sorry that the workers' compensation Act has been changed so that they are not entitled to any compensation but that doesn’t change the fact that I can’t be sued for it. And I’m not positive that that argument would be rejected. It seems to me that that’s a perfectly plausible reading of the Act.

Q: I expect Mr. Winter probably would probably argue that the section ten tort bar would or at least it should apply perhaps if he could address that in his rebuttal?

A: I would argue that just as Mr. Sayre said it should apply.

Q: No, the issue is if what he described, as mental–mental claims are to be excluded from the compensation system are they also excluded from tort litigation?

A: Obviously if the Royal Commission were otherwise inclined to accept the employer’s recommendation section 10 could also be amended to specifically say that claims that were excluded by the exception for mental-mental claims were also – were not covered by section 10. I mean you could correspondingly remove that from section 10 to remove any doubt about it. And certainly if you were to consider that which I would urge you not to do that that should be done so at least the worker would be left with whatever civil remedies that may exist as a result of the employer’s fault. But I think I’ll leave that for the moment and come back to it because the other points that I want to make about the kinds of claims we’re talking about will I think demonstrate to you that there may be many quite legitimate situations which the employer would not be held to be at fault in an ordinary tort law sense and in which the worker would therefore be left without any remedy for a genuine disability if the compensation Act were to exclude those claims. He argued that one of the reasons for excluding these types of situations is that it’s very difficult to determine the cause of them. And that is certainly true but that is also true of a lot of other back conditions. Take back injuries; Mr. Winter went to some length to talk about all of the different kinds of causes that may cause stress in our personal lives. When he did that I tried to recall a magazine called – Psychology Today – I don’t know if it still exists or not but it was a brief time when it first came out and I subscribed to it and do remember reading an article which listed the most stressful events in a person’s personal life and it was quite surprising that some of the positive events that he listed were right at the top. Things like remarriage, buying a house, getting a new mortgage, getting a new job and so on – things that we might genuinely consider to be good news were also things that were very stressful and that was a finding of the psychology – of the psychological profession which was being discussed in this article. So there is some truth to that but there’s – it’s also undeniable that a great many physical injuries arise out of activities which could also have arisen – or could also be influenced off the workplace. Take the example of back injuries. There’s a decision of the Supreme Court called Plemandon in which Mr. Justice Shaw, I believe it was, allowed a judicial review against the – I’m not sure what level of tribunal it was but it was against the decision of the Board which excluded the claims for backs – for a back injury – the reason was that the Board had not considered whether the back injury arose over the course of a lengthy period of time as a result of work activity. The Board said there is no specific event at the workplace; no accident as such which caused this back injury. It arose gradually; therefore it is not compensable and he said that’s an error of law. You have to consider whether the back disability arose out of the work activity; if it did it’s compensable. The fact that it arose gradually over a period of weeks as a result of picking up a particular item at work doesn’t change that. And that is good law. And I don’t think the Board would disagree with that interpretation of what section 5 is intended to cover. What the employers are proposing in effect is to reverse the result of Plemandon in the case of psychological injuries and to say that where it arose as the result of seeing somebody killed or injured at work so that we can link them directly to some specific incident then they are compensable. But if they arose gradually, if the same condition – the same disability with the same impact on the worker arose gradually over a period of weeks or months as a result of stress, even if the evidence clearly establishes that it was a result of the workplace and not the result of other factors and yet we always have to have the evidence to have a claim. Workers can’t just sign an application form and automatically get benefits. There has to be some proof. So we are talking about cases where there is proof. What we would in effect be saying is that in cases like the Plemandon case if the person had suffered a psychological disability they are going to be denied compensation. And I would suggest to you that there is no more rational reason for doing that in the case of a mental disability than there is in the case of a physical disability. Another – I guess the final point that I’m going to talk about in connection with the reasons that he gave for recommending this amendment are that the worker may have been partly at fault. And that’s again true – that it can be complicated to decide who is to blame for some of the stressful circumstances that may exist in a workplace which leads on the medical evidence to psychological disability. My answer to that is so what? The worker can be at fault for physical injuries – be totally at fault for physical injuries and yet the claim will be compensable unless it is serious and willful misconduct. Or of such conduct that it takes the worker out of the course of their employment. That a worker who carelessly trips over something at the work site and falls down and breaks his leg, they are not going to be denied compensation because no one but the worker was at fault for that carelessness. So not only are treating people with mental disabilities differently than the physical ones but we’re extending that concept of willful and deliberateness concept to any case where the worker might have even been slightly at fault. And I can see no reason in principle for doing that either. We’ve heard a little bit about the amount of the sort of floodgates fear that in California it amounted to half the claims and that sort of thing well, I don’t know how stressed people are in California or what kind of claims they accepted but if – to use – as Mr. Winter used the term stress; if California is accepting claims for stress as that term is properly used then it probably would lead to a large number of claims. What I’m arguing to you is that there should not be an amendment which excludes genuine, medically diagnosed, psychological disabilities arising out of the work and work activity merely because they are not connected with a single, traumatic event. And if you recall the evidence – it’s kind of a bizarre situation here is that Mr. Winter is arguing for an amendment to the Act, which is a rather extreme reaction to a handful of cases because the evidence was that the Board is denying almost everyone of these types of claims already. If there is any remedy needed it’s – and I think there is – is not to exclude; it’s to make it clear in the Act that these types of disabilities are compensable. If there is a medical link there. Because I think the evidence was that the Board had rejected it all but two or three of the three hundred claims that they had received over the recent years. So subject to questions those are the submissions that I’ll be making about occupational disease.

Mr. Chairman as you know I represent the BC Federation of Labour and you should have there our written argument – this is section 14 on occupational diseases, it’s close to 40 pages and I’m going to try to get through that as best I can as well as answer your questions so I’ll be sort of highlighting some portions and I’ll …..so we start with a section called:

Occupational diseases differ from personal injuries in a number of ways, the most significant one relates to causation.

While causation for a personal injury is rarely an issue it is often the major issue for occupational diseases. This is because diseases, by definition, generally do not occur as a result of a specific incident. Cancer occurs as a result of exposure to carcinogens over time (sometimes 15 – 30 years) and tendonitis usually occurs as a result of repetitive work over a period of time. Contagion is often an invisible process for occupational diseases and actual symptoms may not arise at work because the reason for the symptoms has been developing over time. This is why Board policy recognizes that occupational diseases can become symptomatic away from work and still be compensable.

Causation in the case of occupational diseases can also be complicated by the presence of work-related causes and non-work related causes. This does not mean that the disease is non-compensable but it does mean that the weighing of the work and non-work causes has to be done with care.

It follows from these features of occupational diseases that there is a requirement of greater sophistication on the part of all parties to a claim. The worker has to be aware that the disease that he/she is suffering from may be related to work. Similarly, physicians have to be knowledgeable about occupational hazards so they can identify possible work relationships. Employers also are required to be more sophisticated and to allocate more resources to the prevention of occupational diseases. Finally, the Board needs to, we suggest, take the lead for all of the other parties in terms of prevention and adjudication of occupational diseases. After all they are or should be the experts in this field.

For workers it is often too much to ask of them that they be up to date on the complexities of occupational medicine. This sometimes applies to employers in the very complex cases although they have a legal duty to keep the workplace safe and so there is more of a responsibility to investigate and many employers have more resources to pay for those investigations.

It is fair comment that occupational diseases are more controversial than personal injuries and there is more resistance to their acceptance as well. It is not particularly rational but there is often greater acceptance of a personal injury such as a loss of a limb than there is for an occupational disease. As a matter of simply human nature no employer wants to think that their work site caused cancer in a worker. This has to do with the mystique and stigma that still attaches to diseases as opposed to injuries. Another and related reason for the controversy of occupational diseases is that they are harder to understand because they are not immediately obvious. For many people, including doctors, the connection between health and occupation is not obvious. What follows from the complexity of occupational diseases is that it can be expensive in terms of resources and money to prove their cause.

The complexity of occupational diseases is sometimes put forward as a reason by itself for them to be considered non-compensable. You will have heard already the argument that it is not possible to determine work causation in occupational disease claims because of the complexity of separating "every day activities" – this is for example getting married or buying a house - from work activities or that they symptoms are "subjective" and there is no real way of objectively determining causation. As above, occupational diseases can be more complex but that does not mean they should be dismissed out of hand. This is tantamount to saying that the system can and should handle only simple cases. This of course is a way to restrict the scope of workers' compensation and it should be resisted vigorously. If this approach was followed in the past we would not have accepted silicosis claims and we would not have developed prevention strategies to almost eliminate that disease.

Scientists tell us that often diseases are first noticed in specific occupations because workers in those occupations have the most concentrated exposure to hazardous substances such as carcinogens or mutagens. It must follow from this that the greatest strides in prevention of diseases such as cancer can be made by focusing on the relationship between the disease and the occupation.

The invisibility of the risk, the fact that the symptoms can be very serious and the complex and costly nature of occupational diseases requires a different approach to prevention compared with personal injuries. In some situations the risk from occupational diseases is not immediately apparent and the Board should be providing education and leadership in preventing occupational diseases.

Occupational diseases are adjudicated under sections 1 and 6 of the Act. Board policy is contained in Chapter 4 of the Manual.

Section 1 defines occupational diseases to include three types: a disease listed in Schedule "B", a disease recognized by regulation (these are listed at section 26.03 of the Manual) and a disease recognized in an individual case.

Diseases listed in Schedule "B" are adjudicated pursuant to section 6.3 of the Act – if the disease complies with the first column of the schedule and if the worker’s work complies with the second column then the disease is deemed to be work related unless the contrary is proven. Diseases recognized by Regulation and diseases in individual cases are adjudicated pursuant to section 6.1 of the Act.

While I’m here Mr. Chairman I just want to give you an example of a case you’ve heard about – if you could turn to Schedule "B" of your Act – in particular item 4(g) – down at the bottom of the page there – do you see primary cancer of the skin? And you see in the first column – primary cancer of the skin and in the second column – where there’s prolonged contact with coal tar products, arsenic or cutting oils or prolonged exposure to solar, ultra-violet light. Now you’ve heard of this – the Mullet case and the Court of Appeal decision that Mr. Winter and I – I just want to use an example of how this works and it’s also apropos of some of the comments the employers are still saying. What happened in that case – a worker, who happened to be a fire fighter had malignant melanoma which is – and everybody accepted that malignant melanoma was a primary cancer of the skin. But what the employers said was that even though malignant melanoma is a primary cancer of the skin, it’s not known to be caused by the substances of the second column. Now the – there’s a number of decisions – and taking them in order – the claim was denied at the Board – the appeal was denied at the Review Board; allowed at the Appeal Division; overturned in judicial review at Supreme Court and the Appeal Division decision was upheld ultimately at the Court of Appeal. Now what the employers said and what they were ultimately unsuccessful in having a court agree with them in the Appeal Division is that even though malignant melanoma is a primary cancer of the skin, it’s not known to be caused by the substances in the second column so the presumption is rebutted. And now it’s – it’s open to debate whether that’s true in the science – that is whether malignant melanoma is not cause by the substances in the second column but assume for the moment that the employers are right on that. The point was that the relationship between primary cancer of the skin including malignant melanoma was caused – was created by Board policy pursuant to section 6.4 of the Act, which is the adding, amending and deleting for Schedule "B". And until that’s changed, you have to follow it. So Schedule "B" item 4(g) doesn’t say primary cancer of the skin except for malignant melanoma, it says primary cancer of the skin. So that’s the Mullet case and that’s an example of how – when – one of the more complicated cancer cases.

Q: Have you given us a cite for that case or given us the case, I’m not sure?

A: It is reported in – actually I think the Supreme Court is reported in the BC Law Reports, I don’t think the Court of Appeal is – is my recollection. The BC Supreme Court decision is but is the Court of Appeal decision? I can get you the cite for that, yes.

Section 6.1 of the Act is as follows;

6.1 Where

1. A worker suffers from an occupational disease and is thereby disabled from earning full wages at the work at which he was employed or the death of the worker is caused by an occupational disease; and
2. The disease is due to the nature of any employment in which the worker was employed, whether under one or more employments,

Compensation is payable as if the disease were a personal injury arising out of and in the course of that employment. (Emphasis added).

The highlighted portion of section 6.1 has created unfairness for workers. The problem is that a worker can be disabled from a disease that is unquestionably related to his/her work but, because a claim is made after retirement, a functional pension is not payable because of the above wording. This is because section 6 is interpreted to mean that the worker, by virtue of being retired, is not "disabled from earning full wages at the work at which he was employed" and he is not entitled to any compensation. See Appeal Division decision #92-1314 (this is unreported but the section 96.4 president’s referral has some related information and is reported at 9 WCR 269).

If the worker had been disabled one day before retirement he would be able to obtain a loss of function pension. We think a worker is entitled a loss of function pension in these circumstances and we accept that wage loss and a loss of earnings pension are in most cases not appropriate.

Although section 5.2 has the same phrase as section 6.1 the situation does not arise in personal injuries. This is because the date of disablement for personal injuries is the date of the accident whereas the date of disablement for an occupational disease can be long after the first exposure. An occupational disease can become symptomatic away from the work and still be related to the work because of the operation of a latency period. Personal injuries do not have a latency period.

We believe the solution to the problem with section 6.1 is to remove the phrase "disabled from earning full wages at the work at which he was employed."

Just a comment on the employers’ position on this – they say that it should be status quo – it should – leave it in there. And of course that saves them money but their reasoning for that is section 23.1 – is a pension for an average and I think this was addressed in questions – Mr. Sayre addressed it – if that’s true then workers should get a pension here and this is nominally in the Act; it should be removed. If a worker prior to retirement has a permanent disability they can get a functional pension even if they go back to their pre-injury job with no loss of earnings. So section 23.1 is about the average – someone some where said that a particular disability results in a certain percentage of impairment of earnings so that’s where you go – that’s section 23.1 – section 23.3 wouldn’t apply.

Q: What do you say to be the main the thrust – I understand from Mr. Winter’s submission is that there is no economic loss of earnings capacity because there’s no more – the worker is not working? So that the objective of the Act wouldn’t seem to require compensation if that is indeed the objective of the Act?

A: Well, I think the latter point – part is most of the answer. The objective of the Act is to provide compensation on an average under section 23.1 for a – what we call a functional pension but the word of the Act is really an average impairment of earning capacity. But and I think Mr. Sayre raised this – there’s an issue of discrimination here – if the symptom – if the disease had become symptomatic the day before retirement there would have been a pension until death; I think Mr. Robertson raised this – so why should – what’s the magic – no one disputes that the disease is caused by work. The only thing is the arbitrariness of the date of retirement.

In our view the adjudication of occupational diseases requires specialized training in order to effectively made decisions. There is need for medical expertise in the area of epidemiology and toxicology and there is also a need for policy expertise in how to apply specialized policy and understand complex scientific matters.

On a broader view we welcome the decision of the Panel to create the Occupational Disease Advisory Committee. There is value in having this policy body described in legislation, including its reporting functions.

Tab 25 of the BC Federation of Labour binder sets out an example of how the Board adjudicates occupational disease claims such as an application for brain cancer.

This example demonstrates the following:

1. A firefighter made a claim for brain cancer.
2. In Memo 3 the medical advisor analyzed the medical/scientific evidence relating to the association between fire fighting and brain cancer.
3. The Medical Advisor looked at two studies, one in BC and the other was from Washington State.
4. According to the Medical Advisor the BC study produced a PMR of 120 and this was not significant.
5. According to the Medical Advisor the Washington State study produced a PMR that "fail(s) to establish a statistically significant relationship" between brain cancer and fire fighting. The specific PMR was not mentioned.
6. The Medical Advisor considered the IARC manual and concluded that he was unable to come up with any information, which could clearly establish a relationship.
7. The claim was denied. It was unsuccessfully appealed to the Review Board and then the appeal to the Appeal Division was successful. The employer participated but took no position for or against the appeals.

The problems with the Medical Advisor’s review of this claim include the following;

1. The Medical Advisor looked at two studies. In 1990 there were six studies available that considered the relationship between fire fighting and brain cancer. The Medical Advisor missed four studies.
2. The Washington State PMR study was considered by the medical advisor not to be significant but the specific PMR was not mentioned. In fact, the PMR in this 1983 study (Milham) for brain cancer was 180. This does not cross the 200% threshold but it is statistically significant enough to look further. One study was significant and it was described as not significant.
3. The Medical Advisor looked only at Proportionate Mortality Ratio studies. The four studies that were missed are Standard Mortality Ratio studies and Standard Mortality Ratio studies are preferred over Proportionate Mortality Ratio studies for reliability. The four studies that were missed were reliable than the two that were used by the Medical Advisor.
4. The four Standard Mortality Ratio studies that were missed by the Medical Advisor had Standard Mortality Ratio’s of 103, 236, 20.9 and 229.3. Two of these studies (the ones with Standard Mortality Ratio’s of 236 and 229) are statistically significant and should lead to further study of any association. Two of the studies that were missed were significant enough to have lead to further study of the association.
5. IARC reports include benzene, soots and polycyclic aromatic hydrocarbons, vinyl chloride and other substances firefighters are exposed to as Group 1 carcinogens. Benzene and vinyl chloride are potent carcinogens that are by-products of burning plastic and they have been part of fire smoke since World War II. The Medical Advisor’s report did not identify the presence of carcinogens at the workplace.

For all of these reasons we seriously question the expertise of Board medical staff to properly adjudicate claims for occupational diseases such as cancers. They either do not know how to research epidemiological evidence or they are selective in their research. Either way the result is delay, expense and uncertainty of workers and their surviving families. Another aspect of this example is that it seems clear that adjudicative staff of the Board are not able to critically review the material they obtain from medical advisors. These matters are contributing factors to the under compensation of cancers by the Board (see below).

We have seen how the transfer of activity related soft tissue disorder claims from Occupational Disease Services to the geographical units has created serious inconsistencies with the adjudication of these claims. Tab 16 of the BC Federation of Labour documents points out that in one unit the disallow rate was 0.0% and in another unit the rate was over 59%.

A further example of the kind of problems that have arisen with the transfer of activity related soft tissue disorder claims to the geographical units is demonstrated at Tab 26 of the BC Federation of Labour documents. This is an opinion from a medical advisor from a small community in the interior of the province. The Board agreed that the statement that carpal tunnel syndrome is extremely rare with respect to work was not consistent with Board policy. They also agreed that it was overstating the literature and Board policy to conclude that being a woman by itself is a risk factor for carpal tunnel syndrome. As the Board said, "simply being a woman is quite irrelevant."

In addition to the decentralization of activity related soft tissue disorder claims we heard about the introduction of nurse advisors into the adjudication of these claims. At tab 20 of the BC Federation of Labour documents we have a nurse advisor making comments about the possible need for surgery in a case of carpal tunnel syndrome and the significance of bilateral symptoms and menopausal factors. And we have the introduction of ACES and the admonition of adjudicators that they should not be relying on medical advisors on issues of medical causation for activity related soft tissue disorder claims.

All of this, in our view, leaves the adjudication of activity related soft tissue disorder claims in a very uncertain state. What is required is some control by the Board over the process of adjudication and policy relating to activity related soft tissue disorder claims.

The documents at Tab 23 of the BC Federation of Labour binder reveal the following:

1. Literature in the field of occupational medicine is to the effect that occupational cancers represent from 4% to 38% of all cancers in the United States. A leading text uses the figure of 10% as somewhat realistic.
2. In 1995 there were 16,400 cases of all cancers in BC. There was a similar number in 1994.
3. In 1995 the Board accepted 15 cases of occupational cancers. This figure amounts to something less than 0.1% of all cancers in the province.
4. On the basis of these gross numbers and applying the figure of 10% (of all cancers that are work related) cancers are under compensated by a factor of at least 100.
5. In the 10% figure is used there should have been about 1,600 cases of cancer accepted by the Board in 1995. Even using the most conservative figure of 4% there should have been about 650 cases of occupational cancers accepted by the Board.
6. Put another way there were about 1585 or 635 cases of cancers in 1995 that should have been accepted by the Board and were not.

The Board recognized there was under compensation of cancers. An attempt was made to explain this by saying that there was an under reporting of cancers to the Board.

There is certainly an under reporting of claims of occupational cancer but the question is what is the reason for the under reporting. Historically, we know that occupational diseases have been viewed as an afterthought of the compensation system and they have been given subsidiary status to injuries.

As well we know that the Board does not include the issue of occupational cancers in its advertising. And we know that the allow rate for claims in Occupational Disease Services is about 40%, substantially below the overall allow rate. We suspect that many workers make a claim simply to register an incident of exposure. This is an important thing to do in order to ensure all exposures are captured by the Board but perhaps an exposure registry would be a more effective way of tracking exposures that do not result in claims.

We also know there are problems with the way the Board adjudicates occupational cancer cases. As the documents in Tab 25 of the BC Federation of Labour binder (discussed above) indicate the Board has not demonstrated the expertise to properly adjudicate these types of cases. It does not take many of these kinds of adjudications for worker to get the message that the Board is not receptive to claims for occupational diseases. As above, the resources needed to prove a case of occupational cancer are beyond those available to individual workers and many unions.

We also know that the cancers accepted in 1995, with one exception, are all asbestos related. Previous years are the same. Acceptance of these relatively straightforward claims reveals the Board’s very narrow perception of occupational cancers. Other examples where modern expertise and policy are required include HIV, respiratory problems and tuberculosis (the latter has returned as a serious public health hazard). Certainly the Board has not demonstrated to workers, employers and society as a whole that it wishes to take on the responsibility of properly compensating workers and their families on these issues. As well, there is a serious prevention issue for occupational diseases. The bad news Mr. Chairman is that tuberculosis is back and in some American cities it is back in a very serious way and for some workers it is an occupational hazard.

Q: Would there be any relationship between that panel and the review mechanism being sought by Mr. Winter with regards to Schedule "B"? In your view?

A: There may be; I think ours is a bit more ambitious in terms of structure; in terms of scope. Mr. Winter talked about a review of the schedule every two years but that’s – we think that that’s – that’s basically an ongoing review of the schedule. Some things should have an ongoing review but not the schedule so we think two years is far too short. So I think probably the differences between us is one of degree. We are asking for a pretty sophisticated idea; something similar although – something similar to the Occupational Disease Panel in Ontario.

While we’re here – the talking about the heart presumption for cancers – for fire fighters – Mr. Winter said that – I forget his exact words but – if the employers were successful on point it doesn’t mean that there would be no compensation for heart attacks for fire fighters – all it would do is shift the adjudication to section 6.1 rather than section 6.3. And the burden would be on fire fighters as to prove the causation. Of course that is the benefit of being in Schedule "B" is that the – in an evidentiary sense the burden of proof is not on the worker but on the Board or the employer to disprove the association.

Item 13 of Schedule "B" deems tenosynovitis or tendinitis to be related to "unaccustomed and repetitive use" of the affected limb unless the contrary if proven. The history of this provision does not reflect well on the Board.

At tab 24 of the BC Federation of Labour binder is an excerpt from a paper by Jim Dorsey, "Recognizing Industrial Disease: The Workers' Compensation Board’s Legislative Responsibility", from 1992. Beginning at page 8 is a history of how the Board has adjudicated repetitive strain injury claims. This history was put together from documents within the Board.

When considering the wording for what became Item 13 of Schedule "B" the Board looked at some options and the Board’s own Claims Division proposed that the second column read, "unaccustomed or excessive". In 1980 a decision was made by the governing body of the Board to replace the "or" with "and" and the final language became "unaccustomed and repetitive".

In our view, this purely political decision of the Board must be reversed in order to bring Schedule "B" in line with the original recommendation of the Claims Division.

Applications to add to, delete or amend Schedule "B" are made pursuant to section 6.4 of the Act. Diseases listed in the schedule reflect the medical knowledge at the time of the application. When a disease is added to the schedule the relationship between the disease and the work process is recognized as a matter of Board policy. Once a disease is listed in the schedule the rule of Board staff is to apply the presumption.

The documents at Tab 18 of the BC Federation of Labour binder are an example of a problem with adjudications pursuant to Schedule "B". In this case a firefighter had a heart attack and Item 5 of Schedule "B" recognizes the relationship between fire fighting and heart disease. However, rather than follow the schedule the Board’s Internal Medicine Consultant concluded,

The Board agreed that it is not for Board doctors to overrule a presumption in Schedule "B".

The medical memo in Tab 19 of the BC Federation of Labour binder is another example of the same problem. In addition to this issue the Board’s Internal Medicine Consultant used the fact that the disease occurred away from the work, as a reason to conclude the disease was not work related. The Board agreed this is contrary to policy.

[The] presumption applies whether the disease manifests itself while the worker is at work, at home, while away on holidays, or elsewhere. (Section 26.20 of the Manual).

Because of the operation of latency periods diseases can become symptomatic away from work and still be related to the work.

When asked about whether these specific matters, which are corrected by the Appeal Division, have been the subject of discussions and quality reviews within the Board the answer was that general discussions have occurred. However, there have been no discussions with the Board’s Internal Medicine Consultant.

Our recommendation, above, with regards to the assessment of procedures, staffing and training applies to this issue as well.

Within Schedule "B" there are other diseases for which there are few disputes about whether the presumption is rebutted. Examples of these diseases include mesothelioma and silicosis.

Tab 13 of the BC Federation of Labour binder sets out an example of the situation that arises with allergies and sensitivities.

Because of a leak of x-ray chemicals a x-ray technician developed respiratory problems. The symptoms resolved but then he noticed air hunger during the workweek, which improved in the evening and on weekends. The technician was a life time non-smoker. The diagnosis was occupational asthma and the person could not continue to work as an x-ray technician because symptoms returned when he was anywhere near the work site, despite minimal emissions. He was retrained for another career at age 39 years.

The same type of medical and workers' compensation problem can arise in other industries as well. For example, red cedar dust asthma can have the same consequences.

A number of problems can arise in these type of cases. First, there can be a problem simply getting the employer and the Board to recognize there is an allergy or sensitivity. A second problem can be that it takes some time for there to be an appropriate medical diagnosis and recognition of the problem.

However, by far the most significant problem, when an allergy or sensitivity has been diagnosed, relates to how the compensation system deals with these cases. Asthma is listed as a disease in Schedule "B" but there have been cases where the schedule has not been considered by the Board and then the presumption is used for a successful appeal. Once the claim is accepted, typically, wage loss is paid for a short period of temporary disability and then the worker recovers from the initial symptoms. Often a return to work is attempted but it is unsuccessful.

The claim then becomes complicated by current Board policy in this area. As section 29.20 of the Manual makes clear,

In many cases there is no pension payable because policy does not provide for compensation because a worker is "simply left with the underlying allergy or sensitivity". And yet the worker has a permanent disability because, except for the work he would not have the allergy. Another way of putting this is that policy does not permit compensation for prevention purposes (Section 32.60). Rehabilitation assistance may be available (section 86.30).

In our view there must be some form of compensation to recognize the economic loss associated with allergies or sensitivities. While the symptoms may subside there is an undisputed medical condition, which would not have, been there had it not been for the work. Until the worker has been completely rehabilitated we think this compensation should take the form of wage loss or rehabilitation allowances.

Q: What do you think should be the basis of compensation that you would suggest in the case of an underlying condition that the symptoms have resolved but there is no apparent loss of earning capacity at the time – the person has gone back to work?

A: Well, we think it is similar to the cases of the worker who has a loss of a finger and who goes back to work – the pre-injury job with no loss – no economic loss. It’s not the same but it’s similar, I mean it’s – the system is not – it’s not consistent frankly, in terms of its application of economic loss; there are some exceptions to that. The return to work at pre-injury earnings is an example of that. So we think that this is a similar situation to that.

I urge you to be rigorous about definitions of terms here Mr. Chairman, there’s no dispute that the quote that Mr. Chairman read out about that we all have stress – that’s not a very useful word. And as I indicated in answering some questions from Ms Exell earlier, we take the view that these claims should be treated seriously in every respect so the fact that a worker is stressed out because it’s – he had a hair cut or stressed out because he got moved or they just can’t take it any more – that’s not the standard of proof of the Act – that’s not the standard of proof that would be applied in a personal injury case.

Psychological injures are compensable. Section 13.20 of the Manual provides as follows,

In addition to this statement there are various decisions which provide more assistance about how the Board treats psychological injuries. Some of these are set out in the Briefing Paper on Chronic Stress. The most significant decisions are Decision 102 and the Chief Appeals Commissioner’s discussion at 10 WCR 257.

A decision which is not discussed in the paper is Decision 96-1058, Tab 9 of the BC Federation of Labour binder. This decision makes it clear that a "traumatically induced" psychological injury can include a psychologically damaging emotional experience (page 20). This was a case of sexual and other harassment that resulted in time loss and that was diagnosed by a psychiatrist as being a major depressive episode related to harassment.

As with other compensation issues the debate is the extent to which the Board should be responsible for psychological disabilities.

This is partly a medical/psychological question because it is a medical/psychological issue whether a person has a disorder and, if so, whether it is as likely as not that the disorder is as a result of the work. And that is sort of a term of art in the system, Mr. Chairman that likely as not is often used to reflect the standard of proof in section – in the Act. Now the Act is inconsistent in whether – sometimes it refers to a balance of – sorry the manual is inconsistent – sometimes it refers to a balance of possibilities and sometimes a balance of probabilities. Whether in the real world there is a difference between 51 and 50% is an academic question but that’s the term that is often used. And we – apropos of that the employers talk about the psychological injury or – I think they also mean occupational diseases to be significantly caused by work – that’s not the standard of proof in the Act Mr. Chairman. That’s not as likely as not – that is a much higher standard. So I again urge you to be rigourous, not only in the definition of the – of the terms here but in what the standard of proof is. This is on page 29 of the large paragraph – in the centre. That is the correct way – the routine way of stating the issues of causation in our system. The chapter from the text Occupational Medicine, "Assessment of Mental Stress Factors at Work" (Tab 11 of the BC Federation of Labour binder) points out some of the objective ways that psychological injuries from mental stress on the job can be determined. Common factors include structural restraints, repetitiveness, and hastiness. Other or similar risk factors include high psychological demands combined with low decision making power and little or no control over the work or how the skills for the work are applied.

Where psychological disabilities meet the standard of proof under the Act we believe they should be covered by the Act. Because of current policy (primarily Decision 102) we do not have the benefit of an evolving policy process.

However, Decision 96-1058 provides a framework for considering these types of cases and we suggest there is merit in considering the following questions when adjudicating claims,

1. Whether the worker suffers from psychological treatment;
2. Whether or to what extent personal factors may have contributed to the worker’s impairment, and
3. Whether or to what extent the worker’s impairment can be said to have been traumatically induced (including psychologically damaging emotional experiences) in some objective sense by the employment.

If the worker meets these tests then we suggest that compensation should be paid. Issues such as motivation can be determined by tests such as MMPI and handgrip activities.

I want to comment on a few things in the employers’ submission – the – this – as we say at the beginning there’s no question these are complicated cases. But the issue of individual reaction – they are getting married, they are moving into a new house – they are stuck in traffic – well those would be answered I think in the first test of the three parts test – whether the worker suffers from psychological impairment. Let’s take the one I mentioned earlier – the hair cut – somebody gets a haircut and is teased at work. And they say they have to take time off from work – is that compensable? Well, was there a psychological impairment? One would think not. However, let’s take – let’s change the example a little bit. What if there was a hair cut; the worker was teased but it’s really in the context of an issue of race. And there’s a long history of harassment because of that – because of that – because of the issue of race. So the haircut becomes a symptom of an underlying problem at work. So the answer to that question might be yes in those circumstances on the first point. And again, we say it has to be – besides psychological impairment it’s not just a hand written note from the doctor saying this worker is stressed out. There has to be some genuine medical evidence to support a relationship – to support a determination of psychological impairment. Now it was raised – what happens if there is more than one cause and the discussion about what happens in the tort system where the tort feasors are – are all named and are liable? This matter comes up from time to time in these cases and in other cases – the cancer cases – lung cancer example was used – and the – I think Mr. Winter used the example – you have lung cancer and exposure at work and cigarette smoking at 80% - 20% well 80% being the cigarette smoking – well that would be – the claim would be denied. Now the more complicated issues – another easy example is if you could somehow determine 80% of the lung cancer was caused by work exposure – the claim would be accepted in that circumstance. Now in the middle there where it would be 50-50% - well the standard of proof would apply and the test is whether it is likely as not it apply and that would be compensable.

The employers were asked – what if there is a continual action by an employer to break down a worker – isn’t that compensable? The answer to that was that no because you have to establish fault. And it’s a no fault – the Board shouldn’t be doing that. The system is not geared to deal with fault – I think was – well Mr. Chairman it’s a no fault system – if a machine is faulty as a result of – the fault of someone there is still compensation payable. So the fact that there’s fault by someone at work – is a – is not a – is not a reason to a – to dismiss the claim.

Q: let me just take you back to what you said a moment ago – is everyone saying that causative significance means at least 50% work related?

A: I think the term causative significance really comes out the language that’s used when a matter is sent to a Medical Review Panel. That’s the term of art they use there. Beyond that it’s not used with much clarity or precision and so but the standard of proof is as you know the balance of possibilities and if there’s a doubt the matter is resolved in favour of the worker. And as I say the usual term is – is – is – as likely as not. And the – another way of saying it is – is there a 50% likelihood? You see that a lot in the – the medical memos – they might say if there’s not a 50% likelihood of this or there is or something like that.

A point on the suicide case – I – an interesting case – a shocking case – looking at the Medical Review Panel’s certificate I note that the panel said that the opinion of the panel that the major stress factor in his life arose from work and over the page was – with respect to stress the preponderant influences related to the work and then the cause of death was not wholly independent of his employment. Now what we have here Mr. Chairman is we have – we don’t know all the details of the facts but we have a panel weighing the evidence and saying there’s two things going on here – one was the work and one was the personal factors. And the work was more significant. That’s what tribunals do; that’s what panels do; that’s what courts do. So on its face I don’t see – I don’t see a legal problem with the decision.

The employers concern about the statement at the bottom of the Appeal Division – the manual says in cases of suicide – death benefits are payable and so on. And then the statement by the Appeal Division – death by suicide is therefore compensable if occupational stress was a significant causative factor and then the employers are surprised by that. Well, apart from cases of deteriorating illness – how else is suicide caused if not by psychological issues? Unless you believe that suicide is a rational choice made by rational people.

We see no reason to make things overly complicated by defining subissues as if they were not psychological matters. Chronic stress is not a particularly useful term to apply although it has wide currency. By calling some types of psychological injuries chronic stress we are creating a separate category of claims. To do otherwise means that worker assume the risk of psychological injuries from their work and the assumption of risk rule was abolished some time ago. Defining away some psychological injuries also means that the prevention effect of claims is eliminated.

Finally, we note that the Supreme Court of Canada has held that is contrary to human rights legislation for a private income replacement plan to limit coverage for a mental illness to two years (Battleford and District Cons-Operative Limited v. Gibbs [1996] S.C.R. 566].

In any case if we are using the term chronic stress we suggest that a study for the C.D. Howe Institute has the right approach,

The report of the federal Royal Commission on New Reproductive Technologies (excerpt at Tab 21 of the BC Federation of Labour binder) said the following about reproductive hazards at work,

The commission made a number of recommendations relating to general and specific matters including coordination of federal, provincial and territorial agencies on this issue.

To date the BC has not done anything in this area. We do not underestimate the complexity of this issue but we also believe that it is time to start addressing it.

Since 1981 Quebec has had statutory provisions for preventative re-assignment, the philosophical cornerstone being the principle of preventing occupational injury by eliminating danger at the source. These provisions are section 32-40 of the Occupational Health and Safety Act S.Q. c.S-2.1.

The concept of protective reassignment is reflected in section 32 of the Quebec statute,

The Commission makes the determination of whether section 32 applies. If reassignment is not made immediately the worker may stop working until he is reassigned and receive his regular wage rate. After the five days the worker is entitled to regular wage indemnity. There is a need for a right to reassignment in BC.

The specific case of pregnant workers is contained in section 40 of the Act. A pregnant worker that is not reassigned receives 90% of her net salary, drawn from a fund to which all employers contribute. This financing system has been effective in avoiding an incentive to discriminate against women workers in order to reduce compensation costs. The right to reassignment is granted by the Commission for pregnant or breast-feeding mothers who have workplace exposure that endangers the worker, the foetus or the breast-feeding child and there is a medical certificate signed by the physician in consultation with a public health doctor.

There are no provisions for any type of reassignment in the BC legislation. There is policy about compensation for sexual dysfunction but there is not policy with respect to reassignment or risks to pregnant mothers or breast feeding mothers.

Although it was believed initially that chemical exposure would be the most frequent source of risk, by far the most frequent risk factors involved are ergonomic factors. Ergonomic risks include lifting of weights, danger of falling, and many other situations. In many cases reassignment simply means the provision of a chair, limiting or removing piecework or other accommodations. Exposure to physical assault has also justified re-assignment.

Chemical exposure to solvents or pesticides usually justifies withdrawal of the worker. Biological risks include exposure to cytomegalo virus (day care workers), HIV and Hepatitis B. Exposure to ionizing radiation is considered a physical risk.

Many workers have used the right to protective reassignment and some estimate that up to 30% of pregnant women have exercised their right under the Act. In 1993, 93.4% of claims for reassignment were accepted. It is most likely that the weeding out of unworthy claims is done by the attending physicians and public health physicians since a claim cannot be made without their certificate. It is therefore not surprising that the acceptance rate is high.

The right to preventative reassignment was intended primarily as a tool to promote reassignment rather than withdrawal of the worker from the workplace and payment of benefits.

In practice most workers are not reassigned and they withdraw from work and receive benefits. Employers are reluctant to reassign because it is perceived to be more trouble than replacing the pregnant worker at risk. In the past few years the Commission has made reassignment a priority and it is expected that more workers will remain in the workplace in the future.

The right does not apply to workers who are not available for work, to women who must withdraw from work because of high risk pregnancies and to workers who have been laid off for other reasons (including strikes/lockouts, end of contract, abolition of position). The right is predicated on the idea that work creates the risk, and in the absence of an obligation to work, the worker will not be exposed and should not benefit from the provision.

Current policy and legislation in BC have no provisions for recognizing, adjudicating or accommodating health risk arising from reproductive hazards. This is a serious omission which must be addressed and it is especially important with the increase in participation of women in all levels.

Q: On your proposal on diseases to deal with allergies? How would that affect a worker who was exposed to cedar dust asthma? What would be the difference between the way they are treated today versus the way they would be treated in the future?

A: Today – diagnosed with cedar dust asthma – it’s in the schedule by the way. They would get wage loss – would be entitled to retraining – and if things all work well they could – should end up in a job that is offsetting the loss of earnings. That is they should not have any loss of earnings. The – and there’s issues about whether that rehabilitation process is successful or not but that is in the context of rehabilitation and that’s a question of – that’s a rehabilitation issue and it’s not as much a fundamental issue as the other problem. That even though that worker has been retrained and in another job they have a permanent disability. They can’t be exposed to certain substances. Because if they do they get sick. So the difference between what we are proposing and what’s currently in place is that they should get something for that.

Q: Would it be in form of – if a worker – and I think about people that work in shingle mills who inherently make over well over the maximum insurable – would it be if they were able to find employment somewhat less than those maximum earnings that something compensated them for the difference?

A: That might be a technique to apply although you’d have to deal with the statutory – the maximum in the statute whether you could get around that or not. But clearly in that circumstance there would be an economic loss. That is the rehabilitation would be to the statutory maximum. I’m guessing that some rehabilitation consultants would do their best to find work in those circumstances that paid higher than the statutory maximum just because that’s the way things should be done. But – but the bottom line is that the statutory maximum could drive the decision.

Q: You would also see a pension for the fact that they had this disability and not being able to work in those areas?

A: Yes.

Q: I just had one question – that would be a functional pension then?

A: Yes.

Q: So it would have to be listed in the schedule?

A: Well, assuming the rehabilitation process worked and got them back to work.

Q: Yes.

A: Yes. Not all functional pensions are listed in the schedule. There are non-scheduled awards.

Q: So that would have to be assessed in each individual case, depending on….

A: On each individual case, yes.

I have one minor point of clarification – there was a reference in Mr. Sayre’s discussion to consideration being given to creating a research body to deal with issues around compensability of disease and other conditions. I wanted to inform the Royal Commission that the Panel of Administrators has actively been considering the concept of creating a research foundation funded by the Accident Fund to engage in that kind of research. I will provide a copy of the Panel of Administrators’ resolution to the Royal Commission and all counsel. It’s still in the stage of being formed – the Panel of Administrators has resolved to provide the income off $30 million as the funding for that activity and is presently attempting to determine the structure that would be used to invest those funds and pay for the research.

Q: What would be the purpose of this $30 million; what would it be spent on?

A: The $30 million would be invested; the income off the $30 million would be used to provide funds to our research foundation. The compensation of the research foundation hasn’t been determined yet but in general terms it’s to ensure accountable, continued, scientific study as well as dissemination and application of ways to reduce injury, disease, impairment, or disability arising from employment.

I’d like to start – you asked the question when I was last in this hot seat about if the worker is retired and suffers an occupational disease and is not entitled to receive anything other than health care and then dies and the widow is not entitled to receive anything can that person sue. And I said it’s an interesting point and I had to think about it and I have and I’ve talked to others and I think the answer under the current Act is clearly no. And that falls back to section 10.1 and what the bar is – and the bar is with respect to against any worker, etc. in respect of any personal injury, disablement, or death arising out of or in the course of employment. To be able to sue the basis of the argument the dependent has to raise is the death was caused by employment. And I think the focus time is – the employment that caused the illness caused death. For example the worker also couldn’t sue. It’s now in the same situation – in retirement – they can’t sue now because the injury that they are referring to or the illness that arose is relating back to arising out of or in the course of employment so they don’t have the right to sue.

Mr. Sayre had a discussion about providing the discrimination aspect he thinks of section 6.1 of applying the pension and that should be provided to someone that’s in retirement also. I’m not sure we discussed on any day – either the pension day or today – that I just want to make sure that everyone understands – loss of earnings pension does have a formula. And I won’t get into any detail – I’m not sure if that was ever discussed or explained with the panel so that would – I think it really is just the functional that goes ahead subject to the Appeal Division decision that if there’s a presumption now – a rebuttable presumption – of age 65 the loss of earnings would stop. Loss of earnings being determined before age 65 has this fifteenth rule between the age of fifty and 65. And that would stop subject to the worker being able to show that they would have continued to work.

Mr. Sayre raised an argument which I find absurd but he said that about me so I guess it’s only fair – this is the argument that he raised about the municipalities and why are they spending all this money fighting these cancer claims instead of putting the money into prevention? And stopping those claims? You are putting the cart before the horse. For the municipalities to say there’s something here that we should get involved in and deciding how do we prevent – there’s got to be an acceptance that work has some sort of relationship to it. That’s why the municipalities get involved; they saw the nature of the argument was coming in the first instance was really all cancers. And if they wouldn’t have gotten involved we may well find all cancers in all fire fighters would be compensable if I understand Mr. Sayre is saying – why not? It’s a dangerous job. Let them get the compensation; spend that same money on something else? And again that just doesn’t make any sense. For example, the brain cancers – there seems to be a concern and the employer – the municipalities to their credit have said we won’t oppose. I think I’ve indicated; I think Mr. Steeves may have indicated – but I know I have that there is a discussion going on between the parties on a better way of dealing with it and one of the aspects that Mr. Steeves’ clients have put on the table is – as we are doing this we also want to concentrate on prevention. And the municipalities have said that’s fair. We should talk about that. And I don’t want to leave the impression that municipalities are doing nothing; I mean a lot of the problems were in the old days – fire fighters just did not want to wear respirators. And there was a culture there – to a degree they were available but we’ve heard all sorts of evidence – you heard that in the Review Board hearings.

In any event, that’s a different atmosphere than we have now; I think everybody’s in agreement between the fire fighters and the municipalities about the use and the value and the importance of using respirators.

The research facility so we’ve heard Mr. Massing – but the other thing is the Board does have a grants and awards program and I think we heard from – I don’t know if I read it in the paper – we heard from one of the witnesses for example – I think it was Mr. Buchhorn was talking about a coresearch or grant to the BC Cancer Agency for five years so they are doing research in any event through their grants and awards.

Mr. Sayre raised – stress as a misnomer and that may be accurate. But the reason I use stress is that all the legislation that I pointed to uses the word stress actually in their legislations. I thought to be consistent we would use that word. He refers to that people are coming in with diagnosed conditions – but that may be true – but what you find is that all it is is – it’s something based on stress and now they’ve gotten some certificate that says it’s an anxiety disorder. For example, the Dowling case in Prince Edward Island was reactive depression caused by stress at work. The employer community’s position is we don’t care what we call it – it’s the causal aspect that’s being relied on is stresses at work – that should not be compensable unless it is an acute traumatic event.

With respect to the section 10 issue – on if you exclude stress except for acute – would section 10 be a bar? I think I was around I agreed with the – what is in the Briefing Paper is that no it wouldn’t be a bar; it’s not covered under the Act at all but I and the employer community – the few that I’ve talked to – have no objection to making that clear in the Act if we do accept the premise as other jurisdictions have – that stress is only compensable for an acute traumatic event then clearly put in something that a section 10 bar doesn’t apply for the cases that aren’t covered under the Act. There’s a couple of ways of doing that but we don’t’ propose that sort of specific acknowledgement in the Act so we don’t have to enter confusion at a later date.

Mr. Steeves referred to the Mullet case – I think he may have referred to it twice. He talked about the primary cancer of the skin on one side and then he said the employer’s position was that the – the description, process, or industry on the other side did not apply. That was not our position. Our position was there’s a dual prong on the other side – one is prolonged contract to coal tar products, arsenic, or cutting oil, and the other is prolonged exposure to solar, ultra violet light. Clearly we said prolonged exposure to solar, ultra-violet light is known to cause melanoma. And this was the wording problem – they used cancer of the skin – they lumped the three main cancers together and put the two main causes separated. And ultra-violet light was melanoma and coal tar products, arsenic, and cutting oils was – that was our argument and everybody had agreed and it’s written in the decision – the fire fighter that we were looking at did not have prolonged exposure to solar ultra-violet light as a fire fighter so that was out. We didn’t have to worry about that. So then the issue became as Mr. Steeves does explain – we took the position that it can’t be caused – it is not known to be caused by coal tar products. Our position was it was really poor drafting and if we can meet the presumption, why should we lose on poor drafting.

On a related point Mr. Steeves and his client has come to ask the Board to go in and correct what he says is an historical error since 1980 on tendonitis, etc. My clients said this is not for the Royal Commission to get involved in the merits of what is on the schedule and not – we are raising broad principles of how the Board deals with it. If the Royal Commission is going to accept the invitation to get involved in the merits and the merits of that one – that should not be Schedule "B" altogether. Epicondilitis and carpal tunnel which are related occupational diseases which are recognized by regulation are not in there and they should come out. And if you are going to get into the merits we think that item number 5 –not 5 – cancer of the skin is poorly worded and it should be corrected.

Section 23.1 – Mr. Steeves was talking about the section 23.1 and for the unfairness of not having a section 23.1 functional pension for someone who retires after – it says if it is based on averages why shouldn’t they get it after? Well, it says – section 23.1 – while a permanent, partial disability results from the injury – the impairment of earning capacity must be estimated from the nature and degree of the injury. I believe that pre-supposes that you first have to find that there is an impairment of earning capacity. And then how you estimate it is by nature a degree of the injury. The average is used, from my understanding, on determining the nature and degree of the injury. As opposed to going to each and – each individual case and look at nature and degree of injury you do it on average. But I believe it pre-supposes an impairment of earning capacity, which doesn’t apply in the case where the person has retired. They have no impairment of earning capacity.

Mr. Steeves has raised the point of occupational cancers and are they under compensated? Certainly I litigated those cases and I remember what the author is saying – the range was 4-38% and he’s right that there are authors that talk 10%. I can’t remember how they got to the 4 - 38% range – but let’s assume that it’s under compensated – he’s asking the Royal Commission to absolutely state that there’s a substantial under-compensation. I think before that’s done there has to be a little bit more work done by the Royal Commission – for example – is this a similar problem – it’s a problem in other jurisdictions in Canada – if everybody in Canada compensates cancers at this level – doesn’t mean it’s not a problem – but that’s a fact that you look at. There may be a systemic problem that’s different than under compensation the way it’s being used. If we are the only one that’s so significantly lower as compared to others then there may be justification of what he’s asking and it may mean some investigation with those other boards but here’s an example – maybe it has something to do with latency periods? May be what the 4 – 38% was looking at is that occupation is ultimately caused by a significant causation factor in the cancer but by the time it comes up may be a lot of these people are retired; don’t think work had anything to do with it – and even if they did either know or don’t think they are going to get anything from compensation – that may be a factor. I don’t know how much justified if it is a factor but I think there may be other things that are involved besides just simply saying that it is under reported.

Preventative compensation and protective reassignment – I’m going to deal with tomorrow because it was one of the issues that Mr. Robertson indicated would be carried over so I’ll respond tomorrow.

Lastly, back to causative significance because Mr. Chairman you posed that question – do we all agree that 50% - again there’s a lot of concepts in workers' compensation and this may be why it’s difficult if you don’t have experience in getting involved in the area just be picking up something. There’s a lot of phrases and concepts in workers' compensation that really has some fluid, flexible uses depending on cases. Causative significance I think is one of them. Mr. Steeves and I both agree I think on the obvious – the 20% - 80% no matter which way you do it – when you get into the 50-50 – that’s section 99 – when you get into 48-52% - you are probably still in section 99. There’s going to be a line somewhere but I don’t think – I can honestly say that it’s got to be 50 – because I think you are going to have cases where there’s 4 very real possibilities – all at 25% - I think section 99 now in the benefit of doubt and that’s why it talks about possibilities in certain cases. I think the intent is when there are 4 people but they are all less then 50 – it doesn’t mean you throw it out because none of them are 50. And causative significance from that range when you are looking at four of them – they are all potentially causatively significant – section 99 kicks in and away you go.

Q: All four – potentially any one of them resulted in the condition

A: Resulted in…?

Q: Resulted in the condition?

A: So all four were present and any one of them could have done it?

Q: yes.

A: I think if they are all relatively equal again that’s where the benefit of the doubt comes in – under section 99 – if they are all under 50 but one is 40 and the others are 15, 15 an whatever it adds up to – I think the 40 is going to be found to be of causative significance for Workers' Compensation Board purposes – that is the one they are going to look at but that was the work related so that is going to be accepted. If it wasn’t I think it is going to be rejected. I think that makes sense. But I don’t think it’s a fluid that we have to say 50%.

Q: What did municipalities used to do with fire fighters who didn’t wear respirators?

A: In those old days, I don’t think anybody did anything. Mr. Steeves is accurate that there were always respirators in my recollection. What you may have is 4 respirators on the truck and 8 people. So that was a problem. But even when there were enough respirators there was a peer mentality that a real man – and I don’t mean that in a derogatory to women but that is the way the world was looked at from fire fighters and a real man doesn’t wear a respirator and we go in and breathe this stuff and that philosophy and we heard it from the witnesses; that philosophy changed – there’s no doubt when we were doing the case that philosophy changed. But I’m talking about captains that were in the bargaining unit and all the way up; they came from that group of people. They thought the way that group of people did so I think it was lax in the old days from the employer of requiring respirators to be worn. That is a very different atmosphere that we find today. There is a better understanding among all fire fighters and certainly a better understanding of employer – of the responsibility.

Q: Did the Act require it?

A: I can’t answer that; I can’t answer if the regulations required respiratory equipment the way it does not in the regulations.

Q: What does the employer do now?

A: A. it is not a problem now but now my understanding is it is enforced.

A couple of quick points – first of all on behalf of injured workers and their interests we agree completely with Mr. Steeves’ submission regarding the red cedar dust asthma and those types of conditions – they should be compensable – they clearly disable a person from earning the income that they may have earned before – they may in some cases render the person completely unemployable at least until there’s been effective rehabilitation and it is simply an artificial exercise of semantics to suggest that that doesn’t amount to a disability and therefore should not lead to any compensation for that very real economic loss.

I was very pleased to learn of the Board’s – the governors’ – or the Panel of Administrators’ proposal to create this foundation for research. That is good news. I would still ask that the Royal Commission consider making that a – embedding that in the statute in some way and providing it with some independence so that it would – it can – if the management’s of the Board should change their views on this sort of thing and prefer not to find new causations between work and disabilities that the foundation will continue to do its work not regarding – notwithstanding that.

Third point – the clarification that Mr. Winter just mentioned regarding the stress case – I think he said the employers’ position is that even if you call it an anxiety disorder or some type of depression that resulted from stress then they want to see it excluded. And I just wanted to comment that that really indicates what a departure this would be from the normal way that we do deal with disabilities under the workers' compensation Act. We don’t normally exclude things on the type of activity that caused them other than the statutory test which is did it arise from employment? That’s the causal link that has to be established – is employment. Now we are saying that a certain type of activity within the course of employment doesn’t amount to employment. Hypothetically, whatever the result was – I suppose would be the consequence of that. And I just – in order to weigh what kind of damage that would do to the basic concepts of the Act I would invite you to consider an analogy in the physical sphere – there are also – I’m not sure that this is a point that I completed when I made my initial submissions but I pointed out that there are a lot personal factors that can cause stress, there is a lot of personal physical activities that can result in a back disability as well. The Board doesn’t use that as an automatic reason for rejecting all claims for back injuries that occur at work even if they occur over a period of time rather than as the result of a specific injury. I think the Royal Commission would be extremely slow to accept the argument that because of the difficulty of determining exactly what lifting or bending activity may have caused a specific back disorder that it would be a good idea to change the Act to say that disabilities arising out of lifting activities will not be covered by compensation. That would really be a preposterous suggestion and I submit to you that logically the employers’ request on stress is virtually as preposterous except for the fact that the Board is rejecting them now anyway, so – but at the moment it wouldn’t result in much change but to enshrine that principle of causation if you will in the legislation would be quite a blow to the basic concept under which the Act is based.

Final point is in regard to the impairment of earning capacity under section 23.1 – yes the philosophy of section 23.1 – I think it is fair to say that it is based on the notion that the average percentages for functional pensions do have that relationship to a person’s earning capacity – that is where the averages come from – that is why the – a very slight – a very small disability is compensated at a very small percentage where a very major loss such as the loss of a limb or a loss of an eye gets a much larger percentage. There is somewhat comparable situations as I understand it in physical injuries is that if a person is injured the day before a lay off scheduled plant shut down they recover before the plant would have resumed employment – I stand to be corrected but I believe that in that situation no compensation – no wage loss benefits are payable – is that correct? Now that is an equally uncompensated injury, which occurs to somebody. It’s been suggested that that’s an issue that should be resolved as well by an amendment to the Act. I think that while I agree with that suggestion I think the difference there is that that’s by definition a very short-term injury. An injury where the person recovers within a relatively short period of time. So while they may have suffered a bit of an injustice in having a physical injury and undergoing the pain and so on that that causes without getting any compensation at all for it – they – A. They didn’t lose wages and B. they did recover. If this was a permanent disability they will get a benefit and if they – the temporary benefit that goes beyond the initial period when the plant would have been shut down then they will start getting benefits. The difference here is that people with industrial diseases contracted a permanent condition – it was disabling, and which in some tragic cases will lead to their death and they are still denied all compensation because of the fact that they were retired at the time that it manifested itself and I think that is quite a difference in degree and should lead to a different result even if you don’t change the case of the short term injury during a lay off period.

Finally I want to add my two cents’ worth on what causation means – just actually indicate to you that there are a number of references in the claims manual to causation and it isn’t clear to me and I think you asked the question to all counsel agree that the standard is 50% - it isn’t clear to me that that’s the Board policy. Looking at page – paragraph 14.20 for example – the occurrence or non-occurrence of a specific incident – is in connection with causation of work injuries – they say it is not a bar to compensation when an injury occurs over a period of time rather than from a specific incident – to be compensable however the evidence must warrant a conclusion that there was something in the employment that had causative significance in producing the injury. A speculative possibility that this might be so is not enough. So it doesn’t say that it had to be more likely than not that it caused the injury just that it had some causative significance. It goes on to say what – this does not mean that the presence or absence of a specific incident is never relevant – what it does mean is that absence of a specific incident is not grounds for denying a claim.

It goes on to say later in paragraph 15.00 – injury is not compensable simply because it happened at work; it has to arise out of and in the course of employment. If it happened at work it usually indicates that it arose out of. There must be something in the employment relationship or situation that had causative significance for producing the injuries but again repeats the same language as before. If the injury was one of purely natural phenomena – I underline the word purely – the internal workings of the human body – the employment situation may then be an irrelevant coincidence and if so the injury is not compensable. So that language almost indicates that if the employment situation is relevant in some way – that it would only be non-compensable if an injury occurs at work if it could be proven that the work activity was completely irrelevant and that it was purely the result of some natural working of a person’s body.

And finally on the next page it says the disability is one that the claimant – again – elaborates on the kind of conditions that would not be compensable even if they occurred at work. The disability is one where the claimant would not have escaped regardless of the work activity and hence the causative significance of work is so slight that the disability is treated as having resulted from the deteriorating condition.

So what I draw from that is that the – it is not clear that even the current Board policy requires that there be proof to a standard of 50% or close to 50% in order to make a condition compensable. That’s one of a number of fundamental aspects of the Act which is not clearly defined in the legislation and has been left to individual cases and appeals to resolve on a case by case basis.

I guess I will point out one other causation in a different chapter – paragraph 26.22 – which is in the in the industrial disease – occupational disease arena – talking about non-scheduled diseases and the onus of proof. Does have language which suggests that there is some sort of equal causation required. It says – on the second page – page 4-11. Therefore if the weight of the evidence suggests that the disease was caused by employment is roughly equally balanced with evidence suggesting non-employment causes the issue of causation be resolved in favour of the worker. This provision does not come into play when the weight of the evidence indicates that one possibility is more likely than another. So that – when the policy manual talks about diseases it seems to refer to a 50-50 type of balance but when it talks about injuries arising at work – even if they arise over a course of time so that the presumption doesn’t apply then the – the test may be some – quite a bit less than the 50%.

Those are my comments.

Date: April 16, 1998

Commissioner staff: GG, GS, OE, TR, D , JS

Notetaker: Judy Stott

• In our submission the greatest single goal and purpose of the Board is to properly serve those people that have become casualties of the work force
• We say that that process cannot be properly conducted unless the beneficiaries of it – the people for whom the whole system exists – are a part of the governing process itself
• In a sense, the people that work for the Board, the people that administer claims and do all of the different things that we have been hearing about over the past few weeks will have in the back of their mind the knowledge that the people they are serving are customers and they are also employers – people who have at least a partial say
• A significant number of Board workers should be drawn from the injured worker community
• We think that that would have a beneficial impact on the attitude of Board employees and their sense of being accountable on an ongoing basis to the people that they are working with
• They are not dealing with beggars on a street corner looking for charity, they are dealing with people who are recognized as being an integral part of the system and who have the stature to be part of the governing body
• I think that would change some of the climate that has led to some of the complaints that you have heard about
• Injured workers would also benefit from having the recognition that they are worthy of being consulted and being part of the decision making process of the board
• I hope that I have said enough to prove to you that it would be desirable to have injured worker representation on the board of governors
• There is, of course, one injured worker who is now a member of the panel of administrators – Wolfgang Zimmerman
• I asked Mr. Cott at the beginning of the hearings whether they considered that to be a positive contribution to the panel and as I recall he said that yes it was
• I think it is self evident that someone who has been there and been through the process first hand – provided that the appropriate individuals are chosen – will have a perspective to offer the rest of the governing body that might otherwise be missing if they were all drawn from various professions (employers’ proposal) or from the leadership of the union movement and the leadership of the employment groups (federation of labour’s proposal)
• My personal preference is the federation of labour’s approach
• I tend to agree that those 2 parties have a detailed, immediate interest in the operations of the Board
• The employers because of the fact that they pay for the system
• The unions because of the fact that they represent a large segment of the people who are the beneficiaries of the system
• I don’t know what decision you are going to make about the size of the governing body – if it is 15 to 20 people or even 10 people then I would suggest that more than one injured worker should be a part of it
• If it is only a small body like the panel then it may be unrealistic to ask for any more than one
• I have a hunch that you are going to decide that the permanent governing body of the Board needs to have more than just a few people making decisions given the number of matters that they are responsible for and the complexity of the system that they are in charge of

OE: How would injured worker(s) be selected for representation on the panel or board? Do you have any thoughts about that?

A: I do have some thoughts but I don’t have a concrete blueprint to put in front of you. I don’t think that the current state of organization of the injured worker movement is such that it would be possible to come up with a comparable system to the system, for example, with the BC Federation of Labour. It is quite easy to ask the Federation to nominate people who represent the labour movement and they will do that and the people that they nominate will presumably be responsible people who will try to represent that interest. The same would be said, I hope, for the people that the employers nominate. There are so many different injured workers groups some of whom are focused on certain types of injuries, some of whom have quite small memberships so there is no one body that a person can go to ask for the names of the nominees. I have suggested that you should do a broad consultation but this commission, I think more than any other body in probably the history of BC, has recognized injured workers as a group worthy of consideration, respect and consultation. If the minister, after a broad consultation with all the groups, and with the leaders of the community can choose a number of injured workers to sit on the Board of governors I think that is the only way to do it now. In addition, I think that will be a major impetus to the community to become more organized and to take themselves a little more seriously. Right now injured workers are outsiders in the system. They are not only not sitting on the Board of governors they are also not consulted as a stakeholder group when the Board considers policy changes. The group of advocates that I represent is normally consulted although not 100% of the time. The federation of labour is always consulted and the employers’ groups are always consulted but injured workers’ groups normally aren’t. They should be and that will, in fact, be my next recommendation.

• There should be a very broad and inclusive recognition of injured workers as a legitimate and important stakeholder in the whole process
• This would mean that whenever the Board is considering making a significant policy change injured workers’ groups would be informed of that
• There would be means taken to let any active, injured worker who wants to be involved in the process of the Board to become aware of what is happening and have a chance to make submissions if they want to
• I attended the employer services strategy meeting because I wanted to know more about that area
• As I understand it, any member of their stakeholder groups who was informed of those meetings was entitled to come
• There were people there from various unions
• There were people there from various employment groups that weren’t officially nominated or sanctioned by anybody to come
• I don’t see why injured workers’ groups could not have been invited to that same process and given the same opportunity if they wanted to be part of that process
• They should also have the opportunity to be part of all the other policy reviews that are going to be coming up over the next several years I am sure
• So that is the second part of my recommendation for the governance process
• Injured workers should have a limited but significant representation on the Board of governors
• Injured workers should have a complete recognition that they are an important stakeholder such that they should be fully involved in the policy process and given a full opportunity to take part in the process

Third subject

• I recommended that there be an external complaint receiving body or complaint investigating body that would be able to take complaints from injured workers about the way in which they have been treated by the Board
• This is not a substitute for an appeal
• The body is not there to allow their appeal or to decide that they should get a pension if they have been turned down
• It is there to investigate complaints that people have been treated rudely, that policies were deliberately not applied and that other forms of conduct that we would term improper were engaged in by the Board
• That is a part of our package of accountability proposals that would make the Board more accountable to injured workers as well as to others in the community
• I want to be fair to employers and I don’t see why they shouldn’t have same access to a complaint process that workers have
• From some of the stories that I have heard about some of the arbitrary decisions that sometimes can be made in connection with regulation orders and penalty assessments there may be just as much reason, ignoring the fact that the impact of the whole situation on a worker is so much greater, the equity of the treatment that the person has received there may be just as much reason for the employer to need an independent body to go to as there would be for the worker
• I haven’t put a blueprint together for how that would be organized but I have been trying to come up with some materials and models that you might be able to consider
• I did mention the police complaint process as one well known example of an external complaint body
• I don’t think that the functions of the policy department are a very close analogy to the functions of the workers’ compensation board but some of the ways in which complaints are dealt with may still be relevant
• Whatever the recommendation would be I recommend that the injured worker community be a part of the process of nominating the people that sit on that body
• Depending on how it is constituted injured workers should possibly be considered for membership of that commission or former injured workers

GG: Could you also put your mind to what kind of powers this body would have in the form of remedial jurisdiction?

A: I think it should have the power to award compensation for improper treatment by the Board at least for the worker. That may not be appropriate for the employer. Where a worker can show that they have suffered a real loss - this is not for someone who has been hung up on or had delayed phone calls but rather a refusal of a commutation. If a person makes a commutation request that is fully within Board policy and for no reason at all the Board refuses it and that request would have saved them $5000 on their mortgage on the next 5 years then that is a loss. That is a loss in addition to - if they had a pending appeal for more benefits or something that is an entirely different matter. This is a loss that results from misconduct by the Board officer in not applying the policy that they have been told to apply. There really ought to be some mechanism short of a theoretical law suit against the Board and I am not even sure if that is permitted by law that would allow the person to get some recompense for that. The exact parameters and the extent of the wrong doing by the Board that would be necessary before there would be any compensation considered would all have to be worked out. It may be that you are not going to have time to come up with all of those details anyway. The most you would be able to do may be to accept the principle and suggest some general principles that would apply and then leave it up to the drafters to come up with the specifics in the future.

The other answer that I gave is that compensation is one of the responses that the body should be able to give but it should not be the only one. There is a certain value in terms of human dignity. Some may just want an apology from the Board and even if you have to go to a complaint body for a formal apology that would be better than nothing. Especially if it were coupled with a direction to the officer that was responsible for the conduct that this was wrong, the Board has apologized on your behalf but if it happens again there will be more serious consequences next time. It is part of the process of accountability. I think that it needs to be part of the system and I think you have heard enough complaints from workers aimed at that kind of conduct and what they perceive as abusive conduct to understand that appeals can only go so far. They can’t address that kind of thing and they aren’t meant to address that kind of thing. Right now we have no other mechanism for workers to resort to other than appeals.

Policy

• It has become a kind of creature of its sort in the workers’ compensation area that it may not be in any other area – that is the issue of policy
• That word may have been used almost as much as almost any other term of art over the past few weeks in the context of code R and in the context of all sorts of areas of the Board’s operations
• What is the policy now, how should it be changed, when does it have to be followed, does it always have to be followed, if an appeal is allowed does that change the policy, should it change the policy
• We are constantly dealing with the question of what is policy, what does it mean and so on
• I have tried to deal with those issues in the written materials that I have given you – it starts at page 57
• It is inevitable that a complex system like the WCB that deals with 100s of thousands of claims and large numbers of employees administering those claims it is not possible to spell out all of the details of how to deal with every situation that comes in front of them
• Or even every type of situation that comes in front of them
• It is not possible to have all that spelled out in the legislation
• Clearly it would be inconvenient and cumbersome to try to put all of that in the statute itself and then require an amendment by the legislature every time it turns out that something needs to be changed
• It is also a bit inconvenient and a bit too rigid to put it in regulations
• Regulations have the same force as the statute provided that they are within the power given by the statute
• So once again you are tied to fairly rigid concepts that our system of law has developed for the interpretation of legislation
• We look at the words and we analyze them and argue about what they mean and so on
• There is a need – and I think it is the reason that policies exist for administrative agencies - for some less formal form of guidance for the officers making the decisions on a day to day basis
• It gives them a sense of how to handle the cases that come in front of them
• That, as I understand the case law, which I gave to you early on in the Board’s presentations – the Testa case and the Maple Lodge Farm’s decision of the Supreme Court of Canada – that is what the court has said policies are for
• They are general guidelines for the benefit of the communities that are affected by the legislation in order to tell them how the legislation is likely to be applied in their case
• That way they know what to expect and the officers who are responsible for administering the legislation know what they are expected to do in those cases
• The decision in both of those cases affirms – and I say that this is simply a matter of law, it is not really open to question although it could be changed by legislation but in the absence of specific legislation that says so – that policy is not same thing as law
• An agency that says that we will not depart from our policy is erring in law
• They are doing what the courts describe as fettering their discretion
• They are trying their hands so they can’t exercise the range of choices that the legislature has given to them because their management has said that you should always deal with this type of situation with the A response and you will always deal with another type of situation with the B response
• It may be that the first type of situation will have some elements of difference in it that call for the B response
• So it would be a different response than what the general guidelines call for
• If the legislation permits that the policy cannot, as a matter of law, completely foreclose that possibility
• I tried to get at that in my questioning
• I think it was conceded by Mr. Buchhorn in the second week of presentations that that is in fact the proper interpretation of the policy and that the Board officers are permitted to depart from policy if there is a good reason for doing so
• I recall that it was said that they would have to see the manager and discuss the reasons for doing so
• The Board seemed to understand that the policy may not be appropriate to every case and there may be cases where the Board has to be prepared to depart from it
• I am concerned from time to time because I know a number of people in the community – not only in this process but people at the review board and else where – and it may just be a matter of semantics but they find themselves talking about policy as if it was the law
• They say that as a way of explaining that this may be a hard case but the policy forces us to make a bad result because our hands are tied
• I recall that being an explanation of the appeal division when talking about wage rate determination
• When the wage rate is averaged over a period of years it seems common sense that you would adjust the dollars of the older years so that you would be dealing in 1996 dollars or 1998 dollars or whatever it is and then you would divide up by 5 or 4 or the number of the years in order to get the average
• That was an issue I raised in an appeal division decision and we lost on the grounds that the Board policy did not allow for inflationary adjustments although they did in other circumstances
• To my mind that is no answer and had my client accepted my advice we would have taken that to court but he wasn’t prepared to deal with the risk of cost that comes with going to court so we didn’t do that
• That is an example in my mind of a fettering discretion by saying that I don’t see anything in the policy that lets me do this therefore I won’t do it
• Without asking the further question, does the act permit me to do it and do the circumstances require me to depart from policy if necessary in order to do what the act directs
• That is to take the wage rate that represents the person’s real loss because that is what the act says

GG: If that is the case where does this phrase contravention of published policy as the ground of appeal come from? Is that in the statute?

A: Yes the reason that I think it has taken on a life of its own in the workers’ compensation context is that the term policy became much more of a term of art. It seems to have assumed a role that is somewhere between the place that policy is in in almost every other administrative agency and the position of a regulation that has the force of law. I think the origins of that go back to the 1991 amendment when the Board of Governors was created. Section 82 of the act, among the other powers that were given to the Board of Governors was the power to create policy and supervise the policies of the Board. Maybe an even more specific reason for why it is sometimes assumed that policies have the binding force of law is that under 96.4 the president of the Board is given the authority to refer a decision of the review board to the appeal division on the grounds that it violates the published policy of the governors

Q: Can you think of an example where if policy is not binding and doesn’t have the force of law how you could breach a policy?

A: Policy has general guidelines, which say this is the way that we usually do it. If there is no reason to depart from that then that is the way it should be done. Policies may also not explain the results that necessarily will occur but the process that will be followed. There may be policies that say what kind of documentation is required from an employer before a wage rate is set. If the Board doesn’t collect all that documentation, doesn’t tell the employer and the worker that they have to submit that documentation then, in a sense, they have failed to follow the policies of the governors. One of the problems that we have here is that policy is a pretty loose phrase and as you were pointing out yesterday Mr. Chairman there is a lot of it thanks to the early resolutions of the Board of Governors. All of the old decisions of the commissioners – I have always found it curious that it was the old commissioners whose decisions, in some senses led to the dissatisfaction that led to the present legislation in the 1991 amendments. Yet it is their decisions, which are official policies of the governors and the decisions of the appeal division that was put in there to fix those problems are not official policy. It is sort of upside down. None-the-less that is what the governors have said. So a decision of the appeal division is not part of policy but all the old decisions of the old commissioners are policy. The claims manual is a policy and the other manuals are policy. It is clear that Board officers are expected to follow policy. In fact, it is pretty clear to those of us that deal with claims that most Board officers feel that they are obliged to follow policy. I wonder how many of them would understand that there is a possibility for not following policy no matter how compelling the reasons are. I wonder if the average claims adjudicator is aware that they can do that. I certainly hear a lot of workers coming to me and saying that they’ve been told this is policy and so this is what is going to happen to you.

Q: Somebody said that there are enough policies that you could reach on a shelf and find one to support your case. Do you agree with that?

A: I wouldn’t agree with putting it that boldly. I would agree that there are certain areas of the manual – in fact, I just read a couple of them to you just before the lunch break on the meaning of causation. One section of the manual seemed to say that if the work was a significant factor in the cause that was fine and the other one seemed to say that it had to be at least equally significant with other possible causes. With those 2 sections of the manual one seemed to have a 50% standard and the other one seemed to recognize that it could be a much lower standard so which one is binding?

Q: That is my point. There are enough of those kinds of instances where you can get policies or decisions on both sides of the fence.

A: Yes there are certainly instances like that where both councils can site opposing authorities and policies in support of their position but I don’t think that you could say that is always true. In my case I could not come forward with a policy that supported my argument that the old earnings ought to be adjusted by inflation. All I could say was that common sense said that if you are trying to arrive at an average dollar figure based on the year of injury then surely you have got to adjust the old figures to the current level before you do that. That is simple math in my mind but there is no policy that says that.

Another example is the cases of psychological disabilities. The formal chief appeal commissioner wrote a lengthy paper urging the governors to create some policy in that area and pointing out a number of difficulties with dealing with claims of that nature and why there needed to be some policies to give guidance to the Board. Clearly she felt that there wasn’t enough policy even to allow the Board to administer those claims in an efficient manner. When you are dealing with a case like that you look at the sections of the Act and you look at what general statements you might be able to find in the policy manual and you do the best you can.

Q: Is that really an issue of policy or an issue of legislation and regulation?

A: I think that there needs to be more generalized directions in the act. Everything should not be left to policy. When there are recognized problems that you can identify in the way that things have been done I think it is helpful to the Board to be able to point to a section in the statute. For example, the rule in section 33.1 is a very good example. If we didn’t have something in the act that says that the scale for setting a wage rate was to identify a rate that best represents the actual loss of earnings due to the injury then we would really be all over the map in about what wage rates should be. There would be no standard to tie it to so at least we have a standard now. There are problems with the language sometimes getting in the way of achieving that standard but at least it is there. It may be that in other areas it would be there. It has been taught for many years that there is no definition of disability in the act and the only problem with saying that is that as soon as you start to say well let’s fix it then you realize it is extremely difficult to define disability. So there may be a good reason why it is not defined in the act because trying to do so might lead to more problems than it would solve. Where there is an identifiable policy problem, a policy gap and you can fill it with a general direction in the act then I think that is an appropriate use of legislation. Where it is a much more specific and detailed matter – what kinds of documentation do we need before we set a long term wage rate, for example – it would be pretty strange to see that sort of thing in legislation or necessarily even in the regulations. That is more the kind of thing that you expect to see in general policy directives that an agency can create. Then if they decide that it is too rigid or that different kinds of documents are needed or technology changes and you get the same information faster somewhere else then you can easily change the policy. It is a lot harder to change the regulation and it is even harder yet to change a statute. So we need all three. I am not in any way suggesting that we shouldn’t have policy or that policy should be considered just kind of an information pamphlet for claimants. I think it is appropriate that officers feel that they are bound by the policies that the governors have enunciated and if some of the problems that we have talked about to you, such as the code R issue, came from a failure to follow policy when the governors hadn’t authorized any changes from administration feeling that if they decided something needed to be done differently then they could just go ahead and do it because they didn’t have to go to the governors for permission. It is a bit of a different kind of accountability issue. That is really a governance issue I think. Obviously if policy had no binding effect anyway then we wouldn’t have been able to make much of an argument about Code R because there wouldn’t be any rules for what kind of benefits people get. You would just take your chances and appeal it.

Q: If policy should be a guideline and not binding but at the same time there would be a system where it could be said legitimately that policy has been breached how do you define those cases? What is the test? How do you define the cases where the decision has gotten so far away from the policy that it has been breached in a significant sense?

A: In the sense of an appealable decision I think that you use the appeal process. That is one reason we have to have appeal bodies. Of course, 9 times out of 10 they are dealing with issues of fact. A lot of times it is not only the issue of fact but how the Board has handled those facts and how they have applied the policies and law to the facts to reach the result that they have reached. That is the oversight process that we have in the act and I don’t know if we can get around that. In another sense if you mean breach in the sense I talked about earlier where people were treated rudely and abusively - where things that they were clearly entitled to weren’t given to them or they were not told about benefits that they could get and therefore suffered as a result of that - then I’ve suggested a complaint process to deal with that kind of a breach of policy. Those would generally be matters that would not be subject to an appeal in any event.

Q: Let’s go back to the stress example and let’s use that in the generic sense. Whether stress falls into the definition of personal injury or not is defined by the act. The act doesn’t really say yes or no. It doesn’t deal with stress specifically and so then you get some policies that are formulated that exclude classic stress and falling under the definition of a personal injury. Should that bind people that make decisions?

A: Not only should it bind them but as you posed that I would probably say that is an illegal policy. Policy cannot change the statute. If the statute leaves it open for whatever we call stress claims. I still would prefer to call it a claim for psychological disability because that is the kind of thing that the Board compensates. If the act allows that to be made and the language is broad enough to include those types of claims then I don’t think that the governors can say as a matter of policy that we are going to turn them all down.

Q: There may be certain instances where if the act doesn’t provide that guideline then isn’t it the very role of governance to create that policy and make that decision?

A: I don’t think that governance can make a decision that restricts the scope of what is available under the act. It can define how you measure what is available as long as it is doing so within the context of the provisions of the provisions of the act. For example, I don’t think Mr. Winter’s recommendation about chronic pain would be a lawful policy. I don’t think that the governors have the authority to say that we decided as a matter of policy that people would not get compensation benefits if they were suffering from a chronic pain condition, which disables them. That is basically saying that people who have a disability under 23.1 are not going to get compensation. 26.1 says that you shall get compensation. The governors can’t change 23.1, the legislature changes 23.1. The legislature could theoretically amend the act to exclude a condition like chronic pain or to exclude a cause of disability such as stress. You know my views are that they shouldn’t but they could do that subject to the charter. The governors couldn’t do that because that is not a matter for policy. Policy is subject to the legislation. It can’t change it.

Q: Leaving aside the lawfulness of the policy we’ll say the Board has made a policy hypothetically that they won’t recognize cumulative stress claims and the adjudicator accepts makes an award to a work contrary to that policy. Is that an example of a breach of policy?

A: You have very accurately put your finger on the real dilemma for the Board’s officers. If I am sitting on the review board and I am dealing with a decision as the vice chair of the review board or the appeal division I have some independence. I look at the basis for that decision and say that that is based on a policy but I think that that policy violates the act I am entitled to say that. As a claims adjudicator if I did that I may be out of work. Clearly board officers are not quasi-judicial decision-makers in the same way that the tribunals are. They are subject to what their bosses tell them to do. We can criticize them all we want but if they are given general directions to turn down stress claims then I am sure that they are going to do it because they don’t want to be out of work tomorrow anymore than I do.

Q: There seems to be 2 levels of policy – one that virtually has the force of law such as don’t allow any cumulative stress claims and others that are guidelines that the adjudicator can depart from under exceptional circumstances.

A: You said that the first time had the force of law like don’t allow cumulative stress claims.

Q: Well it doesn’t look like an adjudicator would have the discretion to say that that policy barring cumulative stress claims shouldn’t apply because it will do injustice in this case. From the adjudicator’s perspective it seems as if he were bound as if it were statute or regulation. It is not a guideline at all. It is a prohibition.

A: I think that another way of saying that is that a lot of the policies in the policy manual as you read the details do leave some room for discretion. The majority of them are not written so rigidly that it is never possible to go around them but some of them are. To avoid complication let us just assume that there is a policy that stands in the way of a claim that would otherwise be acceptable under the act, which says that you cannot allow this type of claim. That is where I took some comfort in what Mr. Buchhorn said. In cases like that an adjudicator can go to the manager and tell him that he thinks the policy should be departed from in this particular case. E.g. with the termination of a loss of earnings pension the policy is that everyone retires at 65. The appeal division decision was created that said that the Board doesn’t have the authority to create a policy which fetters the powers under 23.3 to pay loss of earnings pensions where it is more equitable to the worker. If the worker would have been working to age 70 and you are going to cut him off at age 65 on the basis of an automatic policy that is not more equitable to the worker. So the appeal division rightly said that that is a violation of the act to cut everyone off at 65 regardless of the evidence of whether they would have kept working or not. That kind of gets us into the next area, which is the effect of a decision of an appellate body about policy. Aside from that because that decision was only considered to apply to that individual appeal the next time one of those cases arose the official board positions was that the policy still had to be applied. The policy hadn’t changed just because the appeal division said it was illegal. As I understand it the Board would concede that in cases like that an adjudicator could at least come forward and say that this person was injured when he was 64.5 years old. In addition, the employer had had a discussion and signed a 3-year term agreement with his employer a week before he was injured agreeing to work to age 68. He needed to do that for pension reasons and the employer really needed his services and they both had every intention that he would work that long. It is just wrong to apply our policy in that case that somebody in the Board’s authority would have had the power to say that yes you are right don’t apply the policy to this case because it just doesn’t fit the facts.

Q: I want to clarify one thing. You are concerned that the appeal division in saying a policy violates the act does not bind on any other cases. If the matter went to the court on judicial review or appeal the court says that policy violates the statute. Would the decision of the court have the desired effect and that is that adjudicators would no longer be able to follow the policy because the court has declared it to be unlawful?

A: I think that it would. I can’t imagine that people responsible for the Board’s decision making processes telling their staff to keep doing something that the courts said was illegal.

Q: But the Board isn’t bound by precedent according to the statute.

A: No but the Board is bound by the law. I think that the problem is that they don’t recognize the decision of the appeal division interpreting the law to be binding on it when that conflicts with their policy. I think that they should but they don’t. They say that it only applies to the individual case but I don’t think that they can or would say that if it were a decision of the court.

Q: So that, in essence, supports your argument that there should be some kind of limited appeal on questions of law to the court in order that unlawful policies do not continue to be applied?

A: Well either that or there should be a recognition that when the appeal division makes a decision interpreting the law and policy that that is binding. I don’t see that all of those issues necessarily have to go to court. I just say that when we have an authoritative decision on what the law is then that should be followed unless it is set aside.

Q: Maybe Mr. Bates can give us an explanation later on this afternoon.

• While we are on that subject I made some observations in the written materials about the Board’s position – about the internal/external debate in terms of the final appeal tribunal
• The Board’s position is that they won’t and probably can’t judicially review a decision of the appeal division because the appeal division is part of the Board
• Therefore, they more or less have to swallow hard and accept it for that individual claim
• What they seem to see as a corollary of that is that they don’t have to apply that same decision for any other claim
• That is what has led the law, in a number of areas that we talked about over the last couple of weeks, in a kind of a state of limbo where we have a decision of the appeal division saying that the policy is illegal
• Yet the policy hasn’t been changed and the Board officers say that we have to continue to apply it because the Board doesn’t recognize the appeal division decision as having any general effect
• And the governors haven’t got around to dealing with the issue yet
• As you know from the earlier stages of the process some of these policy issues that were dealt with by the appeal division have been lying around for several years now
• 98.3 is another one where the policy calls for the benefits of any worker who has been imprisoned to be cut off automatically
• An appeal division in 1993 said that they couldn’t do that but that went beyond the provisions of section 98.3
• We had argued that the section violated the charter but they didn’t even have to resort to the charter they just said that it violated the statute
• The governors have not considered the rights of imprisoned workers, I guess, to be a particularly high priority for them as compared to a lot of other issues that are before them
• The only remedy they have is to keep filing individual appeals on that issue
• It just doesn’t seem to make sense to have the system work that way
• That is one of the reasons along with the need for a perception of independence that we are recommending that the appeal division should be external
• That will remove the inhibition of the Board from judicially reviewing a decision when the Board thinks that the appeal division has erred in law
• If they have then all tribunals should stay within their jurisdictions so I don’t see anything wrong with the Board challenging a decision of the appeal tribunal if it feels that that hasn’t happened
• By the same token if they don’t judicially review it then they should follow it because it will be an authoritative interpretation of the act and the current policies and what they mean to the extent that the facts of another case are the same and the same results should apply

Q: Do you happen to know if the review board follows the appeal division decision on benefits terminating on imprisonment? I shouldn’t say follow but whether they agree with?

A: I don’t know of any other cases that have come before the review board since then although I have two appeals myself pending and the arguments are going to be based on the charter among other things. They are going to be concluded in the next month or so. The review board, in the case that did go to the appeal division, gave us part of what we wanted. They said that a prisoner on day parole that was allowed to go out and hold down employment should have their benefits reinstated. The appeal division went further and said that a person getting a functional pension should have the functional pension reinstated because functional pensions are payable whether you are out of the work force or not. There were some questions left open there obviously. I think that what we heard from Mr. O’Brian is that the review board doesn’t consider itself bound to follow any appeal division decisions although it respects the decisions and they don’t look for fights with the appeal division. If they think that the appeal division was wrong then they will go in a different direction. They did that in the section 17 cases that I think the commission has heard about. As I understand it, we just received today, a copy of a very lengthy decision by the appeal division, which reversed an earlier decision it had made and agree with the review board. Sometimes it goes both ways. Again, to talk about accountability of the process and the way in which the law should be consistently applied to similar situations I think that if we had an independent senior appeal tribunal whose decisions were considered binding by the board then it would automatically follow that the review board would have to consider them binding by it as well. It would be bizarre if the Board said that we are bound by what the appeal division said but the review board said that they were not. I suppose that the act could be clarified to make that clear.

• The basic principle is that we say that making and changing policies is a matter for governance
• Whatever the governing body is that should be the body that makes and changes policy
• Another term of art that has crept into our discussions in the last couple of weeks is the word practice
• We heard some debates about whether the code R issue was a change in policy or whether it was just a change in practice
• Those are just words
• In terms of the governance issue it is important to determine who should have authority over what
• Our position is that the governors should have authority over what level of benefits people get in certain circumstances
• That should be recognized to be policy as I understand that word being used in the compensation context and only the governors should be able to change that
• The mechanical and procedural way in which that is done is something that need not take up the concern of the governors in every case
• I think it is perfectly appropriate that the senior administrators of the Board and the middle level administrators had some latitude to change the specific details of what forms are filled out in what circumstances and what kinds of documentation are required and so on in order to see that the policies are properly implemented
• I’ve already mentioned section 82 of the act that gives the governors the authority to supervise policy
• The corresponding section referring to the administration of the Board is the section that details the power of the president
• One of the powers of the president is to supervise the implementation of the policy and that is how I would describe practice
• Practice involves how do you carry out the policies?
• It is the administration of the Board that is responsible for doing that
• The connection between the two is that the president is answerable to the governors
• If the president abuses his authority to implement policy and actually goes and changes them I am not saying that he should be disciplined for it if it happened by reason of a legitimate difference of viewpoint on what that means - there is going to be gray areas
• But if the president does that on a regular basis because he doesn’t agree with the governors then the president should be removed
• How else can the governors assert their authority other than ensuring that the Board recognizes that they have to carry out the policies
• So that is the accountability process that goes from the officers that make the initial decisions back up to their managers and middle management and senior management, through the president to the board of governors
• It is only at the governor’s level that the actual amount of benefits that people are entitled to receive should be changed
• That is subject to the general law that policies are not absolutely binding so that if a particular case arises that is so out of the ordinary that the policies simply weren’t meant to apply to that then there is some latitude on the part of the administration to say that we are going to treat that case differently
• I certainly wouldn’t suggest that they have to get the governor’s position every time that is done

The 2^nd issue on page 59 I talk about what the reaction of the system should be when there is an appeal decision which overturns a policy or which says that the policy is illegal

• I am suggesting that the interim position ought to be that the policy that has been declared illegal is simply ignored in the future, the administration doesn’t come up with new policies
• What has to happen is that people apply the general provisions of the act and the lawful parts of the policy that will remain until the governors fill in the gaps
• Sometimes the governors may not find it necessary to fill in the gaps
• It just may be that it turns out that a detailed policy wasn’t really needed on that question
• Other times they may feel the need to move very quickly to put an interim policy into effect because it would be chaos otherwise
• Each situation has to be dealt with according to a circumstance

Q: You are saying that if the appeal division made a ruling that changed policy that it would stand until such time as the governors had an opportunity to deal with it?

A: The problem I have is with the first part of that question. I don’t think that the appeal division has the authority to change policy in the sense of creating new policy.

Q: To use your words they decided that the policy was illegal.

A: Then I think that policy should no longer be applied by the Board until the governors have had a chance to put something in its place that was legal.

Q: So the appeal division’s decision would stand until such time as the governors ruled?

A: We know that it stands in relation to that claim but what I am saying is that it should also apply to similar claims by other claimants until a new rule is created.

• The only enclosure that I gave you was a speech that Mr. Dorsey made shortly after he became the chair of the board of governors and when I heard it it opened my eyes a lot
• It was a very perceptive view of how administration works and how the administration process in a large organization can evolve over the years to the point where people don’t really know what they are doing
• The title of it is Legislation Policy and Lore
• He talks a lot about the lore masters and the different kinds of unwritten policy, unwritten directions that can gradually acquire the force of policy because that is how people do things
• They can be as varied as someone going to the senior person in the department and saying how do we handle this kind of claim and getting an answer that may have no relationship to what the manual may say
• To somebody keeping an old letter decision in their desk from 5 years ago and saying that this is how I always handle these
• The theme of the speech that he made was that for governors to get control of the policy of the Board so that they could actually manage what the Board is doing the officers had to be confined to applying the published policy of the governors
• I think that may have been a part of the story of why the published policy at this institution is considered to have a much closer resemblance to law then it would in most agencies
• It is because the board of governors needed to make it that way in order to assert their control over the system and rightly so
• I just recommend that as reading to you

• See submission – section 15 on governance
• On page 7 – suggests spending some time on the detail and the history of governance and you will find that there are no new ideas here
• All the ideas have been tried with greater or lesser success so it is really a question of finding a model that will work now
• After 3^rd principle on page 8 – the concept there is not to identify actuaries or retired judges but to recognize that someone’s public interest is another person’s public enemy
• It is up to the government of the day to make those kinds of decisions rather than getting into the definition of public interest

Q: Do you have any thoughts on the relationship of the stakeholder governors with the constituencies from which they were appointed in terms of accountabilities and the conflict of issue you raised in number 7? Is that a problem for governance in a broad sense? If so do you have any thoughts on how it might be addressed?

A: I am sure that we will hear from Mr. Winter the notorious phrase from by-law #2 I think it was about the primary responsibility of the governors being to their representative constituencies or whatever that is. That is what it says. There are a lot of other things in that by-law that sets out information about strict duties to the organization as well. We mean what we say here that the primary responsibility is to the organization. The representative governors are there. They are not people off the street. They represent labour and business. That is what they are there for and that is their function. That is because labour and business have the biggest stake in the institution. Labour is not there to speak for business and vice versa. They are not there to speak for actuaries or anybody else. Their primary responsibility is to the running of the institution and the objectives of the act.

Q: Would they be there to speak for business if they were convinced that it is in the best interest of the organization to do so?

A: I think that they are there to speak for their constituencies but the question is whether or not that goes to an impasse. The impasse is the integrity of the act and the institution and it shouldn’t go that far.

Q: Would it be proper, for example, a labour representative of the governors to speak on behalf of business if he or she saw it fit. This is in so far as that particular position promoted the interest of the organization.

A: I think so and that is what happened at the board of governors. Bear in mind that most of the decisions of the board of governors were unanimous by consensus. That was the model that you bring together your labour and business in two public interests and you get them to understand the other side’s view and you get them to agree to it.

Q: What about your thoughts with respect to division or difference between organized and non-organized labour as the worker component of governance?

A: We think that labour is organized. We don’t think that you should look at numbers. Organized labour is constantly recognizing all workers. We think that is sufficient and in any case there are 2 injured worker representatives there who represent the other work constituency.

Q: So you don’t see a need for any division between organized and non-organized representatives?

A: No nor do we see a need for a division between organized and non-organized on the business side.

Q: You left out any representation from the government whether it is in official or an ex-officio capacity. Was the federation’s experience with having a deputy on the former board of governors not to be satisfactory or not helpful?

A: They weren’t there legally as ex-officio. It wasn’t particularly satisfactory having them there all the time no.

Q: In what way could they be helpful? I was thinking specifically that when there is need for statutory changes or amendments it might be useful to have someone who could guide the Board through that process or who could expedite it if it need be.

A: From time to time there will be occasions where a group of the board of governors should go to Victoria and meet with the minister or the deputy minister. There would be times when the deputy minister should come here and meet with the Board. I don’t know but does the equivalent deputy minister sit regularly on the Board of ICBC? I guess they are appointed there in some capacity. In the previous case they weren’t appointed and they showed up. We think there is something to be gained from having an independence of the Board from the governance from time to time when there is need for context. That can be done on a specific basis.

Q: One issue that we have heard about is that perhaps governors need to have reliable information from which they can make their decisions. That information includes information about the kinds of activities that the Board engages in. That includes investment decisions, insurance principles and those kinds of things. As a result it is conceivable that that kind of resident expertise within the governing structure itself might be helpful. Now you don’t seem to support that view and if that is true then how would you propose that the governing body get that information and how would you have the necessary expertise within it to know how to act upon it?

A: I think that the Monroe report had it right that professional information can be obtained otherwise or other places. It is not for governance to be a constituent assembly, if you like, of all of the professions that are involved in the administration of the Board. The Board has their own actuary full , they have an actuarial firm on retainer and the purpose of governors is to review those matters and undoubtedly they should have some training in those matters. We might want to add that to our list, that training would be important. That doesn’t mean that they have to be actuaries. Indeed we think that there is some value in having people in… a true governance function is one that takes advice from experts and it doesn’t have to follow that advice but it is their decision in law about what do with that advice. So that is one response. The other is what professions? It seems to me an endless tactical task to decide who should be on there – actuaries, insurance people, health care professionals, social workers, law professors, retired judges and on and on. We frankly went through that debate in the thinking on our proposal on the public interest. That is where we ended up saying that let the government of the day decide what their view of the public interest is and appoint two people to represent that.

Q: Can I ask you about your math? You have 5 labour, 5 business, 2 injured workers 2 public interests and a chair for a total of 15. You seemed to come up with 13. Do you mean that the injured workers are part of the labour component or did you add it up wrong?

A: No I added it up wrong. It should be 15.

• After 1 on page 13
• We don’t think that the policy should be changed until it is changed by the Board of governors
• That is, the appeal division doesn’t change the policy it should be the Board of governors
• After 3 on page 14
• I recall when Mr. McGinn and Ms. Logan came down that we had a brief but very useful discussion about some of the history of policy
• Mr. McGinn explained the problems before that the board of governors had in terms of getting policy through management to the board of governors and as a result of the O’Callaghan-Corbin that was changed so we say that that is an important piece for historical and substantive reasons
• After 4 on page 14
• This is kind of a buffer to keep the regular governing structure of the Board a bit protected from some of the big legislative or policy issues
• After 5 on page 15
• I wanted to discuss whether or not policy is binding
• It is a complex area and even arcane
• A relatively easy example is that if there was policy directly on point with the factual situation before the adjudicator then the adjudicator is probably going to follow the policy
• I say probably because policy, we think , is a guideline only
• That is supported by what I think is a fundamental administrative law concept that policy has to apply to the individual circumstance of the person who is affected by the policy
• That is codified in section 99 of the act – you have to look at the merits and justice of the case
• I think if the policy is bang on point then I think that you can expect the adjudicator to follow it but I think that is far as we can go in terms of administrative law principles in section 99 of the act
• If the policy isn’t on point then there is more latitude, to put it in generous terms, for the adjudicator to do something different
• If there is no policy there is certainly lots of latitude and whether they can operate in that policy vacuum is another issue
• Perhaps if you read the policy manual and there is criticisms of the green manual at least and the other manuals so it is not really policy it is policy and procedures
• If you compare that with the statute in terms of just the English language they are very different documents
• The statute is focused, it is precise, it uses terms of art and so on
• Policy is much more discursive and even in a conversational tone in some ways
• Mr. Sayre read some portions of it this morning and I think that it is deliberately that way
• It is not designed to be as precise, it is not designed to be
• It is designed to provide general guidance to people who are using it
• I am not sure if it makes it easier or more complicated but within the act there is also regulation making power within the Board
• For example, in section 71 in regulations for occupational safety and health
• Again those are a different character than the policy
• Regulations are, in broad terms, for enforcement
• The institution is saying to employers that we want you stop killing workers and this is how we want you to do it
• There are regulations on the occupational safety and health side but not on the WCB side
• Going back to the occupational safety and health side there are both regulations and policy
• I don’t think that a decision of the supreme court on a matter under the judicial review procedures act is binding on the Board
• That is because of the judicial deference because of the patently unreasonable test
• I think that it is theoretically possible for a decision of the appeal division to go to the court and for the court to say that that is not patently unreasonable so they are not going to interfere
• Then a decision from the appeal division going in a different direction –let’s say the opposite – can go to the court and the court can say that that is not patently unreasonable
• I have it in mind that there were 2 labour board cases where this in fact happened
• Certainly on a theoretical level an analysis of judicial review principles it is possible to have curial deference to conflicting decisions

Q: In that case that you are referring Mr. Justice Bauk held that there was an error in law in the Board’s interpretation of the statute and thought that it wasn’t patently unreasonable. He referred it back and they interpreted it the same way even though the courts said that it was an error in law.

A: Yes that is right. Now if the court was error of law then it clearly would be binding but we don’t have that currently. I think that is my analysis.

Q: Do you agree with Mr. Sayre that if an appeal division decides that policy is contrary to the statute that it should not continue to be applied until the governors enact a new policy?

A: No

Final comment

• Can the Board bring in a policy, for example, to eliminate what have been called chronic stress claims and we say no
• The authority for that is the PEI court of appeal
• That wasn’t a human rights case or a charter case that was an interpretation case that those kinds of medical, psychological conditions are personal injury and the Board, under the statute, is required to cover them
• I worked this out so the question is where is the limits here?
• I think that where you end up on this is that the question is whether it is work related or not
• That is what the Prince Edward Island court of appeal has said
• The only issue is whether it is work related or not
• If you have chronic stress or a broken leg it is not for the Board to say that we are not in the business of broken legs the question is whether it is work related or not
• An amendment to the statute would accomplish that if you want to eliminate chronic stress but then that prohibition has to face the charter and we think that there are serious obstacles under the charter

Q: Why do you not agree with Mr. Sayre on an unlawful policy as declared by the appeal division being discontinued until a new policy replaces it.

A: It is mainly a practical one. If the appeal division says that a policy is illegal and the Board obeys and then another appeal division comes along and says the opposite or something different then it is a practical matter. It is a question of control. I guess the fundamental point is that the control of policy is with the governing body. However valuable the appeal division views of the relationship between policy and the act are at the end of the day it is governance that makes the decisions.

Q: It strikes me that the down side of it is that theoretically if the appeal division decided to follow the panel’s decision then every worker affected by that policy would have to appeal all the way to the appeal division or else be governed by a policy declared to be unlawful.

A: A further point is that it is not the court system. There is a need for consultation and the appeal division could be wrong.

• Page 15 – see submission

Q: How do you get around the problem that was just outlined by Judge Gill where you force claimants to continue to appeal something all the way to the appeal division. Is there some time line that we should look at for governors to deal with situations like this so that they don’t just sit on somebody’s desk until they think it is important?

A: Yes I used phrases like normally and usually. I think that Ms. Logan talked about this and she gave you that chart and the flow of policies. That would be the normal course. We would hope and I don’t know if you can legislate this or have policy or whatever. We would hope that if a serious policy issue comes up that requires immediate concern at the adjudicator level or at the review board level it is just necessary to the integrity of the system as well as the rights and responsibilities of the employers that that be tagged straight away and fast tracked. I don’t know how you legislate that. I think the best we can do is leave that to the professionalism of the Board staff and the review board and anybody else that is involved. We don’t say that that is the course of every situation but in most situations.

Governance – structure

• The employer community sees governance as the most important issue that has to be dealt with by this commission
• All the other things that we have talked about and that we are going to see the commission’s views on – some will have changes, some will be left the way they are – really won’t mean a lot if we don’t have a stable, effective, functioning governance system to take us to wherever this royal commission suggests we go and the government decides we go
• We place a lot of importance in having a governance structure put into place that makes sense, that is stable and that works
• I don’t think that the BC Federation of Labour’s proposal meets those criteria
• The employer community supports and wants to try a multipartite arrangement but not one where an employer and labour/worker have a majority
• We have been through that for 4 years and that just does not work
• I want to talk about this historical record and how the employer community brought down the system
• I guess we see things differently, speaking for employers, with respect to why this system doesn’t work
• I was a member of the employer’s forum from one day and it came into being in being in 1991 as did the governance structure
• The reason the employer’s forum came into being was to provide assistance and to work with the employer governors that were all, except for one, unknowns to the workers’ compensation system and we were their assistants
• What we heard – the first issues weren’t too bad and I got through them okay because a lot of them were administrative and business had that expertise and brought that expertise to the governors
• As soon as we got out of the early stages the real difficulty became that the 5 labour governors acted as a block period
• I cannot remember a situation where they did not vote as a block
• Employers don’t think that way
• As hard as the employer’s forum may have tried to get employers to work as a block they were very independent minded people that would come and take input but they would not be told what to do
• I remember Gary Mosely, when he was appointed as a governor, coming to the first meeting and hearing from the employer’s forum about what we wanted to do
• He just stopped us right in our shoes and said that you have a lot of value to me and I will come to all these meetings and I will listen a lot to what you have to tell me but you are not going to tell me what to do when I am sitting as a governor of the WCB
• Even Gary had a change over time because if one of them wanted to go in a different direction it became 5 labour, 1 employer and we lost
• That is what it started to become – a win and a lose
• That was a system that was doomed from day 1
• There was no where to go
• Both sides tried to get one of the two public interest governors to be on their side
• Mr. Dorsey thought it was great if he didn’t have to vote and everything just sat
• From the employers’ viewpoint the real downfall of this system was 5 labour representatives and 5 employer representatives
• So we had a balance of 10 out of 13 and that just doe not work
• To suggest that we try it again I will put money down that it will not work
• The employer community are suggesting a multipartite
• We recognize the importance of having representation from the communities, the stakeholders there because they bring insight and they bring representation from the communities that is of value
• But again we do not support it being a majority
• When you look at the various employer proposals given to you you will see a range of recommendations
• If I remember correctly the business council was lukewarm about having employer and labour representation – they would prefer to see it all public interest
• The employers’ forum was very strong that they wanted employer representatives and have a greater number
• The coalition although thought multipartite but a smaller number
• I think that overall the Employer's Coordinating Group has come down to a position of 9 overall governors – 2 employer representatives, 1 each representing large business and small business
• I hope that one of the things that the commission has appreciated over the many months that they have had public hearings is that small and large business are not the same
• There are a lot of problems trying to figure out how we deal with small business in this system – a lot of things don’t really fit, one size fit all easily on small business
• That is a voice that hasn’t been heard as often as maybe it should be in this system
• To show how the employer community works that was really not an easy point to reach consensus on because large business and small business do not always see eye to eye
• Large business is much more unionized and small business isn’t
• A lot of things that are important to large business are not important to small business and vice versa
• To their credit they were able to work together throughout this process and have reached a consensus from the governor viewpoint of one from each
• On the labour/worker side the proposal would be 2 - 1 from organized labour and 1 from unorganized labour
• The majority of workers in BC are not organized
• To hear Mr. Steeves say on behalf of the BC Federation that organized labour represents all labour there are a lot of people out there that would take offense to that statement
• All labour does not want organized labour – if they did they know how to do that
• The employer community believes that the unorganized labour have to be represented
• Listening to Mr. Sayre over the 2 weeks I think that his view that the other worker should be from the disabled worker group makes sense

Q: You talk about the differences between small and large business but I’m not sure I see the difference between organized and unorganized business.

A: To start with the main interest they would speak their own mind. From the experience we had before labour speaks one mind and doesn’t necessarily see diversification within the labour movement. At least that was the impression that we had at the board of governor level. On the small business side you have the same on the worker side that labour is, I think, much more involved in large employers than they are in small employers. Small employers would have different views and different thoughts than the large employers. I believe that there is a different view out there that is not being heard right now and that labour believes that they speak for all and I think that is not true.

Q: Where would government or who ever was going to appoint this group get their nominees for big and small business?

A: The employer community is not a cohesive group at all times so whether it would be the business council, the business council and the forum talking those are interesting questions. The advantage is that the business council holds a seat on the executive of the forum so there are ways to discuss that. Small business, right now their primary organization I think is the coalition that represents a variety of organizations representing small and medium sized businesses. They also hold an executive seat on the forum so hopefully the three groups would be able to continue the coordinated effort they tried to show through this commission and have some discussion. That is probably where you are going to see the dividing line.

Q: But in most cases they should go to organized business? Don’t you think that most of the businesses in BC don’t belong to any of those organizations?

A: I believe that most do. I have been told that I am representing 90% of employers through the Employer's Coordinating Group. Don’t forget the Employer’s Forum is an organization of organizations – mining, construction, business council, coalition, etc. and they bring with them significant membership.

Government on the board

• I agree with Mr. Steeves that there is no initial attraction because of the independence
• The accountability between government and the Board is going to be that they appoint them and the accountability is going to be back to government
• When government wants to speak to the Board I think Mr. Steeves is right about the different lines of communication
• I think that there is a little bit of fear, even on the employers’ side, that if you put a government appointee on that Board the process doesn’t look at independent, a little more political
• Is government going to try to direct or speak to the Board through that person
• I agree with Mr. Steeves that there are better ways of getting at communication from government to their appointees who aren’t actually government employees

Public interest

• The employer community does believe that they should come from professionals but not any profession
• We are looking at trying to identify what is the core nature of some of the functions that the Board is involved in and can we find competent, respected people from those professions with the integrity and the willingness to accept the goals and the mission of the WCB and work with that organization to achieve those goals and those missions
• We think that there are people out there that can do that and we do think that there is a need in certain areas
• I can’t see how in this system that there could be any harm in having a competent, recognized person from the medical profession, whether it is the psychiatric side or a specialty side, the family doctor side or the medical association
• I just can’t see how that could hurt our society, I can only see how it could help

GG: There is a contention that we have heard and alluded to by some degree by Mr. Steeves that that kind of individual isn’t really neutral in the sense of the socio-economic background from which they come. Indirectly you are perhaps constituting a Board that has, in effect, pro-employer bias

A: I hadn’t thought about that and there is a kernel of that makes sense to me. There is not enough of it for me to wholeheartedly say that it is true. I am a professional, John is and Jim is. Does that mean we are all close to the business

because we are professional lawyers that have their own business? I don’t think that is accurate. I act for employers so I certainly feel closer to them.

GS: Do you represent the lawyers here as a result of one of the associations that you represent?

A: No I don’t think so. The only time I have represented the lawyers is the corporation case.

• I guess that is where my doubt is
• If you find a medical practitioner I would think that they are probably going to be closer aligned – depending on whether you get a family physician – with the workers’ interests than with the employers’ interest
• It is a fair comment that I think come down to the selection process
• Stakeholders should be involved in the selection process for the public interest
• So public interest may not even be the right word but it is away from the 2 stakeholders
• Again, financial assistance is something that could be useful, rehabilitation, prevention, actuarial, insurance
• There are a variety of professions that could be chosen from
• Yes Mr. Steeves is right that we are going to have to get into debate over which one but I think that they would add value to the Board
• Maybe one or two of those should be a pure public interest like the law society has or like the Board attempted to have before in order to have a different blend
• We still see a lot of value to having people from the professions that can assist in the core aspects of the Board’s business
• Mr. Steeves mentioned by-law # 2 and when you read the O’Callaghan/Corbin report there is a lot of concern about the by-law #2 that said the representative governors primary responsibility and duty was to represent the issues of their constituencies
• That doesn’t make a lot of sense to me
• Anyone who is going to accept the position of governor of the WCB their prime interest has to be the organization and all stakeholders in that organization, not one constituency
• I think that that was a major problem that we had in the board of governors structure that was put into place
• I’m sure you’ve read the O’Callaghan/Corbin report and there are a lot of good statements in there about the importance of being focused on the organization and stakeholders generally and not one constituency
• In fact, the employer community would like to see in the act some recognition of holding those positions as a public trustee on behalf of the organization
• The act should reflect that role and not leave it to policy that could be either for your constituencies or for the stakeholders or the organization as a whole
• That should be dealt with in the legislation
• The 9^th position would be the chair and that is always a tricky one
• The chair has to be able to have the integrity, the competency and the neutrality to be accepted by all of the stakeholders
• If you can’t get a chair that meets those criteria that the stakeholders can accept we are going to be back in the same problem that we were in and it took a long time to find the first chair
• I think that it goes a long way again if we get the stakeholder input and involvement in the process
• It helps to have authorship, ownership when you are involved in the process than when you are not but that is the key position on that Board

Q: I lost you back at 2 employer, 2 worker and the chair and so that is 5. Are the other 4 all business?

A: These would be the professionals that we said. There are 2 employers, 2 labour/worker, 4 public interests and the chair. With respect to the other 2 non-voting that we did have in the system certainly it makes sense to have the president and the CEO continue as a non-voting member. That is the person with the primary responsibility for ensuring that the policies and the strategic direction that the governors come up with is understood and implemented throughout the Board. To have that understanding and knowledge it is important to understand the debate and how the governors got to that decision and why.

• With respect to the chief appeal commissioner I dealt with that yesterday
• The employer community does not believe that the chief appeal commissioner should be a non-voting member of the board of governors
• It does not matter whether it is an internal or external situation
• The perception of independence is quite important to the system and to have that person actually on the board of governors in a non-voting manner I think blurs the independence
• But there is importance of having the head of the appeal tribunal or the appeal division attend on a regular basis to advise and have a discussion with the governors on major matters of importance that are being dealt with through the appeal side
• Whether internal or external the chair of that tribunal should appear on a regular basis to have these discussions with the governors
• The employer community believes that the role of governors should be part time and when we first got into the system in 1991 it was recognized that the chair would be full time for some period of time and it would probably again be necessary
• But overall the goal should be part time for all the governors
• The intent, we think, of the governors is to bring some outside expertise and experience from a wide range of interests to the Board
• They should not be subsumed by Board or become employees of the Board

Q: Doesn’t that affect the ability of these individuals to act independently if they have to go back and presumably deal with their constituency on a regular basis?

A: If all of the people appointed first time around were full time would that have changed and I don’t think so. I want to think about that. I don’t think that you would find the right people to become full time. The Monroe commission and the Corbin/O’Callaghan report recommended that you are trying to find senior people from these various areas that have the competency, the respect and hopefully the acceptance by the major stakeholders. Those people would be giving up a lot to step aside from whatever else they are doing for whatever their term is going to be and move into the workers’ compensation system. You raised a point that it has to be safeguarded. If they do continue to have dual duties is there a way to ensure that neutrality? I think that it is important to have the act framed in a way that makes it clear where their first interest is supposed to lie. Then we get back to the selection and recruitment process.

• One of the problems in first time around was that the governors were getting much more involved in the day to day administration in business affairs of the Board
• That is very time consuming and I don’t think that that was the role for governors at any time
• Both constituencies knew that they had the ear of their governor so they used those ears as opposed to administration and so we ended up having our governors do a lot of advocacy on behalf of their constituents, which is what it was geared towards and getting towards day to day minutia
• If you are going to do that on a part time basis that is difficult to do but that should be the role for managers not for the governors

Term of governors

• The current act provides for up to a 6 year term
• The Corbin/O’Callaghan report suggested a 2 year term renewable twice for a total of 6 years
• I probably lean in the middle
• I think that 2 years is probably a little too short and it takes a long time to get a good understanding of the system
• If you are going to have strategic goals and visions I think that 2 years is not enough to be able to get involved with them and be able to lead the Board to that direction
• 3 years is probably the minimum that makes sense with an ability to renew and I do agree with the O’Callaghan/Corbin view that it should be staggered so that you have continuity

Accountability

• The Corbin/O’Callaghan report speaks of accountability to stakeholders on page 7
• I think that the accountability ought to be there but I think that accountability is to government
• I think that the way the commission dealt with it in the first report is worth considering yet again in the second report
• That was having both an objective clause setting out what the goals of the organization is and a directive clause setting out some of the guidelines and how to get there
• That is one of the tools of accountability to use for the governance structure
• The employer community accepts the principles but they may need to be elaborated on that Corbin/O’Callaghan had for accountability on objectives
• One of them was the fiscal responsibility to make sure that they system remains viable
• If the appeal structure remains internal – either one level or more than one level – the governance structure has to play a more effective role with respect to that
• The impression that the employer community had through all of the chairs of the structure – be it Mr. Dorsey through to the chairs of the panels of administrators – was always hands off
• But hands off on an internal structure doesn’t make a lot of sense
• It was internal for a reason and the reason is that it is part of the Board
• The accountability of that aspect of the Board is the governance structure
• That was dealt with in the Hughes letter – I provided you with the front page and then pages 6 to the end
• Mr. Hughes tried to answer the questions put to him by the then panel of administrators
• Pages 2 to 5 were setting up provisions of the act and the provisions of the existing policies are still in the workers’ compensation reporter series setting out what everybody’s role is
• The focus on this report - the then chair of the panel of administrators raised several questions to Mr. Hughes with respect to the role the administrators had of supervising the performance of the chief appeal commissioner and through her the appeal division itself
• In response to the question on page 6, question number 1 – what aspects of the chief appeal commissioner’s performance can be reviewed on an annual basis by the panel
• Mr. Hughes responded at the bottom of page 7 – it is my opinion that all aspects of the chief appeal commissioner’s performance of her duties and functions can be reviewed by the panel on an annual basis with the sole exception of a quasi-judicial making function of adjudicating individual claims
• The employer community supports that concept
• Then on page 8, question 2 - is it within the jurisdiction of the panel to review the performance of the chief appeal commissioner against the following accountability, the quality of decisions made as a quasi-judicial tribunal
• The answer was yes and in the first paragraph it says yes subject to what I already told you that you can’t do – interfering with individual adjudication
• Then the second paragraph goes on and talks about what is meant by quality
• Read all of page 8
• On page 9 at the very bottom sentence of that same question Mr. Hughes goes on and says that, in fact, the members of the panel would be deficient in not doing this review and holding the chief appeal commissioner to those levels of accountability
• The last question asked Mr. Hughes if there was anything else he wanted to tell them
• On page 11 Mr. Hughes talked about the fact that from time to time the appeal division has declined to follow a particular policy of the Board because it believes that the policy is "not legally viable"
• That is to say that it concludes that the policy is in conflict with the act and that the provisions of the latter must govern
• To so conclude based on coherent reasons clearly expressed it is not to show disrespect for the policies of the Board
• I think that is an important point as it is one of the functions of the appeal division
• On page 12 it talks about once you get into that situation how do you resolve it?
• The thrust of the first paragraph on page 12 is that the practice of the chief appeal commissioner was to bring it to the attention of the governors and to sit down and discuss it with the governors and Mr. Hughes felt confident that in almost all cases that was going to find some way to resolve the matter
• Then he goes on and says in the very last sentence of that first paragraph "If and when those rare instances occur and that is why they couldn’t find agreement the panel should seek legal advice, as to the most appropriate course to follow, be it legislative amendment, recourse to the courts or whatever other alternatives council recommends to the panel"
• I asked if Mr. Cott understood that Mr. Hughes was suggesting that, in fact, the panel could go to court with themselves and he agreed that that was apparently what Mr. Hughes believed
• When we talk about policy we are going to be advocating a procedure in the act that gets rid of the confusion about whether or not – if it is a final internal appeal tribunal – governance and the appeal tribunal can end up in court together
• We think that that should be set out in the act

Mr. Steeves’s proposal of 5 labour, 5 business, 2 injured workers, 2 public interest and 1 chair for a total of 15

• I have already commented on the proposition of having 5 labour represent all workers
• I think that you will have a tough time getting employers to agree to become wholeheartedly involved when they see 5 labour and 2 injured workers
• I think that Mr. Sayre did an excellent job of representing disabled workers who had a different focus on almost all issues than labour had
• I am sure that it had great value for this commission
• Never the less from the employer community it still sounded like 2 views to 1 on a lot of issues
• That is fair that the commission now has 3 views
• But at the level of governance I think you may find that employers feel outnumbered because out of 15 already ½ of them are lined up against us and if we are back into block that is 7 to 5 so we have to get the 2 public interests
• I think that is the way that it is going to start unwinding and I don’t think that that is in the best interest of anybody
• Again we would like to see a minority of this panel being from the respective stakeholders

Policy

• Employers see policy a bit differently
• Employers see policy as binding
• Section 96 (6) and 96(6).1 give us grounds on employer issues to appeal
• One of them is contravention of published policy so we are focused on there is policy, it is contravened, here we go
• It leaves the impression from the employer view point that it has to be followed
• That is a different issue on whether it should be in the future but we look very differently at policy then people who don’t have to deal with section 96(6) and 6.1
• If you accept some of the submissions that the employers have brought to this panel – i.e. one level of appeal - then you don’t need 96(4)
• That is the one where the president can say that the review board is contravening policy so have it sent to the appeal division
• If you accept the employers’ submission that we should be treated the same on grounds of appeal and don’t have any that gets rid of section 96
• All of a sudden there may not be a need for that language in the act - contravention of published policy as I am not sure if it appears anywhere else
• Then we are back to should policy be binding?
• I still think that it has a binding level
• I understand that you can’t use policy to fetter rights and discretion in the act and that will always be there – that is the law that is above the administrative tribunals
• But what we are dealing with is a mammoth bureaucracy
• We talked a little about a small number of really good people on top who are going to take this organization in new directions but as we filter down to the bottom we lose that good feeling
• It is not easy to get that message from on top down to the bottom and to get it agreed to and accepted as part of the culture
• What policy helps to do is keep consistency because if you don’t have policy that is binding and you have too much discretion or guidelines to do as you see fit in the appropriate circumstance you are going to start finding a widening of interpretation and how do you apply policy and when can we not follow policy
• I tend to think that having an overall policy that is supposed to be followed is beneficial and the way to deal with giving discretion is when you write the policy consider whether this is one that should be more direct or more discretionary
• Then policy would give that discretion with hopefully guidance on how discretion is exercised
• That is my view on the policy manuals
• There is too much practice in the policy manuals
• I think that it would be useful to have a project that involved stakeholders where everyone sits down and goes through the manuals to say what shouldn’t be in here
• What are practice areas that should be put in a practice manual that the Board has a lot more flexibility to change
• It is not as binding on anybody
• The problem with practice is that the Board has all sorts of practices now but we don’t see the policy
• I think that a lot of the practice directives that came up were the first time some of us were seeing them
• If we are going to switch to practice we should still have it available and open to the stakeholders so that we know what the practices are
• I think that would make policy much more manageable in that we would have a lot less policy in there
• I talked to Mr. Ali who is here from the business council about what would be his view if he tried to kill published policy including the old reporter series
• His answer had some of the same concerns that Judge Gill was raising
• It would be nice to try and condense it into a more condensed version rather than having to go to 5 or 6 different places to find policy
• Mr. Steeves is right that a lot of the policy manuals are verbatim of the old decisions
• So I think that the exercise that has to be done is to go through and whatever isn’t in there should still be in there
• Bring it into the manual and make it policy – let’s get rid of having those decisions as policy decisions
• We will be condensing what is in policy
• If it is accepted that we should also take the policy manuals and get practice out of there or things that shouldn’t be policy – don’t bother the governors with – we may get down to a situation where we actually have something that we can give people in order to help them
• It gets rid of the problem that we heard from Mr. Pinto and others
• Even when we want to change a typo or a name there is a question about whether we need to go the governors to do that – that is a ridiculous impediment to getting policy changed in a reasonable manner when it has to be changed and a lot of it is probably practice
• Another alternative is to have at least non-substantive policy revised through senior administration
• Again we are going to have interesting conversations over what is substantive and what is substantive but that is probably for another day
• There must be some areas where we can agree that it is not substantive and that could be changed, if need be, by administration without going to the board of governors

Impact of policy

• Decisions, let’s just say at the appeal division, and whatever we call it if we do end up with one level but we are at the senior level and they make a policy decision
• Should that be binding on the Board?
• When I started this process I was one of the believers that the appeal division makes a finding of unlawfulness that is just not fair to not apply that
• When you read the fatality section in the submission put in by the Employer's Coordinating Group that is what it says
• It is just not fair for another widow who may not know that this has been declared unlawful, which it no longer is, to have to know that or get treated differently
• There is just something not fair about that
• Then I listened to Mr. Buchhorn who explained the competing interests even though I think I know where his interests lied
• Under the old governor regime the view there was that the appeal division makes such a finding of unlawfulness and that is going to be followed by everybody
• Then Mr. Buchhorn said that the current panel’s view is no that these are policy issues and they have to be dealt with that way
• That makes sense that before you make a major policy change because of a declaration of unlawfulness you do want to have time to contemplate and get stakeholder input
• All of a sudden I was faced with competing interests
• The 3 competing interests on this point are the non-precendential nature of decisions – that is section 99, the merits and the justice of the case
• The 2^nd competing interest was the need of consistency and fairness for all claimants – adjudicate like cases in like manner
• This is in the case of the appeal division saying that this is unlawful
• Why should somebody have to fight the system to get that declaration for them also
• The 3^rd competing interest was the respect for the role of governance in developing and implementing policy and hopefully continued through public consultation
• Those 3 don’t always match so we had to come up with an answer that we thought tried to cover all 3 perspectives
• The proposal we have given you picks up a bit on the Hughes report and a bit on the review board submission
• We think that the appeal tribunal has to have the authority to consider lawfulness both of policy and of the statute
• If on a consideration of lawfulness they believe that either the policy or act is unlawful that view, finding or believe should be referred to the governors with reasons, with a very quick, short time frame in the act for the governors to act
• I propose 30 days
• And the governors are given 1 of 2 choices - accept the finding of unlawfulness
• If they accept the finding of unlawfulness that should bind the system because now you have the senior appellate and the governance – the executive and the appeal side agreeing
• You don’t need any more to bind our system if both of those agree
• If governors disagree and hopefully they will have access to their own legal council this is where one of the competing interests occurs
• If the governors create and implement policy and they have legal opinions that disagree on the unlawfulness should the appeal structure be able to bind the governance structure on that point?
• If they disagree or if they do nothing then we will treat that default as disagreement and then the matter has to be automatically referred to the court
• I haven’t put my mind to supreme court or court of appeal but the supreme court would probably be more accessible on a chamber’s basis and on the issue of lawfulness only
• Then we are bound by the court’s decision on lawfulness
• In the interim if it is going to court then we are back to our section 99 point
• The appeal division’s initial finding only applies to that individual case because there is a dispute within the system on whether the decision is accurate or not
• So anybody else in system still has the old policy being applied or the act because there has been no final decision on lawfulness
• But we are building in a quick time frame to get that resolved and then the court decision would be binding
• I am not a big advocate of pushing a lot of WCB things into the court but I seem to recollect that there were 10 findings of unlawfulness from 1991 through 1995
• It is not a large number but of those I am quite hopeful that there would be some agreement
• The appeal tribunal does a good job of at least explaining why it makes its findings
• So that is a good start for the governance system for their legal assistants to look at it and some of those 10 cases would have had consensus, I believe, which would have kept it out of court
• If not the court is our failsafe
• Again I think that it only has to be done for unlawfulness
• Failure to follow lawful policy doesn’t have to go further than that case
• Section 99 would have paramountcy in that case

Q: You have dealt with issues of appeal cases going to the Board that may result in decisions that may call for changes to legislation because of the unlawfulness. What happens when there is just a need for regular maintenance or housekeeping of legislation? How does one force legislation to be reviewed on a more consistent, more frequent basis? I know that Mr. Steeves suggested a 10-year external review but I am not sure that that is not a bit akin to delivering an elephant. I am not sure that 10 years is appropriate. There must be a way to have regular review rejuvenation of the statute.

A: First off I place responsibility with governance. There is a lot of things about the old governance system that did not work well. Hopefully when we get the recommendations from this commission on governance depending on what the government believes is appropriate or not appropriate, whatever we put into place hopefully there will be some guidance that will work better. One of the responsibilities still is governance. The accountability for governance is to government and so the responsibility of bringing the government’s attention that the act has areas be it substantial or housekeeping that need review is governance. How it gets to governance is an internal function – whether or not it is the policy bureau or legal department line they all filter up and end up to governance to decide that they are going to recommend us to go over there.

Do you force it – my view is that the act also has to be a fluid document that is subject to change when needed. I am not sure that that is one where I would put a time period like the 3 years on the regulation review or I talked about 2 years for the Schedule B. I think that it is an ongoing thing so if the need comes up it should be a mandated obligation on the governance to have that responsibility to review the act on an ongoing basis.

Q: Would it make sense to have the Board table some document on an annual basis suggesting that the act has been reviewed and that there is or isn’t recommendation for legislative change? Is that too mechanistic?

A: It might make sense but the problem is that we are dealing with a complex large act, which I don’t think is going to get any smaller or less complex when the commissioner finishes with it or the government finishes with it. If you make it on an annual basis depending on how that is worded the whole act has to be considered or is it just matters that came to their attention that they put in an annual report to advise? If it’s the latter it may be workable so that they have to at least focus on what the problems were that were brought to our attention. If it is the former then I don’t think that is feasible in a year obviously.

Q: I was trying to think of some way to create enough attention and putting a notice on someone to report out so that you have some debate or awareness that there is a point in time where we all need to focus.

A: I think that makes sense just like the appeal division, in its annual reports, brings back to the attention of governance major issues that they did and referrals that they did. I don’t think that governance has to wait annually to go to government to say that we have a problem and we need to fix this. The annual report that you are raising makes sense to bring back or at least make sure that it gets done points that came up that year that need the attention of government.

• I have been asked to indicate to the commission that the policy manual pertaining to precedent and policy is number 96.10
• A quick reading of that at the break indicates that, in writing at least, many of the suggestions or recommendations that Mr. Sayre made in regard to the ability of board officers not follow board policy or being compelled to rigidly follow are not the case
• I will leave that to your discretion and point out only that it is section 96.10 that deals with the issue

External appeal body

• That was very much a consideration of the Monroe report which founds its way into the 1991 amendments that created the appeal division
• I think that there would be many people that would argue quite strenuously that the 1991 legislation amendments and the creation of the appeal division did create an external appeal body
• I think what has been meant by the term external appeal body is not whether it is on the 5^th floor of this building or the other building or where it is housed but it really goes to the issue of independence
• I think that many of the submissions to the Monroe Committee pertain to the difficulties that that large landmass between Quebec and Manitoba were experiencing and had experienced in the past
• I think that Mr. Monroe was very aware of those difficulties being suffered by that Board and his recommendations and the recommendations of his committee were designed to deal with those apparent problems not on a basis of whether it is internal or external but on the basis of that while it would be independent it would somehow avoid the difficulties of complete independence almost to the point of non-accountability to the system that the province of Ontario had been experiencing
• My point on this Judge Gill is that it may be very worthwhile to carefully consider the Monroe report in regard to the independence of the appeal division

Mr. Sayre’s recommendation to you for an external complaint body in regard to the adjudication of claims

• I was disappointed that that matter was put forward again
• When I expressed my concern about it last week Mr. Sayre immediately confirmed that the vast majority of board officers were not in the category that this body would pertain to
• They were hardworking, honest and ethical folk who did their job in the best way that they could and did a good job
• I regret that he did not add those words this afternoon because I think that that is very much the case
• If it is the case then he is talking about creating an external complaint body in regards to very few people and in regards to a very vague concept
• I think that matters should rise above decisions that are perhaps adverse to employers or workers being personal in nature
• In our profession and in the practice of law we are quite used to decisions being made that are overturned
• We all know of decisions where the supreme court of BC holds on a matter that quite adversely affects people
• The 3 person bench on the court of appeal agrees that when it goes to the Supreme Court of Canada we get a judgement to the contrary and sometimes in judicial language it quite admonishes the appeal division, the appeal court or the supreme court of the province involved
• We don’t turn around and say that the Supreme Court were acting in some way that gives rise to an independent complaint body because they said that they held one way
• We don’t do that to be oversimplified because we recognize the difficulty of many legal points and decisions and the justices of our province apply the law as they best see fit
• The fact that they are overturned in Ottawa by the Supreme Court of Canada has nothing to do with the bona fides of how they conduct their business
• I submit to you that exactly the same is true here
• When you start talking about external complaint bodies in the nature of a police complaint commission and the like I submit to you that that is somewhat unfair
• If I am wrong on that point Judge Gill then I can only say to you that the creation of such a body would have horrendous labour relations implications that I would urge you not to involve the compensation employees’ union in regards to any such discussion

Q: Mr. Bates, the injured workers request for an independent body to review perceived abusive treatment seems to arise out of a perception that the Board management does not take any or adequate disciplinary action against those few adjudicators and employees of the Board who do mistreat workers. Do you see any impediment to the Board providing statistics with respect to disciplinary action for misconduct in the treatment of injured workers and providing that to the commission so that we can assess the degree and effectiveness of disciplinary action for misconduct?

A: I am not aware if those statistics exists in so much as the labour relations folks or indeed the compensation employees’ union keep statistics in regard to arbitration or disciplinary matters. Provided that they were statistics not offensive privacy issues I would have to answer that no I do not see any impediment.

Q: Could you investigate that and so advise the commission as to whether any statistics exist and if so whether there is any objection to their production?

A: Yes

REBUTTAL

Last point first

• I don’t take back what I said last week about the majority of Board employees and I also don’t take back what I recently said about the need for an independent body to hear complaints which are made
• Those complaints may well prove to be unfounded
• They may well prove to be the frustrated actions of Board employees, which are quite out of character and simply a reflection of the fact that they are human like we all are and they have their bad days and good days
• I am not suggesting that we have a cowboy council that fires employees without reason
• I would see discipline as the last resort of such a body and consultation, guidance and other kinds of remedies as the more appropriate action in most justified cases
• Of course in many cases they would say that nothing is justified because nothing was done that was wrong
• I thought that I made it clear that this body was not an appeal body and I am not sure why he compared it to the court of appeal and the supreme court of Canada
• I can’t help commenting on the fact that we do have a judicial council so if that is the appropriate analogy there is a body, which is independent of the courts and that is specifically set up to hear complaints of misconduct by judges
• Even judges aren’t above that process
• I don’t think you, Mr. Chairman, or any judge views it as a personal insult that there is an agency set up to hear a complaint if someone wants to bring one
• I didn’t intend it to be an attack on the character of Board employees last week and I don’t intend it to be that this week
• It is a response to a large number of submissions that were made to you about the way injured workers perceive their treatment by the Board
• They certainly saw it as something that was worthy of some kind of response in the nature of punishment or a remedy of sorts for improper conduct

Governance and policy issues

• I liked Mr. Winter’s approach – if we can do it in 30 days I don’t see anything wrong with that
• It is consistent with what I said, which is that the Board has 2 options
• The Board can either accept the decision and carry it out in the future or the can take it to court and argue that it is unlawful
• What I can’t concede is that they can simply ignore it and force everyone else to go through the same process

Governance

• Composition of the governance body
• I am grateful that both of the other council agree that injured workers should have a role in governance
• Whether it should be one of 9, 2 of 15 or some other proportion I won’t get into that
• Injured workers, in my view, are not the same thing as labour
• You heard from 100s of injured workers and you probably know that most of the leaders of the groups and most of the people that are active in the injured worker movement haven’t worked for a long time
• The majority of the ones that I am aware of have been unemployed since their work injury
• Their perception is that their primary relationship is not an employment relationship with either a unionized employer or a non-unionized employer
• Their relationship is what unfortunately has become an adversarial relationship with the WCB
• I would characterize the role of the injured worker in the system as being that of the client of the system, the beneficiary of the system or the customer of the system
• Their focus is on their conflict with the Board versus their employment relationship
• You heard their desire to have access to the court and I would wager that more wanted the right to sue the WCB than to sue their employer
• I have argued for accountability reasons and for other reasons that there ought to be a restoration of the right to sue the employer but the anger of the injured workers is directed at WCB itself and the way that they have been treated by it
• I don’t agree that the distinction between the injured workers and the representatives of the labour movement could be described as being comparable to the distinction between a small employer and a large or between a union employer and a non-union employer
• The difference is a whole different character
• Whatever balance is struck, if it is a balance that is struck between labour and employers, injured workers should be there in their own right as a separate stakeholder group
• They should not be there as a portion of the labour group
• I tend to agree with your observation, Mr. Chairman, that if you have a collection of professionals on the panel they will be more likely to be concerned with financial matters
• Most of them have had employees in the past so they are more likely to see themselves as employers versus injured workers
• That would certainly be a concern if the Board ended up being dominated by a collection of doctors, accountants or whatever professionals we happened to choose
• I did want to suggest one group that doesn’t fit into either camp but is very directly affected by many of the Board’s policies
• That is the dependent contractors that end up being insured because they take out personal optional protection
• You may recall that last week I relayed to you some information that I got outside the room here during the break from somebody who had been involved in coastal logging
• He was forced, because of the nature of the work he was offered, to do so as a contractor
• He didn’t have any employees, he just had his chainsaw and he was a faller or bucker
• He had his own compensation number and when he had safety concerns he was told that he could choose whether to work or not because you are the boss
• He had a very different relationship to the Board in terms of prevention
• He had a different relationship in terms of what would happen if he made a claim
• It would be his own compensation rate that would go up as a result of experience rating assessment and not the rate of the contractor that was essentially in control of the safety concerns and so on
• The other difference is that people on personal optional protection have a different relationship with the Board in terms of the benefits they get
• They get what they pay for to some extent but sometimes they don’t get what they paid for
• I don’t think that it is fair to say that organized labour speaks for those people and I don’t think that the groups that Mr. Winter represents really speaks for them either
• They are sort of in the middle about safety he was told he was the boss and could choose whether or not he wanted to work
• That might be another client group that should be represented at least with one seat on the board of governors in some respect

Q: Do you have any idea on the numbers of people with personal optional protection?

A: I seem to remember that it is somewhere under 10,000.

• Government in governance
• If a government appointee had a minority role on the governing body it might help to diffuse some of the situations
• As the situation that led to the government having to take the drastic action of having to remove the entire Board a couple of years ago
• At least the government might have had an early warning signal that things were breaking down and they might have had a more intimate knowledge of why they were breaking down so they could have had an opportunity to do something short of waiting until an impasse was reached and then removing them all and putting trustees in
• I presented you with a copy of the auditor general’s report
• He made some specific recommendations from pages 16 through 18 or 19 about the kinds of ultimate criteria that the Board should be using to measure its own performance
• I thought they would be helpful to the Board of governors and it might even be helpful to require that the Board make reports in these forms to the governing body so that they can have that information as sort of a compass when they are steering the ship as you put it recently Mr. Chairman
• For example, in the question of prevention they said that the Board should be tracking the causes of serious injuries so that they can identify why people are getting hurt badly and what can we do about it
• In the case of compensation how does the income after they have been injured and compensated match their income before they were compensated?

Medical services

• How good is the Board doing in insuring that injured workers are treated so that they can recover to the maximum degree possible

Vocational rehabilitation

• How successful is the Board in helping people get back to meaningful, durable employment that is still there years later and actually enables them to support themselves again?
• Those are direct measurements of effectiveness of the Board’s major programs
• I would recommend that legislation, if necessary, require that the Board provide information on a regular basis to the governors so that the governors can take it into account when they make their decision

Q: What pages were those that you cited?

A: I believe it was pages 16, 17, 18 and 19 of the auditor general’s report. It was one of the enclosures that I gave you earlier

• He numbered his recommendations and I am talking about recommendations # 7, 8, 9, 10, and 11

JOHN STEEVES
Representation

• It wasn’t in our submission and I don’t think that I said that the BC Federation of Labour represents all workers
• What I said was that it is expected that the BC Federation of Labour and organized labour generally represents all workers
• My client paid for me to participate in the first phase hearings of this commission and I was there representing organized labour and I was representing all workers – no one else was representing them
• Does anyone seriously think that the firefighters’ union who paid for the significant costs of the cancer cases, all the way up to the court of appeal in one case, that that was done simply for themselves?
• That was done for all workers
• Let’s be clear here about the realities of the situation
• We are not just dealing with numbers of workers who are represented by unions who are dealing with the effect that unions have on all workers

Q: The point is that they may have different perspectives. I am not suggesting that your clients don’t intend to assist all workers unionized or not but might their not be a different perspective from the unorganized labour force?

A: Different perspective on?

Q: Workers’ compensation issues?

A: Yes

Q: I think that is what being driven at.

A: What I heard a little while ago was an objection that we represent all workers. I am saying that we don’t directly represent all workers but I am saying that we are expected to.

• Another representative issue is that somehow we ended up with the Employer's Coordinating Group saying that they represent 90% of employers in the province
• We know that there are roughly 150,000 employers for workers’ compensation purposes and we think the coalition represents about 50,000 and I think that the CFIB is in there, the council represents about 30,000 and the forum has overlapping membership so it is far less than 90%
• Included in those employers are various governments and government agencies
• The question is whether all those employers that are members of those organizations are represented here today
• For example, does the government of BC believe that pensions should be eliminated in the cases of repetitive strain injuries
• Does every municipality believe that employers should attend the examination of employees by doctors?
• Does BC Hydro believe that only cost is an issue in workers’ compensation, that there are no other social values to apply?
• If there is any dispute about representation of the Employer's Coordinating Group then we ask them to open their books
• They are not required by law to disclose their members but if they want to tug around numbers like 90% then let’s see what that number really means

Comments on whether employers voted as a block or not

• In response to the idea that injured workers should be represented on the governance structure we are told that employers would have a tough time being involved in that governance structure
• It seems to me that that is going in the direction that we are all concerned about the governance structure
• About people digging in in positions and the structure is not even up yet and we are having one stakeholder saying that they might not participate

Structure

• I think the big difference between our position and the Employer's Coordinating Group position is whether the stakeholders should have a predominant presence in the governing structure
• We say yes, and the Employer's Coordinating Group says no
• Monroe and O’Callaghan/Corbin said that it should be predominant and you need to figure that out
• Another area where we disagree is professionals and part-time
• Another area is whether the chief appeal commissioner should be ex-officio part of the governing structure
• We say there needs to be some connection at some level between the appeal system and the maker of policy in the Board

Q: Doesn’t it have more impact to have the chief appeal commissioner formerly present a report to the Board? Doesn’t that have more punch than being an insider who tables something at a board meeting once a month? We get into issues where we need to get things resolved and moving. Establishing this independence, wouldn’t formalizing that independence somewhat help the process of moving some issues forward?

A: I suppose that is one technique. I think that maybe Mr. Winter mentioned this in a different context. I think that we are trying to balance independence with accountability and we think the way to do that is to have the chief appeal commissioner there in ex-officio capacity. We don’t think that that can be done by reports in a similar way that you couldn’t do it with the president. The administration of the institution, which is the president’ responsibility is an ongoing issue. The policy control of the institution is an ongoing issue too.

Q: Does that change if it is an external appeal body – the chief appeal commissioner’s involvement on the Board?

A: You used the singular.

Q: I don’t care how many levels but if the equivalent of the appeal division, the final level of appeal was an external tribunal appointed by order and council would it make a difference? Would it be appropriate for the chief appeals commissioner to be a non-voting member of the board?

A: Yes

Q: You are not suggesting that the chief appeal commissioner have the same responsibility for what is in the system? The way that you have described their roles you seem to rate them equally in terms of responsibility role in the system.

A: I said similar not the same but that is exactly what I meant.

• I am not sure why the Hughes’s letter was put in
• With regards to policy I think that we had a good discussion and I would commend you to what everyone has said and the questions that were asked.