Royal Commission on Workers' Compensation in BC
Feb 16 1998 Morning Session
Name: Don Cott, Ralph McGinn
Title: Chair, Panel of Administrators / Director General, Policy & Regulation Development Bureau
Affiliation: Worker’s Compensation Board Presentation
Staff Present: TR, GG, OE, GS, SN, PL
Notetaker: Steven Noble
Date: Monday, February 16, 1998
GENERAL COMMENTS
The first half hour is an overall presentation followed by 3 hours of Questions and Answers – first from legal counsel representing the key stake holders; Alan Winter – Employer Representative; John Steeves – Organized Labour and Jim Sayre for the Injured Workers.
Topics include:
- Governance
- Panel Functions
- Accountability Mechanisms
- Relationship with Appeal Division
- Policy Making Process
PRESENTATION:
GOVERNANCE
Let me show you the current structure that reports to the Panel; the four current panel members and the chair – together form the Panel of Administrators. The direct reports to the panel are the President and CEO, the Chief Appeals Commissioner, the Director General of the Policy Bureau, and the Registrar of the Medical Review Panel.
Most of my remarks concern the present Panel of Administrators’ model of governance.
I believe it is best understood in contrast with what came before it – namely the Commissioners and the Board of Governors. As the slide demonstrates the Commissioners’ model had been in place for almost 75 years.
The Commissioners were the Administrative, Policymaking and Final Appellate body – they were all full time appointments – there was no statutory requirement for representation and the division of responsibilities amongst the Commissioners and the Chair varied over time.
The flexibility of this model allowed the level of autonomy but there were concerns about having policy making, administration and the final appellate authority in the single level of governance.
This and other concerns led to the governance review led to the Munroe Review in 1988.
Following the report on the Munroe Committee the government introduced legislation that took effect in 1991 which has become the Board of Governors Model
This model had part time representative appointments of up to 6 years.
The make up of the panel or the Board of Governors was 5 worker, 5 employer representatives, 2 public interest members, and 1 neutral chair.
The Chief Appeal Commissioner and President/CEO were ex-officio, non-voting members of the Board. The government commissioned a review of the Board of Governors in 1995 by Korbin and O’Callaghan. The Korbin/O’Callaghan Report as it became known found that the representative model was flawed and that stalemate in policy development and other challenges were significant barriers to the success of the model.
In 1995 through Bill 66 the government suspended the Board of Governors model and created the current Public Trustee Model. Members of the Panel of Administrators are appointed to act in the best interests of the workers’ compensation system rather than the representatives of a given community. Panel members are appointed for one-year terms with provisions for renewal.
Current Model of Governance
The panel functions as set out in Section 82 of the Act – in general the Panel has the responsibility for approving, and superintending the policies and directions of the Board and for planning its future. Section 82 puts significant obligations on the Panel. In order to approve, superintend and plan the Panel holds monthly meetings engages in an annual retreat for the Senior Executive Committee and reviews key performance indicators to track the progress of the Board towards its objectives. The Panel also reviews the budget and major expenditures as proposed by the Senior Executive Committee. And is responsible for approving the goals in the strategic plan and the Annual Report of the WCB.
Planning for future
Perhaps the most significant responsibility of the Panel is setting and approving Policy. This process will be discussed in greater detail by Ralph McGinn. The Panel has 3 standing committees to carry out its responsibilities – the chair is an ex-officio member of all Panel committees.
The first committee is the Audit Committee – the membership currently consists of one Panel member plus the President/CEO, the Vice President – Finance/Information Services, the Controller, and the Director Internal Audit. The purpose of this committee is to assist the Panel in fulfilling their judiciary and oversight responsibilities with respect to finances.
The second Committee is the Priorities and Board Governance Committee –the membership currently consists of the Panel Chair, one panel member, President/CEO, and the Director General of the Policy Bureau – the purpose of this committee is to develop and recommend policy priorities for the Panel of Administrators- taking into account the mandate of the Panel, the needs of the organization, the view of the stake holders, and the time available for the Panel – for the deliberation of those issues.
The third committee is the Human Resources and Compensation Committee – the membership currently consists of two panel members plus the President/CEO, the Vice president of Human Resources and Corporate Planning, the Manager – People Strategies. The purpose of this committee is to provide a way in which the Panel can examine significant issues related to Human Resources and employee compensation, and to assist in developing an appropriate Human Resource Management and Compensation policies.
Perhaps one of the most important messages we want to leave with you over the course of the next two weeks are the accountabilities that exist within the system.
The accountability mechanisms are those created by mechanisms, and initiatives by the Panel. In the terms of Executive Accountability the mechanisms include – the Annual Report, a Strategic Plan that has been developed by the Executive and has been approved by the Panel, the fact that business cases must be developed and approved in support of management initiatives, monthly reports to the Panel from the President/CEO, the Director General of the Policy Bureau, and the Chief Appeal Commissioner. The President’s Report includes performance reports from key indicators from the administration. Annual reports submitted by the Appeal Division and the Medical Review Panel are made to the Panel. The establishment of a final performance review process where the Chief Appeals Commissioner, the Director General of the Policy Bureau, the Registrar of the Medical Review Panel and the President/CEO. In addition, the former governors initiated a series of administrative inventories, reviewing the board’s activities, a practice, which has been continued by the panel with the most recent review of the Pension Division being completed in 1997.
Panel – I’d like to turn to the relationship between the Panel and the Appeal Division. Both under the Board of Governors model and current model. Prior to Bill 56 the Chief Appeal Commissioner was a non-voting governor. The reason given by the Munroe Committee was the Chief Appeal Commissioner’s role in governance was that participation of the Chief Appeal Commissioner would enable the Board of Governors to ensure that its policies were clearly understood by the Appeal Commissioners. And under the current model the Chief Appeal Commissioner continues to attend meetings of the Panel. The Appeal Division does not have the authority to create new policy. They must apply and interpret the Act, the Regulations and existing Board policies. The Chief Appeal Commissioner may determine that it is necessary for the Panel to address a policy issue before a decision on an appeal can be made. In that case the Chief Appeal Commissioner has the authority to bring a policy issue to the panel and postpone the decision on appeal until a policy issue has been addressed. When a decision is rendered by the Appeal Division raises a policy issue the Chief Appeal Commissioner draws the matter to the Panel’s attention in their monthly report of the Panel. If the Appeal Division finds that a policy is in conflict with the Act that decision applies only with respect to an individual appeal being heard. It does not automatically nullify or change a policy. However, the Appeal Division decision may prompt the Panel to undertake a review of the policy.
In summary, the Appeal Division independently decides appeals, interprets policy, does not create new policy and the Chief Appeal Commissioner attends panel meetings, brings policy issues to the Panel and manages the day to day operations of the Appeal Division.
Since 1995 the panel has had five Chairs and only one panel member remaining from the original appointments.
Four of the current five Panel members were appointed in August of 1997. This has significant implication for the Panel’s work, as members must work in a very steep learning curve.
There is a need for stability and continuity in Board leadership – there is also a continuing need to find mechanisms for greater stakeholder involvement on new policy development and governance. The Chairs of the Panel of Administrators and the Senior Executive have met on a regular basis with stakeholder groups. The Board has listened closely to the presentations of interested parties at public hearings. It has reviewed many of the submissions forwarded to us by these parties that have presented to you. We need to find suitable avenues for stakeholder involvement while balancing public policy interests continues to be a priority.
RALPH MCGINN
Policy Development Process – Three Logical Breaks
a) Prior to 1991
b) 1991 to 1995
c) 1995 – Present
Policy and Regulation Review Policy Bureau
Prior to 1991
1973 –prior to this there was no formal process for policy development. Policy was found in memos, lecture notes, officer inspections and unpublished decisions of Commissioners. In 1973 the Worker’s Compensation Reporter series was established as a vehicle to communicate publicly the Commissioners’ decisions on appeals and general policy.
1975 – the very first policy manual was developed – the Claims Adjudication Manual – this was intended to be a guidance document to communicate rules and decisions of the Commissioners to provide internal consistency within that Division.
1983 – there was a decision to create a manual for publication for each one of the departments – manuals were prepared by each department and the original intent was that they be – no new procedures or practices be included – this was to ensure that the public was aware of the rules and policies used internally to make decisions within each of the departments or as we call them now divisions.
Prior to any changes or additions to these manuals they were discussed with the Commissioners. So the Commissioners actually made decisions on policy manuals. But in reality of the time it grew to be a policy and procedure manuals – the contained officer instructions, practice directives, and examples of how work should be conducted by the officers of the board.
For example the Occupational Health and Safety Manual contained instructions on how the field officers should buy their film. It really is not a policy issue for the governance of the board.
1991-1995
Section 82 of the Act – the governors were charged with approving and superintending policies of the Board.
Shortly after the governors’ appointments in Decision No. 3 – the governors adopted existing manuals and the older reporter series as policy and reinstated the publication of the old reporter series.
Initially, the governors took charge of new policy, the priority setting, review and development. They had considered all of the various options for policy review and how it might be conducted and make a decision that they should take charge of that process themselves. They established the priorities, conducted the review and development, set up an occupational diseases standing committee and regulation review committee which reported directly to the governors. Those two committees stayed that way until the governors were released from their duties in 1996- 1995.
In mid 1993 the governors charged the Executive Committee with the task of developing and moving the policy forward.
The Senior Executive set up a policy and research department within the administration. The policy itself however was developed by the line divisions and went through a centralized vetting procedure with the Senior Executive Policy Committee. It was a policy development consultative committee created with representatives of employer and community stake holder groups to provide some consultation. Patrick O’Callaghan and Judy Korbin in their report and review of the governance structure reported on opinions of the stake holders that one of the key issues was the perception that the Administration was really setting the agenda for policy development and that the consultation process was somewhat limited.
1995 to Present
In the spring of 1995 Judy Korbin & Patrick O’Callaghan were appointed to review the structure and the operations of the Board of Governors. In this report which was tabled to the minister in April of 1995 they recommended that the policy and regulation bureau be formed and at least initially reports to the Panel through the Chair to see if that model would work effectively in giving the credibility to the external stake holders.
They recommended that each policy moving forward have sound analysis, contain all of the alternatives and options, contains statistics and cost impact studies – a comparison of what was done in other jurisdictions.
So they were saying that these papers should be well researched; all of the options presented and that there be a thorough consultation with worker and employer communities and the administration and that there be a fair presentation of those stake holder views – workers, employers and the administration – through to the Panel.
In the fall of 1995 – I was asked to consult with key stakeholder representatives on an organizational model for the Policy and Regulation Development Bureau – discuss with them the objectives and the policy development process. So here we have the organizational chart that was finally agreed to – a smaller structure than originally proposed:
Top layer Director General, Policy Director, 4 Policy Directors, 4 policy Analysts, Administrative Assistant and Officer Manager
One of the policy directors to have seconded staff to establish an advisory committee and occupational diseases for the amendment of schedule B.
Then Seconded Staff, 5 support staff, Seconded Staff to advisory committee on occupational diseases schedule B, support staff
Just looking at the Policy Bureau over that period of time it took most of 1996 and 1997 to go through all of the interview process, build the complement of our staff and gradually establish processes and procedures for moving policy items forward.
The Bureau did conclude 41 pieces of policy that moved forward and decisions were made on them by the Panel of Administrators as well as proposed policy amendment that were returned to be agreed as practice issues and completed the conclusion of the Act – Occupational Health and Safety Regulations. On the plate of the Bureau there are 54 projects scheduled for 1998.
We’ve heard criticisms of how slow the policy development process is and could it move faster. The consultation phase can slow movement of policy forward – can really slow it down by two to three months depending on the response of the communities? Korbin/O’Callaghan – the worker, employer and communities themselves and the Royal Commission have all stressed the importance of that consultation phase.
Main Steps – Policy and Regulation Development Process
i. Policy Need Identified – for either a new policy or an amendment to the policy – and that can be identified by a division or worker or employer representatives through an appeal division decision or by the Chief Appeal Commissioner, by the Panel or by the Policy Development Consultant and Committee.
ii. Outline and Preliminary Analysis – the Policy Bureau as a first step prepares a one or two page outline, does a preliminary analysis and does a scoping paper. They looked at the proposal for change to policy or the provision of a policy and asked the following criteria – is it Administrative Tribunal material – for example does it involve quasi-legislative policy issues that determine rights and responsibilities under the Act; does it involve existing published policy of the governors; does it involve administrative policies with a sufficiently high public profile or significant cost impacts such that the Panel should make the decision – that is as opposed to a normal situation where there might be an administrative policy handled by the administration; does it involve a proposal for legislative change. One of the outcomes from that process or due process is that it may be determined that this is really a practice issue as opposed to a policy issue.
iii. To Priorities Committee for Decision and Direction and the establishment of priorities – where it should fit in the schedule for the following year. The Priorities Committee as you saw earlier does include the President and CEO of the Board and that is an important link to ensure that policy priorities include or do not conflict with the strategic plan of the Administration. Once the Priorities Committee has taken the decision that the policy should be moved forward in the process and given it its priority – the Policy Bureau determines a mechanism for its development and analysis.
iv. Bureau Development and Analysis. This could be done by Bureau staff, it could be initially done by the division staff or could be by committee led by the division or involves the worker and employer representatives as is done with the regulation review and the occupational diseases advisory committee.
v. Draft Policy Prepared/Consultation Undertaken by the Bureau. That could be through moving it forward only with the policy development consultative committee or the occupational diseases advisory committee or the advisors on regulation review. Those groups generally advise on the level of consultation that should be undertaken as well as critique the draft policy. Once a much wider consultation process should be undertaken that’s done with worker and employer community representatives and the appropriate division. It could involve a wide distribution of the draft policy or discussion paper and could ultimately involve the hearing process as is done with the regulation review.
vi. Bureau Revises Draft. Based on the comments received. When necessary it may be taken to the Senior Executive Committee for their review.
vii. Draft to Senior Executive Committee (when necessary). The Bureau then finalizes the paper and takes it forward to the panel for their decision.
viii. Present to Panel.
ix. Panel Decision. Once a decision is reached by the Panel the legal department prepares the resolution for the view to ensure it is consistent with the presentation within the paper and following that the Bureau approves the draft by manual amendments designed to communicate the decision internally within the Board and externally to the stake holders.
x. Post Implementation Review. The Bureau monitors the post implementation and evaluation and identifies any subsequent policies that might arise out of the policy amendment.
1995 to Present
How as the Annual Policy Schedule developed? First thing that is done is that we canvass the stakeholders – the employer and worker representatives and the Senior Executive Committee with respect to the Strategic Plan of the Board. We review appeal division decisions and then consult on the views of employers, workers, and the divisions on the priority and controversy of each particular proposal for amendment to policy.
That then is analyzed and presented to the Priorities Committee for a decision and based on their decision then the schedule is set for the next year. That schedule is publicly available and it is amended on a regular basis as items come forward that may need to adjust the schedule and the Priorities Committee makes a decision on that.
QUESTIONS:
Alan Winter
Q: I have three areas I want to explore: the first two primarily with yourself Mr. Cott, and the last one for either yourself or Mr. McGinn. The first area I will deal with is the composition of the governance structure, the second I will get into is the relationship between the governance structure and the appellate structure, and the third area will be picking up on what Mr. McGinn has commented on – the criticism of the slowness of the policy and talk about that a little bit. So starting with the composition of the Board of Governors just to put into context I do represent the Employers’ Coordinating Group, which is made up of three organizations – the Business Council of BC, and the Coalition of BC Business, and the Employers’ Forum for the WCB. That group has put forward a coordinated position on governance – what the Employers' Coordinating Group are seeking is a multi-partite, multi representational structure similar to the structure at Board of Governors –there should be representatives from both employer and worker communities but that representation should be in the minority; there should be public interests governors; persons who come from disciplines relevant to the workers' compensation system such as medical, insurance, banking, investment and others. There should be a chair who should be a neutral competent person who has the confidence of all stakeholders and has experience and skill in consensus building and leadership when necessary. Mr. Cott just picking up on that – there is contained in the recent reporter, volume 13, a book called the Workers' Compensation Board Panel of Administrators manual dated January 19, 1997 for the record that is found at 13WCR starting page 97. But in Chapter 17 –it is called Panel of Administrators and Chair Review Process –now what it does is build in a process where the actual Panel does an evaluation of itself and how things are going. And it sets out a questionnaire and I would just ask you Mr. Cott some of the questions to get some of your thoughts on the structure as we go forward. The first question under Panel Composition – Does the Panel have the appropriate number of administrators –and currently if I understand there are 5 including yourself which is a reduction from the previous Board of Governors of 13. What are any comments you have on that issue?
A: Presently, there are actually 4 panel members with the death of one member – we now have one vacancy from the complement that we had –I guess as to the – if it is sufficient numbers – I guess that is debatable –I think there are some key areas that need to be considered in the composition of a panel being looked at and that is cohesion, accountability, and continuity –no matter whatever the numbers or shape of the board of governors is that those are the key factors to be considered.
Q: You say it is debatable and I see you really didn’t want to get into the debate – do you agree with the concept that there should be representation from the employer and worker communities?
A: They are the major stakeholders and I think those communities should be represented in some manner on the Panel yes.
Q: Do you agree with the concept put forward by the Employers' Coordinating Group that that representation should be in the minority?
A: A minority as far as the overall Panel?
Q: The overall numbers on the panel.
A: Well, I haven’t read the position put forward by the Employers' Coordinating Group.
Q: Have you read the O’Callaghan/Korbin Report?
A: I have.
Q: They picked up the same concern – what happened was the board of governors that was created following the Munroe Report was 13 with the majority coming from labour, on behalf of workers and employers – ten out of 13–and the Korbin/O’Callghan Report found that to be a significant problem so again the question being do you agree that there should be a minority or do you believe that there would not be a potential problem if they are in the majority?
A: I think a lot of it would depend on the people and the experience they bring with them – I think I’m not sure for me to judge whether or not any segment of the community should be in the minority or a majority. I think that it is very key to get people who – a cross section of people on the Panel who bring a number of variable kinds of experience to that Panel and certainly labour and employers are two of the components.
Q: Picking up on that one of the other components has been termed the public interest and again what the Employers' Coordinating Group has proposed is that those should come from disciplines that are relevant to the workers' compensation system – I think that makes sense on a broad basis. How long have you been chair?
A: Since August of last year.
Q: Could you based on your experience give us some insight as to what would be useful disciplines to have available to the governance structure for the purposes being related to Workers' Compensation Board?
A: Medical, financial, along with the interests of the major stakeholders and government.
Q: So you see government having a role besides just appointments and actually being present at the Panel of Administrators or the Board of Governors?
A: Probably there is a role for government in the governance, yes.
Q: At what level would you see that – a deputy minister such as or a deputy assistant such as yourself or should it be ministerial?
A: I would say senior levels from within the bureaucracy.
Q: That does cover the second question I was going to ask you – that the Panel has the right balance of skills, experience, and background and you’ve told us some of the skills and experience that you think would be useful. I take not all those skills and experience are presently on the Panel – for example medical I am not aware – is there someone with a medical background?
A; No there isn’t.
Q: And financial?
A: No, not now. Mr. Curry had certainly the financial acumen to the Panel so there is a void in that regard right now.
Q: So I take it that you may well be in agreement that more than 4-5 would be appropriate then the current number that’s in the Panel of Administrators ?
A: There is nothing magic about 5.
Q: My own personal view is that when we get to the stage of what we had with the Governors of 13 we are starting to maybe get to too large a group for governance to operate effectively and that is what I am trying to explore with you – we are currently at 4-5 and that may be too small and I am just trying to get your impression from being involved in the governance structure on what would look like a reasonable range?
A: I guess that is difficult to say – depending on in your opinion of the minority of two key stakeholders so whether that is one from each or two from each or whatever I guess the optimum would be somewhere between 5 and 13.
Q: The last question I want to ask you from this questionnaire is number 4 - Does the panel indicate to the government what criteria and skills should be considered when appointing new panel members?
A; Well, I think that something we have to look at is Bill 56 was to be something of a very interim measure– that is why the terms were one year – with the provision for renewals. The – could you ask me the question again.
Q: In the recent appointments – were you chair when the last appointments were made for Administrators?
A: No, I wasn’t.
Q: Are you aware if the government sought the views of the Panel of that time?
A: The Panel at that time was two. And I can’t attest as to whether that was sought or not but I am certainly cognizant of those provisions in the Panel Manual and self-evaluation and recommendations is for hopefully we are going to have the government appoint at least another member and we will certainly be trying to influence their thinking on the kind of individual that might move that forward.
Q: Lets focus more on the non-voting members on the previous Board of Governors and their current role and that is the President/CEO and Chief Appeal Commissioner of the Appeal Division– are both of those persons invited to the panel meetings?
A: Yes, they are.
Q: Do you believe that the President/CEO should be a member of the governance structure?
A: I certainly believe that they should be there – not necessarily have a vote but I think there is a benefit for the President/CEO to be there to understand what kinds of issues that policy decisions that are being made by the Panel so that person can then trace back the policies through the organization.
Q: What about the Chief Appeal Commissioner?
A: I think that there certainly is a benefit to have the Chief Appeal Commissioner as a non-voting member. They quite often offer guidance to the Panel as far as policy issues are concerned and that there is some value that the Chief Appeals Commissioner understands the rationale for the decision on policy that the Panel makes because they are regulated to some degree by those policies.
Q: But what about the Chair of the Review Board that is currently external to the WCB – do you think that person should they be in the governance structure?
A: I would think not; it is external Review Panel and the governance governs the operations of the Board.
Q: Now the Employers' Coordinating Group is taking the position that the Chief Appeal Commissioner should not be on the governance in any role other than a reporting role whereas the President/CEO should be a non-voting member of the governance for the reasons that you described so let’s explore a little bit more about the Chief Appeals Commissioner. Your rationale was that the Chief Appeal Commissioner should understand what the rationale of the policies are going to be dealing with those issues that come to the Appeal Division. Is that not true for the Review Board? Say an issue goes through the Review Board before it goes to the Appeal Division.
A: Well, I think that in the present system the Review Board is an external Review Process and I’m not so sure that they are needed to be sitting at a Panel on governance of the organization itself. The present Review Board is a creature of the Ministry of Labour which is paid for out of the Accident Fund and it is meant to have a sort of I suppose a survey look externally at a claims decision.
Q: But they still have to have an understanding of the policies of the Board because they have to apply those policies.
A: I agree they have to understand them.
Q: Let’s look at it from a slightly different perspective – the employer community is advocating one level of appeal total at the end of the day – if the Commission agrees that there should one level and says that it should be external is then your position going to be that there should be no representative from the appellate tribunal on the governance structure because they are external?
A: First of all I’d have to see what is recommended – I am sure the Royal Commission has some thoughts on what the make up of the Panel or whatever the governance model might be – I really don’t have an opinion on it at this point.
Q: All I’m trying to do is when they do look at the issue they would have some guidance on is it useful to have the Chief Appeal Commissioner as part of the governance structure regardless of whether it is internal or external. So far the only real distinguishing factor that I take from what you are saying is internal yes, external no. And so that is the distinguishing factor.
A: uh-huh.
Q: The other problem I have is that I understand the rationale of understanding the policies but isn’t it in the Appeal Division that it is where those policies are interpreted and applied –isn’t that their role right now?
A: Yes, it is.
Q: Do you think that puts an apparent conflict on the Chief Appeal Commissioner in those cases that he or she may be involved in – trying to interpret policy that they have a different understanding than the officers have when they read the policy because they were there?
A: Well, I think it is good and necessary for them to clearly understand the policy and they are non-voting – the Chief Appeals Commissioner are a non-voting member. They don’t decide the policy; but they are sort of the last line of defense I guess in the present appeal system and they should clearly understand the policies and have the ability to bring forward to the Panel circumstances where policy may be deficient.
Q:I want to move on the next area – I’ll talk a little bit about the role of the governance structure vis a vis the appellate structure –
A: I’d like to add a couple of words – I’m the acting Chief Appeals Commissioner – with respect to that balance between responsibilities that the Chief Appeals Commissioner has on the Panel and in deciding appeals the Chief Appeals Commissioner does withdraw from the Panel if certain matters might become the Commissioner on appeal. If it is anticipated that that could create a problem. Furthermore, the Chief Appeals Commissioner’s views cannot bind the Appeal Commissioners and that goes to the issue of independence of decision making. And thirdly, what the Chief Appeals Commissioner’s involvement in a matter that has been at the Panel may limit her ability to adjudicate that matter in subsequent appeal. We are also sensitive to that issue and it is something that of course the President has to some degree considerations in that the President for example currently makes referrals on reviews of findings to the Appeal Division and is the person in charge of adjudication at the Board at the first level.
Q: But the President doesn’t make any binding or adjudication decisions where you do. A: The President’s role refers matters to the Review Board has to be seen in its historical context. The belief that the Board was not respected in that external decision making – there was a tendency to feel that the Board was having another appeal that is in motion. The President’s role in the current system is a balance between respecting the Review Board’s role and the limited strictures for review.
Q: I can see the merit in having the President/CEO as being part of the non-voting governance structure – that being one of the reasons that someone should have the responsibility to review and monitor the external agency to make sure it is complying with policy but again all the President does is make an initial determination – of whether this is an error of law, or a contravention of policy and refer it to your division. Your division is the one that makes the actual adjudication on that point not the President.
A: Okay.
Q: The other thing you said is that the Chief Appeals Commissioner would not be involved if an issue could come before the Appeal Division – isn’t that basically every issue – every issue of policy in one way or another comes before the Appeal Division?
A: This is part of balancing the direction in the governors’ decision that the Chief Appeals Commissioner shall participate in discussions on making policy; it was Decision 7 and you are right in the adjudication of individual decisions but if there is a matter that is specifically going to – a decision that you know is currently under adjudication for example it may not be appropriate. For example the Chief Appeals Commissioner does refer a matter up to the Panel and upholds the decision – however the Panel decides the policy could well impact the issue – that may be a situation that it would be appropriate for sitting in the session.
Q: It is wider –there are issues where the Chief Appeals Commissioner removes herself on the belief that something could come to the Appeal Division, I’m thinking of 6.21 – the restructuring of 6.21 even though there is no live issue she removes herself from that discussion if I understand it assuming that issue could come to the Appeal Division.
A: I’m not aware of that situation.
Q: The next topic –we can talk about your views on the role of the Panel of Administrators or the governance with the appellate structure. Perhaps you can tell us what you perceive the role of the Panel of Administrators to be with regard to the Appeal Division.
A: The policy issues that are raised by the Appeals Division are communicated internally through the Chief Appeals Commissioner’s monthly reports. Then on those issues the Panel would provide direction to the Policy Bureau to bring forward to review issues and bring forward for preliminary analysis with the Priority Committee for determination as to its relative priority. The Policy Bureau schedule is that it has classified an issue in some 54 items for 1998. The Appeal Division Panel raises policy issues or questions as to whether a policy is in conflict with the Act. That decision applies only with respect to that individual. So certainly there is an interplay between the Panel and the Chief Appeals Commissioner in that regard.
Q: What do you see as the role of the Administrators with respect for monitoring the decisions of the appeal division with respect to how they deal with policy?
A: The Chief Appeals Commissioner reports monthly to the Panel and those decisions are reviewed with the Panel and if there are policy issues then we have the ability to send those policy issues to the Policy Bureau for advice and consultation if needed.
Q: What I’m looking at is what role, if any, does the Administrators play to make sure the Appeals Division doesn’t cross over it’s authority –I think you’ve already said and we are all agreed that the appeal division has no authority to create policy – that’s your understanding. Is that correct?
A: that’s right.
A: Do you the Panel of Administrators take steps to monitor that – for example you say the Chief Appeals Commissioner comes with monthly reports – I’d be very surprised if the Chief Appeals Commissioner comes with a report and says oh by the way we’ve created policy here and we want to bring it to your attention in this report –obviously that person thinks that they did what they believe is within their authority and they always say we didn’t create policy –but you are above that – you are supposed to be monitoring this to ensure that they don’t’ go beyond their jurisdiction – do you agree with that concept?
A: One of the facts that the Policy Bureau carries out is the monitoring of the Appeal Division decisions so we review every decision that’s made by the appeal division on a monthly basis and we do prepare a report to the Panel of Administrators on those decisions. So we will advise them of where there are areas that we have concern or where the Appeal Division decision raises a matter of policy.
Q: Can you come up with any examples of where you believe that the appeal division actually created policy?
A: We haven’t come up with any examples of where they have created policy; we’ve come up with examples where they have made a decision based on merits of the individual case which tells us that the policy should be examined and perhaps reviewed and we do take that forward to the Priorities Committee for their guidance.
Q: What about you Mr. Cott, are you aware of any cases where you believe that the appeal division has created policy?
A: Certainly not since I’ve been chair.
Q: I’m going to want to review one – there are several that the employer community has raised – we’ve always met resistance from the Board to accept that it’s ever happened and I’ll try again with the Commission you will see differently on the point. Let’s talk about legal fees and Mr. Dorsey thought it was always interesting how lawyers raise legal fees. Turning to the Rehabilitation and Claims Manual – you agree that that is published policy of the Board?
A: I presume it is, yes.
Q: You presume it is you are not aware that the Rehabilitation and Claims Services Manual is published policy of the Board?
A: Oh, yes. I presume this is from it.
Q: Yes, the except I gave you is from it; from my copy so I assume that January 1994 is the latest version but I can correct that if there is any change. What I’ve given you is it is under section 100 which is reimbursement of expenses on page 1264 and I’ll turn you to the next page on page 1267. And I gave you – it is section 100.4 – fees and expenses of lawyers and other advocates. The next page 100.7 is the awarding of costs under section 100 of the Act. As I understand the difference is section 100 gives the Board authority to award costs for the successful party and the way that I read the section is that the losing party pays it, not the board. Whereas section 100.4 recognizes the Board also may be asked to reimburse costs from the accident and that is where that section comes. I just want to read the first two sentences of 100.4 [sentences read]. That seems quite clear and unambiguous on its face do you agree – it says NO.
A: Well, I guess on its face you may be right, yes.
Q: and that is all I’m asking – I’m saying the policy is right or wrong or a good policy or a bad policy – I’m just saying there it is. And then we go to the Appeal Division case given you. And I’ve given you the citation – it’s on the top of the page volume 10 pg. 211 and this was a panel chaired by Connie Munroe who was at that time was the Chief Appeals Commissioner – is that correct?
A: Yes.
Q: Tom Camesley and Michael O’Brien who is currently the chair of the Review Board but at that time was an Appeal Commissioner. And the issue here was the payment of legal fees – and there had been an earlier case by Ms Koviachi that did award legal fees and set out the principles but it wasn’t reported so we won’t worry about it but when we look at this case I want to turn you to page 219 and 220. You’ll see on page 219 the paragraph that starts "next" it says&ldots;[reads passage] and I don’t have a problem with the Appeal Division looking at unlawfulness. And if you turn the page to 220 they say after the quote [read another passage]. And going down to the last paragraph [reads paragraph]. I submit that that is written in a very wide language; it’s widely applied to the case at hand – in fact the case at hand will determine not to pay legal fees. Would you agree that’s a wide statement that the Appeal Division believes legal fees should be considered?
A: With due respect I haven’t read this decision and I’m not sure until I’ve read the decision in its entirety whether I’m prepared to make a judgement on a paragraph by paragraph basis.
Q: I may well ask the Commission to have during the break to have you read this so that I can ask you questions – I think it is quite straight forward on its face Mr. Cott – I’m not trying to trick you or anything – it reads very clear in my interpretation is that the Appeal Division has said these aren’t the situations that we’ll consider paying legal fees. That’s flagrant abuse - I don’t know what there is to read other than that’s a sort of test.
A: Well, I guess other than I don’t know what it says in the balance of the decision and in order to interpret that decision I would have to read the entire decision not just one paragraph.
Q: Again, I’m going to ask permission to have you read it during the break and ask the opportunity to ask other questions on it because I don’t think you will find anything different. Would agree subject to when you read the case that that paragraph seems to be different from the policy that I gave you under the Manual?
A: Again, it’s possible; I haven’t read the Manual either. I mean this &ldots;
Q: I guess you’re showing the problem that the employers have with the current structure – it seems that the Panel of Administrators and the previous Board of Governors say they don’t want to get involved in monitoring a case and actually say visibly – yes it looks like the Appeal Division went beyond their jurisdiction and I think that’s the concern we are trying to get across – isn’t that the role of the Panel?
A: Well, I agree that the Panel will get involved as we need to when it comes to policy – I think that it is not reasonable for you to bring along – to read one section of a policy manual and read one paragraph of an Appeal decision and ask me to form an educated opinion on it.
Q: Have you read Mr. Hughes report?
A: I have.
Q: Do you agree that he advocated that the Panel or the Board of Governors structure-wise does have the authority in fact – has responsibility to monitor the Appeal Division to ensure that it shows respect for the policies of the governors?
A: I agree.
Q: Do you agree that he even went so far as to say that if a dispute arises between the Appeal Division and the governance structure and it can’t be resolved that the governance structure can actually look at taking the Appeal Division to court?
A: That’s true.
Q: is that something that you would agree with – that the governance structure should be able to take the Appeal Division to court?
A: Well, again that would be a personal opinion I guess.
Q: I guess that’s what I’m asking for.
A: I think there’s a problem in the system and I’m not saying there aren’t problems in the system – there’s a problem in the system – there’s one part of the system that has to take another part of the system to court.
Q: And what about the external – do you think that avenue is the right avenue then to resolve – if the final level of appeal is external – that the governance structure should have the ability to have some way of resolving a dispute with the external?
A: If it is an independent external Tribunal – probably yes.
Q: I’ll spend two minutes on the last area – and that’s a concern about the length of time certain policy issues wind their way through the system. And I’ll leave this for anybody to comment on when I’m finished. There are three examples I want to bring just to show the concern – very briefly – firstly is item number 5 on Schedule B – this is heart injury or disease in the occupation of fire fighters and I don’t want to get into the merits about whether or not that should be on Schedule B – but the fact of the matter is Mr. Paley has raised that issue a long time ago that it shouldn’t be on Schedule B – in 1992 the governors put together the Occupational Disease Standing Committee and one of the primary roles was to look Occupational Disease in Schedule B – in March 1994 a recommendation came from that group to the Commissioners – that other than 6 items on Schedule B they should all stay the same. One of the six that should be looked at was fire fighters’ hearts. In April of 1994 the Commissioners agreed that that should go ahead – July 1995 everything came to a stop. And here we are in 1998 with the committee just starting. So over this process there has been about 6 years that to my knowledge – probably longer – that the municipalities have raised a concern about something being on Schedule B and that is still on – is that correct?
A: Yes.
Q: go ahead
A: I think you have to look at this in the overall context of policy development and regulation involvement in amending Schedule B and Occupational Diseases – certainly that process came to a halt in mid 1995 in January of 1996 – the Policy Bureau did take a proposal forward to the Panel at that point in time for a structure to revise the evaluation of Schedule B and deal with the 6 items you talked about. It is very difficult to get representatives of the committee together because of dealing with regulation review as well as the amendments on policy and that just didn’t get off the ground. The decision was made to actually second people off of line to get that process moving and in late 1997 and it should be going in 1998 with some regularity.
Q: Another example would be psychological disabilities – the Chief Appeals Commissioner at that time in November 1993 did a discussion paper and at the end with some urgency referred the matter to the Governors – that also has not yet been finalized. Is that correct?
A: That’s correct but I think you have to understand that even under the governance structure there was a pent up need for policy amendment – regulation amendment – changes to Schedule B and if you look at the period that during 1996 and 1997 we really had five chairs during that period and significant change in the Panel member and so continuity of the Panel during that period of time to come up to speed, understand the complexities of the system and develop a confidence in their ability to determine policy matters has been difficult. So building a Policy Bureau, following the recommendations of the Priorities Committee for what is moved forward has resulted in some slowness of the policy agenda. On the other hand I think it’s fair to say that over that 2 year period there were 41 amendments to policy – there were 21 papers on the key issues such as stress which were produced for the Royal Commission to brief them and the regulations were finally amended – that was a significantly energy absorbing process in itself.
Q: Just in closing –the employer community believes that there has to be a better, more efficient system to look at these things –cases of ultimately hearts shouldn’t be on Schedule B for the last 6-7-8 years they’ve all been getting accepted because the Board has a variety of reasons of why they couldn’t go ahead –reclassification of employers – individually having to go through the assessment department – they say we are not properly assessed – classified – they get some sympathy – they can’t do anything because it has to go through the governance and 6-10 years later they are still being what they believe are being improperly assessed because it has not gone through the Governors. Stress cases are still being adjudicated – the Appeal Division has pled for some guidance – 5 years later we still don’t have it and they are still being adjudicated – I think that’s the point the employers have – thank you those are my questions.
JOHN STEEVES:
Q: Mr. Chairman I represent the BC Federation of Labour in these proceedings and as Mr. Winter did – just very briefly our position on these – one issue but really two issues on the governance is that – the Board has been through a spot of bad trouble starting about 1994 and is now coming through it and is with respect to governance – with respect to policy similarly we think that things are getting on track now and we have some questions about some of the history in both those areas but the question is – not to re-fight those issues but to learn from what happened in the past –Just a few questions arising from this morning –and I think Mr. Cott in the Panel I think you are going to have to be precise here at this stage of the proceedings with the Commission so I am going to ask some precise questions – you were asked – Mr. Cott you were asked about by Mr. Winter the question about whether labour and business should make up a majority or a minority of the Panel –do you remember those questions? And I wanted to be clear Mr. Winter talked about Korbin/O’Callaghan report and in the Korbin/O’Callaghan report did not recommend that there be a minority of worker, business interests - is that right?
A: That’s correct.
Q: And then you were also asked – the other disciplines that might be relevant to workers compensation – and I think the question was whether it would be useful to explain some –there was a question before that though which I thought was important and that was do you think that would be appropriate to include those other disciplines?
A: It may be appropriate in so far as that they can bring some – certainly some experience and some advice to a governance model.
Q: Now, when we are talking about governance and policy there’s two major sources of that – one is the Act and one is the policy and can I take it as given that the Act would be paramount over all Board policy – would there be a problem with that?
A: Yes, it is.
Q: With respect to the payment of legal costs and Appeal Division 931687– what was given to you in the questions was that section 101 provides for the Board to award costs – that’s section 101 of the Act –and that’s mentioned in the appeal division decision –and my question to you is wasn’t the Appeal Division in decision number 931687 simply interpreting the Act – section 101 by awarding costs in this case?
A: Yes, they were.
Q: And to the extent that the policy manual would be contrary to the Act the Act should prevail?
A: Yes, it should.
[Mr. Winter]: Have you read the case now?
A: Just what I’ve read here.
Q: Well, when I asked the questions you couldn’t answer because you hadn’t read the case and now you can answer the questions definitively without reading the case.
A: As I said I looked at what you gave and what I understand what the Act does. I just had one comment about the decision – I don’t propose to get into the adjudication of any of these matters here in this forum but at the time that that decision was published in the reporter series the Chair of the Governors exercised authority over what would go into that reporter series and so I think it could be seen that that was reviewed at the governors’ level.
[Mr. Steeves again] Q: Now, in terms of governance as I said earlier our view is that since – first of all taking a bit of history – the current governance regime began in 1995 – can we use that number Mr. Cott?
A: Yes it did.
Q: Just for a year and prior to that it was the board of governors from 1991 to 1995?
A: Yes.
Q: And the one that started in 1991 – if I could call it the Board of Governors’ model was started as the result of the Munroe Report, correct?
A: Yes, it was.
Q: And that report was a consensus of all the people in the community – that was business, labour, government and the Board?
A: Yes, that’s my understanding of the report.
Q: And the Board of Governors’ model that was proposed by the Munroe Commission was actually a proposal by Canadian Federation of Independent Business – do you know that or ?
A: I’m not aware of that.
Q: Okay now – does anybody else in the Panel know that?
A: No.
Q: For the first few years –is it fair to say that everyone again taking the spirit of the Munroe Report – that is Business, Labour, Government, and the Board were working on issues of governance at the Board – and if there was controversy –that controversy was within the Board – as within the Board of Governors – that is it was a relatively peaceful time in the history of the Board –is that a fair summary of the period say 1991-1993?
A: My involvement didn’t come along until 1994 – but certainly as an outside observer that may be true.
Q: And then there was the Section – it’s actually a page 13 of the 1996 Report describes the controversies facing the Board and so on – and then there was the trusteeship that was started in 1995 – now one of the consequences of that is that the – not only was the governance structure changed but that the policy review structure was changed – and Mr. McGinn you talked about a significant change of panel members and you talked about the structural change in the policy part of the board – and so as we know governance in Section 82 requires Governors to control policy so by the disruption that happened to governance there was a big disruption in policy development and policy control – is that a fair comment by – I see Mr. McGinn nodding his head. Now, one of that consequences of that – that is the disruption in the policy development at the Board is that things that should have been done weren’t done and for example the example that Mr. Winter used was Schedule B – item 5 for the fire fighters – and there were 5 or 6 other matters – and certainly labour had their own requests for things that should have been done – and haven’t been done yet – is that a fair summary?
A: Yes.
Q: Now when people complain about the delay and lack of attention to requests for policy development isn’t part of the answer is to remind them that if the governance structure of the Board and the policy development is in disarray that that needs time to be fixed?
A: Yes, I would think so. Certainly continuity of the governance structure is critical as I mentioned earlier. With change overs it takes – it is such a complex system – the issues are so critical and critical importance to the system that it requires several months of understanding of the system in briefing of the panel of administrators on any particular issue so that they are prepared to make a decision – these are probably weighty decisions – some of these things.
Q: If there was a statutory body responsible for policy development and say occupational diseases and Schedule B mattress – that statutory body would be relatively immune from the changes we are talking about, would it not?
A: I guess that’s possible – it might not be if the direction&ldots;..
Q: With respect to governance Mr. Cott explained that the – since 1991 – the governance has been on a part time basis – is that right, Mr. Cott?
A: Yes it is.
Q: And prior to that was the full time the Board of Commissioners?
A: Yes.
Q: And a small historical point - before the Tysoe Report it was the Commissioners – it was the Chairman and one labour person and one management person – just as a historical comment there. Now I’m interested in the issue of part time versus full time governors and it strikes me that a full time governor would have more time literally to have be involved at the board, to understand what is going on at the Board and to participate at the Board – particularly in policy development – is that a fair comment from anyone on the panel?
A: I think that’s a fair comment – I think there’s a big difference between governing full time and governing part time.
Q: Yes, I am not saying that the full time governors aren’t without their problems – it is a different set of problems – I’m saying there is more time – the governing body has more control over policy.
A: That’s true but I also think there’s a caution that governance should not micro manage the system.
Q: I appreciate that – there is a balance there – and the balance may be – for example that you would have within the governance structure some full time people and some part time people – that is one technique of dealing with balance?
A: That’s true.
Q: Yes, I wonder if we can talk more specifically about policy issues –and I should take you to the documents –a binder with a blue cover – explain to you these documents - tab 1 – Monroe Report, tab 2 – recommendations and summary of Korbin/O’Callaghan, tab 3 is the Board policy on Policy – Rehabilitation Adjudication and Claims Services Manual –and then the on page 1218 is 96.10 precedent policy talks about section 82 in which you talked about this morning – just one point there towards the bottom of 1219 –is an important point in administrative law is that the Board is not bound by policy –and that pursuant to section 99 which is kind of an encoding of administrative law but that the board has to look at the individual merits of the case and it may be that the individual case should be decided contrary to the policy – have I got that right?
A: Yes.
Q: If you just jump over to tab 4 and tab 5 –at tabs 8 and 9 have nothing to do with today – I want to take you to 2 specific cases to make a point on policy development within the Board and the first one is at tab 4 –and this is the case of a neck injury of a worker and you’ve seen the documents that it started in 1991 –the issue in the case is one of whether the worker should be referred to disability awards –so that his claim has been accepted for wage loss and the issue is whether he should be referred to disability awards - not whether he had a permanent impairment or not but whether he should be referred to disability awards –and so at the beginning of tab 4 you see section 96.20 of the manual – and at the second page 1221 – the numbered points there is the Board policy and the referral to disability awards – first where a medical report indicates where a permanent disability exists or that there is a possibility of a permanent disability exists – where a worker indicates that there is a permanent disability as a result of a compensable disability or states there is a inability to return to employment as a consequence of the injury –where there is any other indication of a permanent disability or a potential permanent disability. It’s a very broad policy or some might say a procedure I suppose about referral to disability awards– the next document there is a letter from a specialist – April 11, 1995 is a neurologist and the second page under impression – headaches brought on by joint movements and particular forms of exertion – there is some tenderness in the posterior cervical area radiating and purely suggesting that he may have some degenerative changes that are contributing to his right sided headaches when he has a break from his work his headaches disappear for several weeks – the next document is memo #6 and this is from his adjudicator – the third paragraph down – medical seems to indicate – I feel that the worker since his return to work after the injury in October 1994 return to work in December 1995 he’s had ongoing disability symptoms even though he continued to work between December and March – next paragraph – a dispute about what whether the worker has aggravated a pre-existing condition and down at the bottom of that page – he talks about retiring early because he doesn’t feel he can do his work safely – the next is memo #8 from the Board’s chiropractic consultant and some discussion about in the second paragraph you see that specialist’s report – no significant abnormality and then the next paragraph Dr. Black has documented within the report dated November 17 the claimant had posterior distending from C3-4-5 so in memo #9 –the adjudicator decides to refer this to disability awards, - now as I read the Board policy that was a correct decision - there was at least a possibility of a permanent impairment –but what we have in the next document is memo #12 from the Director of Disability Awards and the second paragraph – it does not appear that there is any permanent functional impairment related to the neck and related to previous strain this claim and the fourth paragraph –if the unit medical advisor finds no evidence of permanent functional impairment and if the worker is not an undue risk for permanent functional impairment on returning to usual duties a decision should be sent to the worker as per the recent practice directive of December 1995 – now just to get us started – first of all practice directives as I understand them are generated within a division of the Board – in this case Compensation Services – have I got that right Mr. McGinn?
A: Yes.
Q: And do you know how many practice directives there are?
A: I couldn’t tell you.
Q: And are they collected in any one place?
A: yes, I believe they have them in a file.
Q: Okay, is that file available publicly?
A: I don’t believe so. Yes it is. Oh it is.
Q: We made inquiries about what was meant by that practice directive of December 1975 and we were referred to by a Manager of Disability Awards to the document in Tab 5 –now the concern we have is that on its face the board policy seemed to support that this claim should be referred to Disability Awards and yet we have a practice directive and by the way practice directives don’t go to the Panel of Administrators for approval do they?
A: No.
Q: Overturned by a practice directive generated within a division of the Board. And looking at the bottom of that document –Tab 5 - the Compensation Services Division has their own policy people apparently – is that still the case?
A: They have people who interpret the policy and create practice directives for the guidance of the staff.
Q: Now there is a question of what in this policy directive can be relied upon with respect to a referral to Disability Awards – as I read the chart there is nothing here that supports the conclusions reached in memo #12 – but I am more interested in the issue of how a practice directive could be used to either compete with never mind override apparent board policy?
A: I’m not sure I can answer that definitively but I will say this – that the Panel sets policy and doesn’t micro manage the system – the – and if there are issues that arise with respect to individual practice issues those are normally raised by the stake holders either with the Chair or individual panel members or through the Policy Bureau. This is fairly early – 1992 situation but it would have been the normal flow even under the Board of Governors – I sat informally through a number of governance meetings during those days and it wasn’t uncommon for someone on that panel to raise those kinds of issues.
Q: I guess my point, specifically, is that the practice directive –at Tab 5 the last paragraph says this flow chart is not intended to be a mere guideline – adjudicators are expected to follow the sequence as described and the decisions required by the flow chart – and in this case here we had to take this on appeal because the Board policy was overturned by a practice directive that we didn’t see – we didn’t have and we – it’s not even clear to me that we have the right policy directive because our inquiries turn up January 1996. Do you see the problem?
A: I see the problem and all I can say is the present panel is of this opinion and that is that if there are major practice changes – they are to be considered then the Panel’s expectation is that process changes they make are transparent and that there should be included discussions with the stake holders. And I think we’ve made that very clear and that is the current position of the Panel.
Q: Well, specifically, has the Panel or the Policy Bureau done a review of the practice directives to see whether they are consistent with policy?
A: We have reviewed all of the practice directives – certainly when issues arise we do look at the practice directives – as new ones are being created where they are forwarded to the Policy Bureau we may advise the division in question on whether it in our opinion the practice directive may be in conflict with the existing policy or the legislation and sometimes given advise on consultative process so but we are not – the Policy Bureau does not act as a – in a policing role overseeing the administration.
Q: Is it possible that there could be a practice directive issued by a division that the Policy Bureau wouldn’t know about?
A: It’s possible.
Q: Isn’t the problem here a matter of control of policy within the Board – that is Section 82 such as the role of Governors and Mr. Cott you say that the single most important thing the Board does is something to do with policy and yet we seem to have to sources of – one’s a real policy and one’s may have some consequences with policy or maybe used to override policy and my suggestion is that there is a need for a more centralized control of policy?
A: I think the legislation, itself, has brought the policy in many cases is also broadened and allows flexibility. Practice directives are necessary to guide the staff in how to apply the policy and how to – and on the interpretation of the legislation. And they are a very important vehicle and I think as the Chair indicated the existing Panel’s wishes are that the process or significant practice changes for the creation of a significant practice which could have an impact on either employers or workers would have as transparent as process is policy development. In fact, draft would be consulted on with the community before a decision is made with the – by the Vice President of the division.
Q: And just to see examples of that – for example the EFILE program which is being brought into the Workers' Compensation Board – it’s an electronic file system so that putting it very simply that is more than one person can get access to a file – how is the board dealt with the policy issues in that particular change at the Board or is it the Board’s position that there are no policy issues?
A: The issues relating to EFILE are included on our policy work plan for this year and we anticipate that there will be some policy issues arising from that so we are working with the administration to make sure they are identified and brought forward to the Panel.
Q: Can you summarize the policy changes you think might?
A: I can’t speak to the specifics of it but I suspect that there will be issues around disclosure and the maintenance of the files in terms of what things are on the files and what’s used in the adjudication process.
Q: Would those go to the Panel of Administrators ultimately?
A: That’s right.
Q: Then the use of nurse advisors or nurse practitioners – is that the right term – nurse advisors?
A: yes.
Q: Is the - are there policy changes associated with that change in the opinion of the Board?
A: Certainly we have been working on an issue that is tangential to the nurse advisor issue and through the process discussing with stake holders the question of Board medical advisors in some revisions that are being made around that – the issue of nurse advisors has been raised as having potential policy implications. We’ve brought this to the attention of the Panel and will be discussing with the Priorities Committee but no decision has been made yet.
Q: Can I ask you turn to tab 6 – this is another example of policy being made in the division rather than in the bureau –and the situation was again – the claim was accepted - the worker was on wage loss and was put on income continuity or code R –and code R is meant to be a bridge between wage loss and a pension –and the worker couldn’t do the pre-injury job and went for an employability assessment - the code R benefit he was receiving was essentially the same rate as on wage loss –and he went to employability assessment – and the employability assessment said that he could work at alternate work but would pay less and his code R payments were reduced accordingly and there was a bit of a fuss about that –and you have some of the documents here including some of the correspondence between me and the Director of Rehabilitation but there’s a director’s letter to me July 8, 1996 – and then my letter of July 22 I asked for his copies of his opinions that he relied on –he indicated on the top of page two of the letter - this letter has been vetted within the Revisions Policy area and the new Policy Bureau –the considered opinion of those whose brief – reviewing the procedure outlined in RPH reflects the policy found in 89.11 –and I wrote back a letter and asked him for opinions – he wrote to me August 28 and said - went through a number of drafts and revisions based on input from the Policy Bureau – I’ve not kept copies of these revisions primarily because they were not substantive and were due largely to editorial refinements as such no formal opinions exist to my knowledge –now the change was – the change to the code R benefits –and do you know if that issue went to the Policy Bureau?
A: I’m not aware of the review – but I understand that there were some informal discussions about it which essentially said that the policy was broad and asked for some discretion but that this may be an issue that had policy implications but I do not believe any formal opinions were provided.
Q: At tab 7 is an excerpt from a vocational rehabilitation inventory from Mr. Hunt and at page 85 –there is a heading "Policy and Practice" –and the 4th line goes down – however there remains a question of whether the Workers' Compensation Board management may have overstepped its authority and used the distinction between policy and practice as a way to implement significant changes that were not approved by the Panel of Administrators and implicitly by stake holder interests. We feel there are legitimate grounds for complaint here in our opinion of the managing of the Workers' Compensation Board did take advantage of their prerogatives and pushed across the policy/practice divide – this seems relatively clear in the case of continuity of income code R change- now as a result of all that the proposed changes to code R which are in the documents earlier on in the previous tab - were never put in place – is that – do I have that right?
A: We are just in the process of dealing with code R as a policy amendment at this point in time. Does your question relate to the practice or the policy?
Q: Right – Yes to the practice, thank you.
A: I believe that the practice change was made; yes it was.
Q: Turn to tab 6 – that document – the second page in - is the current and for the purposes of this Commission two weeks ago I wanted a copy of the Rehabilitation Procedures Manual – this was not in it – the 090010 was April 1995.
A: I don’t know about the contents of that procedure handbook I’m sorry.
Q: Okay. Is it your understanding that the code R has now changed at the date of employability assessment – is that the practice or procedure?
A: That is my understanding of the current practice. If I could just say too that following the Hunt and Lahey report the Panel provided direction to the Policy Bureau to review several issues arising from that report and one of them being code R and we have taken a preliminary report to the Panel and that they are returning with some conclusions for them to consider in April.
Q: Yes, and in the face of Mr. Hunt’s conclusion that the Code R was made as a policy change that was not approved by the Panel the Board is proceeding with the case in any case – do I have that right?
A: At the time of the Hunt and Lahey Report was submitted the Panel provided direction to the Bureau to consult on the issue of what the rate should be – but the practice was not changed at that time; the practice continued. The legislation itself around this issue is quite broad so was the existing policy at the time and the division came up with a practice change – they had been following that certain practice for a period of years – they came up with a practice change or change of direction and that wasn’t well communicated but certainly the policy was not so strict that they could not make that practice change. Now I think in Hunt and Lahey’s study they indicated that the change had significant impact that it should have perhaps been done by policy or at least there should have been consultation with the employer and worker communities before such a significant practice change was implemented and that is really the crux of the issue here – going over the same thing as we did in previous case that there needs to be a sense of the impact of any practice change and ensuring that there is transparency on what is being proposed before that change is made.
Q: I don’t read the Hunt-Lahey Report to saying that there is an issue of consultation – I read them saying that the Board made a change to practice which is really a change to policy and it was not authorized by the Panel.
A: I think the policy does provide discretion and the exercise of that discretion was exercised in one way and then shifted to another way. With the wording of the policy I think it is possible to change the practice; the question become one of whether the Panel should have been involved in that decision.
Q: So you disagree with the Hunt and Lahey conclusion?
A: No, I don’t’ but I think the Hunt and Lahey conclusion was also based on one of the criteria that we look at which is the nature of the decision being made and its impact on stake holders and on workers – not simply does the policy allow us to go in one direction or another but what are the implications of certain decisions. I think it is also fair to say that the question of the divide between policy and practice is one that’s of considerable debate – something the Board and the stakeholders and this issue brought the discussion to &ldots;
Q: Yes, and I want to draw it to the attention of the Commission –that’s the purpose of us being here today and the point is that procedures can be changed and should be changed within management and policy can be and should only be changed within the Panel of Administrators and l read the Hunt/Lahey Report to say that the Board improperly changed the code R benefits and now I hear you are saying that it wasn’t improper.
A: That’s not what I was saying.
Q: I’ll give you an opportunity to clarify it.
A: Hunt and Lahey concluded that a change that should have been made by the Panel of Administrators was made by Compensation Services Division.
Q: Yes, and that was improper and &ldots;.
A: That it should have been made by the panel. Earlier I indicated that the Panel has indicated and decided where a major practice changes that those issues should be transparent and that the process should include discussions and consultation with the stakeholders and this you know was there is no doubt about it there are some grey lines between major practice and what is policy and this is the case that Hunt and Lahey said you know this was either major practice or a policy change and that as a result of that there should have been consultation.
Q: All right. If at the end of the day the policy of –in the subject as in this case was a change in the code R benefits and the period of employability assessment turns out to be improper and should not have been made by the Appeal Division but by the Panel of Administrators will the Board be going back to look at the cases where it was used improperly such as this case?
A: That will depend on what we bring forward in the policy paper. Really, that is up to the policy division to bring – you know that is an issue that should be considered by the policy division. And when they bring forward their final position on the code R.
Q: Just as - this has come up a couple of times and I am looking at the pages of slides and they are not numbered but the second to last page – Main Steps- Policy and Regulation Development Process and this is the one with the five boxes and arrows do you have that there?
A: Yes.
Q: I have a question on the first one – Policy Need Identified – how are policy needs identified?
A: A division can indicate that of the board can indicate that there is a need to amend policy to align it with their process in implementing the Strategic Plan – worker and employer representatives could indicate that there is a need for an amendment to policy – we monitor the Appeal Division decisions or the Chief Appeals Commissioner often reports to the Panel on some inconsistencies in the existing policy – the Panel itself may make a decision that policy should be amended and the employer and worker representatives on the Policy Development Consultative Committee could indicate that an existing policy is needs review or that a new policy is required and then we follow the process so that can come from any particular area of the communities or the administration – worker and employer representatives.
Q: And going a bit further with it – is there a policy or is there the facility to fast track a change?
A: Yes.
Q: How do we get from 1-10 as quickly as possible?
A: We would – as soon as that need is identified the Policy Bureau immediately produces that preliminary analysis and scoping paper and looks at if whether this is in fact an issue that should be dealt with by policy or is it a practice change and then we go forward to the Priorities Committee at the next meeting with this issue and if they give an indication that it should move quickly then it is just a matter of getting the paper done and consultation and of course that may take a couple of months so to get from 1 – 10 it’s possibly probably to do that in the fastest period of time ensuring proper consultation a period of three months.
Q: And has that ever taken place?
A: Oh yes.
Q: And what issues?
A: Mostly administrative issues – issues brought forward by the administration although there have been – I can’t think of any others – there was a referral from the Appeal Division where there was a decision pending that was taken through that quicker process – I can’t remember the exact issues. Picking a particular issue slows it down – in that case you have much more need for a wider consultation and sometimes a review of the paper, reflection and re-issuance for consultation so&ldots;
JIM SAYRES:
Q: Mr. Cott I’d like to start by asking your view on the fundamental roles of the Workers' Compensation Board performs –it has been said on various occasions recently that the most important role of the Board is to prevent injuries and of course an equally important role is I hope you will agree is to compensate –and provide rehabilitation for injured workers – would you agree with me that it is never going to be possible to eliminate all work injuries?
A: Well, I think I can agree with that position.
Q: I mean we have roughly 200,000 injuries per year – we are not going to know occupational health and safety policy is going to completely eliminate injury and disease in the workplace is it?
A: It probably won’t eliminate it totally but there is no reason why we can’t drastically reduce it.
Q: Oh, absolutely and injured workers would be the first people to support any move that could reduce the chance of other people getting hurt at work – but what I am leading up to here is that I hope you would agree with me that injured workers are the very reason for the board’s existence aren’t they? If you didn’t have workers you wouldn’t have a Workers' Compensation Board.
A: Well, I don’t necessarily agree with that.
Q: What would it do?
A: Well, I mean if we could virtually eliminate injuries at work then you would be hypothetically correct but I don’t think we’ll ever get to that point. It is not the existence of the Workers' Compensation Board.
Q: Well, it is and historically always has been central to the role of the Workers' Compensation Board to provide compensation for the people who do get injured at work – where the system doesn’t prevent the injury and to provide rehabilitation to get them back to work if at all possible – you would agree with that?
A: I would agree with that.
Q: Now you’ve had some experience recently on the Panel of Administrators with having an injured worker as an administrator on the Panel – do you feel that that has that been helpful?
A: Oh I believe it’s been helpful; I think that in so far as that individual has an understanding of the concerns and objectives of injured workers.
Q: Would you agree that the perspective of injured workers is a relevant one for the governing body of Workers' Compensation Board to consider when it makes decisions?
A: I think that relevance of injured workers is certainly something that the panel has to consider always.
Q: They are just about the most relevant people in the entire process aren’t they?
A: Well, I won’t say that they are the most relevant but they certainly are as relevant as any injured worker and it may be and certainly it is a major concern.
Q: Has there been any problem with conflict of interest from your view with having an injured worker on the Panel?
A: Certainly
Q: Any concerns you would have about it – that you would want the Royal Commission to know about?
A: No, I have no concern you know – no concerns.
Q: If injured workers are not represented on the governing body of the Board what other way would they have to influence the Board’s decisions?
A: Well, you know, they can – I suppose there are a number of ways – they can have a lobby group that lobbies the Panel or individual Panel members or whatever.
Q: But that would be an indirect participation at best?
A: And if they have concerns I would say they could bring them to the attention of the Panel members and the Panel members can bring to the Panel.
Q: Does the Panel now consider the injured workers to be a "stake holder" for the purposes of policy development?
A: All workers are considered to be stakeholders.
Q: Okay, but I am getting at the formal process of policy development– is there any mechanism in place for consulting injured workers as a stake holder in the way the union movement is consulted and the employer groups are consulted?
A: No there isn’t. Formally.
Q: I’d like to turn to another sort of fundamental aspect of the system –I imagine we would all agree that those of us who have been involved workers' compensation issues going back before 1991 that there has been an increase in the polarization of the process since that time – do you think that’s a fair statement?
A: Since 1991?
Q: The conflict between the employer’s view of things and the union’s view of things or the worker’s view of things.
A: Well, I don’t think it’s been since 1991 by any means; I think that the Board of Governors in its form accomplished a lot of issues. I think they took on a lot of issues but they certainly made a tremendous amount of accomplishment also. So I don’t think that – that didn’t start out to be a adversarial kind of situation.
Q: But in the end it did break down into an adversarial situation which left the government feeling that it had to remove the whole Board of Governors and replace them with the Panel. Isn’t that roughly what happened?
A: Essentially it broke down on the basis that it got very difficult to move issues forward.
Q: Do you feel that in labour relations it is probably fair to say that polarization is intrinsic to the situation –that you have a collective bargaining situation so there is one of paying as little as possible and unions wanting to get as much as possible – you have a grievance arbitration and the employer wants to get rid of the person and the union wants to reinstate them – there is going to be a winner and loser in most of those situations – do you feel that that type of conflict is intrinsic with Workers' Compensation Board or is it something that the Royal Commission should seek to eliminate by changing the system?
A: Well I think that one could generalize I suppose that there are some areas from time to time and I think and I think it’s not uncommon that if there is bad labour relations in the workplace that then there will be difficulties that flow from that into workers' compensation. I don’t think that those relationships are generated simply by the workers' compensation system.
Q: It is not a conflict in which employers want people to get injured or want people who are injured to go on welfare is it? I mean there isn’t that kind of win/lose relationship is there?
A: No.
Q: That automatically applies to almost every claim, is it?
A: No. It is fair to say that about 97% of all claims are adjudicated in a way that is responsive to the injured workers’ needs and without complaints by employers. There is only a very tiny percentage where there is concern by employers or workers in that they are not adequately compensated.
Q: I’d like to turn to the role of the Panel of Administrators – the governing body in relation to appeal decisions – we’ve heard a bit about that – questioning from the employers and questioning from the Federation of Labour – it seems evident that the Panel does not consider themselves obligated to quickly take up a policy issue every time the Appeal Division decides that the Board policy is defective in some way – isn’t that right? What I would like you to do is tell us what considerations would motivate the Panel to place an issue like that on the top if its list of things to deal with at the next meeting?
A: There is one that the Chief Appeals Commissioner raised as an issue in her reports to the Panel, Policy Bureau and reviews those and the Panel provides direction to the Policy Bureau to bring them to what we call the "quick and dirty" analysis of them and to make a recommendation with respect to the priority – we have a list of criteria that we use that I’d be happy to provide which helps the Priorities Committee and the Policy Bureau make those recommendations and those decisions.
Q: We still have a lot of outstanding issues that the Panel has not addressed –and in fact many of them arising out of the Board of Governors – what the Governors never addressed – I’m thinking of Section 17 decision –the decision about terminating loss of earnings at age 65 automatically –the decision about terminating benefits to workers who are in prison – the paper that the former Chief Appeals Commissioner submitted asking for direction on stress claims – there hasn’t been a lot of them but there have been a number – some of them quite important that don’t seem to get addressed at all and I am wondering if you can help us understand why those issues have been repeatedly put to the bottom of the agenda while other matters that I will be getting to in a moment seem to get put to the top?
A: I think there a lot of issues; there’s no doubt about it and a number of the ones you’ve raised are on the priorities schedule now. And that the Policy Bureau will be working on and bringing forward this year. Some of those significant issues which were looked at in some of the basic papers for the Royal Commission are issues are of such substance that the expectation is that we bring them forward too quickly that they will be bumping into the mandate of the Royal Commission in some of those areas.
Q: Its accepted now that the Act does not permit the Appeal Division to make decisions which determine claims other than the one under appeal. We’ve heard that in answer to a previous question. Now the result of that has been that when there is a what might be called a test case appeal presented such as the appeal over the determination of loss of earnings pension up to age 65 – no matter how comprehensive the procedure that is followed in that appeal has been done another worker cannot benefit from the result of it. What if any would be the downside of changing the Act in such a way that when the senior appeal body makes a decision that current Board policy is illegal that that decision becomes binding on the board until either the legislation is changed or the decision is set aside under judicial review? That’s for anyone on the Panel.
A: When somebody makes a decision it is based on individual facts and in an individual case and you know it is not always that simple to sort of say all cases will fit that mode and that even similar cases may not fit exactly the same fact pattern and so it would be very difficult to sort of have a policy driven by one decision and there would be no consultation obviously where one might be needed.
Q: Perhaps I wasn’t clear enough – I wasn’t talking about a decision about the facts of a case; I’m talking about a decision on a legal issue such as the age restrictions in Section 17 of the Act violates the Charter of Rights. Does the policy which automatically terminates Loss of Earnings Pensions at age 65 contravene either the Act or the contravene the Charter? These are legal issues and the Appeal Division and decisions that I’ve referred to and addressed as legal questions – they simply didn’t just examine the facts of the individual worker’s case – in fact they did that right at the end sort of parenthetically – what they did was to deal with the legal issue in the way that a court would do it. The difference is that the decision had no impact beyond that individual case. I’m asking whether you feel that that structure of an appeal body makes sense when it means that other workers with identical issues are going to have to go through their own appeal one at a time rather than have them all determined by the initial one.
A: Well, I guess there are circumstances where and I agree there have been circumstances where the Appeal Division has said they thought a certain situation especially an age may have violated the Charter of Rights and I guess it’s up to one of the parties that they take up that cause and government hasn’t taken up that cause and I guess until the courts decide whether or not that is fact a violation of the Charter of Rights then the policy will be that it will be an individual’s case.
Q: Okay, but what I was asking is why can’t – is there any down side you see as the head of the Panel of Administrators and the person senior chair of the Workers' Compensation Board in changing the system so that a final appeal decision is binding on all Board officers unless and until the law has changed or a court sets that decision aside. I’d like to know if you see any disadvantage in having a system that works that way?
A: I’d have to think about it; I really and you know decide what is the impact of that and I really don’t have an opinion at the moment. In terms of how the current Act and policy are structured Appeal Division decisions don’t purport to re-write the policy for all types of cases that come before it. There are some types of decisions that are on a point of interpretation such as the presumption in Section 5.4 about where an injury arose by accident. Now in that situation the Appeal Division took issue with the policy as it was written and said that the test that was being applied there was where there was an absence of opposing evidence was incorrect. And so in a situation like that it’s easy to say that new test should be applied to other cases and in fact the policy was changed in quick response to that Appeal Division decision. When you are looking at a situation like the age 65 and the Loss of Earnings Pension the Appeal Division decision will look at the situation before it; in fact and my recollection is it dealt with a situation where the worker was already over age 65 at the time he was injured so clearly his earnings were not those of a retired person. So it is different than saying now we are going to say every worker - a 20-year-old worker will be looked at in the same way when that person is injured. The difficulty from where I sit is that the Appeal Division isn’t really set up to contemplate all those kinds of cases that might come before the system.
Q: I was involved in a case as counsel for a one of the two people who were appealing and there was a – that was one of the cases where the former appeal commissioners set up a public process so that all interested parties could have a say on the outcome on the general issue before the individual appeals were decided and it struck me as being comparable to a court recognizing that an important legal challenge to a provision of the Act required that they go beyond the parties and listen to the interveners who represented groups that might be affected by the decision Besides from that fact that it was Appeal Division which is a tribunal as opposed to a court doing it – they dealt with the same issue and they dealt with it on legal grounds and with a result which seemed to be binding except that it wasn’t binding except for those two workers. The next worker in the queue had to go through the appeal over again and what I’m asking is what sense does that make in terms of the Board’s resources, in terms of frustration to injured workers waiting years and then having to go through their own appeal afterward after the initial one has been done. Why does the system need to have to be that way? I’ll grant you that it is that way now but why does it have to be that way?
A: The difficulty worth addressing a particular problem with structural changes with – there would probably be a downside on the other side. And if the current system is seen to be policy making ultimately to the Board of Governors or the Panel of Administrators and then you are going to set up another centre that can also generate policy then there is the potential for conflict and turf war.
Q: That’s what Don Monroe said of course. Don Munroe thought that if got the senior business people and labour leaders together on a Board of Governors they would yell at each other for a while and make a decision and all go home happily back to their communities and the system would work and unfortunately we found out that it didn’t. Before I leave that subject I’m going to ask it – if anyone would like to respond to something that’s said in the Review Board’s very recent submission to the Royal Commission – I don’t know if you all or any of you have had a chance to read the whole submission – it’s quite lengthy actually but what I’m going to do is read a statement and ask you to respond to the statement which the Review Board made. They refer to the Munroe Report to the passage that you were just mentioning in your answer. This is on page 19 of the Review Board’s submission "the report recommended that to provide direct communication and that the Chief Appeals Commissioner be a non-voting member of the Board of Governors. The objective was to ensure that critical policy issues were brought to the Governors’ attention in order that they be dealt with in a timely and responsible manner in the best interests of the system. Unfortunately the expectation for a timely response has not been met for example in November of 1993 the Chief Appeals Commissioner asked the Governors to review the policy on workplace stress and did so by way of a discussion paper. To date the Governors have not yet dealt with that issue. That’s one example of many the lack of responsiveness of the Governors on issues raised by the Chief Appeals Commissioner or the Appeal Division in general." And then the report goes on to talk about the statements which Mr. Munroe made – Mr. Don Munroe made in the Munroe Report which again were reflected in your recent comments about the Ontario experience and the danger of having two centres of policy development. And then concludes a couple of paragraphs down, "Mr. Munroe’s concerns – sorry – talking about a submission made to the Minister without portfolio in Ontario – The Governor of the Ontario workers' compensation system exercised their authority and created policy with regard to chronic stress which was then followed by WCAT which is an external appeal tribunal and the Review Board’s conclusion from that is Mr. Munro’s concerns there appear not to have been borne out by the Ontario experience system there with a final level of external appeal tribunal seems to have had a better success in dealing with significant policy issues which we have in the BC system. Similarly none of the literature contains reports of insurmountable difficulties arising by conflict from external appeals and the Board’s policy-making functions. Do any of you have any comments on that observation by the Review Board?
A: Is it fair to say that Ontario has changed their systems?
Q: Ontario has changed their systems in a great many ways.
A: They changed the particular component that you are talking about with respect to the appeal division and policy.
Q: It is a different name now and I don’t know what the detail of those changes are. What I was getting at – my question is it still the belief of you - the Chief Appeals Commissioner and of the Panel of Administrators that it would raise of danger of a power struggle if there were a final level of appeal to an external tribunal – a power struggle between that tribunal and the Board?
A: It is my recollection that the recently cited amendments changed the power of the WCAT to say that to clarify that they were not policy makers but did have an audit function in relation to policy. We’d have to tack on the exact wording but that’s our understanding. With respect to the question of an external appeal body making policy one of the concerns I guess is illustrated by the current appeals structure is where the appeal division takes a particular tack on a matter such as a deceased worker’s mate can carry on with the appeal – with respect to government employees compensation act whether there has to be an accident different than how we interpret under the BC Act. If the Review Board were the final level of appeal you would have a situation where they would have a different take on the law than the current policy so there’s no magic in being internal or external – but if that were the end I think that you can see how the difference is. As it now is the Appeal Division may take a different stand on particular issues. Again, Mr. Winter has raised the issue of legal costs and his perception is that it is different. Perceptions that age 65 may also be different. I don’t think the difference arises necessarily with the external/internal nor do I believe it’s a valid argument to make it internal or external to say that there has been a delay in bringing matters forth for resolution to the governing body. Whether that issue comes through the stakeholders or through the divisions of the Board or the final appellate tribunal or judicial review for that matter, how those matters get dealt with is a separate matter than where they arose from.
Q: Before I leave that subject let’s see if we can illuminate it a little further –let’s depart from that just for a moment from workers' compensation and look at what the courts have done with some very well known Charter issues –in the Morgentaler case – the Supreme Court of Canada decided that the former abortion law was unconstitutional – parliament did not replace it so that was a case, however, the government could not continue to apply it either – the continue to say well that’s still on our books so we are going to continue to apply it to everyone else and everyone else that doesn’t like the result can challenge it in the same way that Dr. Morgentaler had to do – in another case the former rape shield law was also ruled to be constitutional by the Supreme Court of Canada and in that case parliament acted very promptly to replace it with another one which is currently under a challenge because parliament felt that there had to be in place of it – What I am getting at here is that it seems to me that maybe one of the problems is with the governors not responding to Appeal Division decisions – is that they have an agenda which is based on governing criteria and the Appeal Division has a duty which is concerned with interpreting the law and interpreting policy and applying the law to the policy and to the facts in the case and the two agendas and goals may not come together – in some cases the Appeal Division may make a decision and the governors may say we don’t want to deal with that issue right now - it would seem to me and I am asking for your response to this – it would seem to me that if the system worked the same way as the general law of Canada works which is the interpretation of the law stands until it is either set aside or new law is passed then it leaves the Panel free to say no we are not going to deflect our agenda right now we are happy to have officers decide on an individual basis when the Loss of Earnings Pensions should end and that’s the gist of what the Appeal Division decided the law requires so we are going to do that. We are not going to report every such worker to go through an appeal division. Is there any reason why the law of the country works in one way and the law of the Workers' Compensation Board works in a different way? Forces people to go through appeals on the same issue over and over again. Can anybody give me a good reason why it should work that way?
A: I’m not sure I can give you a good reason but I mean the fact of the matter is that it is the way it was set up and whether that is the right way or the wrong way I guess that is for the Commission to decide and until that does change – if it changes – then I think the present practice will prevail. I think one of the other issues too is that the Appeal Division decisions aren’t binding on future Appeal Division decisions and Panels so I don’t think you can necessarily have a decision and have certainty that there won’t be a future decision that would move out in another direction and that is one of the tensions that in policy development you work with as well – you get a decision that comes out moving in one direction but that isn’t binding either on the Board or on future Panels so there is some uncertainty there.
Q: That’s exactly the problem that I was trying to bring out is that it is not binding is it and so every single worker with the same issue has to go through the appeal process to get his/her claim resolved.
A: What I think the Panel does is at least where it seems to be a problem in policy we will certainly look at that and it is referred to the Policy Bureau and subsequently through the Policy Priorities Committee it comes on to an agenda – it’s given certainly some weight and all those kinds of issues that can be brought to the Board of Governors and Panel we have in fact reviewed recently and that’s how some of them get on to the agenda for Policy Development for this year.
Q: Is it fair to say that a lot of these issues have not been dealt with is because they are so complex?
A: Look I can only attest to back to August of 1997 and I can’t venture a guess as to what happened prior to the Policy Bureau because some of these issues go back prior to the Policy Bureau.
Q: I am actually changing subjects so may be I should address this question to Mr. McGinn - would you agree with me that board policies are very complex area?
A: Some of the areas are extremely complex, yes.
Q: Hundreds of pages in the policy manual?
A: Yes.
Q: Over a hundred sections in the Act?
A: no answer
Q: Other manuals that aren’t part of the policy manual itself – new Board practices and that may be relevant - would you think that the average injured worker could competently present his/her case in opposition to a decision which the Board has made without legal advice and representation?
A: Probably not. I’m sure that if they understood the issues though they could clearly articulate their concerns; public hearing processes whether – that I’ve had experience with around regulation amendments and observing the changes to Chapter Four the right of Chapter Four – the hearing process there were certainly injured workers present who made very compelling arguments based on their knowledge and particularly highly educated people.
Q: By all means some of the injured workers are very articulate – I am sure the Commissioners are well aware of that – but what I am asking about is the average is the average appellant – is it reasonable to expect a person who is appealing a decision about an area like wage rate or the disallowance of a claim for cancer or something that is medically complex or legally complex to have to do so without representation?
A: I’ll answer that if you like.
Q: Yes.
A: Look I firstly – I think the system is very complex and it is my personal belief that the Act should be redrafted in plain language so that the average worker can understand it; I mean right now it’s very difficult to understand and to find your way through it – I think that the average worker given the complexity of the Act and the tendency that has developed to make it much more legalistic that the average worker could not ever properly represent themselves in an appeal – that is my own personal opinion views. On the last day of the presentations when I talk about the appeal process – the Appeal Division approaches the appeals on an inquiry basis and some of the decisions that have looked at policy and so on have been done without benefit of counsel; I’m not saying counsel or representatives don’t help the tribunal make their decisions – that I think it would be wrong to say that you must have counsel in order to have a fair shake at an appeal.
Q: Is it fair to say that some workers must have counsel in order to present their cases effectively –let’s consider that some workers are functionally illiterate, some of them have mental disabilities, some of them have brain injuries, would it be fair to say that people who have under special disadvantages of that sort would particularly require representation?
A: It gives us some comfort level to have that covered off and will often will refer workers to the Workers’ Advisor’s office or employers to the Employers’ Advisor’s office if it happens to be an employer’s appeal or for that matter in their respondent roles particularly if we are concerned that parties don’t understand the issue.
Q: Thank you I’d like to – next address – I’d like to look at the question of the choice of policy priorities that the Board has made –and I’m thinking in particular of three examples –one of them is the approval of the strategic plan including the concept of a continuum of care – who’s initiative was it to bring that forward as a policy that needed to be approved? Can anybody here answer that?
A: The strategic plan or the issue of continuum of care?
Q: I think the continuum of care is part of the plan – but either one.
A: Well, it was the Strategic Plan was &ldots;.
Q: It was an issue to Board management, wasn’t it?
A: But it was also broad to the Panel and the Panel agreed at that time to the Strategic Plan – it was my time as Chair but certainly it was initially developed as the vehicle provided for by the administration and it was in consultation with the Panel was adopted – and the stakeholders.
Q: The second example I wanted to ask you about was the Arkon project – are you all familiar with that term? The project to have Permanent Functional Impairment exams done by way of a computerized measurement process as opposed to having doctors with instruments reading the angles and so on. Was the Policy Bureau involved in the decision to evaluate that and approve it?
A: It is a pilot project and I think it is fair to say to begin with there was a request from the administration that they be given by board resolution not by policy amendment – the opportunity to pilot this approach and there was a consultation step – limited consultation process done on the pilot by the Policy Bureau and the Panel did make a decision to allow the pilot to proceed providing there was a significant evaluative process at the end and that that came back to the Panel before they would make a decision on that process into the future. So it is a pilot project with some experimentation.
Q: Can you tell us really quickly what aspects of the project the Bureau considered in deciding to proceed with the pilot – what aspects of the project the Panel examined – I’m thinking in particular of the role of the Board Medical Examiners and the previous process as compared to having a technician perform the measurements now.
A: That was clearly identified as a change although the Board Medical Examiners are working at the functional evaluation criteria that was made in each and every case so they are reviewing and it’s not like they’ve abandoned their role completely in this pilot project phase.
Q: Given that the Board Medical Advisors are not going to be actually conducting examinations doing measurements – did the Bureau look at the possibility of having the treating physician taking part in the examination and supervise it and provide the anecdotal comments to it?
A: No, I can’t say that we did. We took the proposal to a pilot project with the administration - we took that out to consultation – we didn’t do a lot of significant analysis on it – we identified a few issues as we could see them for the Panel and the Panel made the decision to allow the pilot project to be undertaken satisfying themselves that there would have to be a significant analysis at the end to bring the forward any issues such as the issue you are talking about. Some of these issues that you want to canvas more thoroughly with when Compensation Services is&ldots;..
Q: Yes, we will be. Just a clarification Mr. McGinn – describing the multi-step process for policy review that you’ve now put into place –I think at one point you said that there were in some cases that there would be public hearings –is that an exceptional situation where you would have a – I’m not sure if it was public hearings – you said that there would be a hearing – would it be a public hearing?
A: Yes, and with regulation amendments of course that has been the process; we have had public hearings with issues under Schedule B – that might be a possibility – where there are extremely controversial issues with issues as weighty as consideration of Stress – I think it may require for the opportunity for much broader cross-section of the community to put their views forward and so that decision would be where it is not required by the legislation would be brought forward to the representatives of the committees and the Panel for consideration.
Q: Would you see a way of structuring those hearings so that injured workers could take part in them and tell their stories that are relevant to the policy being considered?
A: Of course, I would think they would be an important component.
THE COMMISSION:
Q: The current statute does not appear to have any jurisdiction or statutory right for the Board itself to refer an issue to the court for example a Charter issue –I’m thinking in terms of the age discrimination decision of the Appeal Division which I understand has gone forward to government to consider statutory amendments – government has done nothing – the interested parties have not seen fit to apply for judicial review – would it be an advantage to the Board in such circumstances to have the right to seek the opinion by reference to the court on whether certain provisions of the Act are contrary to the Charter? I’m content with Mr. Bates applying his mind to that if it’s too legalistic for the members of the Panel – to put you on the spot with a legal issue.
A: I don’t think it’s too legalistic; I think it is a matter of from my point of view that I do know what is happening with referring to government and I can’t speak on behalf of the Attorney General’s Department and the government who is the superintendent of the legislation and unless that gets changed somehow or with some degree I understand where you are coming from but
Q: There are some administrative systems that do contemplate references but anyway that will be for another day.
A: As you are aware there is some debate that hasn’t been settled yet by court cases as to whether administrative tribunals have – what authorities they have with respect to the Charter and one consideration that could be a factor here is if you refer such matters to the court you could lose the specialized expertise that administrative tribunals are set up to deliver in the first place. It’s something that at this stage parties who are dissatisfied can take the issue on to judicial review – whether it involves the Charter or anything else for that matter but if the system was intended as an alternative to the court system in the first place that might be a factor.
Q: I wanted to get some clarification as to the various committees that your projector presentation dealt with –I understand that the three committees that were listed were the Human Resources Committee, the Audit Committee, and the Priorities and Board Governance Committee -could perhaps Mr. McGinn could explain for me is there a Policy Development Consultative Committee and if so how does it interface with the Priorities and Board Governance Committee?
A: The Policy Development Consultative Committee is a couple of representatives from the employer community and a couple of representatives from the worker community. They – we could forward to them issues that are being proposed for amendment or new policies that are being prepared along with our view of how extensive the consultative process should be in each particular case. What we are doing is seeking their advice on the particular policies themselves in a limited way but more importantly how wide should we consult on the particular issue and so they don’t really interface with the Priorities Committee itself other than through the Bureau so it is a sort of advisory to give us a sounding board I guess you might say for policy amendments and the consultative process around the policy administration.
Q: Is there a committee entitled a Senior Executive Committee and if so who does that consist of?
A: The Senior Executive Committee is the President and the Vice-President.
Q: And the Priorities and Board Governance committee – that is the committee you are involved in?
A: The Priorities and Board Governance Committee consists of the Chair as a member of all committees and the Panel of Administrators - one member of the Panel of Administrators who Chairs the Committee – the President/Chief Executive Officer – the Director General of the Policy Bureau.
Q: Does the – aside from prioritizing the issues that go forward to the current Panel of Administrators – does that committee play any role in the assessment of the performance of the Panel of Administrators?
A: In their – the Board’s – the Panel’s policy – the manual of the Terms of Reference for the operations of these various committees certainly it was contemplated that the Priorities Committee would undertake that role.
Q: As I understand the structure ultimately what gets before the Panel of Administrators for policy changes lies solely with the Priorities and Board Governance Committee?
A: No, I wouldn’t say that was true. They do advise on the policy and priorities schedule for the next year. That report goes to the full Panel for their review and comment and there is a monthly report of the considerations of the Priorities Committee that goes forward to the Panel so the Panel – the full Panel has the ability to provide different direction from what the Priorities Committee might have been recommending.
Q: So the panel in their monthly reports would know which policy issues were not brought forward by the Priorities Committee and which were?
A: That’s correct.
Q: How many members of the Panel are currently on the Priority and Board Governance Committee?
A: One plus the Chair is an ex-officio member of all committees – doesn’t always sit though.
Q: In your view is that an appropriate entity to be evaluating the performance of the Panel? That composition?
A: Well with such a small panel I mean the – when we have a smaller Panel even the Priorities Committee consisted of the whole Panel. So that was a different situation itself. I think it really relates to the size of the overall Panel of Administrators of the Board of Governance and then you know it is reflected in the various committees as to the make up and the numbers. This point in time it’s small.
Q: It is my understanding is that that Priorities and Board Governance Committee it has can have its quorum requirement satisfied by one member who is the Chair of the Panel – Am I correct in that?
A: Yes.
Q: And there is some confusion with respect to our research in this area as to whether the Chief Appeals Commissioner sits ex-officio on the Priority and Board of Governance Committee?
A: No, she does not.
Q: Did the Chief Appeals Commissioner at one time sit ex-officio?
A: Never.
Q: With respect to the broad discretion that the current Act gives to the Board and the Panel of Administrators as to policy is there any wisdom or advantage in your view any member of the panel – in having the statute more explicit with respect to areas that are currently now covered by broad policies of the board in terms of compensation and rehabilitation – or is that discretion an important part of the system? Anybody want to tackle that?
A: I think discretion is an important part of the system because of the variables and I guess it’s a matter as to what degree but I think that it would become I would think somewhat difficult if that kind of discussion was vetted extensively.
Q: It wouldn’t be relief to the Panel in some instances to have a little clearer legislative direction?
A: Oh yes, that never hurts. My personal comment on that is that I think it is important to have a clear legislative direction – perhaps clearer than we have under the existing Act but it’s also important to understand that legislation is very difficult to change. And so if you were too explicit then you set up a condition where it’s extremely difficult to amend the legislation if you find problems. I mean that is the issue with the policy manuals now. They are so significant in terms of what they describe in terms of policy because there is a great deal of practice and procedure in the documents that in every minute change – whether it is a word it has to go to the Panel of Administrators to be changed needs to be consulted on externally to the Panel so in any one of those documents you will want to have the right level of direction and not too comprehensive that it would require you know a lengthy process to change it.
Q: I’ll direct this to Mr. Cott - do you feel that the current statute adequately outlines the mandates and objectives of the Workers' Compensation Board?
A: I guess it could do better. I think that the Act is difficult to follow and difficult to read and for the average person and I think that it could more clearly set out what is intended so I think that it goes back to it being drafted in plain language and clearly setting out probably with some kind of purpose clause. I think a purpose clause would be of some advantage to the Panel that creates the vision that the Panel should operate under.
Q: I have one final question before the Commissioners and that is the - how the difference between policy and practice directives are determined – is there some criteria that is applied to determine when a change is one that a practice as opposed to a change of policy – I know the criticism in the Hunt report was that the Board appeared to have stretched a practice issue over into what in fact was a policy decision and I am wondering if there are clear criteria that the Board applies in determining whether a change is a practice change or a policy change?
A: This we are just struggling with trying to define that at this point in time. It is an issue that we will be consulting widely with the community. Certainly the Panel of Administrators has flagged it clearly to the Administration that if practice amendment involves policies with a sufficiently high public profile – significant Board, significant costs impact that this should be a decision made by the Panel. And that there is no criteria at this point in time for the administration to look at and make that decision and so we will be working with the administration, with the stakeholders to try and find that. In fact, we have a pilot project – one of the chapters in the Rehabilitation Services and Claims Adjudication Manual to try to define that for a particular chapter and take that out for consultations so it is in the process but we don’t have anything at this point in time.
Q: t is one of your priority issues on your list for 1998?
A: Yes it is.
Q: I just have one question – this follows up with respect to a question posed by Mr. Sayre – I’m not sure maybe I didn’t get the whole answer and this is concerned with how the Panel decides –I think the premise posed by Mr. Sayre was that the Panel was not obligated nor is it indeed foreseeable or possible that the Panel will take up every policy issue that’s touched on by the Appeal Division in its various decisions and as a result how does the panel decide when a policy issue has achieved sufficient importance that it needs to be revisited. Someone mentioned I think that there is a list of criteria that is used but I didn’t get it down or perhaps it wasn’t completely answered – is there a list of criteria – how then does the panel decide when a policy has achieved sufficient importance that it needs to be dealt with and how is it prioritized?
A: Every decision of the Appeal Division is reviewed by the Policy Bureau and where they have flagged – either flagged something – the Chief Appeals Commissioner has flagged something to the Panel that a policy amendment – or a policy conflict exists that is taken to the Priorities Committee for direction or where the Policy and Regulation Development Bureau staff determine that something seems to be of significant importance in some decisions for continuation of decisions of the Appeal Division they will take that forward as well to the Priorities Committee. The dilemma really is how much volume can you deal with during a year and especially with changing Panel members, getting the Bureau up to speed – we are settling down in terms of the size and number of people available and the Bureau to deal with issues and the Panel has had some continuity – so things are moving more quickly through the system now but there is this backlog – you know – what issue do you deal with out of 150 – how many do you deal with and what are the priorities and that is what we seek to – the direction from the Priorities Committee on.
Q: And the make up of the Priorities Committee then once again for my benefit is?
A: The representative of the Panel of Administrators - the Chair of the Committee – the Director General of the Policy Bureau and the President/Chief Executive Officer and the Chair of the Panel so there can be four people sitting there. We do consult though externally with worker and employer communities on the complexity in their view of the particular policy amendment and the controversial level within their community and the priority from their view point so we are using the input from the communities to assist the Panel in setting their priorities.
Q: That is through an informal process of consultation then?
A: Yes. I’d just like to add to that – the list of criteria that we were referencing was something that I had raised and there is a list and I can provide it to the Commission. It looks at questions like the impact on workers and employers – it looks at whether it raises the question of law – has it been dealt with in the past – does it create a conflict between a series of decisions at the Review Board and the Appeal Division and is it a long standing issue – these are just some of the examples of the things that we look at and I can certainly provide that list.
Q: That would be helpful thank you. I just want to pursue the policy making process a little bit –clearly the Panel of Administrators takes its role very seriously to deal with these issues in a timely and clear manner but what we’ve heard is that there are issues that are brought to the Panel that may not be dealt with for as long as times that we’ve heard – Mr. Sayre says for a period of 6 years –now clearly that is – it is still a responsibility of the Board of Governors I would think or the Panel of Administrators to ensure that they provide direction and responses back to the system that they are responsible for governing - now how does the Panel –or Mr. Cott this would be a question addressed to you - where is the failure in the system that these issues do not get dealt with and remain suspended somewhere out there in the ether for as we’ve heard for 6 years in some cases?
A: I think that certainly there was during the Board of Governors – its latter days that there was a stalemate and that policy issues were not being moved along and this is prior to the Policy Development and Regulation group that we have now and so that created certainly a major part of the back log we attempt to try to deal with them in an expeditious manner. Conversely they then are prioritized to say what are the most burning ones that we need to get at right away and try and get them on the agenda for the current year. And we review that on a continual basis and if there’s an issue that comes up and is critical then it can jump the queue and the Panel would ask the Bureau to do that and get on with it. I’m not sure that answers your question but&ldots;
Q: Well, let me then go back to what you said – that a lot of these issues were not dealt with by the previous Board of Governors will now be dealt with by the Panel of Administrators prioritized and they will be dealt with – is that what you are saying?
A; I am and in fact we had several of those on our priorities list for policy development for this year. By comparison would be the regulation development process – the Governors when they were in place for operating much on a consensus basis and so things did not move forward unless there seemed to be consensus among the communities. The more complex and more controversial the issue the less likely it was to move forward. Since the Panel of Administrators have been in place we have completed in a relatively short period of time the significant review of all of the regulations the existing Panels structure certainly has been dealing with things in the policy and regulation development area.
Q: Another issue that I’d just like some clarification on in the Main Steps Policy and Regulation Development process under Box One for policy needs identified - can you run through again the process involved in that and – I made some notes but I think they are &ldots;..
A: An issue can be brought forward by anyone in the division – usually it is the Vice President, by employer or worker representatives, we do monitor all the Appeal Division decisions and the Chief Appeals Commissioner also flags any key issues on a monthly basis – the Panel may – one of the representatives on the Panel may have identified a need from discussion with external stakeholders and the Policy Development Consultative Committee representatives who are employer and worker organization representatives may bring forward an issue. As soon as that is done we take – as soon as they have identified something that’s not only informal it can be a simple letter; it can be a telephone call; it can be by word of mouth but there is a significant need articulating I guess why it is a need – the Policy Bureau then does this very brief outline and preliminary analysis and scoping paper examining all of the criteria that Louise pointed out earlier that she will provide the panel with and then we take that forward to the Priorities Committee. The Priorities Committee then gives us direction – they may tell us to move forward on it immediately; they may tell us to place it within the queue or to continue bringing it forward for their review on a quarterly basis to determine whether we should move forward more quickly on it.
Q: When you prepared the information for the Priorities Committee –what is the format that information is in and how do you present the case when it goes to the Panel?
A: It is just that two or three page document because it is done fairly quickly and it just indicates where the issue has arisen from – it is best we know what is – what is done in other jurisdictions with respect to the issue and perhaps some kind of analysis of how much energy and effort would be required on the part of the Bureau to research the paper thoroughly – to do a thorough analysis, to develop all the alternatives and take it out for consultation so that they have a sense of the length of time that this might take. If we have a sense of the controversial index I guess you might say in the employer or worker community on the policy amendment or change and we would also advise them of that so we brief the Priorities Committee the best we can on the issue and those brief analyses also shared with the external communities so the Policy Development Consultative Committee representatives can also advise on their views on the priority and how quickly it should move forward.
Q: So am I right to suggest that when you do this draft there are no recommendations at that time – the issue is laid out and some of the externalities around that issue are identified – when the report finally goes are directions asked from the Panel of Administrators what is the format of that question? How does it go to the Panel of Administrators - is it a set recommendations from the Board or are there some options outlined?
A: For a policy amendment? All of the options are outlined. The clear views of the stakeholders – so that would include the administration, worker and employer representatives are included. Where we have written submissions we might precis those for the Panel. Where there are letters submitted by the representatives of the different communities we would provide those as well for the Panel. We would ensure that we had all of the options available – all the alternatives – the pros and cons – disadvantages and advantages of any particular option and normally the Policy Bureau does make a recommendation to the Panel for consideration.
Q: And one last question to do with the internal process at the Board – what is the formal process within the Board for identifying policy and formulating it as a suggested issue or topic for review for the Policy Bureau?
A: Within the administration they do have – for each provision they do have a policy director who interprets policy so it would come up from the ranks within the division to that policy director – that policy director would then discuss it with the Vice President and the decision would be made as to whether it should be moved over to the Policy Bureau as something the administration wishes on the agenda.
Q: So how does that information again go from the front ranks up to the Policy Bureau or the division again – what is the formal process?
A: There is a formal, internal document that itemizes a number of questions for the division which is signed off by the Vice President and sent over to the Policy Bureau.
Q: Who fills out the form?
A: The division because they are the ones bringing up the issue. It is signed off by the Vice President in the division that is raising the policy issue.
Q: I just have one question and on some of these issues like the Charter issue on age – are you just waiting for someone else to solve that –that’s just a path that everyone can see – it is just an exercise - if a person is knowledgeable enough to file the appeal –clearly that would be an automatic thing that the Committee would be able to recognize as&ldots;
A: The Policy Bureau has made recommendations to the Panel on that issue through the course of the last two years and that has been taken forward to the government; it really is a legislative amendment that is required otherwise we would be adjudicating outside of the legislation – creating policy that is in conflict with the Act. The Act needs amending and there has been a recommendation made to government.
Royal Commission on Workers’ Compensation in BC
Feb 16 1998 Afternoon Session
Name(s): Bud Du Gas
Title: Director of Assessments
Affiliation: WCB
Location of Meeting: Richmond
Date: February 16, 1998
Commissioner staff: GG, GS, OE, D , JS
Notetaker: Judy Stott
GENERAL COMMENTS
SUBJECT: Scope of Worker’s Compensation – will clarify how the Worker’s Compensation Act and Board policy have determined who is covered and who is not
Also present:
Joe Pinto – Director of Central Services, Compensation Services Division
Jerry Massing – Associate General Council, Legal Services
Jim Wood – Audit Manager
Larry White – Assessment Officer
Paul Krismer – Manager of Assessment Policy
PRESENTATION
Background statistics about assessment department:
- Handles about 154,000 accounts each year
- Registers 25,000 plus new employers
- Collects over $1 billion in assessments
- Over 90% of the workforce in BC is covered
Topic of who is covered has many facets and I will discuss 12 items that seem to fall under this general topic
1) Who is an employer?
- In deciding who is an employer and who is an employee the Board is essentially defining what is an employment relationship
- The Board has made a number of decisions, over the years, concerning employment relationship and they have been operationalized in assessment policy 20.30.20
- While the legislation provides a definition of employer the definitions are inclusive not exhaustive
- Therefore the Board has discretion to define, through policy, the parameters of coverage
- The assessment department studies each case carefully that lies outside the commonly accepted definitions of an employer
- Generally we lean towards the existence of an employment relationship in order to ensure that working people are in the WCB system more often than they are excluded from it
- Employer – worker determination not only affects who will be paying the assessment but also who has the responsibility for safety and for the reporting of injuries
- More over these determinations affect an individuals’ right to sue and their protection from lawsuit
- Board is often put in a difficult position between employer and worker
- E.g. an employer will tell a person who they are considering hiring to register themselves as self-employed only to have the person determined to be a worker and denied registration
- The employer then refuses to hire the person and that person claims that the Board’s policies are preventing them from working
- The converse has also occurred; an individual was considered a labour contractor and allowed to take out a special form of coverage for working people who were self-employed
- Following that person’s fatal injury the lawyer for the estate argued that he should have been considered a worker thus entitling his family to a higher level of benefits than he had as an independent operator
- At times people do not realize that they are employers under the Act
- They believe that if they contract some work that the contractor is responsible for WCB obligations
- However the act of contracting work does not mean that an employment relationship does not exist
- Labour only contracts with non-registered, non-incorporated businesses are usually employer-worker situations for WCB purposes
- This comes as a surprise to many people, especially homeowners who contract work
1) Labour contractors
- 20.30.20 sets out the registration criteria for labour contractors
- Definition of labour contractor falls in between those of worker and independent firm
- Relying on traditional employment relationship tests on a case by case basis
- Criteria has been established to supply guidelines that the average person can apply with some certainty of result
- These criteria flow from reporter decision 255
- Controversy sometimes arises concerning the determination that labour contractors are workers
- E.g. should a person with a considerable investment in a piece of equipment such as a truck be considered a worker or an independent firm
- In the past we would have considered these persons as workers but Reporter Decision 255 gives them option of registering like other employers or independent operators
- Often the option is no option at all
- In some cases registration as an independent firm is a requirement of employment
- Truck drivers and courier drivers are most commonly in this position
1) Section 8 – injuries out of province
- Eligibility criteria for coverage out of the province are set out in Section 8 of the Act
- Criteria set out are explicit that workers working outside of BC for an uninterrupted period of more than 6 months are not covered beyond the 6 months
- There is no flexibility afforded to allow the Board to vary the criteria
- Section 8 also allows the Board to enter into inter-jurisdictional agreements
- The Board does have agreements with other Boards with respect to mutual assistance and avoidance of duplicate assessments
- As well we are signatory to a national agreement on trucking
- Issue with respect to Section 8 centres on exchange firefighters – 2 firefighters agree to exchange place of work for a period of time, usually a year; each assumes the other’s employment obligations with the concurrence of the employers
- Under Section 8 there is a requirement that the worker be employed by the same employer both within and beyond the province
- The primary issue in this case is whether the whether the BC firefighter remains an employee of BC employer while engaged in the exchange program
- Evidence says they do not remain employed with the BC employer
- The same principles that have been applied to exchange teachers over the years have been applied to firefighters
4)Out workers – person who performs work on behalf of employer at home or some other location off premises of employer
- Prior to Bill 63 out-workers were specifically excluded from coverage under the Act
- The exclusion disappeared with the inclusion of Bill 63
- The only test for coverage is whether or not there is an employment relationship
- Only current reference to out-workers is in Section 1 of the Act
5)Aboriginal registration
- 1994, July, Isaacs vs. WCB resulted in all aboriginal and band operations being required to be registered with the Board
- December 31,1997 there were 213 registrations for Indian bands
6)Volunteers – comments are limited to the issue of coverage and Compensation Services will discuss benefits payable in event of injury
- Volunteers may be covered as workers under certain circumstances:
- A volunteer fire brigade member, ambulance driver or attendant working with or without remuneration is considered a worker by definition under Section 1 and is automatically covered
- Certain individuals in the mining industry while engaged in training or instruction and a person, while engaged as part of inspection committee are automatically covered as workers under Section 1
- Individuals or groups covered under 3(5) – only groups or individuals engaged in undertakings considered by Board and provincial government to be in the public interest are acceptable – e.g. auxiliary police
- Provincial government must approve of the above because any injury arising from such an undertaking are billed on a cost plus basis to the provincial government
- As a result the Provincial government has set out a number of questions for which they require answers in order for them to accept an application
- E.g. the auxiliary police of BC
- Provincial emergency program volunteers under Section 97 – by contractual agreement between the federal and provincial governments
(7) Students
- May be covered under 3 (6) - vocational training or 3 (7) – work study; unless otherwise covered as apprentice
- Under 3(7) coverage is limited to the onsite training component only
- An example of coverage for public bodies is the public high school, study/work experience program
- An example of private organizations is the Rehabilitation Society, which places clients with employers in the community for work experience and/or assessment
(7) Bill 63
- Came into effect January 1, 1994
- It added about 13,500 new employers to their assessment role at that time
- Approximately 5000 employers captured under Bill 63 were already voluntarily registered with the Board
- At present we have over 25,000 more employers mandatorily registered as a result of the Bill 63 amendment
- Bill 63 employers count for 12.8% of employers and only 1.1% of total assessment
- Bill 63 allowed Board to make exemptions from universal coverage and it did so following consultation with employer and employee representatives
- Some people regard the all inclusive nature of the Bill 63 amendment to be intrusive when it comes to homeowner
- First exemption made by the Board exempts a homeowner from registration and therefore the worker from coverage where the work is intermittent or very temporary
- This exemption allows for not registering where the person is employed to do a specific job that does not last more than 24 working hours
- Employer’s spouse is not automatically covered but children under 19 years are automatically covered providing there is an employment relationship
- Third exemption continues the working policy with respect to out of province employers operating temporarily in BC, which was in effect prior to January 1994
- Professional sports competitors are also exempt
- Personal financial holding corporations are an added exemption
(7) Incorporated companies
- BC Board’s policy regarding incorporated companies is discussed in Reporter’s Decision 335
- It follows the common law principle respecting a separation between a company and its shareholders and directors
- As a result principles of an incorporated company who are actively engaged in the company’s business are regarded as workers
- Therefore they are automatically covered and subject to the same benefits and obligations as any other workers
- The employer of an incorporated company is required to register with the Board even though the only worker may be the principle
- Where an incorporated company does not register and injury occurs to a principle, our policy is to deny benefits to that principle instead of charging that company for the cost of that injury under Section 47(2)
- Most common complaint from small incorporated companies centres around automatic coverage of principles of that company and the requirement to pay assessments on the earnings of those principles
- E.g. why should I pay for coverage of myself where if I were unincorporated I would not have to? is the common question
- BC Federation of Agriculture, at one of their annual meetings, had adopted a resolution asking for change with the common theme being why should I be treated differently then the farm next door that is not incorporated
- Another concern exists where both spouses receive payment from the company
- This situation occurs when a company splits income between the two spouses for tax purposes but claims that one of the spouses takes no part in the business
- Therefore they argue that they are paying a premium for which coverage does not exist
- After many years of trying to determine whether the spouse is indeed active or not the assessment department has adopted the position that if a declaration is being made to Revenue Canada that a spouse is active in the business and the amount paid was remuneration for that work then we would accept that fact for Worker’s Compensation services
- Earnings paid to an inactive spouse by way of a dividend are not subject to assessment
(7) Personal optional protection – voluntarily coverage for some people who are not automatically covered
- Where business operates as a proprietorship or partnership, the partners, the proprietor and the proprietor’s spouse are not automatically covered but may apply for personal optional protection
- In the past children of the proprietor were not automatically covered if they were under 19 years of age – that situation changed with Bill 63
- Registrants as of December 31, 1997:
- 6,681 employers
- 11,248 independent operators
- 3,146 partners
- 711 spouses
- At present personal optional protection payments are paid in the same manner as regular assessments – payment in arrears
- Prepared to move to a prepayment system, together with a number of payment options such as direct debit, credit card, paying at the bank, etc.
- Taking this action to bring personal optional protection in line with private insurance offerings and to avoid high administrative cost relative to the assessment amount when these types of accounts fall into arrears
- Also provides a higher level of certainty of when coverage exists
(11) Elected officials and OIC Appointees
- Not covered where there is no employment relationship
- Many years ago voluntary coverage was granted for some aldermen and this has been grandfathered with no new applications being accepted
(12) Impact of Section 51 – provides for joint liability of assessment owing on work done by a subcontractor for a prime contractor
- This matter was considered by the Tyso Royal Commission and some of the concerns expressed at that time have continued
- Currently when a subcontractor is in arrears the Board uses subsection 51 to pursue payment for the overdue assessments from the prime contractor
- Should the default be born by the person for whom the work was done?
- Many complaints made regarding the fact that overdue assessments are a matter between the subcontractor and the Board and the principle contractor should not have to act as the collection agent
- To protect against any Section 51 liability contractors often request a letter of clearance from the Board
- In 1997 over 160,000 clearance letters were issued
- Clearance letters provide information on subcontractors – whether they are in arrears or are clear
- Clearance letters take about 24 hours to be processed
- Also concerning the issue of joint liability I would like to mention that municipalities are allowed to set off amounts paid to the Board with respect to a subcontractor under Section 50 of the Act
- This section applies to municipalities, municipal board or commission but not to other employers
QUESTIONS AND ANSWERS
ALAN WINTER:
I will be concentrating on labour contractors, fishing industry and odds and ends
Labour contractors:
Q: Just to confirm, labour contractor is not a concept included in Act but matter of policy the Board used to determine worker independent operators. Is that correct?
A: Correct but it is not an end point either. It is a filter where individuals that have trappings of both worker and independent firm filter through this and end up either in the independent firm category or in the worker category.
Q: In the labour world they would be called dependent contractors. I always tell people that it is the same kind of concept that the Board calls labour contractor. Are you familiar with the term dependent contractors?
A: Yes in the trucking industry.
Q: I want to go through some examples of cases that I have been involved in. I think that the concern with labour contractors is that it is such a technical concept that most people have difficulty grasping it and there seems to be some inconsistency in the way that it is applied.
One case was on behalf of a municipality that engaged an operator of a dredging business. In that case the municipality had historically used services of 3rd party incorporated dredging company registered with the Board. The Board treated it as independent since there was no question. Operator decided for tax reasons to restructure. Kept incorporated company to rent equipment and started unincorporated business to supply labour. He did services for municipality and they knew they had 2 bills to pay but saw no other difference otherwise. The dredging operator hired someone to work for him and that person drowned. The issue came up who was the employer? The board determined that this was a labour contractor because it was an unincorporated business and that anyone the labour contractor hired were workers of the municipality.
Do you recall that?
A: Very vaguely. I don’t recall whether the labour contractor registered with us prior to this injury.
Q: He didn’t but he did afterwards. The key fact was that he had always been registered with the Board with his incorporated company but this was the first year that he had the two businesses. Reason to raise this issue is because when dealing with labour contractor you have to look from Board’s eyes where it is technical and difficult concept to deal with. Looking from the viewpoint of the 3rd party involved with the Board – e.g. municipality – they need to know the differences as a result of the changes made by the labour contractor. Would you agree that the end result had a significant impact on the municipality because of the fatality they were charged with the cost of Experience Rating Assessment, which was about $150,000. Is that correct?
A: That is correct.
Q: So it was significant that it was found to be a labour contractor?
A: Yes
Q: Another case that you were involved with was dealing with building cleaners, a franchise. Were the franchisees workers of the franchiser or independent of that franchiser? The result was all 3. The franchiser had to pay for some that were considered workers. Others were independent because they were incorporated or they had employees working for them and produced their own equipment. Others were labour contractors who had workers and supplied to one contract at a time. That could happen, is that right?
A: My recollection is the same as yours. It does raise some concerns with some employers. They have a contract and it applies to number of different individuals. However, when you look at registration of those individuals you have to look beyond that contract and see if they have other contracts.
Q: There is a complexity and difficulty there because the contractor has a mixed bag of who is a worker and who is not a worker.
A: That is accurate.
Q: Third area where we end up with inconsistencies is 3rd element of what a labour contractor is. You will find definition in 20.30. 20. It says that a labour contractor includes unincorporated individuals or partners and then (3) those who may or may not have workers but they contract a service that could be one piece of major revenue producing equipment to a firm or individual. The example used is a backhoe contractor supplying a backhoe. If the Board determines that it is a major revenue piece of equipment then you are a labour contractor but if it is not a major revenue producer than you are employee?
A: Correct
Q: Again I have heard complaints about the inconsistencies or the perception of that. I am told that a faller with their own chainsaw would be considered a labour contractor. Is that accurate?
A: As a generality a faller with a chainsaw would be regarded as a worker. A chainsaw would not be regarded as a major revenue-producing piece of equipment.
Q: For them it is what they need to generate revenue just like a backhoe is for someone else. What is the distinction in your mind?
A: A chainsaw is regarded as a handheld piece of equipment versus a truck or backhoe.
Q: There is a line that tries to describe what is a major revenue-producing piece of equipment and what isn’t?
A: No other than what is shown in policy by way of example.
Q: Have you had complaints from people that say that they want to register because they have a major revenue-producing piece of equipment?
A: Yes
Q: There is an element of labour contractor that I find unfair. Homeowners – homeowner who does renovations at home and who gets one or more construction workers to do that runs risk of being employer. The person they obtain may be a labour contractor and they may not be registered with the Board in their own name. Is that accurate?
A: Yes the comment I made is related to that situation.
Q: I think that the perception is that it is easy enough to understand when you bring someone in to work on your business but it gets a little more difficult if you employ them for personal reasons and you find out that you are the employer. The unfairness that flows from this is Section 47.2. Section 47.2 mandates a penalty if found to be employer and at time of injury to a worker you weren’t registered. Is that correct?
A: That is correct.
Q: And the mandatory penalty is the capitalized value on what the Board pays out on that claim. Is that correct?
A: When you say it is mandated it is set out in Section 47.2 but in 43 it allows for some discretion.
Q: My understanding of Section 47.2 is that it is very difficult to get discretion. How do you find it from your end?
A: For homeowners it is a matter of course. We seldom penalize homeowner. Committee that deals with application of Sec 47.2 made up of legal services department and assessment department. Mr. Krismer sits on that committee and I will defer to him.
Krismer: In practical terms we have had very few cases of homeowners coming to us under Section 47.2. In the time that I have been with the Board we have never charged them the full cost of the claim unless the costs are rather minimal. We reduce obligation to some nominal amount and we see fit to determine that amount.
Q: Is the reason for that that it is understandable why the homeowner may not understand that they are the employer?
Krismer: That is right.
Q: I think it comes back to the concept of labour contractor.
Krismer: More broadly Bill 63.
A: We did have this though before. Prior to Bill 63, homeowners who were engaged in renovation or construction where the total value of the project was over $5,000 were captured by the Act. We still exercised a considerable amount of leniency in dealing with Section 47.2. It is not occasioned simply by Bill 63 and not by labour contractors. It is just that these are not people who are normally employers.
Q: Just so the commission is aware. It used to be dollar amount of $5,000 and now it has been switched to an hourly amount - if the work takes over 24 hours vs. $5000 – where the homeowner ends up in an employment relationship.
OE: Continuous hours?
Q: I don’t think so.
A: The exemption reads that where an employer is employed on the project for under 24 working hours then registration is not required. It is not contiguous
Q: For the labour contractor problem it is the homeowner getting work for over 24 hours. That is when you get into problems concerning the relationship between the homeowner and the person that they are retaining to do that work.
Q: There is one other aspect of labour contractor that has always puzzled me and that is the option that the labour contractor has. The labour contractor is given the option of registering in own name and paying assessments to cover themselves thus becoming independent. Is that correct?
A: That is correct.
Q: If they don’t then they are a worker of the principle?
A: That is correct.
Q: If you take the same person, the same body, and depending on an external event – registration – they can either be a worker or independent. I have always had difficulty grasping how that meshes with Section 13 and 14 where a worker cannot pay directly or indirectly any assessments. It is prohibited under the Act. You have a situation here where a person defaults into a worker but if they pay they are no longer a worker but an independent operator.
For example, if I came to you and said I am a labour contractor and I want to register. If you let me register then I am responsible for paying. As long as I pay my assessments then I am independent, is that correct?
A: If they register yes.
Q: If I stop payment then am I no longer a valid labour contractor registrant?
A: No that is not correct.
Q: When am I no longer a registered labour contractor?
A: When we cancel registration or the firm goes out of business.
Q: When does it occur that I declare I’m in default and you cancel registration?
A: We don’t have a procedure where if you are in default that we cancel registration. They would continue to be registered and we would pursue whatever collection avenues we had available.
Q: If I am a labour contractor then as soon as I register that is it. There is no way I will become a worker because you won’t cancel me.
A: The only way you become a worker is if circumstances changed. If you are a labour contractor because you employed workers and then you stopped employing workers you can say that you no longer work under same criteria. Since you no longer fit the criteria of a labour contractor the labour contractor status, which is set out in policy, has no condition on it that assessment payments have to be kept up to date.
Q: Let me try this a different way. I’m a labour contractor and am working for a building cleaning company. You determine that I am a labour contractor and I register. Now I’m paying my own assessments. Three months later I am still doing that work but I send letter canceling registration can I do that?
A: If you said you were no longer an employer or no longer wanted to be registered we would probably do that. I am not familiar with any cases that have come up but if you can voluntarily register then it seems that you can voluntarily de-register.
Q: So instead of just not paying I de-register then and I default back to a worker. It is now illegal for me to pay my own assessment.
A: Correct
Q: Do you find that inconsistent?
A: You have here a group that has trappings of both an independent firm and a worker. What we try and do through the policy and what the Board of Commissioners tried to do through Decision 255 is a bit of a balancing act. There are a lot of people out there that feel, legitimately, that they are in business and that they should be looking after WCB payments. There is some inconsistency because it depends on whether they elect to say that they own their own business or not.
Q: I think I have a simple solution. Why not treat labour contractor by allowing principle contractor to deduct and submit, as I believe you do for couriers.
A: Only time that would not be a violation of Section 14 is when the courier driver’s vehicle is registered as an independent firm. There is nothing that allows a worker to be charged and have his or her earnings deducted for WCB purposes. We don’t have that situation right now where someone considered a worker is allowed to contribute to assessment payments
Q: You have someone who wants to apply as labour contractor and they fit the definition of a labour contractor, then why can’t the principle deduct versus labour contractor. Why leave the option of whether they register or not since they have the trappings of somewhere between a worker and an independent.
A: When they register or at all times?
Q: It has to be determined that they are a labour contractor so somehow the Board has to be involved to ensure that they are not workers.
A: So if the labour contractor registers or not the same process would occur?
Q: Registration does not matter anymore. It is a determination that they are a labour contractor. The only event now is that if you are a labour contractor then you are responsible for your premiums.
A: I don’t think that is a matter that is up to us. I think it is a legal issue and I am not sure that you can do that under current legislation.
Q: That is what this whole commission is about. What I am suggesting is that maybe there is a way of dealing with those people who are defined as labour contractors by making things a little clearer in the statute. All we need to do is define the nature of the relationship and then everything flows from there. That is what I am saying.
A: The issue of labour contractors is contentious and controversial from time to time and continues to be. I don’t think that is a matter that is up to us, philosophical and probably criminally
Q: Fishing industry - For assessment purposes the first commercial buyer of the fish is the employer – he pays assessment for WCB?
A: Commercial buyer yes
Q: But for prevention and safety purposes the WCB recognizes the responsible party as the vessel owner unless the first commercial buyer owns the vessel.
A: I am not sure what exactly the prevention regulations are.
Q: Ask the panel.
Panel: Correct
Q: So WCB distinguishes two different employers, for want of a better term. You have to agree that that is a bit of an anomaly.
A: Yes the fishing industry is basically an anomaly. Everything we do is predicated on an employer-worker relationship. That is not always the case in the fishing industry.
Q: From an assessment viewpoint why is the commercial buyer, as opposed to vessel owner, responsible for coverage?
A: Number of options as to how to fund the system. I think idea was industry would pay it and initially final buyer was responsible for payment of assessment. Industry brought lobbying forth and suggested it should be at least the first buyer so we did that. Sometimes the vessel owner is not the employer. Someone else could be conducting the fishing operation besides the vessel owner. Look at Tyso report and it shows that it is a complex industry and employment depended on number of factors. One of them was the concept of co-venture where there was no employer. There were 7 or 8 people on the boat and they were all partners. When they looked at funding this with the automatic coverage that came in for fishers the question was who was in the best position to pay. It turned out that the fish buyer was in the best position.
Q: The best position to have the money to pay as opposed to being in the best position that looks like the employer?
A: One thing that came up is they may not know who is on the boat and with respect to safety issues the buyer may say that they have no control. Question of responsibility for safety and responsibility for payments of assessments and they are different.
Q: Let me identify some anomalies and see if you agree. You have already identified first anomaly and that is that there are two employers. The primary employer responsibilities are split between the first commercial buyer for assessments and the owner/master for safety. So we would agree on that?
A: Yes
Q: My understanding is that this is subclass 911 for the first commercial buyers with respect to the fishermen as opposed to their own employees.
A: Yes
Q: 911 doesn’t have Experience Rating.
A: That is correct.
Q: That is a bit of an anomaly isn’t it? Most employers other than deposit accounts and federal have Experience Rating Assessment.
A: That is correct.
Q: Again Experience Rating Assessment is not a concept that would work very easily here when they don’t have the responsibility or obligations on the safety side.
A: That is correct. You don’t determine who the buyer is until the fish are sold.
Q: You have here a situation where the person with authority or control over safety and prevention has no general financial incentive to ensure a good safety record. I.e. the vessel owner/master really has no financial incentive for safety record other than the prevention penalty side. The more accidents they have the more it affects the assessment rate but what do they care because they aren’t paying it?
A: It could be accurate and it is an argument.
Q: On the flip side the person paying the assessment has no control in dealing with safety or prevention. The do not have the power to discipline or require compliance.
A: For the most part that is correct.
Q: I agree because there are some cases where they are actually the vessel owner.
A: There is also tenderment, for example, on some of the packing vessels which are salaried employees.
Q: Another unfairness – assessments are not paid at full value of catch because the first commercial buyer is responsible for assessments. If vessel sells to foreign vessel then no assessments are made on that part of the catch.
A: That is correct.
Q: If the fishers are delivering fish to that foreign processing ship and they get hurt selling to or going to sell to foreign ship they are covered yet no assessments have been paid.
A: The test for coverage of the fisher is whether they are selling 10% or more of their fish to commercial buyers in BC.
Q: If they have met those criteria and we’ll say that they sold 50%. If they sell the rest off shore only the 50% that was sold to the BC buyers will have assessments paid on it. Yet the worker is covered regardless of where the worker gets hurt.
A: Correct
Q: Somebody is subsidizing this. You have to agree that there is no way the Board is bringing in the full value of assessments on the full value of the catch because some of it is going outside the jurisdiction.
A: The Board will assess at a level to generate revenue to pay for cost and if the base on which you assess is less then the rate is higher.
Q: Okay so by putting it on the commercial buyers the rate has to be higher because you are not bringing in the full amount of the assessments on the catch. If 100% of the assessments were brought in the rate would have to be lower than it is.
A: Yes
Q: I am not asking you to agree or disagree but I am just describing it as an unfairness in the system.
Q: Another unfairness is excess earning. In a normal employment relationship if we had a person in our firm that we paid $80,000 to we pay assessments to the Board based on $56,000. Because the first commercial buyer pays you may have the same vessel or people on that vessel getting much more pay for that. For example, I am told that many vessels deliver fish to multiple buyers. That is feasible right?
A: That is correct.
Q: Each buyer pays assessments regardless what the other buyers may have paid. They do it on their own catch.
A: Correct.
Q: So you may have a total amount of buyers paying assessments for the same people that are well in excess of the maximum.
A: Yes.
Q: I don’t think that a lot of those anomalies would be there if we put the assessments the same place safety is and that is on the vessel owner. It would appear that Experience Rating Assessment would apply then because they would have control over safety. I take it that Experience Rating Assessment does apply to small business?
A: That is correct.
Q: So this would be no different assuming that they have other people that work for them that could fall under Experience Rating Assessment.
A: Yes in the scenario that you pointed out.
Q: They also would then have no problem on excess earnings because they are paying for their own vessel and everyone on it. They would know when they hit excess earnings and they would stop.
A: Yes that is true as long as individual carries on with that vessel.
Q: We also would have the joint responsibility for the employer in the same entity – both safety prevention and assessment?
A: Yes
Q: My suggestion is that the responsibility should be on the vessel owner – why should that happen or not?
A: I don’t have specific thoughts on it but when this legislation was brought in and principle and board regulations which implemented it came about the situation was different then today. There is a lot more offshore selling. Industry has changed quite a bit. Funding of system and how it works needs to be reviewed.
Q: Another avenue that may be available is to make first commercial buyers a collection agency. Right now first commercial buyer purchases the catch, let’s say at $5000 and then pays assessments on top of that for the value of that catch so they pay $5000 plus. Is that correct?
A: If the labour component was $5000 then we would apply the assessment rate to that and that would be the assessment that they would pay.
Q: If they were the collection agency they would take the amount out of the $5000 and provide it to the Board on behalf of the vessel owner and then pass the rest on to the vessel owner. Their total responsibility would be the $5000.
A: That is one way you could work it. There are a number of ways that you could do it. You could collect on BC sold fish but what about offshore selling, how would you collect on that?
Q: That is not the first preference of the fishing industry. Their first preference is to have the employer be the vessel owner.
Q: I have given you excerpts from the Board’s briefing paper on the fishing industry and Worker’s Compensation dated March 27, 1997 – pages 11 and 12 set out alternate systems to what we currently have. Look at 3rd alternative on page 12. They talk about the first commercial buyer acting as the collection agent. It may not solve the problem of collecting assessments due from out of province sales since they would have to be collected directly from the owner/operator. That is the one problem they clearly identify with, correct?
A: Without reading it all it seems to be.
Q: If I understand it correctly that problem would be no different than what you have now. Right now it is the first commercial buyer that is responsible for paying the assessment and you still don’t get it on out of province sales.
A: That is correct
Q: If you move them to collection agency you will get same amount and you still won’t get out of province sales.
A: If you stop there that is right.
Q: That is why the first choice is to put it on the owner/operator. If they are responsible for paying the assessment for the whole catch then you will get it on everything.
A: Yes
Q: Department of Fisheries and Oceans has information on registered vessels and the full amount of the catch has to be registered with them too. So there is information available for WCB to do this. This is assuming that a relationship could be developed with the Department of Fisheries and Oceans in order to get that information.
A: Okay
Q: Aboriginal coverage – is it mandatory coverage and mandatory assessments on Indian bands?
A: Correct
Q: And that hasn’t been a problem?
A: No, like any other employers some give us problems from time to time but mostly no problems.
Q: My understanding is that you can say it is mandatory but there is difficulty in collecting.
A: True that enforcement of collection on reserved land is difficult but it is not a major issue.
Q: Section 51 – problem is the amount of time that passes when WCB knows there is problem and the third party contractor knows. Relationship is usually over between subcontractor and primary contractor by the time the contractor finds out there is a problem with the subcontractor. Do you find that to be a common problem?
A: I am not sure how common that is. Does arise from time to time. In 97 we issued a 100,000 clearance letters so we hope the word is out there that you need to check with the Board before final payment is made or check with us on a regular basis.
Q: There are certain industries that are very aware of this like forestry and construction but some don’t have it as a prevalence in their industry so clearance letters are not at the top of their list.
A: That is true.
Q: I understand that clearance letters are good for 3 months.
A: They are good for time identified in letter. Since we have assessment in arrears it is generally last quarter.
Q: If I phone you today then I may find out that they are okay back to December 31.
A: Correct
Q: That doesn’t tell me that they are okay today. I could still be liable since the clearance letter does not provide information about the subcontractor today.
A: That is true.
Q: How much percentage of assessments do you take in through Section 51?
A: I don’t know. We don’t track them on our computer system because the payments that are made by a prime contractor for a subcontractor’s account goes into the subcontractor’s account.
Q: Do you know if it is nominal or significant?
A: I think the question of Section 51 is that it is significant. We generated 160,000 clearance letters last year so there are a lot of contractors wanting to know if subcontractors are paid up to date. We don’t know if that prompts the subcontractor to pay their bill on time. Perhaps it causes a higher level of compliance than if it wasn’t there but couldn’t tell you to what degree.
Q: Point of higher level of compliance is fine until you go after 3rd party because the subcontractor is not complying. What about the idea of dealing as with any other corporation – bad debt fund. To determine whether or not this is a feasible solution we need to know if this is a nominal or significant problem, it is worth it for other employers to pay into.
A: I don’t know.
Q: Incorporations – an incorporated company will generally be treated as an employer. There is an exception for incorporated companies and that is if it is a personal service corporation.
A: Yes
Q: And a personal services corporation is defined in the policy as one where there is no help other than the principle active shareholders and if the firm were not incorporated the principle active shareholder would be a worker.
A: Correct
Q: We have an associate that was incorporated and entered into a relationship with our firm through their corporation. That would have been a worker under the Act because they would have been a worker if they didn’t incorporate, they would have been an associate. So you pierce the corporate veil and treat them as a worker. Is that correct?
A: Yes
Q: If you take a sole proprietor and put an incorporation around him or her for tax purposes because that person wouldn’t be a worker you don’t pierce the corporate veil. You treat those 2 inconsistently?
A: They are different beasts so we treat them differently. The personal service corporation is there to prevent abuse of the employment relationship. For example, if my employer came to me and wanted me to sit at my desk and do the same thing that I have been doing but here is $400 to incorporate the company and we’ll pay the incorporated company. In that situation I would still clearly be a worker.
Q: It is assumed that the person was a worker. You don’t investigate what the motive was behind that incorporation?
A: No we don’t that is right.
Q: Without motive we’re back into distinguishing, when both may have had the exact same reasons for incorporating – taxes – one you don’t pay attention to the corporate veil for WCB purposes and for the other you do.
A: Yes
MR. STEEVES:
Q: Do you know whether the Board definition of the employment relationship is the same as the law school definition?
A: There are probably 2 responses. Our definition is a little bit broader and founded on the common law and then expanded from there. See that in Reporter Decision 255. We set the perameters and criteria so that you can judge ahead of time what the result will be whether you are an independent firm or a worker or a labour contractor. This is rather than, in a legal sense, looking at everything in a case by case basis and usually in retrospect.
Q: This morning we called it policy.
Massing: If you review the WCB Reporter’s Series the Board starts with the same basic tests that the courts apply for finding a master/service relationship. The Board then concludes that it is an inclusive and not an exhaustive definition. It has a slightly different emphasis on some of the components of that test and you will see, for example, in some of the case law that the courts would quite often come to a different result then the Board did in determining whether or not an employment relationship existed. In those same cases you will find that the courts have deferred to the Board’s jurisdiction for Worker’s Compensation purposes in those areas.
Q: That was my point, is that you can have a relationship for WCB purposes you can have employment relationship but for other purposes or definitions there may not be a relationship there.
A: That is correct.
Q: Sometimes people are confused about that or even angry with that.
A: Yes
Q: Labour contractors – e.g. couriers. Courier driver owns his or her own van but gets all his or her work from ACME courier and he or she gets a uniform from them, set hours, etc. In those circumstances is that an employment relationship?
A: Because the courier driver owns own vehicle they are labour contractors so if they wanted coverage in own name then we would honour that?
Q: With bicycle is that the same?
A: No a bike is not considered major piece of revenue producing piece of equipment.
Q: This is similar to Mr. Winter’s example of a chainsaw versus a fishing boat or whatever it was. In every respect the relationship is the same except for the revenue generation potential of the truck or bike?
A: What is different is that the van is considered a significant investment in business versus the bike.
Q: Are there courier companies that would have couriers with trucks who are independent contractors and couriers on bikes who are workers?
A: I don’t know if that exists now but had that several years ago.
Q: Indicated on page 4 of notes that controversy arises from time to time concerning the determination that labour contractors are workers. It indicated that Reporter Decision 255 gives a person the option of registering like other employers or as independent operators. Could you or someone in panel point out where in 255 it says that?
A: Decisions 32 and 138 created narrow interpretation of who could register as employer or independent firm but 255 broadened that.
Q: Where in 255 does it say that a worker owning a major revenue piece of equipment should be considered a labour contractor?
A: It doesn’t say that specifically but in broad terms it says individuals that have some trappings of independent firm and some trappings of a worker are interpreted as a person who has considerable investment in the company. They could suffer depreciation loss so they are more of an independent worker then a worker.
Q: It is not 255 that decides that specifically but your interpretation of 255?
A: Yes
Q: Can you tell us specifically what in 255 you base your interpretation on?
A: The whole decision deals with those individuals that fall in the grey area between independent firm and worker. Unless there is reason to do otherwise we will accept application at face value that this is an independent business person.
Q: Yes and, in particular, if they are incorporated then you should take it at more face value so to speak.
A: It is not really the incorporation part of it that got broadened as much as it is the individual who is not incorporated that got broadened.
Q: Isn’t that the result rather than the premise? How do you get to point where couriers are labour contractors on basis of 255?
A: 255 allows us to accept an application at face value from someone who seems to fall in between the independent firm and worker category.
Q: So there is nothing specific in 255 about the value of equipment that that worker owns?
A: No
Q: Also said in presentation on page 4, last paragraph –often option is no option at all. Sometimes registration as an independent firm is a condition of employment – truck drivers and couriers are an example of this.
A: Yes
Q: The worker has the option, correct, to take personal protection or not?
A: With labour contractor, using a courier driver with their own van as an example, if they don’t register they are considered to be a worker of courier company. We allow a deduction for equipment allowance and we look to the courier company for assessment payment and reporting of injuries, etc. If courier driver says he/she wants to be registered they must take out personal option protection if they are not employing any workers. If you were also hiring workers then in that case you’d have option. For example if courier driver wanted to be registered they would have to take out personal option protection.
Q: If someone wants to be a courier driver and they have their own van, ACME Courier won’t hire unless they have coverage?
A: Quite often the case.
Q: That is the no option thing you have here.
A: Yes
Q: If I come to you and say I work as courier and want personal optional protection you sell that to me. But reason I present to you as an independent contractor is because I can’t work without it so I could be worker coming to you as a labour contractor only because I need the work.
A: Yes but you would also have to meet criteria – have van, truck or car.
Q: You mentioned – what is percentage of employees covered in BC?
A: 90%
Q: Does that mean that 10% are all people excluded under Act and policy or are we missing people between cracks?
A: Don’t think we are missing anyone but came to 90% because we have information on people registered with us. Don’t have information on people not registered so have to go to Statistics Canada. The 10% not covered are independent firms where they have no personal optional protection. For example, a plumber supplying labour and materials is independent firm and if they don’t take personal optional protection they aren’t covered. It is mainly self-employed people not taking personal optional protection.
Q: Would you accept that there are some workers who should be covered who are not. There are some workers’ employers who should be registered but are not?
A: Workers are covered under Act because they are workers and they were injured during the course of their employment. Coverage of a worker is not dependent on employer’s registration.
Q: That would only be because the person was injured. I am talking about pressure on worker not to report that they are worker or have injury that is work-related.
A: Your question is does that exist?
Q: Yes
A: I haven’t seen hard objective data that shows that it exists. Have heard anecdotal stories that it exists. Have 154,000 employers per year so there may be some employers who are engaging in these types of these activities and they are illegal.
Q: Does the board make investigation of these people – random checks using field investigation department?
A: Number of answers – section 13, Mr. Massing will speak about. We have done checks from time to time. Sent some staff to Westwood Plateau to check on subcontractors and have placed ads and advertised when Bill 63 came into effect. Mainly with assessment officers we do checks from time to time but rarely do we use our field investigation staff. We do some of it and are there room for improvement yes.
Q: Out workers – this is at 5.6 of your report. As a matter of housekeeping we should repeal definitions of out workers in Section 1.
A: My understanding is that it was probably left there as an oversight. It was on the list of items that was given to me initially and that is why I included it.
Q: I’m not aware of any policy or any other reference to it in the Act so there is no point in it being in Section 1.
A: Yes
Q: Talked about Indian bands – 213 bands registered?
A: Actively registered as of the end of 1997.
Q: Any idea of number of workers?
A No but I could get information if you wanted.
Q: We talked about employers not registered – do you have any idea of the numbers of claims made by workers where employer is not registered?
A: I can tell you how many employers we penalized under Section 47.02 – 197 for 1997 and the amount of penalties was $165,784.
Q: What was the range of penalties?
Krismer: From $100 to $30,000.
MR. SAYRE:
Q: Interjurisdicitional agreements – talked about them applying to businesses like trucking where the person actually does the work in various jurisdictions as they drive along the highway. The agreements also apply where the worker is exposed to long term cause of injury in various jurisdictions. Do you have anything to do with that?
A: These questions will be for Mr. Pinto but I would like to clarify. The interjurisdictional agreement is the agreement and trucking is an appendix to it. The occupational disease is Mr. Pinto’s expertise.
PINTO: I could speak to it generally but will have experts present on 3rd day of 2nd week.
Q: Would like to ask you about students who are in school and are performing work experience. For the most part they are full time secondary school students who work in various local businesses, which can be sawmills and lumber camp. They work, sometimes for short period of time. Can you talk about compensation aspects of this?
A: Not the benefits payable. I can tell you how we collect it.
Q: Who pays the assessment?
A: In the case of the secondary schools it is provincial government. Private schools pay for their students. The receiving employer never pays.
Q: Is there any Experience Rating Assessment aspect to that situation?
A: They are included. We have formula for determining payroll for those students and that forms part of the payroll component of the employer’s experience rating assessment. Any injuries that occur, the cost of those injuries form part of their Experience Rating Assessment cost.
Q: When you say employer you mean primarily provincial government?
A: Provincial government is a deposit account whatever the costs are they pay to us plus administration charges. A private employer would pay an assessment at a rate that is consistent across industry for private schools plus or minus their experience rating component
Q: If we are talking about a private school, that school would pay higher assessment the next year because of its own experience rating?
A: It could be higher and depends on cost and how large they are. It will form part of their cost experience and be used in calculation of their experience rating assessment.
Q: In case of public school does government or school pay?
A: Provincial government
Q: I gather that the employer is in no way involved in payment?
A: Correct
Q: Mr. Winter suggested that this may be subject to 10.8.
A: Experience Rating Assessment does include some cost exclusions in policy. Section 10.8 transfer is one of those situations.
Q: Clarification – you mentioned 219 aboriginal registrants. Did you say Bands or did you mean employers? I take it there would be a number of employers in a Band?
A: This would be the Band and the way I got this number is that we have a coding for a number of various industries within a rate group. One of them is Indian Band on reserve excluding operations part of or allied to specific industries. Includes social service functions carried on by a Band on the reserve. Queried database to determine the number registered in that category. The number was 213 as of December 31, 1997
Q: If there was a housing contractor that only did work on the reserve and only employed members of the reserve?
A: They shouldn’t be included in that category then they wouldn’t be included. If the Band itself was the contractor and did the housing construction or anything else that the municipality would do – because they are in the municipal group – that would be captured in that group.
Q: Would a fish plant on reserve be included?
A: When looking at Band operations we are generally looking at municipal type of operations. The Indian Band category is within our municipal operation and so we are looking at the infrastructure for the Band, social service agency, health care and things like that that the Band would do. If the Band is operating a fish processing operation or a fishing operation they would get those other categories – subclass 0906 and subclass 0911.
Q: Were on reserve businesses of that nature covered prior to the Isaac’s decision or were they also exempt?
A: Our understanding was that operations that occurred on reserve land by an Indian band or by an Indian employer were not constitutionally within scope of legislation.
Q: A housing contractor would have been excluded prior to Isaac’s?
A: If it was an aboriginal group that was the housing contractor then that would be correct.
Q: Farm workers – there has been concern over the years about the various employment practices by the farm labour contractors. Are they covered by now by WCB?
A: Yes farm labour contractors were considered to be under Act prior to farming and ranching industry coming under Act. This is because Schedule A of the legislation, which listed industrial undertakings within the scope, included manpower supply firms. We considered the farm labour supply group as part of that. Thus, they were covered prior to universal coverage of agricultural industry.
Q: Has the inclusion of farm labour contractors created any special problems in terms of determining what they are actually paying the workers? Thinking of repeated allegations that contractors are not paying workers at all or will violate employment standards legislation and promise workers that they will get their UI next winter so that will be their pay. Does the Board investigate what the contractors are paying when they register?
A: Not so much what they are paying. We did have an ongoing dialogue with the farm labour pool run by the federal government or group similar to that where we tried to ensure compliance from registration and payment for the farm labour contract group. We were fairly successful with that. If when we went to audit their books and there wasn’t payment on there there wasn’t a lot we could do about that. A lot of the issues that come out of employment standards would be dealt with by them and we would be looking at different things.
Q: Follow up on Mr. Winter regarding fishing industry. He asked you to comment on fact that uniquely to industry there is split employer – assessments and safety. Therefore there is no Experience Rating Assessment applicable to that industry. Are you aware of any evidence that the lack of Experience Rating Assessment has led to increased injury rate?
A: Not aware but industry has never been subjected to Experience Rating Assessment so difficult to prepare before and after.
Q: Don’t have any evidence then?
A: No
Q: Issue of unfairness Mr. Winter focused on was the way fish buyers are assessed. Some employees have more than maximum wage rate paid for them - more than $56,000 annual earnings are paid. Wonder if you know if such workers who experience a permanent disability, for example, would still be subject to $56,000 in terms of benefits. Would they get the benefit of the extra benefits that have been paid?
A: I would like to emphasize that there is a separation of funding the system to the benefits payable to workers. We would assess based on our rules and Mr. Winter laid out concerns with respect to that. With respect to benefits I will defer to Mr. Pinto.
Pinto: Benefits are at all times subject to statutory maximum.
Q: The worker in that situation loses top portion of income without getting any compensation for it. Isn’t that the effect of the salary cap?
A: Don’t think it is just a fishing issue. It is a broad concept question as to whether there should be a maximum on benefits and assessment?
Q: The Bill 63 workers that were brought into system, do you have any break down on how many of those people are above or at statutory maximum?
A: We can give you numbers – don’t have them here – but we do in financial grinding of numbers have assessable payroll and one called excess. Doesn’t bring it down to numbers of people. Will say in industry the assessable payroll is such and such and the excess payroll is such. Whether 10 people earned that, a 100 people or 150 we don’t have that data.
Q: Personal optional protection – is it only self - employed people who elect personal optional protection that get to choose how much coverage they will have. Or does that also happen with labour contractors?
A: Well labour contractors are not an end point, from there they either go into independent firm or worker. By taking out personal optional protection or registering with Board they become independent firm and in that category all proprietors are not automatically covered so they can elect the level of coverage they want. Partners can do the same. Spouses in proprietorship can apply to be covered and then they are assessed and benefits are payable on their actual earnings.
Q: They way this works then is that the person decides whether they want to protect $2000 or whatever the maximum is per month. If they become disabled they don’t automatically get the amount they paid for but what they can prove their income was, is that correct?
A: When they take out coverage there is a minimum of $1000 per month and maximum of around $4500. They can elect amounts of coverage between $1000 and $2500 per month. Anything over that requires proof of earnings statement from their accountant or someone.
Q: That proof, do they have to provide that when they purchase coverage?
A: Yes when they purchase the coverage. The reason for that is that they are paid based on coverage they select.
Q: There is no requirement to get coverage for their actual earnings? They could submit documents to the Board showing that they earn $4500 a month but say that they only want $2000 in coverage and the Board would be happy with that?
A: That is right. That would be their level of coverage and that is what they would pay on.
Q: If they had a claim they would only be paid to a maximum of $2000?
A: That is right. There may be some exceptions to this and I will let Mr. Pinto speak on that.
PINTO: The coverage purchased through personal optional protection is the rate on which claim is paid. The only exception, currently, is in loss of earnings determination.
A: This has been the subject of discussion between the compensation services division and ourselves. We are heading towards changing the personal optional protection so that like any other insurance you can apply for coverage and benefits, which will be paid based on loss of earnings or on amount you select, whichever is lower. Attempt is to avoid over insurance.
Q: Is there any thinking going on about avoiding under-insurance?
A: I think that that is a valid concern. As we go through our rethinking on personal option protection we would ask whether or not the $1000 per month is too low. Also, WCB coverage only works for work related injury. Lot of individuals will have a private disability plan for injury out of work so $1000 per month may be acceptable for what they want.
Pinto: Recall circumstances where person was left as a paraplegic or quadriplegic and they had only taken out $500 but a lot of these workers don’t want to be within the system. The Board mandating that there has to be a higher level of coverage would probably be unpopular with some percentage – small businesses group would be one area we would have to spend a lot of time in discussion.
Q: Isn’t that quandary present in case of workers who are unquestionably covered? There are workers who are clearly workers whose employers pay assessments and who also pay mortgage and disability insurance and other kinds of insurance. Difference is they aren’t paying assessment so don’t need to opt out but they may prefer to sue rather than claim. Why are people who are eligible for personal optional protection given this ability to choose and more over opportunity to under insure themselves when that doesn’t apply to any one else in the system?
A: Very often person first starting out may have difficulty determining how much they will make. Also it is a matter of choice as an independent business person. If you want to underinsure yourself and pick it up in different areas that is a choice you can make. WCB goes beyond income continuity for wage loss compensation. There is also medical, which is superior and there is protection from law suit.
Q: Is there any administrative reason why the Board couldn’t say to people eligible to take out personal optional protection that you could provide 2 choices – stay out of the system altogether or voluntarily sign up and the Board will assess amount earned over time and create coverage amount for them. You could adjust that from time to time as needed. Any reason not to do it that way?
A: Can see difficulty determining what earnings actually were. Is it impossible to do with respect to black and white, I don’t think so. It will be difficult and without talking to our audit people I don’t know if it would be to administratively difficult to do.
Q: You already require income information if they apply?
A: Not at the present time and only over the $2500. We ask them to get CPA or notary public to sign so they have to do the work.
COMMISSION:
Q: Clarification from Mr. Pinto. Thought that Mr. Pinto had said that you are paid on coverage you select. If I showed I earned $4500 per month then regardless of what my earnings history showed after the accident I would get that $4500?
A: For short term disability. For long term disability, loss of earnings and for pensions we need to get clarification on that. For short term there is no 8-week rate review, you stay at that rate until you hit long term disability and review only occurs if there is loss of earnings involved.
Q: Are you looking to change that and actually pay based on actual loss?
A: The assessment department and policy bureau have been working on proposals. One of the debates is do you require point of coverage proof - which we do now when it is over a certain amount - or point of claim proof – you buy and you will have to prove when there is a claim. Haven’t decided where we will end up on that.
Q: What are you trying to solve?
A: Basically over-insuring and also bringing it in line with how the insurance industry works on most types of coverage. I would like to clarify policy. Have talked to policy bureau and discussed internally and it will be taken to public consultation.
Q: Question from Mr. Winter where you have partners who operate the enterprise and they have personal optional protection. There often are highly paid associates who opt not to become partners but could be having income in the $150,000 to $200,000 range. If they became injured in an automobile accident they lose right to sue in tort and they would have either their survivors’ or their own claim based on $56,000. Any provision in Act of policy where those individuals could opt out because their maximum salary is so far ahead of the maximum amount?
A: No
Q: Is that one of the vagaries of universality?
A: It is not a matter of policy. Employees are captured are captured under the legislation.
Q: Bringing in high - income earners you are reducing the injured workers disability claims by eliminating their tort action. Is the rationale for that that it is the greater good of having more universal coverage?
A: It goes to an issue for any worker that you take away their right to sue in exchange for Worker’s Compensation and in some cases regardless of income it may be a bad thing. That is legislative issue. To some extent this is, had occurred prior to Bill 63 in some companies.
Pinto: Not that many people in BC are making over $150,000.
Q: Any injustice to those high - income earners who are forced to be part of the system would be rectified by an increase in the maximum?
A: I think the term injustice is yours but I think this is a legislative scheme and they need to address that. Most high - income earners would carry other insurance as well. If viewed as injustice then should be fixed by legislation.
Q: Question raised as to whether domestic workers such as nannies are covered under Act?
A: Yes nannies are covered. Start off with basic premise that every employer is to be registered with Board. Exemption for homeowners when help is hired. Two circumstances where registration is not required – one deals with the specific job for less than 24 hours and the other is so many hours per week. Intent of having so many hours per week is to not require registration for someone with a babysitter for a couple of hours after school or work. Nannies would fall into that category of a longer period of time.
Q: Off hand how many hours a week is that as part of exclusion?
A: Mr. Massing says it is in Decision 60 of Reporter Series.
Q: Can you describe as to how you look at these issues as the Director of Assessments, how you broached the subject of the need for change within the Board and how has it been done in fishing for example?
A: In this particular industry we have heard comments and discussions from industry and employer groups talking about various concerns and issues they have. It seems that the offshore buying and selling of fish has become a problem. It used to be that where you could land fish was regulated far more stringently then it is now. We take a look at that, we take a look at the financials in the industry and talk to policy bureau and say we need to look at this as it is a major problem. We can go a couple of ways. We would probably do the initial research on it and come up with policy proposal. Where it could deal with amending the principle or Board regulations then Board or panel must deal with it. They have had some discussions as well with industry and they know there is a problem or could be. Difficult issue and not sure where it sits with policy bureau but that is how the system works.
Q: So you are part of the loop but not always part of the loop?
A: Yes, with this issue.
Q: Is there any time frame within the Board to conclude these issues? How do you conclude a process like this?
A: Mr. Krismer, who is our policy expert can field this question.
Coming up on Wednesday there will be a presentation by the Vice-President of Finance on the whole employer services strategy. That project within the finance division has a whole list of policy items. The issues around the fishing industry are scheduled to be looked at at the end of this year and into 1999.
Q: So it wasn’t scheduled to be dealt with in last 5 or 6 years?
A: Can’t speak to that, whether it was scheduled in the past.
Q: Your comments from a legislative perspective, I gather, are that you don’t feel there are many workers that are falling through the cracks - that should be covered but aren’t?
A: I think so and again the issue of funding the system is different then the benefits payable to a worker. Tests for worker is laid out in legislation and it doesn’t matter whether employers register or not. We deal with employers for their digression separately from claim so I don’t believe that there are employees falling between cracks.
Q: From a more practical perspective are there any occupations you can think of in the traditional master-servant relationship that aren’t covered. I guess there aren’t because it would depend on registration?
A: They are all covered.
Q: From employer perspective there is a risk from time to time that, for example, home owners employing people might, at law, be found to be employers with respect to dealing with WCB even though not in a traditional master-servant relationship. Is that a problem that arose as a result of Bill 63?
A: I think it became accentuated with Bill 63 because it included homeowner employer and changed it to hours versus money.
Q: So the 24 hour or less working exemption, that’s a legislative exemption. That is not a policy?
A: The legislation allows the Board to make exemptions. The Board made exemptions and I guess you call them policy because the panel of administrators would approve them.
Q: Contractor to subcontractor ending up in arrears is big issue. Clearance letter is not helpful in the sense that it doesn’t show the principle contractor the current quarter’s payments.
A: It does limit the liability somewhat if it has been a long contract. Rather than a person being in arrears and not having paid us for some time at least we know up until that last quarter that they are in good standing. We do get some inquiries from time to time where the principle asks what they should do since the contract is over. We suggest that they talk to the subcontractor and make an assessment of what is owed to the Board and pay it. They can ask the subcontractor to make payment up until end of that contract. Mr. Fattedad, on Wednesday, will be talking about our employer strategy and we are also looking at our operations area. Most frequent time we ask an employer to pay us is once a quarter. We are looking at what Revenue Canada may do. Revenue Canada requires payment from some employers bi-monthly, monthly for others and so on. The main issue that I hear from employers is that you can provide all the service you want but we just don’t like being jointly liable for the cost.
Q: Under current system of classification what is main impediment to a system that would allow the primary contractor to deduct from subcontractor?
A: They can do that. They can estimate the labour component of the work, get the assessment rate from the subcontractor and some do. That is a matter between the subcontractor and the contractor.
Q: That requires the consent of the subcontractor?
A: We don’t police that.
Q: Would there be a down side to legislating something like that from the Board’s perspective?
A: I don’t think so which is why I brought up Section 50, about the set off. That allows municipalities and municipal boards, etc. to pay amounts to the Board that will set that off against the amounts payable to the contractor. It only does apply to municipal type employers.
Q: Section 8 of the Act, which deals with injuries out of province. Are you experiencing problems with the fixed 6 month period in which people are covered for if they leave the province?
A: Yes and we get inquiries from time to time where an individual is being sent out of country for a year and the question is how do I get that 6 months restarted again. If I bring them back for a couple of days or for a couple of hours will that do it? It comes up from time to time and it is of a fair amount of concern.
Q: There is no way to reset the clock?
A: Legislation says 6 months at a time so they have to come back and work for employer. Never been tested what employment in the province needs clock to be reset. What causes concern is that if you aren’t right then could find yourself with worker who is not covered.
Q: This is not withstanding that the employer is still paying assessments on that person. If person out of province for a year is employer being assessed for that individual’s salary?
A: No only up to 6 months.
Q: Part 2 of Act, which has little reference by anybody that I’ve heard. Any issues with respect to part 2 of the Act to which part 1 does not apply that commission should look at?
A: Not that I am aware of. Mr. Massing may want to comment.
The Board has no administrative activity under part 2 and it amounts to modification of old common law that impedes ability of workers to sue. I can remember one tort case where under part 2 employer was found to be liable and could be sued. With advent of universal coverage the number of people who could be affected by part 2 is much smaller because the number of people covered under part 1 of the Act is growing.
Q: If anything it is probably less relevant under the expanded coverage then it might have been even before?
A: Yes
Q: You mentioned the problem or risk that worker who leaves for 6 months and comes back for 2 weeks and then is gone again takes. Can Board make an advanced ruling like income tax department does?
A: Look at Section 8 the limitation is that work outside of the province must immediately follow work inside of the province. It states with concluding phrase that compensation is not otherwise payable. Board tends to respond to these situations on ad hoc basis rather than trying to make policy.
Q: If Board, in fact, required employer to pay assessments would that guarantee that an out of country work related injury would be covered?
A: Part of problem is it is hard to anticipate what future pressure points would be. Employer may not see advantage to that person being part of WCB in BC. Depending on what the injury rate is for that employer the employer may take issue with the what the assessment dollar was valued at. It is hard to predict how people will feel about it.
Q: The Board would not consider itself to be bound if it accepted the assessments and then subsequently found that it wasn’t legitimate?
A: No
WINTER:
Q: Judge Gill raised one point on down side to legislating the deduction of assessment from a subcontractor. Problem with Section 51 is that when there wasn’t universal coverage the employers that weren’t covered under the Act never really put their mind to Section 51. Universal coverage doesn’t include self-employed and when you put in requirement that they have to start deducting it is not something that a lot of them will be able to put their mind to. How do you get this information out? Other side is that for small business, even if they are covered, there is problem are going to yell about the administrative side of having to deduct someone else and deal with more payroll. If it was going to be legislated is it to specific industries or is this going to be universal and what is going to happen if people aren’t covered under the Act?
A: When it came up I said that there are a number of considerations and we haven’t had opportunity to go through them. I think that the points Mr. Winter has raised are worthy of consideration.