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

Notetaker: Steven Noble

Date: Tuesday, April 14, 1998

• GENERAL REBUTTAL DISCUSSION: VOCATIONAL REHABILITATION

• ALAN WINTER
• [First 2-3 minutes the tape is unintelligible]
• Commissioner Excell asked the employer community to give some thought to the priorities of these 8 principles and we have tried to do that very quickly over the weekend and I thought I would at least give some preliminary thoughts on that.
• I will be dealing only with the 8 bullets on this page; the four on the previous page, which I haven't given you, duplicate these to some extent. The ones that we would give the highest priority to are the ones that require fair, equitable, and consistent classification of employers within the classification system. This is covered by bullets number 2 - the fair and equitable distribution of the costs of work related amongst employers; number 3 - the grouping together of firms that have common characteristics and level of earnings in order that the system does not unfairly - does not work unfairly amongst competitors and number 7 - the flexibility to accommodate changes in industry and competition. The first two bullets there - number 2 and number 3 are at the front end of what you are trying to design to have the fairness and the equity and the consistency - the seventh bullet is the flexibility to make changes as they are required as the system goes along. We also recognize as a high priority bullet number 6 - the formation of classification groups large enough to be financially and statistically credible to reflect sound insurance principles and practices. Clearly the employer community understands the nature of the modified collective liability and one needs a rate group or subclass as it is currently called that is large enough to be financially sound and statistically credible - would be a secondary aspect of that but the financially sound is obviously very important.
• Of lesser priority but still important concepts - but again of a lesser priority would be bullet number 4 - comprehensibility to stakeholders and the public - which had also been described on the previous page as acceptability. And then bullet number 8 - administrative efficiency, which on the previous page has also been discussed under ease of classifying employers. These are also important concepts but again with respect to the design of how the structure is - the fair and consistent treatment is the more important and when the two conflict the administrative efficiency or the ease of classifying should take a secondary perspective.
• Finally there's two additional bullets [tape silent] and promotion of accident prevention and the support of rehabilitation and return to work measures and the fifth - balance of individual accountability and modified collective liability. The employers perceive both of those as being primarily directed to experience rating assessment. The employer community as we discussed on Thursday strongly supports the continuation of a system of experience rating assessment - certainly not the existing system. We see this as a secondary component to the classification system. You first have to start with the design of the classification structure itself and then when you read the briefing paper; the discussion paper there are then other components that have to be worked into the system - the two primary ones being rate making and experience rating so certainly we place a high value on experience rating but first we have to have the system in place. We have to design a sound classification structure before we get to the concept of experience rating. I hope that provides some assistance on the employers' focus on the principles within the classification system.
• Q: What was your order again? Can you just run through the 8 again?
• A: Yes, the first order would be the fair, equitable, and consistent classification of employers which is covered by what I call bullets 2, 3, and 7. Also, would be important is bullet number 6 - but it's a separate concept and that is the financial credibility in the group. And then of lesser priority would be bullet 4 - comprehensibility and acceptability of the system. And number 8 - administrative efficiency. And then the other two bullets - 1 and 5 - deal with experience rating from the employers' perspective which is another concept in the overall classification structure concept.
• If I may I would like to spend a couple of minutes on payroll versus hours. Mr. Sayre has raised that concept noting that in Washington State hours is used for calculation of assessments as opposed to payroll. If I understand the nature of the concern that Mr. Sayre raised is - I think he called it an aspect of discrimination amongst employers. Nice to have the worker advocate come and worry about discrimination amongst employers but he did. If I understand the concern it's that large employers, large payroll are receiving a - are paying a higher amount - discriminatory action on them because they may have higher wage earners and the example if I understand it is you have two firms in the same industry competing with each other - each with the same number of hours to accomplish the work. One with a higher wage group and one with a lower wage group. The one with the higher wage group is paying more and that is discriminatory versus the lower one and so what he is recommending is a system that goes on hours worked so both firms would pay the same amount because they are in the same industry and they have the same hours.
• The first comment I would make is questions were raised with Mr. Dugas on the funding day - he was in the audience and assisted with that question. You'll find his answers on pages 12-14 of the morning session on February 18, 1998. He tries to elaborate on the points contained in his memo of 1992 and he said he hadn't read that memo since 1992. I highly recommend that the Royal Commission review in full the 7-page memo. If this address is going to be addressed I think Mr. Dugas sets out quite convincingly the reasons why hours should not be used. Just an overview of those comments - at that time there were no other systems in Canada that used hours of work and I think that is still accurate. In the US at that time only Washington used - Washington State - I'm not sure of the accuracy but he didn't advise of any others.
• He commented on the universality of payroll records in his memo. And A copy of that document I understand has been provided to the Royal Commission through Mr. Bates earlier in the proceedings. The payroll records are already maintained for purposes such as Revenue Canada and he noted that it would require special records being kept for workers' compensation and specific rules for different groups of employees like salaried employees, piece workers, etc. and you've heard a lot of submissions from small employers and organizations representing small employers in particular about trying to keep away from additional bureaucracy, different - more paperwork. All you need to do is look at is tab one of this document of 1992 which is the employers' guide from Washington on how to determine reportable working hours and they tell you not to include such things as sick leave hours, vacations or holidays - even if it is paid leave - they tell you on reporting over time work you do a one for one so if you work one hour overtime you get one hour credit. Even though on your payroll system in BC you would be paying time and a half. So additional manual or additional computer ledger and that instead of just having hours paid at one and a half you have to go in and correct to make it one hour. Then it has all sorts of formulas for different workers - Resident managers or caretakers of apartment hotels/motels and similar employment is one group. Inside commission personnel is another group. Outside commission personnel is another group. Salaried personnel, optional coverages, piece workers, non-contact sports team, jockeys, employees of licensed racehorse trainers, professional race drivers. So you can see the complication of going to an hours system when you have to figure out how do we determine what the hours are for people who don't work normal hours of work. Mr. Dugas also stated in his memo that payroll records are subject to audit and easier verification than hours worked. He explained that there would be a significantly higher administrative cost to the Board's audit department if based on hours worked. He raised concerns about potential for detecting fraud when it is hours worked as opposed to payroll. He raised the concern that if you used payroll to your advantage you are defrauding one organization - you are defrauding others at the same time which makes it easier to try to verify through a variety of different organizations. And then he noted the tie between assessments on payroll and costs of claims because the worker's wage level is the primary determinant for cost of claims. And I'll come back to that point in a minute. And lastly he noted that when wages rise generally assessments on payroll will rise. If the employer pays assessments on payroll and the payroll rises 2% and it doesn't go over the maximum - nothing else has to be done. Workers' compensation when it is based on payroll flows with it but when you do it hours there has to be special adjustments to capture the increase in the wages. So those were all the reasons that were advanced to stay on payroll and they all make sense. Then it was bugging me - when you deal with something like discrimination and you say where there's inequity or difference for want of a better term between two entities - usually when you try to fix it you cause other problems - you move the line. And I was trying to figure out where is this problem; it's got to be here somewhere? And reading again Mr. Dugas' memo it became obvious what that problem was. What happens if you move the line to hours worked is that now you are going to put the distinct disadvantage on the lower wage employer. And why is that? Take again the example of two companies performing in the same industry, doing the same work, having equal hours. And again the only distinction between the two is payroll. A pays higher wages; B pays lower wages. If you move to an hours system there is no doubt if I understand it they are both paying the same in assessments - subject to experience rating which we are not going to deal with here. But then what happens is that you have the lower wage employer subsidizing part of the claims of the high wage employees. Why? Because the benefit side is still based on wages. It is not paid on the hours worked of the worker it is paid on the amount I earned. And so if you take a high wage earner and they get injured and only have for simplicity those two employers feeding the fund -the lower has to be paying more than its payroll; the higher has to be paying less than its payroll because they are both the same hours worked. And the injury to the higher is being subsidized but the contributions of the lower. I'm not sure if that is a fairer system if we look at the distinguishing factors of using payroll versus hours and again Mr. Dugas does a very nice job of explaining all of the other advantages of the current payroll system.
• Last point which I unfortunately forgot to cover on Thursday but I've been trying to bring to the attention - decisions of the Appeal Division on the topic we are dealing with - where the Appeal Division raises a concern who refers it to the governors which at least raises the concern. And we were dealing with section 39(1)(e) on Thursday - Relief of Costs - and I forgot to deal with Decision #94-0736, which I provided you in the package today. This dealt with Section 39(1)(e), which is the Relief for pre-existing condition, disease or disability. And the current policy - the interpretation of the Act is that it does not apply to fatalities. And I just thought we would talk about that for a minute. And leave that to your deliberations.
• The facts in this case were that a worker died as the result of an aneurysm that ruptured as he was trying to loosen a bolt on a Sherman Edgar - now I told you I don't know anything about light bulbs so let alone - I don't even know if the Sherman Edgar was the tool or if he is on the boat, the Sherman Edgar, but anyways he was - was loosening the bolt and the facts make it clear that he was exerting a lot of stamina, strength and effort and they tied the rupture of the aneurysm to that exertion. And so the case was accepted as compensable. The issue became relief. And the employer sought relief under Section 39(1)(e) and they had the medical evidence that this enhanced the disability - that without the aneurysm the person wouldn't have died - wouldn't have suffered any injury was the evidence. The case essentially denied the request and it was based on section 39(1)(e) - it deals with the enhancement of a disability and it contemplates the worker being alive and therefore no application for fatal cases. Ms Munroe, who was the sole panel - the sole person panel extensively, reviewed Mr. Justice Tysoe's report on the issue, which I won't go over but it is found, on pages 53 to 56. And acknowledged that Mr. Justice Tysoe clearly recommended that it applied to fatalities and you will see the draft language on page 55 and the draft language included dependents. It is on the top of page 55 - to provide and maintain a fund to meet and pay such costs - part of the costs of workmen or their dependents. So it is clearly trying to bring in fatalities and when you read the excerpts and when you read the Royal Commission by Mr. Justice Tysoe it is clear that he didn't understand why fatalities wouldn't be included.
• That was in 1966. He was recommending the creation of the section; there was no equivalent before that time. It was actually enacted in 1968 with the current words and the words were ambiguous. But it did not clearly have the fatalities included and so Ms Munroe concluded well we know what the Commission recommended but the legislature seems to have gone into a direction - it does not apply to fatalities. The important thing for the panel's deliberation - I point to page 57 - and I would just like to read from the last paragraph of the heading - Possible Contravention of Policy Item - so it is the last paragraph above it - "I conclude that the wording of Section 39(1)(e) lends support to the interpretation of the provision found in policy item #114.40 - that is in the Claims Manual - I note that the policy offers no rationale as to why relief of costs excludes fatalities. Also part of the Governors' published policy decision # 271 - which specifically precludes the application of section 39(1)(e) to cases where only medical aid benefits are payable is silent on the application of the provision to fatalities and therefore does not suggest possible reasons for excluding fatalities. It might be desirable for the policies to articulate such reasons. If the only reason for excluding fatalities is the wording of the provision - then the Governors might consider drawing the legislature's attention to the incongruous result pointed out by the employers' representative - namely the employer may get relief if the injured worker remains in a coma but not if he dies. The logic behind this result is not apparent."
• And so the employer community does ask the Royal Commission to consider the application of section 39(1)(e) which is along the presumption that experience rating will continue to be a significant part of the assessment and classification system and that claims cost will be one aspect to be weighed. So I thank you for allowing me that time within the time I am allotted this morning - I would like to move to the primary heading of this morning which is:
• VOCATIONAL REHABILITATION
• I will be attempting to cover four primary headings. The first is that there are several general comments I wish to raise on vocational rehabilitation within our workers' compensation system. The second topic will be income continuity payments. Some code - I'm not quite sure what code it is but we'll just call them income continuity payments for now. The third topic will be mandatory re-employment. If time permitting the last topic will be preventative compensation, rehabilitation, and protective re-assignment. That is an important topic that I've alluded to on several occasions - the reason I say time permitting because the Royal Commission has raised it as a potential discussion area on Friday, also.
• So starting with the first topic - general comments - I think three. First, the question was raised about whether vocational rehabilitation benefits should be mandatory or discretionary in their nature. Currently, Section 16.1 is discretionary. And I believe the question was raised by Judge Gill as whether the perspective was is from entitlement to vocational rehabilitation benefits - should that be discretionary or should that be mandatory and the level of the benefits be the discretionary element within the section? The response that you received from the presenter was that it was that currently it is discretionary with respect to both aspects - eligibility and the level of benefits being provided. Ms Wakelin is concerned about making entitlement eligibility mandatory can be found on page 36 of the transcript from the vocational rehabilitation day -that was the afternoon session.
• She says there are many, many clients who at this point in time do not require vocational rehabilitation services. They are the ones who have soft tissue injuries or cuts to the finger and go back to work. Would it be necessary to legislate vocational rehabilitation for those individuals?
• She also suggest that the Royal Commission may wish to have a discussion about the issue with representatives in Washington State because she believes that they do have a mandatory rehabilitation system. She then concluded with the following caution. If there was a mandatory requirement for consideration as opposed to extended services you would have to define fairly carefully which population you are applying it. Is it to the full 200,000 or the permanently injured? The employer community supports the concept enunciated by the Royal Commission in the first report - Where you were considering the vocational rehabilitation benefits found under section 16.2 and 16.3 - in the case of fatalities. The concept that that the commission outlined was when the Board determines there's a need then the vocational rehabilitation services are mandatory. And you phrased it this way on page 166 of the first report. That both sections - 16.2 and 16.3, be amended to provide that where such services have been requested and a need has been determined then the Board shall provide the indicated services. The employer community supports that concept - the first determining that there is a need. I think that falls into what Ms Wakelin was saying - you have to define the group that's going to get entitlement. You don't just say everybody because you get the person with the paper cut - there is no reason for the rehabilitation to be considered - the application of benefits in that circumstance. But once the need is shown then the employer community supports the concept that it becomes mandatory entitlement. With respect to need we think the Claims Manual in section 85.30 in one of the guiding principles that they set out for quality vocational rehabilitation - the sixth principle provides some assistance on this issue of need. It says this - the gravity of the injury and residual disability is a relevant factor in determining the nature and the extent of the vocational rehabilitation assistance provided. The Board should go to greater lengths in cases where the disability is serious then in cases where it is minor - including measures to assist workers to maintain useful, satisfying lives. Two factors, it identifies is - the gravity of the injury and the residual disability.
• The second general area I wish to comment on is the objective of vocational rehabilitation services. The issue here is should the objective be to return to employability or return to active employment? Mr. Buchhorn stated, I think on several occasions during the presentations that if it's only return to employability he considers that to be a failure. And that return to actual employment is the definition he uses for success. Judge Gill succinctly asked the question of concerns in the employers' mind about the ultimate goal of actual employment. And it was on page 36 of the afternoon transcript again from the vocational rehabilitation day - the question from Judge Gill was this - Given that not all of the factors that influence the ability to return someone to work as opposed to restoring their function within the control of the Board? What are the guidelines for determining when you finally say - enough? And the answer - I think those are the difficult situations that we are talking about today - you do not have the motivation or do you not have the situation within your control and at that point we say that we have done what we can to strive for employment as the objective. That certainly is the focus that I have brought over the last three years - and this was Mr. Buchhorn.
• To restate the objective from the employer's perspective - the employers believe that the objective of occupational - of vocational rehabilitation should be to maximize the earnings capabilities to the pre-injury level. Certainly with the goal of attempting to achieve the pre-injury level of earnings if possible. The employers believe that this intent is in fact captured in the first of three objectives identified in section number 85.40 of the Claims Manual dealing with vocational rehabilitation services. And the first objective is - to assist workers in their efforts to return to their pre-injury employment or to an occupational category comparable in terms of earning capacity to the pre-injury occupation. However, the employers believe that there must be a point where the Board has to accept it did all it could do in the circumstances and the goal of maximizing earnings capability has been achieved.
• This is all subject to the assumption that the worker motivated, and working with the Board rehabilitation process. There may be other factors present influencing whether the worker can actually return to employment once they have achieved the earnings capability and there is an economic reality to the marketplace. And that is when deeming and loss of earnings pensions become a relevant consideration. And again I think that was the impression that Mr. Buchhorn was trying to give - deeming is a last resort. And the first resort I think we are on the same wavelength between the Board and the employers - we are trying to get the injured worker back to the pre-injury level they had before the injury - either at their old job or at another job but there has to be line where the objective of employment cannot - it has to be recognized that it may not be met in the circumstances.
• Q: In a particular circumstance it is actually more beneficial for the worker and indeed perhaps for everyone involved - if he or she were to be retrained to a somewhat higher level that would make them more marketable, more employable and simply because if you retrained them up to that pre-injury level it's not going to result in any realistic rehabilitation? What do you do in that circumstance?
• A: I need deeper facts there but I think the overall goal is to put the worker back in the situation from an earnings capacity view that the worker was in before the injury and so the goal of the pre-injury level I think is the ultimate objective. I do think there may be cases where you are looking at - you can't go back to the pre-injury job. And while we are looking for the maximized the pre-injury earnings it may be above as opposed as the proper position that one would be gearing for. For example - when you get to the training - the self employed - the business then certainly a good prospect that a self-employed person if they have the skills, the talent, and the training may well do a lot better than they would have done when they were employed earning whatever their earnings were. But nobody has advocated from the employer community no I'm sorry -you have to figure out if they are going to be earning more do some sort of pro-ration that you are only going to pay 4/5's because we think maximizing earnings is going to bring you above what you were earning before. But the goal would be to the pre-injury level and so if there are 4 or 5 valid choices that the rehabilitation consultant is weighing and one is above and two are below and one seems to be at the pre-injury -I think the - and I don't want to call it a presumption - because I think that is too strong but I think the focus is first the one that maximizes to the pre-injury level and then there should be reasons why that is not the appropriate choice under the circumstances or an acknowledgement and I've seen in certain cases where the worker does contribute some because they want a different education and different training which the Board says - I've seen for example where they say this job will maximize your earning -where you want to go won't. That cost more even than - so we'll subsidize you up to this level that would have for the job that we felt maximized your earning and you pay the rest. But I think there has to be again a balance between what the pre-injury earnings were and what is available when looking at long term and suitable occupations.
• Finally with respect to the objective of vocational rehabilitation - if the efforts are going to successful in my submission the hallmark principle must be early intervention by vocational rehabilitation. Again this concept is captured in the first guiding principle of quality vocational rehabilitation - set out in section number 85.30 of the manual. Vocational Rehabilitation should be initiated without delay and proceed in conjunction with medical treatment and physical rehabilitation to restore the worker's capability as soon as possible.
• The last area of general comments I wish to raise is under the broad area of accountability. It must be recognized that wide discretion is provided to the vocational rehabilitation department both in terms of determining the nature and extent of services and benefits to be provided and in making monetary expenditures. Such broad discretion must in my submission have clear accountability guidelines. For example there must be a system in place that will ensure that the "horror stories" that were raised during the presentations are monitored and identified internally before proof, not after. And if one does fall through the cracks then the system must be able to identify how that happened and rectify it so it does not happen again. And some of the "horror stories" as I call them that were identified were the worker who worked in construction as a glazier, developed a sensitivity and wanted to change the careers to golf administration and the Board was kind enough to fund that - for the worker and his wife to take the course for two years in San Diego. There was another example of the Board funding an injured worker to start their own painting business and the catch was that it was in Hawaii. Which seemed to be quite a perk.
• There was an example of a worker who funded by the Board to buy a truck for the business and sold the truck to get the money. And the Board identified the way they deal with that is that they put a lien usually for two years on the equipment and then after that it is out of their control. And then the final example that we used was the worker that was employed as a plumber -the activities from work resulted in compensable lateral epicondilitis and the retraining plan was to train him to become self employed as a plumber. Again the rationale being that he would have more control over his own work. And all those examples, Ms Wakelin agreed didn't make a lot of sense and again there needs to be some system in place to identify those to ensure that there is a quality control. The statistics also show indications of concern and raise accountability questions. We had received statistics that the vocational rehabilitation expenditures
• In 1993 was $48.5 million
• In 1994 was $68.6 million
• In 1995 was $64.1 million
• In 1996 was $43.4 million
• And in 1997 was $42.3 million.
• So there has been a reduction in the expenditures but you look at the number of referrals - in 1993 there were over 9000 referrals for a per claim cost of $5,332.
• In 1997 there were 2300 less referrals - 6731 - but the cost per claim went up to $6284. So a $900 plus more per claim when there's 2300 less claims. Now again the employer community doesn't have the answer if that's good, bad, indifferent. The way it was raised by I think it was Mr. Buchhorn was you don't measure in terms of dollars - you measure in terms of quality. What the employer community is looking for is measurement. These are factors that may help; they may raise questions that when answered say these are valid expenditures but right now we don't see those measures to help us weigh it - is this a valid expenditure? The Board has talked about putting in durability standards as one test of measuring. I think Mr. Buchhorn would like to see 6 months; I think Ms Wakelin said 6 months would be nice but when you look elsewhere it is 3 months - that may be low but that may be where we start. But right now we're not sure that there is any measurement on the success of these programs and the expenditure of money. And I think this would help the Board know is this a valid way to retrain? When we put the money in this way does it work?
• Q: Do you think durability is a valid measure of the success of rehabilitation program?
• A: It depends on what you add in with durability and you add in long enough. A person who returns to work in their own job or a different job; that maintains that; has been able to be promoted through that job; who has shown that through some accommodation can continue to do that job; does believe - show an element of durability. A person that that losses a job for a reason unrelated to the disability I think is neutral to durability. And a person that comes back and shows that the position is not within their physical or psychological capabilities is detrimental to durability.
• Q: But if the objective of rehabilitation is if I understand you just stated is not from the Board's perspective employment, but rather employability and restoration of function what's durability got to do with it anyways?
• A: I think the employer community is saying it's a mix; we certainly agree with the preliminary goal of returning that person to active employment - what we are saying is we think there is a line that we are not sure Mr. Buchhorn recognized until the very, very end - the line may be too far under his description on where the Board has to say all we can do on the actual employment side have we done all we can do on the employability side? I agree durability on employability doesn't seem to be an overly relevant factor unless over time employability turns into actual employment and then you can start weighing did we do our job on employability with respect to durability and the employment you receive? But I certainly agree that durability would be lesser if at all a relevant factor on a person who no - who is returned to pre-earning capability but does not have pre-earning employment.
• Q: How do you test those things in the model that we've experienced was back injuries and someone who has gone through a back clinic - a back pain clinic - the actually do their funding to those clinics based on whether or not people actually are able to return to work for a period of time. The testing of them.
• A: You are asking me questions, which are one of my acknowledged areas of weakness. I assume that we would just have to work off the reports and that we're going to assist in - we have service providers if that is who we use that have consistent training, and analysis and reports that we can weigh one versus another versus another and if they are credible we have at least the objective of evidence that comes from a multi-faceted interdisciplinary evaluation - you have medical, occupational, functional, other functional rehabilitation, psychological, and you are weighing the results to determine on whether you've achieved the objective of defining where is the line of return to employability and have you achieved that goal of doing the most you can. This is all assuming that you have not met the preliminary goal of return to employment. But beyond that it's not an area that I have a lot of expertise to say what can we build factors in to test employability as opposed to employment. I'm sure there's more than just durability for employment also.
• Q: What other measures then were you mentioning or thinking of when you said that durability might be problematic - do you have other ideas?
• A: No, I haven't given thought but I will again talk - try to talk to others and can assist you at a later presentation do so.
• Q: Okay.
• Those are all the comments I had on the first topic, which I call general comments. I would like to move to income continuity if I may.
• Q: Maybe just before you go on; in case you don't' come back to this - as the component of any given vocational rehabilitation program I gather it's not necessarily you're saying that restoration of function - does it mean that you can't consider personal factors such as language skills or other factors unrelated to the disability itself - in other words not caused directly by the injury but which will or may have some impact or effect on the ability of the person to become re-employed or gain -get gainful employment. Can those factors in your view or your clients' view be considered and addressed as part of a vocational rehabilitation program?
• A: Again, now this is a question I'm going to answer without any prior discussion with clients or - I like to get that on the record when I say something. I think that that definitely has to have a role in vocational rehabilitation - this is different than when we get into the pension side this afternoon. We talked about - now you are providing compensation as opposed to vocational rehabilitation. But if you are trying to maximize long term earnings of disabled worker and they don't have a good command of the primary language skills that they need in BC and let's assume it's English. The Board agreed and I gave the case where there was a problem that they will provide training for English as a Second Language to improve those skills if that is seen as needed to help maximize the earnings of the disabled worker. I think that is a valid consideration in the vocational rehabilitation side. Again, there's going to come a point and that is where I think the problem is - if the Board can't achieve through proper efforts on giving the person a better command of English - it just doesn't work - I don't think that equates then to the other side so now they have to pay him compensation for life. And we'll get to that in pensions. But certainly on the vocational rehabilitation side I think is a relevant consideration that you've raised.
• Q: The answer to this question may be pension - but I want to ask it anyway - what do you think you do with the millwright that is 57 years old; who is permanently disabled from their own occupation that can't go back there; that speaks reasonably good English and has a grade 6 education or a grade 8 education - not high education to move on to something else. Like, at what point do you say this is just what - an long term disability claim I think I was involved in - they just - they are a group five - you just have to accept it - you are responsible for the fact that they are totally and permanently disabled from their own occupation and look after them until there's an opportunity for them to take early retirement.
• A: You see, I don't accept that. The example you gave me - you have a 57 year old person and because - I take it - they are 57 and they have a grade six education - they find themselves not employable - the disability is one factor that led to the situation but it is not the reason they are unemployable by itself. So when we get into and talk this afternoon we are going to say that yes - we recognize that that person is going to get a pension and they should get a pension if they are permanently disabled. The key question is going to be should they get a loss of earnings pension because they were aged 57 and that the employer community believes does not correlate because they were a certain age. You put that person in the exact same situation without the disability; take the forestry industry and you see the number of people being put out of work for economic reasons - that person is in the exact same situation in that they have skills that they could use if they could work but they still have great difficulty and they have a grade 6 education and they may have difficulties in the English language and they are 57.
• Q: No, the point I'm making is it - does it make sense to spend the time and the vocational rehabilitation effort to retrain the individual for two years in order to be able to work for another 1 to 5 years? That's the question.
• A: It makes sense; I can't answer that - in certain cases it might - in certain cases it might not. If the person is determined from vocational rehabilitation to be someone who is not going to receive any benefits from vocational rehabilitation training - either because they are 57 - when you are 57 - you view your status in life a lot different than when you are 27 -their education skills are lower and it's not going to be easy to change at that age - their language skills - I think that vocational rehabilitation has to make that decision up front as opposed to spending the two years to find out at the end of the day that they are not getting anywhere and then it becomes a pension issue. But no I don't advocate spending vocational rehabilitation on a situation that if it is determined that there is no basis that it's going to have any benefit - now, I'm not saying that it's going to happen very often - it will be very rare case where vocational rehabilitation says - no benefit at all.
• I will turn now to income continuity; the intent of income continuity payments is set out in section number 89.11 of the Claims Manual; I have provided you with that page.
• It should be the top document after the yellow sheet. It's the second full paragraph that sets out what I believe to be the intent - consideration may be given to the payment of a rehabilitation allowance between the period following the determination of wage loss payments and the commencement of the permanent partial disability pension. So this is what I think people have called a bridging period while they are waiting to get their pensions done. Employers agree with the concept. We certainly do not believe that it should be the worker that suffers because wage loss has been terminated and they are waiting for pension to be implemented. But the employer community sees the problem being on the pension side. And the employer community has a lot of problems with using income continuity as the solution to what the problem is on the pension side and I'm going to come to that in a minute. Because in effect all you are doing with income continuity then if you just purely use it, as a bridge is that it is an extension of wage loss. That is all it is. Now when you look at this manual policy it sets out two criteria needed for income continuity and I think that's the key. And this is in the same paragraph - it says in the fifth line down of that second paragraph - these payments will apply to cases where there's likely to be either a significant permanent partial disability award based on the permanent disability evaluation schedule or a likelihood that the pension will be calculated on the worker's potential loss of earnings under section 23.3. So there's one criteria - likelihood of a pension. Significant functional pension or a loss of earnings pension.
• But there is a second criteria - and that is the next sentence - the payment is generally based initially on the same rate as the wage loss benefits and it is paid on the expectation that the worker as far as capable actively participates in the rehabilitation process. And that is a criteria that we seem to lose sight of - or at least the Vocational Rehabilitation Department seems to lose sight of. The employers agree with these criteria and agree that the continuity - the income continuity should be used when both those criteria are met. But it is clear from the Board's presentation that the second criteria - the active participation as far as capable in the rehabilitation process is not followed. We start with section 16.1; this is where the vocational rehabilitation are paid - they are not paid under sections 29 and 30 which is temporary wage loss. They are paid under section 16.1. Section 16.1 payments are discretionary. But they must meet the purpose of payment set out in the opening words of section 16.1. And the opening words say this - to aid in getting the injured workers back to work or to assist in lessening or removing a resulting handicap. One of those two criteria purposes have to be met for the discretionary nature of vocational rehabilitation benefits to be provided. Without criteria two in the manual - the active participation in rehabilitation as far as capable in my submission you cannot meet the purposes in section 16.1. The worker has to be actively participating as far as capable in rehabilitation efforts to be entitled under section 16.1 for any benefit.
• Q: What if the worker says - I don't want rehabilitation - just give me the pension?
• A: I think we would all like to have the system deal with that - let's get the pension done now. The problem is that the Board is not capable at this point in time in answering that so what they do is they put them on income continuity. In my submission that is not the appropriate way to deal with the matter because they are using income continuity for a purpose that it was never envisioned for and pension was envisioned to deal with that but the system is just too slow.
• Q: But if a worker is convinced that he is not going to benefit necessarily from the vocational rehabilitation program and he has his own initiatives and ideas and he doesn't want anything to do with the Board after his injury and he has recovered and wants his pension - why should he be penalized in terms of income continuity issues simply because the Board can't get his pension out for 8 months?
• A: And I think the solution again is on the pension side -that the Board either expedites - the problem with the Board now is that they don't expedite the perfo - the functional evaluation and if it is done they hold it back until they get the loss of earnings and the employability assessment - that causes a significant problem in doing anything for the worker. They clearly can do the functional in a much more timely manner and work out the functional level of disability. And apply that so that we have the functional level in place - so it is not a total cut off.
• Then that leaves the loss of earnings side and if the employee just refuses to cooperate we are getting into the deeming section. And there must be a way that the Board can expedite those matters on the loss of earnings but at least in the interim we have the functional not just sitting - we have the functional evaluation put into place - that's a start. They there may be a way if Board believes that we're going to end up in a loss of earnings on the deeming side because the worker refuses to cooperate. Mr. Buchhorn tried to explain how we get into the low entry positions of a WalMart Greeter or a gas station attendant and what he said is we use those usually as a last resort. The concept is you probably can get minimum wage. We find that you can do something and so we are looking at minimum wage and that's the lowest you are going to get. And these are jobs that are minimum wage jobs. It's not intended to be a derogatory or insulting to the worker even thought that is the way they take it. It 's intended to be a reflection of - we make an assessment that you can still work - these are the kinds of jobs that are at the minimum wage that you can do. If the assessment under deeming at that very base level would still be an increase over the functional then that could be implemented to if it looks like it's going to be a loss of earnings pension on the case. If it looks like there may be no loss of earnings it means then that the functional by itself should be enough to carry the employee until the time that we get to the final loss of earnings and a final decision on whether that should be done or not. But again I think it is to expedite the process; I don't think there is a problem in expediting the functional evaluation. I think the problem that was identified was the employability assessment. Maybe there's a way and I'm not advocating this but maybe there's a way of doing it in advance that can be recovered if the worker does receive further amounts from the Board. I don't like it because it builds in hypotheticals and then you get into the overpayment question; what if it doesn't have more amounts or the employee - what does that do to the employee when you try and take back. I prefer doing the functional and doing that quickly and implementing quickly.
• And again we are not that there should be no bridging. The continuity of income still has important purposes when you are in the rehabilitation and hopefully most of the employees will go into rehabilitation with the right motivation. Code U is now used for planning; Code R used to do that. Planning should have some more active participation then in what in my experience and in the file that I deal with which a small minority is every two or three months there is a meeting at the employer's premises that is attended by the vocational rehabilitation consultant, sometimes by the Board medical advisor, by the worker - if there is a union by the union, and sometimes by the family doctor, and by the employer. That's great but if you do that every two or three months and say that's planning and income continuity is paid throughout the full period of time then my assertion is that it goes against what the intent was. Equally if the person is actively involved in rehabilitation, whether they are on a pension or not they get income continuity and that's appropriate. A person who is at the rehabilitation clinic here for 4 weeks or 6 weeks is going to get full wage loss regardless of what the pension level is. And that is appropriate. They are actively participating. There is all sorts of discussion on what's the difference between Code R as it was and Code U as it is - the new code but when you look at the numbers and I've provided you with the charts - but for time convenience I won't spend on it. I took it out of Ms Wakelin's presentation. And the first two charts show Code R expenditures and Code U expenditures. From - specifically before 1995 and 1995 on. Code U has clearly replaced Code R. the money is now there. In and in fact more money is spent in Code U total than had been spent in Code R. I think code U is up to $13 million in 1996 and a little more than that in 1997. Code R in 1994 was $8 million - $8.5 million. In 1995 Code R was $7.5 million and code U was $3.5 to 4 million so that was $11 to 12 million. Now Code R is in a negative so they say and I won't get into why it is negative; I accept their reasoning. But that's discounting; they seem to be saying what a great job we did in Code R. All they did was move it to Code U.
• Q: Code e seems to have fallen at the same time?
• A: I think when you compare them all you'll see that the code U has absorbed most of the reduction but yes Code e has dropped. There is no doubt that expenditures in rehabilitation has dropped. They were at $64 million in 1993/94 and in 1994/95 they dropped to $48 million so I think you see that primarily in Code e.
• The real concern in the discussion I had with Ms Wakelin is on the chart -the Vocational Rehabilitation Assistance chart - that's the third page of what I provided you - the first one is the chart about vocational rehabilitation expenditure by code. There's three pages attached from her presentation. It is this document. And it is the third page. And the highlighted area or the area I want to highlight is that at the top of the sequential box it says - Worker refuses to cooperate -the example that Judge Gill was asking me about and all the way through to after it starts on Code U and then you get the employability assessment and then you switch to Code R for 30 days - that whole period of time - even though the employee has refused to cooperate - the worker gets income continuity - it doesn't make any sense from the vocational rehabilitation side. And they can't give wage loss under sections 29 and 30 because they have found that they have stabilized. They should be given a pension that goes back to that date but again it's the pension system that's the problem. And the vocational rehabilitation is causing its own problem by using the income continuity for an improper purpose. So again the solution lies in the pension side but primarily in my submission in getting that functional evaluation done - expedited which I think can be done and is done in some cases but implementing it as opposed to waiting. And then dealing with the loss of earnings employability assessment if need be while the worker I receiving the functional pension.
• If I may I would like to turn to mandatory re-employment for a few minutes. The employer community does not support the concept of introducing mandatory re-employment provisions into the workers' compensation Act. There are several reasons behind this for time purposes I will only be able to identify without getting into any real discussion but they are all summarized and take primarily from two papers - they were produced by Professor Ison both of which I identified when I was discussing the topic with the presenters on Vocational Rehabilitation Day. It is found in item 105 - which is a reported decision at 2 WCR 33-that was a discussion paper prepared by Professor Ison who was then Chairman of the Board in a response from a request from the Minister of Labour. And the paper dealt with the following question - What are the advantages and disadvantages of a statutory requirement that where a worker is injured in the course of employment the employer in whose service he was in at the time of injury should be required to provide him continued employment upon his recovery?
• Professor Ison also deal with this topic more recently in 1994 in his book entitled - Compensation Systems for Injury and Disease: Policy Choices -and it is found in pages 95 to 101. In summary form I believe it would be fair to say that Professor Ison is not in favour of introducing mandatory re-employment provisions within the workers' compensation legislation. And the reasons given -just to highlight them - it was his view which I tend to agree that in broad terms the mandatory re-employment provisions tend to create a negative image of the disabled worker as being a burden that the pre-injury employer must bear. And when you start with negative images and build a system around that I think you are building in negatives as opposed to positives. Second concern - the right to re-employment may result in a detrimental impact to any other rehabilitation effort that is being made. From the worker's perspective they may be disinclined to consider other rehabilitation efforts when the worker knows that the pre-injury employer may take him or her back. From the rehabilitation consultant's perspective it may be a disincentive to look at other alternatives or determine if it is in the best interests of the worker to return to the former work environment. And again I agree with Professor Ison's view on page 100 of his book -the 1994 book - where an injury employer has a statutory obligation to find a job for a disabled worker - it is unrealistic to expect the Workers' Compensation Board to consider whether retraining or other services may be necessary for alternative employment. A statutory right to continue to perform employment does not preclude the Workers' Compensation Board from offering other assistance but it makes it less likely that other forms of rehabilitation will be considered. Professor Ison also raised concerns about the types of job that might be offered to the pre-injury - by the pre-injury employer to meet the statutory obligations - would they be offering an unsuitable job to the worker or one which the worker doesn't want or like so he may either refuse it or end up taking and causing other personnel or labour relations problems that goes along. And making the Board - the rehabilitation consultant a policing role which will impact on the relationship between the employer and the rehabilitation consultant. Professor Ison also identified enforcement difficulties that re-employment obligations are generally time limited. That employers may discharge workers for other reasons during the period and then you get into discussions of what were the reasons and determinations and adjudications on that. You also can prevent the worker from terminating the time-limited period. You raised questions and what about seasonal and temporary - casual employees and how is it going to apply to them?
• It is probable that mandatory re-employment is not feasible to impose on all industries such as construction where the hiring process is a very different one or particularly with small sized businesses and it's noted that many of the jurisdictions that do have these provisions -they exclude the application to employers who the usual - the test is 20 workers or less. Finally I must agree with Professor Ison when he questions on page 39 of Decision 105 whether the introduction of such a statutory obligation produced much of a gain in any event. He says this -another argument is that a statutory obligation would not induce much of a gain in any event - most employers do rehire their own disabled workers wherever possible so that the gain in value by a statutory obligation would not be very great. There are clearly reasons that employers will be offering re-employment to injured workers - there are human rights concerns, there are collective agreement requirements, there's values for employers in having experienced, trained members of their own workforce return to the overall operation and there are moral reasons some employers face. So you are really directing mandatory re-employment provisions on situations where the employer or the worker does not want to have a return to work and the question that has to be answered - is there real value in such situation of having mandatory re-employment or is it in fact going to cause more problems as identified already during my discussion today than it actually resolves.
• Finally on the point - I refer to the recommendation - or the comment of the - in the Workers' Compensation Board briefing paper dated January 23 1997 - on page 18 - the models being proposed by other provinces offer some interesting examples for BC to consider - it may however be advantageous for BC to monitor the experience of other jurisdictions before setting a new course - if that course includes legislatively mandated provisions - his caution was based on what they perceived to be the experience in Ontario when introduction of mandatory provisions of re-employment were entered in 1992 and have led to "increased litigiousness" - and decreased ability to respond to the nuances of individual situations and escalating administrative costs.
• JIM SAYRE
• I think you all have my material that I distributed this morning. It's a further submission regarding both of the two issues that I will be dealing with today on rehabilitation and pensions. And a couple of handouts - one for each issue. Before turning to that and going through some of the key areas that affect injured workers most in connection with rehabilitation I wanted to make a couple of comments regarding the employers' issues this morning.
• First two very brief comments concerning the new material Mr. Winter raised about funding. There was a discussion about hours - he made a number of points about the question of using hours as opposed to payroll to determine assessments. It seemed to me in listening to him that a lot of what he said was true if one looks at short-term injuries. Short term injuries are indeed - the benefits flowing from short term injuries do indeed depend on date of injury earnings and it's the employee with the higher payroll probably should pay more for short term injuries. They are the same -the point I was making last week is that the same thing can not be said or should not be said for long term injuries and I'll be dealing with that at some length this afternoon. The importance of taking a really broad perspective when we are dealing with a benefit - a pension benefit that's going to be payable for life as a result of a worker. I don't' know how you mix those two; neither system truly represents the actual risk to the Board of an injury in the kind of an example I gave on Thursday last week. As far as the 39(1)(e) issue is concerned I think I agree that - I didn't read this decision; I listened to what Mr. Winter said about it and I think I agree that there is no logical reason if 39(1)(e) continues in its present form why it shouldn't apply to fatalities just as much as any other sort of injury claim. But I would point out that if you were to accept my recommendation which is that experience rating assessment or whatever term it is called be based on employer responsibility for the injury the scenario presented by this particular case where the worker had an aneurysm and nobody knew about it would not have led to any assessment to the employer in any event.
• It's only because we don't have a link between employer responsibility and extra assessments to an injury that we have to worry about issues like this.
• Going on then to this morning's topic.
• It will be our position once again returning to the report of the Auditor General when three guidelines of the Auditor General suggested for determining whether the Board has met its mandate. Two of those guidelines are directly concerned with the issues that we'll be talking about today. One of them was whether the Board has successfully enabled the worker to return to work and whether that return to work has turned out to be durable or not - that will be this morning's topic and the second one which really goes hand in hand is whether the worker has been able to equal the pre-injury earnings following the injury by combining the earnings that the worker can come up with after the return to work in combination with whatever pension benefits the Board is paying. I said that in a rather complicated way. Simply put is the worker receiving as much income at the end of the day when the claim has been adjudicated as he was before the injury? As I said last week we are in full agreement that that is a very sound approach to determining whether the Board after all of the various statutory and policy issues have been worked around and implemented in connection with that particular claim whether the Board has in fact accomplished what the Act was supposed to be there for or not.
• I listened to Mr. Winter's presentation this morning with some - some pleasure because I find that I can agree with considerable of what he said. Don't worry I won't agree with everything but probably more than more than most other issues that we've dealt with so far. I'll be talking a little later about the concept of making rehabilitation a mandatory right as opposed to a matter of discretion. We think that it should be a right however we do agree certainly with the comment Ms Wakelin made last month that people should not be getting vocational rehabilitation for any kind of temporary injury. Rehabilitation should - vocational rehabilitation should be reserved for cases where the worker is not going to be able to recover so I'm not sure what the point of paper cuts were - I can't really imagine why anybody would suggest that a worker that has any form of temporary injury whether it was as trivial as that or something more serious should receive benefits unless they are no going to return to their pre-injury physical condition. So we would support the limiting of the right of the right to rehabilitation - vocational rehabilitation to those types of cases and I'll go into that with as much detail as time allows us this morning. We are pleased that the employers agree that where vocational rehabilitation is needed it should be a mandatory right as opposed to matter of Board discretion. I suspect that we won't always agree with employers about when it is needed but it's nice to know that we at least agree on the general principle. The employers' position is that the goal of vocational rehabilitation is to get workers back to their pre-injury earnings level - we agree with that completely. And encourage the Royal Commission to do whatever is necessary to make sure that that actually happens much more often than it does now. The employers' position is that rehabilitation should not be delayed for a long time after the injury; it should begin - or at least the consideration of it should begin quickly, as soon as it is known that it is probably going to be needed. We agree with that.
• The employers want more accountability in the way money is spent and surprisingly injured workers agree with that as well because when money is spent in frivolous ways or poorly thought out ways what usually ends up happening is that when that worker finds that the rehabilitation was illusory and they don't really - they can't really return to their pre-injury earnings the board is likely to say - well look at all this money we've spent- we can't authorize anything more on this claim. So while - I can't comment on the specific cases that were mentioned the golf pro and so on but cases like that or other cases - much more common cases that I'll be talking about in a moment when the Board engages in what I would call cookie cutter rehabilitation. The result is that having gone through one program it becomes much harder for the worker to convince the Board to undertake any more realistic and serious program of rehabilitation. So it is important that the Board be accountable for making sensible, defendable plans initially so that once they are carried out the worker will actually have employment to go back to. We even agree with what the employer said about rehabilitation in cases where there are non-work factors as well as work factors that are causing the worker to need assistance in finding other work. We are going to totally disagree with what Mr. Winter is likely to be saying this afternoon that somehow a worker in that situation should not receive pension based on their actual loss of earnings - or as I would call their actual loss of earnings by reason of the injury. I was pleased to hear that at least employers will agree the fact that there may be language, or lack - or poor educational level factors - people who have come from other countries and their education isn't relevant to the Canadian workforce - the people in those categories should still be fully entitled to vocational rehabilitation assistance at the Board.
• Finally before leaving the subject of what we agree upon the employers are concerned about income continuity that it should not drag on for a lengthy period of time. We think that there is a better answer; we think that that may well be a problem. I have dealt with that in my written submission under the heading of Alphabet Soup. We think that there is in fact a better way to get around that whole dilemma which is to simply put - use case management as it has been described to us by the Board's presenters to make the pension assessment process much more - a much quicker one than is now. I don't see why it couldn't be completed in less than a month in most cases. And to change the policy so that it and the Act if necessary so that wage loss benefits don't terminated until the pension decision is made. In other words eliminate the whole cluster of various kinds of rehabilitation monies that get paid and recovered and so on and shuffled around with criteria for them, different decisions which all of which are appealable. And just generally confuse the claim and may demoralize the worker at a very sensitive stage in the worker's post injury course when they've - when they are being told that wage loss benefits and when rehabilitation may have reached its end as well in some cases. We think that's the last time the worker needs to be hit a reduced benefit, which is temporary anyway based on an employability assessment which has not been an actual decision which is intended to measure long term employability as opposed to what the worker could earn right now and yet is being applied to the benefits which the worker receives right now. We think that makes no sense at all.
• So our recommendation on that - and I won't come back to this when go through the rest of my submission - is that the continuity of income benefits would be eliminated by extending the wage loss benefits until the Board is able to make the pension decision and we think that if that were the rule that the Board would be highly motivated to make wage loss - pension decisions quite promptly and that the case management process will combine perhaps with the kind of technological changes that were exemplified by the ARCON pilot project or something similar to that. That will enable the Board to make - to cover all the elements of the pension decision much more quickly than it's been doing in the last few years. As I said I don't see why given the way the process has been described why the Board wouldn't be able to conclude a pension decision within four weeks or so of being advised that the worker's condition is not expected to change.
• Finally, I see that I even agree I think with Professor Ison's concerns as related by Mr. Winter concerning mandatory re-employment. It was a initiative taken by the Ontario government - the former Ontario government and contained in the Ontario workers' compensation Act and I remember when I first heard about it that I was much less impressed than some other advocates were about the benefit that that give to injured workers and I - interestingly enough I saw that many of the same concerns were listed by Professor Ison - and came to my mind as well that all your going to get if you rely on a statutory right is to come back to the pre-injury employer that was really a good place for the worker there or not is a kind of a job ghetto which may well disappear as soon as the minimum period is over and from which the worker will have very few options to move. And which will not be available obviously if the pre-injury employer happens to have gone out of business. There are far better ways of the Board to secure long term durable return to work than simply to legislatively force the pre-injury employer to take the worker back whether there is an appropriate place there for him or not. I'm not sure that it would harm anything to have a right to re-employment subject to a number of provisos such as that there is an appropriate position there and so on. But Human Rights legislation may well provide that same sort of legal right right now outside the workers' compensation system altogether through the concept of the duty of accommodation. So that I don't that a limited proviso - provision of that sort would really add very much to what the Human Rights Act already gives us in cases where that's what the worker wants. It does seem to me in terms of re-employment that any situation in which an employer has to be forced to take a worker back is almost by definition less than fully satisfactory. It may still be appropriate in some cases to force the employer to do that - particularly large employers -and it may well be that such situations once the worker is back will work out. But it's obviously starting with at least one strike against the worker to be back at working with someone who doesn't want them there. And if we can find a better way of getting the person back to work at their pre-injury earning level then I think that's clearly what the Board's priority ought to be.
• I mentioned a moment ago the phrase cookie cutter rehabilitation. One of the typical problems with rehabilitation that has occurred very, very commonly prior to 1991 was that and not - and more frequently than it should since then I might add -is that workers are guided into certain occupations which seem to be a kind of a fad at the time with the Board. I remember when I first came to Vancouver and took the job I've got now back in 1987 it seemed like everybody with a back injury was being turned into a truck driver. And the example that that - that example is also I think useful in understanding some of the other issues that arise out of the rehabilitation area - the Board had no commitment to actually finding work for these newly trained truck drivers. They simply put them through a course; said that they were now truck drivers - therefore their earning capacity was a rather optimistic view of what truck drivers were seen to be able to earn at the time and adjusted their pension benefits accordingly. I had a number of workers who had been put through such courses; none of them had ever driven a truck. I number of them said they never wanted to but they were told they had to take that as a form of rehabilitation because that's what the Board thought was appropriate. The worker was very definitely not an active part in the case management of those claims. Now that's ten years ago; we've heard a lot from the Board's presenters over the last couple of months assuring us that that's not the way the Board is intending to do its business in the next ten years. And I think on behalf of injured workers I am very pleased with that change provided it is a sincere one and that it actually is reflected in the way that individual injured workers are treated on a case by case basis. There's a lot of good rhetoric in the material that's been distributed on case management; a lot of general commitment to concepts of making the worker and the worker's doctor an active partner. Starting the rehabilitation and the return to work planning process at a very early stage so that it doesn't become an instant crisis when the worker is told - A. his wage loss benefits are being terminated and B. you better start some rehabilitation because otherwise we are not going to give you any money. And that's - that was another aspect of the former system that was very detrimental to workers - it put the workers under the gun and explains why some of them did agree to such programs as truck driving and whatever because at least they could get a few weeks of benefits out of it while they were taking the course. I think other cookie cutter types of rehabilitation over the years - a lot of different computer training fields have been popular with various consultants - I understand although I haven't had any clients that have been faced with this that there was a time when the Board was supporting the training of a lot of goldsmiths - I wouldn't have thought that goldsmithing was a particular growth industry but I heard a number of people at our advocacy group meetings talking about how a lot of people were being told that that was a great field to get into and the Board would sponsor them and sort of encouraging the worker to go in that direction. One of the - as I said the questions that we are talking about this morning have a number of impacts - a number of relations to some of the big issues that face injured workers. One of the reasons that inappropriate rehabilitation options such as the ones that I've mentioned aren't simply rejected out of hand by the worker is that the worker has no active representation at the time that they are faced with this. Representation - if they get it all often comes when an appeal has been filed and the worker is getting ready for their hearing. We are talking now about initial decisions and the earlier they are made the better from the perspective of getting the worker back to work. But only if they are made appropriately. Another aspect of this cookie cutter problem is that until - at least until case management is really implemented as we've been promised it will be - the Board often doesn't get into rehabilitation discussions with a worker until wage loss benefits are terminated or about to be terminated. And the worker is faced with the dilemma that if they don't use - the use of phrase that's been turned - that's been used to day - if they don't actively cooperate with the rehabilitation efforts of the Board then they aren't going to get anything. And it may be a matter of months - certainly it was a matter of months in recent years - if not years - before the pension was assessed. I've had cases where the pension assessment process took nearly two years. And it's - I think the average time was nearly a year. So to be faced with the choice for that length of time with no assistance I think many injured workers; many of us faced with that option would probably agree to almost anything in order to keep those cheques coming. That is what led a lot of people to being trained for employability when in fact there was no job to be employed in once the training finished. That sort of leads me to the third feature of the old rehabilitation system and the problem that arose out of it and that is that the board was satisfied with maximizing the worker's earning capacity and employability as they saw it and didn't feel any obligation to actually find such employment for the worker. It's very easy to find something - generally of course as cheaply as possible but not necessarily that the worker can be sponsored to undertake. When the consultant knows that it is going to be the end of the board's responsibility and that if the worker goes out into the marketplace and finds that there are no trucking firms that are interested in hiring him or that in some cases I've had clients with leg injuries that couldn't drive a truck with a manual shift in the clutch because it hurt their leg too much to use the clutch and for some reason nobody seemed to have picked up on that before the course was started and the worker would complain about the course and nothing much would happen. But all of these things are related to the fact that the Board had no obligation to assist the motivated worker let alone the one that may be seen to be not motivated to find actual employment. The Board could put them through a course, maybe give them a few weeks of job search allowance and then say well that's it - you're on your own. And one area where we sharply divert from employers this morning is we don't think that's good enough. We think that the Board should be obliged to continue active rehabilitation efforts until the worker is actually able to find work in the field that has been jointly chosen by all parties - as I understand it - in the rehabilitation plan that has been created. And if it turns out there is no such job out there - despite the best efforts of the Board and the kind of incentives that the Board can offer and the best efforts of the worker in trying to find such work and it just isn't there then that's an indication that the plan was unrealistic and a new plan and a new initiative has to be undertaken. It's not a reason to cut the worker loose. And leave him or her unemployed and disabled and say well we've done all you can - you're on your own now. It's a reasons to go back to the drawing board and say - alright that - that plan didn't work now let's try to take advantage of some hindsight and figure out why it didn't work and come up with a plan that will work.
• Q: Will you ever say that this is far as the Board is going to go? At some point - I guess what I'm asking is how do you differentiate the worker whose had considerable rehabilitation, and training given and is virtually now at a level of training and employability at least makes that person virtually indistinguishable from a non-disabled person who is also unemployed and can't find work?
• A: I guess it would depend on the individual facts but I'm not sure I understand how the person could be at a level of employability and be unable - with the best efforts of themselves and the Board to find work. I suppose if there was a massive recession that happened to occur just as the rehabilitation program was drawing to an end - transportation ceased and all truck drivers - truck drivers are a bad example but - whatever occupation it is - everybody was being laid off then it would be an extra challenge for the Board to find work for that person. But I think in any kind of normal economic times the fact that there is no work out there for the person after they've completed their training means that the training wasn't a realistic plan to begin with. And let's face it - the Board has a lot of tools in its arsenal to assist a worker in getting back to work that the average unemployed person doesn't have. The Board can offer the employer incentives to - in terms of sharing the cost of wages for the first period of time to give the worker a chance - training on the job money and that sort of thing - which aren't available to the ordinary unemployed person. So if even those kinds of carrots - those kind of incentives are insufficient to motivate an employer to give the worker a chance then I don't know how realistic it is to suggest that - that worker is ever going to find work. So essentially my answer is that - at least in normal economic times or anything close to normal economic times that the Board should never be satisfied and wash its hands of a worker unless the worker has actually been returned to work or unless the Board is prepared - and I think this picks up on the question Mr. Stoney asked Mr. Winter earlier this morning - if you have the 57 year old millwright and it just doesn't make sense for the Board to retrain that person because of their educational level and so on - it doesn't make economic sense for the Board to retrain that person - it's probably not realistic in the sense that who is going to hire this person when they have all kinds of skills that they've learned on the job as a millwright but they can't use those any more so if they were retrained as an office type of occupation - even assuming that you could bring their English, and writing levels and so on up to what they would need for that - the employer would be asked to hire somebody that would by that time be probably be in their sixties. And rightly or wrongly - most employers are looking for younger employees that have a longer work future with them so it may well be that cases like that - the appropriate result is for the Board to recognize that this work in that particular time and place of their life is unemployable. But the result of that should be 100% loss of earnings pension. So that's the out for the Board - they can stop spending the rehabilitation money if they consider it a waste of time and effort to do so but then they have to compensate the worker accordingly. I suppose I have given a little bit of my submission this afternoon but that's all right.
• Q: Just to pick up on that and my earlier question - do you have - one of the submissions or common elements of the submissions we've heard during the public hearings from injured workers was a request to have more input in the vocational rehabilitation and training options - that planning process. And it would appear certainly this case management model is moving towards that -greater level of injured worker input and decision-making. I am wondering what your thoughts are with respect to the consequences of certain choices or decisions that are jointly made but necessarily work out in terms of achieving employment? So the worker says I'd like to do occupation X - after considering all my choices; the worker then gets training so that he can do occupation X and then can't find a job in occupation X - should he go back and retrain for occupation Y? Or is there some element there of finality as a result of the joint decision that was made?
• A: I don't think there is ever an element of finality in the rehabilitation process, but I also wouldn't go so far as to say that there should be a statutory right in a case like that to keep coming back to occupations Y and Z and Alpha and Beta and whatever the next letters are. Repeatedly, the problem is that even as you posed the question it is a joint decision. It is not just the worker arbitrarily saying I'm going to retrain myself to be a rocket scientist - knowing that level of training doesn't lead to any employability of a rocket scientist. The Board would say no and would rightly say no. So the Board in a sense and the Board is the expert in the area. The Board's consultants are the people that are supposed to have the broadest possible base of knowledge in what sorts of occupations will lead to some real employment opportunities. If the Board knows that at the end of the training process they are going to have to continue the rehabilitation assistance until the worker is able to find that work then I wouldn't expert the Board to be approving occupations that aren't realistic. If a mistake is made it's at least as much responsibility as the Board's as it is the worker's - perhaps moreso particularly if the worker - as most of them will be at this point - unrepresented - the worker is not an expert; the Board is. So I don't it is not quite the same thing as going to your high school guidance counsellor and being asked well what are you going to do with the rest of your life and giving an unrealistic answer and the counsellor says - well I don't really think there is much out there but if that is what you want to go for it. The rehabilitation consultant did not say go for it or at least shouldn't say go for it and will - and that will be your rehabilitation. There has to be a joint decision and a realistic goal that there will be a job at the end of the line for the worker. I'm a little hesitant in answering this question because I'm thinking of a couple fo cases that I've been involved with where the worker had a kind of a lifelong dream that they were able to pursue through self-employment. And it was a very particular circumstances but in that case the Board - where the case that the Board did assist the worker and allowed the worker to go in that direction with some assistance - that was very much the right thing to have done. And although we had to go to an appeal over it as I recall. At the end of the day the worker was assisted in being able - and it was - just to give you some more information so you know the kind of thing I'm talking about - the worker was, in fact, a millwright as I recall and couldn't do that any more and had always had an interest in guns and gunsmithing and wanted to pursue that. And was able to become a gunsmith through the assistance of the Board. So it was assistance in pursuing self-employment of a kind that the worker very much wanted. And I suppose one can imagine that type of scenario in which the Board essentially defers to the worker's right to determine their own life and in which the Board would rightly be a little bit slow - 2 or 3 years later to have the worker come back and say well you know I'm not making as much as I used to make and I've decided now I want you to train me in a new technical field.
• Q: What about a circumstance of - we heard that maybe using a criteria -one of the criteria that the - guiding criteria - your pre-injury earnings level might be a way to go. If you have more in the situations where you give the worker the ability to make the decision in his own right - on his own right what he wants to do with his life - let's say you have a bus driver who is earning $60,000 a year prior to injury and decides to use the vocational rehabilitation opportunity to retrain as a teacher?
• A: Do bus drivers make that much?
• Q: I think they do; I don't know. $50-60,000.
• A: Probably should but I would be surprised.
• Q: To - if he is given an opportunity to voluntarily make a decision to change his career and change the course of his life and go into teaching where he may be making only $40-45,000 a year -if that a right that should be given - I mean you know we are now at the criteria doesn't apply - that the Board ought to and they may in fact be a barrier for him to pursue a career that he has had as you suggested as a lifelong ambition or -how would you sort that out?
• A: I think I deal with that in the written material that I've given you and if I understand the scenario that you posed I think that in a case like that the worker should be allowed to determine what they will do with the rest of their life. It is a fundamental issue for us is that this is the worker's life - it is not the Board's life, it's the worker's life and having been disabled and unable to continue with the occupation that they've previously pursued it should be the worker that decides what to do with the rest of it. The Board should facilitate those choices as much as possible and in some cases it may turn out that the worker's choice results in a lower level of earning then they could have obtained in another field that they were well suited for. It's hard to defend the notion that that worker should be entitled to a full loss of earnings pension based on the job that - the lower paying job that they've chosen to go into provided the other one was really there and that's - we suggested here that that is one of the situations in which deeming might be acceptable. Generally speaking we say that deeming for pensions is - should never be the way to go where there is any sort of viable option. But that's a case where there really would not be an option because it would be the worker's own choice to have done that - I suppose a more extreme example would be a worker who has been making $60,000 a year and decides that they want to go out and live in a cabin in the woods and write novels. It will probably lead to no income - I wouldn't go so far as to suggest with a straight face that worker should be entitled to 100% loss of earnings because they are not making any money as a novelist. And that's the choice. I think the Board's policy as I understand it is that where the worker makes the choice that the Board could not approve per se for rehabilitation purposes but where the Board agrees that some expenditure for rehabilitation would have been appropriate that what the Board will do or could do is to allow the worker to have the benefit of that amount of assistance in pursuing what they have chosen to do. So to take the case that you gave where the worker chooses to pursue an option as a teacher; if that wouldn't be an appropriate rehabilitation goal in that particular case where the worker's age and qualifications and previous income and all the other factors but that's really what the worker wants to do then the Board should take the amount of money that they would have spent on getting that worker back to the pre-injury earning and give the worker that amount of money to put toward their training as a teacher - and it probably won't be enough and they are going to have to borrow from Canada Student Loans or dip into savings or whatever resources anyone else would have if they decide to change occupation but the person shouldn't forfeit all assistance from the Board because they don't take the direction the Board sees to be the best way of maximizing their earning in the future. I think there is a middle road there and I think the current policy reflects that. Have I answered your question?
• Q: I think if you have a 25 minutes more - we are at 10:15 would this be a convenient time to take the morning break?
• A: Yes.
• I want to turn now to topics that I discussed in the written material that I gave you. On page 34 there is a heading - Rehabilitation and Case Management: Timing is Almost Everything - and essentially what I do in that heading is to elaborate on the advantages that the case management approach if it is implemented as it was described to us - would have in terms of a successful rehabilitation outcome. It's become pretty well a truism in the workers' compensation community at least and I think generally in the rehabilitation community that the earlier after an injury rehabilitation is undertaken the greater the chance that it will be successful in leading to an actual return to work and that conversely if you wait very long or wait too long after the injury then the chances of successful rehabilitation are much diminished. So in that sense we think that the Board is definitely on the right track in making the return to work process occur as early as possible in the claim and in cases as I understand it at least -where the medical indications from the worker's doctor is that the worker is not going to be able to safely return to the pre-injury employment then the rehabilitation consultant should become involved at an earlier stage as well and the return to work planning should involve vocational rehabilitation efforts and assistance in order to enable the worker to change to a safer and more suitable occupation. It is our view that this has some merit; that this has some implications for the issue of the rate review - the Board has already proposed that the 8 week rate review be delayed to 13 weeks and the primary reason for that proposal is that the Board recognizes the negative consequences in terms of the confidence in the relationship between the worker and the Board when the worker's benefits are reduced - the average I think was $58 a week in a recent year. As a result of going from the date of injury earnings to the Board's calculation of long-term earnings. The rehabilitation process - at least as much as the continuum of care model which I think is concerned as I understand it with physical rehabilitation and work hardening and that sort of concept. But the vocational rehabilitation process also relies very heavily on a sense of cooperation and trust between the worker and the Board and if reducing the worker's wage rate during the continuum of care process from 8 to 12 or 13 weeks is going to damage the prospect of succeeding it seems to us that that must also be true for the prospect of vocational rehabilitation being successful and if the worker and the Board being able to come to an appropriate decision about the rehabilitation plan. So it is our position - to return to an issue that was discussed last week that there should not be an automatic transfer from date of injury earnings to long-term earnings. Instead what the Board should do and I think this was discussed in the 1993 Working Paper - of the Board's working group was - to - as one of the options although the Board didn't recommend it - was to - is to - determine at the outset of a claim whether there is a reason to think that the date of injury earnings would have ceased shortly after the injury. For example if it was a construction job that would have been over in two weeks then it would not be appropriate to continue date of injury earnings indefinitely but in cases where there is no reason where it is basically a permanent employment and there's no indication that the worker would have left that employment in the near future if he or she had not been hurt then wage loss benefits should simply continue at that rate. And that would allow the focus of the worker and the Board to be on the return to work process, on the positive initiatives for rehabilitation - vocational rehabilitation if necessary - as opposed to the worker perhaps going out to seek legal advice - perhaps filing an appeal and so on because of unhappiness over the Board's sudden reduction in the wage rate.
• The next page we talk about the scope of rehabilitation assistance - and from this point on I will be referring partially to a paper, which I distributed along with the actual submissions this morning. Perhaps we should turn to that now and just give you an idea of what it is.
• It is a memorandum dated December 11, 1991 -it was under a green divider page when I gave you the materials this morning. And it is entitled "Defining the Right to Vocational Rehabilitation" - it's on the workers' compensation advocacy group letterhead. This is a proposal for a fairly comprehensive scheme vocational rehabilitation that would make it a statutory right as opposed to a matter of discretion. And the goals of that proposal were that the process be a worker driven - if I can use some jargon - in other words the worker would not be dependent on the Board to initiate the process or helpless if the Board should delay the process. The worker would have the right to initiate the process independently and have assessments and other things done outside. Now once again, as I've said so often back in my submissions, the case management approach may make a number of the features of this proposal unnecessary. At the time, in 1991, when we came up with this approach the present rehabilitation policy had not been created. The policy is later than that. It is a considerable improvement over the policy that was in place in 1991. That being said there is still a lot of benefit in our submission for making rehabilitation a matter of right as a matter of grace on the part of the Board. And we think that a number of the elements of this proposal still bear some examination and consideration by the Royal Commission as possible parts of a new approach to vocational rehabilitation. The first topic there is trigger factors and we talk about essentially what are the eligibility criteria for rehabilitation as it existed then. They haven't changed too greatly in the time since then. And what we are suggesting in the paper is where the worker's doctor is willing to certify that the trigger factors exist then the right of rehabilitation should arise. The factors are that the worker by reason of the disability will be unable to return to the pre-injury occupation, or that - while he may be fit to return to that occupation doing so would involve an undue risk of further injury. Or that to do so would put the worker at a long-term disadvantage compared with others in that occupation compared with alternative occupations. So generally speaking what we are saying here is that where it is reasonable for the Board and the worker to conclude that vocational rehabilitation is needed -I think a term the employers used then the right to rehabilitation as opposed to the Board simply having a discretion to give it should come into being. The timing issue is quite consistent actually with case management. We are suggesting that it should - that the right should arise as soon after the injury as it is possible to determine that the criteria will be met. And I think the proposal for case management is that the return to work process will begin at approximately the same time and in a case where the worker's not going to be able to go back to the pre-injury employment the will involve a vocational rehabilitation plan. The decision making process we discussed in here gives the Board the right to dispute a decision. The Board is ultimately going to have to pay for the cost of rehabilitation and it would be unreasonable not to allow the Board some means of disagreeing with the doctor that rehabilitation is going to be needed. So we are suggesting an expedited process that would lead to a referral to an independent specialist. So what we suggested in page 3 of our proposal in 1991 is that where the Board adjudicator disagrees with the doctor's opinion it would be referred to a medical advisor to see whether the medical advisor also disagrees and if so the determination would be made by a referral to an independent specialist. So that isn't - I don't think it is inconsistent with what we've been saying generally about the role that medical advisors should play and the Board should be going to outside medical specialists to resolve disputes involving medical issues.
• We suggested that the assessment of the and the creation of a vocational rehabilitation plan should be something that worker is entitled to go outside the Board to obtain - to an independent provider. Either because the worker may not trust the Board at that point or because the Board may not be able to respond in a timely fashion. We then discussed disclosure and interim benefits and we talked then about the scope of rehabilitation. And we suggested that there are a number of ways that the scope of rehabilitation could be described. What we are - we are not suggesting that there be a maximum amount of rehabilitation set but obviously the Board should not be required to as a matter of law - to provide rehabilitation beyond a certain amount. We are suggesting that there should be minimum amounts of rehabilitation that a worker is entitled to when they have suffered a permanent, disabling injury. We suggest a number of different ways of defining that minimum amount - one is the duration of the program - one is the maximum cost of the program - one is the type of training involved in relationship to the pre-injury occupation and industry - one is the length of actual job assistance - training on the job benefits and that sort of thing - there could be further limits on the amount of collateral educational assistance that a worker might be entitled to that are not directly aimed at requalifying the worker for an occupation. And there could be a further entitlement to some amount of non-vocational rehabilitation and we gave the example here of a worker whose injury has forced him to give up the recreational activities that perhaps were a central part of the worker's life and there should be some ability on the Board's part or some duty on the Board's part to provide some assistance for the worker in finding some other satisfying way to spend their leisure time.
• Q: Mr. Sayre, to a number - the one about - you mentioned something about the degree of collateral rehabilitation benefits that might be available. I'm wondering what you mean by that? Do you mean collateral rehabilitation training benefits outside of the workers' compensation system because certainly there are other agencies that provide...
• A: No, what it says is the right to basic education and upgrading, and other training that's not specifically intended to enable the worker to qualify for a particular job. So in the case of the millwright with grade 6 education we've been talking about this morning the Board might provide some assistance in upgrading but it might not be realistic to say that the Board should support that person while they finish high school equivalency which is going to take several years to do that. There may be a reasonable limit that could be set at least as far as the worker's right would be concerned - with the Board still having the discretion to pay beyond that if the circumstances of the case made it appropriate to do so.
• The paragraph nine talks about the approval of the rehabilitation plan.
• Paragraph ten talks about the goals of rehabilitation. And essentially focuses on the right of the worker who has been disabled and unable to resume their previous occupation to have a largest possible degree of autonomy and self-determination of what to do with the rest of their lives. And there obviously has to be some limit to that but the -when I was thinking about what I was going to say this morning it occurred to me that one of the problems with the existing policy -at least as I understand it - is that normally if the worker has another occupation - a different occupation altogether it would enable them to match the pre-injury earnings the Board might well be entitled to say we are not going to provide you with rehabilitation because you don't need it in our view. I tried to think of an example to illustrate that and the one that I came up with - being that I'm a lawyer - is somebody who is going to law school and decided they really don't want to practice law. It's not that they couldn't do it successfully if they had to but they really just don't like it - the don't like the kinds of interactions that people have to go through when they are practicing law - they don't like sitting in an office all day; so instead of practicing law they go off and become a park ranger. And they love it. It's outdoors, it's active, it's energetic, the scenery is beautiful - that's the sort of thing they want to do with the rest of their lives. And they become disabled in the course of their employment. Should that person be denied all rehabilitation benefits on the grounds of - well you've got a law degree - the most we are going to do for you is help you get an articling job. Doesn't matter to us that you really don't want to pursue that because you've trained yourself - not at the Board's expense or the employer's expense - this is all before you even became a park ranger but nonetheless because you have this other qualification that's an answer to the question of what you are going to do with the rest of your life. As far as the Board is concerned we don't have to give you any further assistance to find something closer to the type of job that you did ultimately choose which was being a park ranger. You may not agree with me - my sense of the equities of that situation is that person should not be penalized because they have gone to law school before they want to be a park ranger. They should not be denied assistance by the Board on the basis that you don't need rehabilitation because there is another job you could do.
• Q: Mr. Sayre could I interrupt you just for a moment?
• A: I hope it is nothing serious. That was something I was thinking about on the weekend in terms of why there should be some minimum entitlement to rehabilitation assistance. Something the worker could say all right I cannot go back to my pre-injury employment - I should have some confidence that there is some amount of benefits that I can draw on - not necessarily immediately - and this is another feature that I think appeared - I'm not sure which paragraph it is right now but it appears somewhere in this 1991 memo and I believe also in the new submission that I've given you. Which is that if you have a minimum period of entitlement whether it is one year or two years I don't think that means that we should expect every worker who becomes disabled to demand their full two years of rehabilitation assistance. If the Board - and the if they can get back to work in an industry and a job that they are comfortable at which is close to what they were doing before that is what most workers want. That's where they are going to be most comfortable. Most workers would be quite intimidated if the idea of totally changing occupations and careers and industries and embarking on an entirely new field at a time when they are already disabled and still coping with the physical consequences of the injury.
• So I don't think that there's - that the flood gates fear needs to be there. What the benefit of having that kind of a guarantee and there might be a limit to how long in the future it could be exercised. But the benefit of it would be that the worker would have more confidence that they could go back and try something that they really weren't too sure was going to work out with the knowledge that if it doesn't work out they have a right to go back and get retrained as opposed to a right to simply come back and ask the Board for permission to be retrained and perhaps be denied. Another benefit of having that kind of guaranteed rate is that it would reduce delays if the -if the job that the worker first tries to go back to doesn't work out. The - as things now stand the worker could leave that job on the basis it's unsuitable, it's causing increased pain to their back or whatever their problem - whatever their disability was - the Board might well disagree that that was unsuitable and that would lead to a round of appeals. In the mean time there would be no benefits available to that worker so the worker is essentially marking time while that dispute is being resolved. Even if the appeal is successful at the end of the day - that may be a year or two years out of the worker's life that would have been lost and because of the two years of idleness it may make any future rehabilitation efforts that much less likely to succeed. What you have when you - when the worker is enabled and this is one reason - another reason why I think injured workers would not try to use up their entitlement at the beginning of their claim if there was another way of getting back to work is that it would be a cushion that they would have in reserve if they ever needed it. And the worker would know that in that situation they would be able to say to the Board - all right I have another 6 months of rehabilitation entitlement that I didn't use because I went back to this job that I had some doubts about and I want to use that now to do such and such and subject to discussions about whether the new plan is appropriate one and so on that would become a matter of right for the worker to pursue that. The Board wouldn't be obliged to pay anything beyond that remaining period of the minimum rehabilitation entitlement that at least the worker would know they would have something to rely upon if they felt obliged to leave their return to work job if I can call it that.
• Q: You wouldn't suggest that this would be indefinite in terms of stretching out into time and there should probably be a time limit as to when you would be allowed to go back and do ...
• A: In the 1991 paper we suggested that it would be reasonable to have some form of time limit - my response I think would be the time limit shouldn't be too short. It should recognize that - we don't want workers - I don't think the Board would want somebody feeling - I better use it up now because it is going to be gone in two years. On the other hand it's not reasonable probably to come back in 20 years and say - well 20 years ago I had this injury and had the right to an extra year of rehabilitation that I never used and I want it now - I'm 62 and I've just retired from my old job or something - I mean that's not reasonable either. There can be a middle ground - I don't know whether it should be 5 years or what but it should be a lengthy enough period that it's safe to assume that if the worker has gone that long without being unable to pursue a new job then that new job is suitable and if they leave it won't be because of the disability - it will be for some other reason. Or it will be because of a worsening of the disability, which would lead to a reopening and new rights anyway.
• The final part of this 1991 proposal that I wanted to call your attention to and I'm not really going to discuss it any detail -I - it would take too long for one thing -and I don't think that it is something that would need to be investigated intensely before you probably would feel safe in making any more than a recommendation and that it be considered for future amendments or future changes. But what I'm suggesting is that there needs to be a system which provides a positive incentive for employers to make opportunities for disabled workers as opposed to a negative sanction if they don't -so that is another area where we agree with the employers' submission on there - we think that employers respond as all human beings do probably - better to carrots than to sticks. And certainly in a case where we are talking about in creating a situation in which the employer and the injured worker enter a new ongoing employment relationship it is far better that that relationship be started willing on both sides then it be started under the threat of some sort of punishment by the Board. So what this proposal suggests is that assessment process could contain a form of discounts for employers who make opportunities for disabled workers. The way that that would be done would be an employer who created a certain number of opportunities depending on the size of their workforce would receive - would have to pay less assessments than they would otherwise pay. Employers that did not create the opportunities that that - the number would pay a little more assessment which would offset the amount of money that would be saved by the cooperative employers or the accommodating employers. The origin of this scheme was a law of general application that in Germany which assesses all employers and creates a fund from which employers can be assisted in creating opportunities for disabled workers. And it is based on a percentage of the workforce as this is but it applies to all people with disabilities. So for what it is worth I attached a second proposal that we came up with a couple of years later called EMPLOYMENT EQUITY FOR PERSONS WITH DISABILITIES: AN OUTLINE OF POSSIBLE LEGISLATION - which outlines the way a law like that might work in BC. Obviously it is completely outside your mandate and if you - even if you had time to consider it you could only at most comment on the desirability of the government looking into something like that.
• We think that those kinds of initiatives - positive - the positive assistance that the Board can offer in providing accommodation and incentives in the form perhaps of reduced costs over the long haul would be the most productive way of securing long-term and stable employment opportunities for people with disabilities - in particular injured workers.
• And this kind of goes back to the comments I made earlier about our agreement with the employers that we don't think that mandatory re-employment is a particularly effective way of getting injured workers back to work on a long term or permanent basis.
• One last comment - page 38 of the submissions I gave you this morning talked about deeming employability - I didn't have time to write it out in full detail - but what we are saying here is that there needs to be control over deeming. Deeming poisons the process -both of rehabilitation and of pension assessments. It gives the Board an easy and if I can say this - dishonest way to avoid coming to grips with the real problems by the injured worker in getting back to work. Instead of actually finding work all they have to do is put a label on the worker saying you are now employable as a such and such and their obligation is over.
• Now, there are cases where deeming is the only possible way to go -I think in the Hunt Report Mr. Hunt said that it may be a necessary evil in a system which provides loss of earnings assessments. For example, we can see where deeming can be the only way to assess a loss of earnings pension if there'd been a lengthy period of time during which appeals had taken place for example or reconsiderations and the situation was totally different by the time it was finally decided that the worker was entitled to such a pension. You are not talking about what the worker - the employment that the worker can obtain right now - you are talking about what the employment the worker could have obtained in 1990. And trying to assess a pension that will be payable as of 1990. Now in a case like that I suppose that deeming is the only possible way that that sort of a pension could be assessed.
• Another example where deeming might be appropriate is where the worker makes a conscious decision not to pursue the most lucrative re-employment prospect but instead to go off on a direction that they may have wanted to do before and the Board says - all right we'll give you the amount of money that we feel that we would have had to spend to restore you to your pre-injury earnings and good luck in going to medical school or whatever it is your dream might be. The pension assessment process, when the Board gets around to doing that is going to have to find some post-injury level to compare to the pre-injury earnings in order to decide whether the worker is entitled to a loss of earnings pension and since the worker is going in a completely different direction by reason of their own choice the only that that could be done is through a deeming process. And another example - somewhat different is an older worker who decides that they would prefer to retire rather than trying to find a new occupation at their age and that may be a very appropriate decision for that person to make - but if we are talking about the 57 year old millwright for example who is employable - not perhaps the one that Mr. Stoney proposed but somebody who has higher levels of education and probably could find another job with a modest amount of help but just simply doesn't want to then again it might be appropriate to deem that person's employability since they were choosing to remove themselves from the workforce. It is only in cases like that - very specific, narrow cases where there is no option that we acknowledge that deeming can be an appropriate way of determining a disabled person's employment - otherwise it is our position that the Board should continue vocational rehabilitation assistance for as long as necessary until the worker actually finds a real productive job to go back to and support themselves.
• Those are my submissions.
•  
• JOHN STEEVES
• Just a logistical matter - gave a binder - two new chapters we ask you to put into the binders
• VOCATIONAL REHABILITATION
• Section 16 of the Act creates a discretion with the Board to provide rehabilitation to workers and dependents. It is discretionary in two respects: access by worker to rehabilitation is at the discretion of the Board
• RE-EMPLOYMENT RIGHTS: ACCOMMODATION
• While we recognize the "trend in other jurisdictions to a provision in workers' compensation legislation that codifies an employer's duty to accommodate disabled workers we propose something different.
• Our position is that the duty to accommodate should be codified in human rights legislation.
• The starting point is an employer's legal duty to accommodate a disabled worker to the point of undue hardship. There is a corresponding duty on unions and a duty on individual workers to make some accommodations as well. Decisions from the Supreme Court of Canada have suggested the following factors are relevant to consider: financial costs, disruption of collective agreements, interchangeability of work forces and facilities, size of the employer's operations and safety factors. Where a worker suffers from a disability the employer is required to accommodate the worker by considering these issues. Currently the duty to accommodate does not differentiate between work related and other disabilities
• We believe that generally the current duty to accommodate, as developed in recent Supreme Court of Canada decisions, is a reasonable one for dealing with concerns over return to work for workers who have a residual disability. If there is a problem it is that this duty has not been codified in legislation in order to be well understood by workers and employers.
• Professor Ison in Decision 105 (2WCR 33) [and in his 1994 work] sets out a number of concerns with regards to a statutory obligation to continue the employment of a disabled worker: impairment of mobility rights of disabled workers, ongoing surveillance, ongoing submission to medical examinations and psychological testing, continuing loss of confidentiality and other matters. We respectfully suggest that recent decisions from the courts have overtaken these concerns with the development of the duty to accommodate. For example, the courts have not thought that concerns about the possible negative effect on the dignity of disabled workers "from motives of pity or statutory obligation" is of greater significance than protecting disabled workers from the effects of their disability.
• In any case, if an individual is concerned about his or her dignity then that person can choose not to take advantage of the employer's duty to accommodate.
• RECOMMENDATOIN: We recommend that this commission recommend to the government of BC that the Human Rights Code be amended to include a codification of the duty to accommodate. We further recommend that the Board publish a pamphlet that explains to workers the duty of employers to accommodate disabled workers as well as the duties required of workers in order to obtain the benefit of the duty to accommodate.
• RE-EMPLOYMENT RIGHTS: CASES OF TOTAL RECOVERY
• These are the situations where the worker has recovered completely and there is no residual disability.
• We think Professor Ison (Decision 105) has captured the competing issues with regards to return to work in the case of total recovery. We submit that problems of workers' being punished for being on compensation is contrary to the spirit of section 13 of the Act and the fact the problem arises only in rare circumstances are compelling reasons for a right to return to work. In the case of total recovery there may not be a human rights remedy because there would not be a physical or mental disability.
• Further, these reasons are more compelling than considerations such as "the employer is generally happy to have the worker back", the employer would have the legal right to terminate any way and a worker wanting to return to work is in the same position as any other worker. Protection should be available when the employer does not do the right thing and there should be no stigma attached to being on compensation. The object is to prevent discrimination because of being on compensation.
• RECOMMENDATION: We recommend that section 13 of the Act be amended to include the amendments proposed in Decision 105. And there is some skill by Professor Ison in that the drafting that he's proposed there - this is page 35 of the volume two of the Reporter - and he proposes a new section four which states that where the worker has fully recovered from such injury or disease he will have the same rights with regard to continuing employment and relation to his employer and his other workers as if he had not been so absent. Now as I take that and the skill behind it Mr. Chairman is that what it does is that legislatively it prevents a break service to the worker who is off on a compensation claim, goes back to work with no residual disability. The legal effect of that would be to as it says here - the - it would be as if - for legal purposes it would be as if the worker never left but further it would - if the worker - if the work isn't there and the worker gets back it triggers notice. And I think that's the objective of this kind of legislation. Is that it doesn't in a sense - it doesn't guarantee a right to employment but it puts the worker in no better or worse position than if the injury hadn't happened so that the employer can't - can terminate but they have to pay notice. That's how I read that section.
• REHABILITATION RIGHTS: DEFINITION AND ACCESS
• Section 16 provides for a discretion with the Board for the provision of rehabilitation services to workers. As it stands now there is an overly broad discretion with the Board in our view.
• In our view there should be more statutory direction to the Board as to how their discretion should be exercised. We believe a reasonableness standard provides this direction. We also believe that it is necessary for the statute to provide an objective for rehabilitation.
• RECOMMENDATION: We recommend that section 16 of the Act be amended to require that the Board provide rehabilitation assistance that is reasonably necessary for the complete rehabilitation of the worker to safe, gainful and meaningful employment.
• Now we spent some time with this Mr. Chairman in trying to craft something that would work and whether it is a discretion or a right or even a duty I'm not sure is a useful exercise to get into - I mean it would clearly be a right or a duty except for the language that is reasonably necessary and so if you like you could call it a performance based right or in any case we think that that captures the kind of - the kind of direction that should be given to the Board in the statute on rehabilitation assistance matters. And the starting point and I think we are all agreed on this - that there should be no absolute right to rehabilitation in every case - that would be frankly silly - in some cases rehabilitation simply isn't appropriate. So the question is how do you - how do you give statutory direction to the Board to give the necessary rehabilitation and we think reasonableness is a standard and the objective to - from complete rehabilitation of the worker to safe, gainful, and meaningful employment.
• I wanted to address a couple of things here - partly in response to discussion with Mr. Winter and Mr. Sayre - a short comment on deeming - we think that Mr. Heinz has got it basically right -if you are going to have a loss of earnings system then deeming is a necessary evil. The trick though from a policy point of view is to keep the deeming situations to as low a number as possible. I'll be dealing with this point when we kind of get to measuring performance of the Board but if there's a large number of deeming decisions from the Board then in our view there's something wrong with the way loss of earnings pensions are being - are being - are being made. And implicit in all that is that we don't say that it's possible to get rid of all deeming decisions; we just say that the numbers should be very low.
• I think we are all agreed that there should be earlier intervention and by all of us I include the Board in that - the Board has made I think a very forceful, compelling argument for early intervention in return to work and workers should go back to work in the right circumstances - that's what they do - that's how they support their families.
• Q: Could I just take you back to the deeming matter - I understand that in a loss of earnings pension that is basically paying the difference between what a person is supposed to be able to do and making up the difference with the pension. That some element of deeming is implicit in that - is it - so when you say that it should be kept to as low a level as possible I'm not quite sure what you mean by that? Do you mean deeming of income as opposed to jobs or how do you get around an loss of earnings pension without deeming?
• A: yes, yes, I guess it's a definition question - what do you mean by deeming?
• Q: yes.
• A: We don't think and I don't think the term is used - it's used but I think - it's not an appropriate use of the term to say that every loss of earnings pension is a decision on deeming. It's not the exercise under the authority of section 23.3 but not always a deeming provision. And not always a deeming exercise. Now I think in an ideal world the Board would make a decision on section 23.3 and it would be a sensible decision from the worker's point of view and the employer's point of view and everybody would be happy even though there is a legal decision being made. The - I think a better use of the term deeming is in those small number of situations - Mr. Sayre gave some examples for us - the worker simply refuses to cooperate - doesn't want to have anything to do with it. Now you raise the question of you know the delay in the decision making processes for pensions and that is obviously a complicating matter but assuming it met the delay in the pension decision - pension decision making process lies somewhat with the worker - well you may have to make a decision on the loss of earnings basis without the cooperation of the worker. And Mr. Sayre gave some other examples. So I think the best use of the term deeming is not that every loss of earnings is a deeming exercise but rather it's an exercise of the legal authority of the Board. And deeming applies to a small number of cases where the Board has to bite the bullet to make the best decision in the circumstances.
• Q: What's the alternative to deeming in the ordinary situation - do you look at the actual earnings of the worker upon his return to work? It seems to me that those are the only two options - you say hypothetically you are capable of returning to this job and so you get the difference between the earnings of they hypothetical job and the pre-injury job or you look at his actual earnings - I don't see any other - any third option?
• A: I think the answer to that is yes. The dispute in the deeming situations occurs over the job. Whether the job is suitable and reasonable and is used in the policy from the Board.
• Q: Would it be superior to use a level of income rather than a job as part of the process --where you don't have an actual job to compare with the pre-injury earnings to look at a level of income which is minimum wage or rather than a specific job which seems to be why deeming is maligned?
• A: I suppose that's an alternative but it seems to me the objective is to - our position is that to get people back to work in real jobs. I'm not sure also - I'm not sure that - I mean that it wouldn't solve any problems but it might create a bunch of new ones. It would just dispute over the earnings level. Although I guess now there's a dispute over the position where that's suitable and also about the earnings. I mean there's ranges of earnings for the position that is suitable and reasonable.
• In that regard it would be an unusual situation for the Board to put a worker through a Ph.D. in Religious Studies. Or law school or medical school. But I think where the issue comes down with respect to finding appropriate jobs - and we'll get into this afternoon - is the difference between the Board paying for a class one with air training for a worker or putting him through training for a welding ticket. The former being cheaper than the latter. And it is those kinds of decisions - it's not so much - you know the Ph.D. issue - it just doesn't come up. It's those kinds of choices that are very much at the centre of the employability issues. And I'll deal with those a bit further on but when I come to standards of rehabilitation.
• Finally the issue about non-compensable reasons for a worker being unemployable - literacy, English as a second language are common ones. And the - as I understand the employers' position is that the Board should provide training in those areas - but if that training isn't successful then that's not a compensable issue and it shouldn't be - it shouldn't be considered as - it should be part of the - it should be considered part of the non-compensable disability of the worker.
• We are opposed to that Mr. Chairman. We say that before the injury the worker could earn the average earnings in which the whole system is based even with the English as a second language problem or literacy problem if you like. So we say that the average earnings has really worked out the effect on the earnings of the English as a second language and literacy and in a sense if you like the market has worked it out. That is before the injury the worker was earning X amount of money with the same English as a second language literacy problem as after the injury. So why should - and that's reflected - that market position if you like that that worker has is reflected in average ear