Royal Commission on Workers' Compensation in BC

 

Appeals

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

Notetaker: Steven Noble

Date: Wednesday, April 15, 1998

 

 

  1. The issues that come up in workers' compensation appeals are often extremely important. Whether an injury arose in the course of employment or whether a disease was caused by the work can be issues fundamental to the well being of workers and their families. Similarly, entitlement to a pension or its amount can be of vital importance to workers. The rights and responsibilities that arise from the workers' compensation legislation are of such significance that they need full and complete protection through more than one level of appeal to ensure a just and fair result.
  2. There is a role for an initial level of appeal that hears large numbers of appeals in a relatively informal manner and then other levels made decision in a different way. The emphasis at this first level is on getting through a large volume of appeals rather than crafting decision so they will be immune from judicial review. The approach should be more of an inquiry than an adversarial proceeding. This first level requires the jurisdiction to make findings of fact, law, and policy as well as the authority to consider expert evidence in areas such as medicine and other scientific areas. Some physical separation from the Board is desirable although being separate from the Board does not mean to workers that an organization is independent of the Board. And we heard a bit of this with discussion with Mr. O'Brien Mr. Chairman, and in our experience people phone up and say they have a decision from the Board and many times it's a decision from the Review Board. Or from the Appeal Division and one of the first things that an advocate has to do is kind of pin that down to find out what's going on and also track - to note the different time periods that are issue. So while we value the independence of the Review Board it's not always apparent to the people who use it.
  3. Having more than one level of appeal provides for a process of refinement of issues and fact. Much like the court system or other appeal systems there is value in having a first appeal decision which (apart from making a decision that is acceptable to the parties which may not be appealed further) focuses issues and facts so that the work of second and third level appeals is more efficient. This applies to all issues in the system but for very complicated cases there is refinement that permits subsequent levels of appeal and perhaps the courts to deal with the large and important issues.
  4. When there is more than one level of appeal the perception of the parties is that they will be receiving an independent second appeal of their case. An internal reconsideration does not provide the clear perception that a second level of appeal is independent.
  1. RESPONSE TO THE PROPOSAL FOR A ONE LEVEL APPEAL SYSTEM
  1. There would be no savings in cost by moving to this system (O'Brien, 70-71).
  2. One level of appeal is held out as a way of getting decisions faster (O'Brien 71). If this is the objective, and we agree it is an important one, then it can be accomplished by a statutory requirement to get decisions out within 90 days. The Appeal Division has demonstrated the value of that kind of provision.
  3. The proposal is not really a one level appeal but 4 or 5 levels in one: mediation, adjudication, health care advisory board, reconsideration and a right in the Board to make a referral to court. It is not clear why an appeal that went through all of these steps would take less time than currently.
  4. With regards to the proposal for a Health Advisory Panel ("HAP") we note that either party may requires that a panel make a referral to a HAP. Whether the panel holds a hearing or receives written submissions it will take time to make this determination. If the panel refuses the request this decision would not be appealable.
  5. If a HAP makes a decision on a medical issue the decision will be binding on everyone, including the panel. Since there could be no appeal except on the basis of an error of law there would be no further appeal of medical issues.
  6. We believe that opening appeals to the public will increase the length and cost of appeals as well as introduce new issues of confidentiality. As you know Mr. Chairman the confidentiality of files is a big concern to everybody in the system and we believe that if you open appeals to the public then some very new considerations and some very new issues of confidentiality will arise.
  7. The proposal does not include any policy role for the Appeal Tribunal. One of the duties of the Chief Appeals Commissioner is to sit as an ex officio member of governance. The following was the reasoning for this,

By that device, the Board of Governors will be able to ensure that its policies are clearly understood by the system's most senior adjudicator. And in that capacity, the Chief Appeals Commissioner will be a useful resource as to the actual impact of those policies in specific cases ("Munroe Committee" Report, 8 WCR 231 at 238).

We believe some linkage between the appeal system and the body that creates Board policy is desirable. The proposal for a one level of appeal does not provide for this linkage. And you will recall Mr. Chairman in our other previous submission we believe that the overall - there should be a greater linkage in terms of determining the quality of Board decisions - there should be a greater linkage between the appeal system and the Board and a one level appeal system - an external one level appeal system would in our view would exasperate that problem.

Q: When you say there should be a policy role for the appeal tribunal would that be for all levels of the various appeal tribunals - right now there's two of course - there's also an external review panel which is an appeal tribunal of sorts - so would they all have a policy role or how do you see that working?

A: Well, the - first of all the - I don't think it was envisioned that they have a policy role in the sense of determining policy. In fact the direction to the Appeal Division is the opposite - that they don't determine policy, they interpret the statute.

Q: Okay, if you are going to deal with that later, that's fine; I'm just picking up on it?

A: No, no; I just want to be clear about what we mean by policy role.

Q: Policy role.

A: The current system - Review Board, Appeal Division, Medical Review Panel seems to make sense from that point of view - that is bringing some policy linkage between the Board and the appeal system that is assuming they are - well - the Munroe Committee used the word "senior level of appeal" and I suppose that's true, although usually the Medical Review Panel is usually the last one. And it is final and binding but it makes sense to have that - that - the linkage between the Board and the policy function of the Board at that level because the Appeal Division in general here is the more complicated cases on policy levels - on policy issues. I don't think that it's necessary that every level of the appeal system have a policy linkage in a formal sense such as an ex officio presence on the Board, but that's not to say that there shouldn't be some informal relationship between - in the current structure the Review Board and the Board and I - Mr. O'Brien and I talked about that and you heard from us previously that we think that's one of the ways to - to assess the quality of Board decisions is to get some input from the Review Board.

Q: Could you not accomplish that linkage by continuing to have the Appeal Commissioner sit on the Board of Governors much as he or she does now - and report in to the Board of Governors?

A: I suppose you could - as I understand the proposal it's external and it's intended on being external in the sense of being independent. So you - you - it would counter to that idea of the independence of the appeal tribunal that is that - that it is physically separate but it's Chair sits on the governance board of the Board in an ex-officio capacity. As I understand the concept it is supposed to be physically separate and I'm assuming that - that the concept was by physically separate and - it meant it wouldn't have a structural relationship to the Board and in the same way that the Appeal Division has now.

Q: However most of if not all of the Panel of Administrators are now external to the system and in most organizations - private and public - most Boards of Directors - I would say 90% of them are external to the organization precisely for that - for some of the reasons you have spoken to - to have that external review and that second objective approach on issues. So it could conceivably work.

A: I'm not saying it's impossible; I'm saying it runs counter to the - as I perceive the independence.

Q: And there is one more issue; you do mention about having more than one level of appeal provides for a process of refinement for issues of fact which I think is correct, however, this proposal by Mr. O'Brien, although it is just a proposal - but to speak to that one at this point you note that he also suggests several levels of appeal within the sort of the main body that in fact one can segregate it down to four or five different phases or steps within the appeal process; wouldn't that accomplish the same thing - wouldn't it allow for the same refinement of issues and focus to the appeal process?

A: I think partly that's correct. But you don't get the - when you have different levels of appeal you have a - a - some finality to - to each stage. So when you - it's - you have a decision of the Review Board and they hear evidence and they deliberate on it and make a decision. Some of the evidence they hear doesn't show up in their decision. Some of the arguments don't even show up in their decision. And that's just how the system works. So if that decision appealed then it's - it's a - there's already a - I use the term clearinghouse later on - but there's already a kind of refinement of the issues simply by the fact of making a decision. I don't think you would have that by the internal levels to the same extent. I'm not saying you wouldn't have it at all - but and certainly the first part - the inquiry portion of it which I take to be case management as well as mediation - there is some refinement of the issues there but the point is that you with more than one level of appeal of decisions made - there's findings of fact; there's findings of law and policy and so on. And then that decision becomes the record that's appealed further on and it's that process - the finality of decision that's - that really really defines the issues later on.

Q: And I think that what strikes me is the definition - it's not just the definition but the consistency and if we are striving for fairness and equity in the system - would it not be better to have a process contained within one body so that the whole system can be improved in a consistent manner?

A: I suppose having one level of appeal would hold out the promise, or even the appearance of consistency because it's all within itself. I'm not sure that that's true in practical - as a practical matter - it seems to me that if you have - equally plausible is that you have one level of appeal that's independent in - which is very independent of the Board and you have even more than now - the independence becomes a very different way of doing things. So I'm not saying it's black and white - I'm saying there's a balance there between the independence - there has to be some linkage between the appeal system and the Board. And the system we have currently isn't perfect but it's - it's better than the proposal for the one level of appeal because we'd be concerned about the physical separation of the Board and the appeal system and you really have two worlds going on. And I suppose if we are concerned about internal consistency the Review Board struggles with that mightily itself right now. And it always has and I'm guessing it always will; that's just something that tribunals struggle with and courts too. And one of the things about the Review Board is that - they - they can have - because they are the first level of appeal - in a two level appeal system - they can have decisions that are more inconsistent among themselves than if they were a one level appeal and I'll come to that in a minute because the Appeal Division in a sense is there to fix the inconsistencies within the Review Board and you wouldn't have that with a one level of appeal.

Q: In your view that does not warrant - one does not outweigh any other concerns you might have - that it is important to have the consistency and policy making in a consistent format - so that the whole system can continue to revitalize and rejuvenate themselves in terms of how it addresses the whole issue - all the issues and claims before it. You don't think that - that may be an important enough issue to outweigh some other considerations or concerns you might have?

A: No, and in fact I think it - it - I think the point about the appeal system rejuvenating things is - I think that that's a good point - I would suggest though that you would have more rejuvenation - if that's the term we're using - with more than one level of appeal. That is, between themselves - there can be a robust debate about issues within different levels of appeal for that and that would be a more public debate. If there is more than one level of appeal because the decisions would be published as opposed - and so the decision itself would be part of the debate whereas if you have one level of appeal the debate can be just as robust within the one level of appeal but it's - we never see it. And that's true of every tribunal from in courts and I'm assuming commissions and so on.

  1. An internal reconsideration creates the perception that there is no independence to the reconsideration function. In some cases this may be a real problem since it is sometimes more difficult to overturn colleagues' decisions.
  2. Limiting any reconsideration to errors of law eliminates any further review of factual matters and any further review of medical issues. The latter especially are the heart of the compensation system. Important cases involving new areas of medicine and science will not have the benefit of deliberation at more than one level of appeal. It is reasonable to expect that judicial review applications in these circumstances will be more frequent and more successful. And Mr. Chairman we see the purposes of - in the current situation - there are two levels of appeals - the Review Board having the freedom if you like to make - as Mr. O'Brien put it - coveralls rather than tuxedos and that there is a next level of appeal to the Appeal Division and to be frank - I think one of the reasons for this second level of the appeal system - the Appeal Division - is to fix the Review Board decisions so that they are relatively immune from judicial review. If the Review Board had to concern themselves with that it would take more time; it would take more expense and so an advantage of the two level of appeal system is that the first level of appeal can make the best decision they can in the quickest time they can and the second level of appeal will take some of those decisions and we'll see how many they take in a minute - and they will - they will review those and provide a decision which is - and they have the time to deliberate because they don't have the same volume - and they as I say make it - they write a different kind of decision.
  1. The Board and now worker or employers has the right to take an issue to the Court of Appeal. Why the Board would want to do this is not clear since it retains control over policy and it can change that policy if it chooses?
  1. IMPROVING THE INQUIRY NATURE OF REVIEW BOARD PROCEEDINGS
  1. IMPROVING ACCESS TO THE REVIEW BOARD
  1. IMPROVING THE QUALITY OF DECISIONS AT TH REVIEW BOARD
  1. There are at times serious problems of delay in getting decisions from the Review Board.
  2. There are issues of expertise of Review Board panel members. In one finding a panel stated that issues of epidemiology were not relevant to an appeal whether a cancer was related to the work.
  3. We have been waiting for some time for a "leading case" which is considering whether the estate of a deceased worker can pursue the worker's appeal. This important matter should be dealt with without more delay in the appeal system.

RECOMMENDATION: We recommend that the Act be amended to incorporate the time requirements for decisions of section 91(3) into Section 90 of the Act.

RECOMMENDATION: We recommend that the Review Board include in its continuing education of staff education in epidemiology, toxicology, and other relevant scientific matters.

RECOMMENDATION: We recommend that the Commission confirm that the estate of a deceased worker can take over conduct of the appeal of the worker.

  1. ALTERNATE DISPUTE RESOLUTION
  1. THE APPEAL DIVISION
  1. MEDICAL REVIEW PANEL APPEALS
  1. Getting the Certificate from the doctor and the application from the worker or employer to the Board within 90 days of the decision being appealed.
  2. The determination by the Board (not the panel) - it is the Board - the Board controls the threshold issues of jurisdiction for Medical Review Panels - whether there is a bona fide medical dispute and whether the certificate has defined the dispute in sufficient particulars.
  3. The production of the Statement of Issues and the appointment of the panel of doctors.
  4. The examination of the worker.
  5. The issuing of the Certificate of the Panel.
  6. The implementation of the Certificate by the Board.
  1. RESOURCES FOR WORKERS IN THE APPEAL SYSTEM

Subject to any questions you may have that is our submission.

Q: Just back to the Medical Review Panel issue - in your view would this model work that the first level of appeal makes the - or if it is a single level of appeal makes the findings of fact that determines that it is a purely medical issue to be decided. It then refers that medical issue out to a panel of doctors to make a decision based on the facts found by the appellate body and that decision is finding and binding?

A: I guess there are some procedural concerns; one is that the - what - what access to the parties does the appeal have the - or what influence do the parties to the appeal have on the facts that go to the doctors?

Q: Well, it would be like any other appeal; there would be argument; evidence would be presented - the appeal body makes the necessary findings of fact and in which medical causation would proceed.

A: And then -

Q: Just like the Medical Review Panel now - the parties have no input - the issues are sent to it and it makes a decision that is final and binding. Lawyers aren't there during the Medical Review Panel deliberations.

A: That's correct. Yes. We tried that once and we sat in the waiting room.

Q: It occurs to me that that would only work if there was a single level of appeal because if you have a level of appeal above that then you couldn't make the medical determination final and binding because the facts might have changed on appeal.

A: What happens now as I say is that the facts are there - I mean you are right that that - well - what happens now is that facts that go to the Medical Review Panel can be subject to a further appeal. But also the facts that are there that go to a Medical Review Panel have been gone through the sifting process before so in broad terms there is some refinement of them. On your - your proposal I - there could well be dispute about the facts that the panel decides to send to whatever we are calling these doctors - for a final and binding determination. So it seems to me that there has to have to be some mechanism of review of that - of the facts that are sent to the doctor and that that's - this gets us into the one level of appeal versus more than one level of appeal. Is that an internal reconsideration on the proposal we've seen there would be no review of that because reconsideration would only be on error of law? So on that view of things the panel could make findings of fact that would be not reviewable. They would go to the Medical Panel, or whatever we are calling the Health Advisory Board - and then the other question is - is there a view of the medical findings of the panel? The medical findings of the Health Advisor Panel? So I think both those two points in the process - that is the decision by the panel on the facts of the case and the decision of the Health Advisory Board on medical issues from our point of view push you into consideration for a second level of appeal.

Q: Perhaps if you could - let us know your thoughts on the - this issue once again - the role of the appellate tribunal - the first one or the second one or however there might be - for each of them - in reviewing the initial adjudicator's decision in terms of the exercise of that discretion with the first level of appeal for example be - the completely substitutional jurisdiction - in other words could the discretion be simply revisited and an entirely new decision be made or would there be some parameters restricting the scope of that review?

A: I think it has to be substitutional and the - I think that's right in principle but I think it - also empirically based - that is we see these historical high allow rates in the first level of appeal and those are a function of the - a function of the complexity as the case is and a whole bunch of matters but it is also a function of the quality of decisions - the initial decisions and as we've been saying throughout these proceedings is - is - or a choice you're having to make is when things are - in one view things are out of control or when things are difficult then you either eliminate it by defining it out of existence or you constrain it by bringing in a level of appeal. For example, with respect to errors of law. And we think that that's not the way to assess quality in decision making at the Board.

Q: Would the second level of appeal; if they continued to be one - also include substitutional jurisdiction with regards to reviewing this exercise of discretion - or would it be somewhat limited?

A: I - we think it should be substitutional again - and that may seem repetitive but we frankly don't see - we have that now - these two de novo levels of appeal - the Review Board and the Appeal Division. We - there's been controversy; there's been disagreements between the Review Board and the Appeal Division from time to time - I think Mr. O'Brien had a kind of seasoned view of that - that these things happen and we don't see that that's caused a major problem.

Q: What I have trouble understanding - is if we were to promote some aspect of a refinement of issues as they go through the chain of adjudication to the appeal system - if each level is substitutional in its essence a trial de novo - what are the procedural mechanisms that are promoting refinement of processes, and procedures and issues?

A: Well if you look at the numbers only 58% of the decisions - the findings of the Review Board do not go to the Appeal Division - and it is not as if everybody that loses at the Review Board goes to the Appeal Division - there is a genuine sorting out there.

Q: Well certainly the number of the cases as you go through gets smaller and smaller. There's no question.

A: It's not just sort of in an incremental fashion - it's quite dramatic.

Q: But for a given case what is the process then - what would be the procedural mechanisms that would encourage or promote refinement of issues?

A: We think the current system does that.

Q: My other question was - pertaining to the balancing of these two important aspects of adjudication - that is independence versus consistency

A: Yes. Yes.

Q: And I'm not sure if you touched on it - but if you could maybe elaborate a little bit on that area about the - how those two somewhat conflicting objectives fit within the system - whether one has greater priority in your view than the other and how they can, if at all be reconciled?

A: Well, I don't think they can be reconciled. I think when you sit in a court and as you struggle with your fellow judges on this issue. And there's academics who make a living out of writing on just this issue so this is not something that can be fixed in a kind of technical sense. This is a tension within triers of fact everywhere - whether it's administrative tribunals or the courts and the reason for that - two reasons -one is that every case is different. You know, sometimes we think that we couldn't stand to do another case on such and such and then when we get into it it is different from the last one we did. So - and that's because the nature of people in the province they deal with. The other reason is that the triers of fact - tribunal members, judges, are human beings too and they don't have the same view of the world and they may have different values. We've had the opportunity to think about this - Mr. Winter and I had the opportunity to think about this and talk to the Review Board about it. So the starting point is that there is always that tension and the -I guess the best you can do is to keep that tension - if you like at a constructive level. There is a constructive aspect to that tension. That is you warrant independent decisions from every level of appeal - whether they are here in this building or over in Marpole. I mean that's what you want. On the other hand they can't be running amok. They can't have maverick appeal levels or appeal panels. And so you need mechanisms in place to prevent that. As I understand it in Ontario one procedure they have there - I think it is the WCAT or something is that if an appeal panel is going to make a decision contrary to previous decisions - either at their own level or of a superior level then they have to expressly say that and they have to give express reasons for making a contrary decision. There seems to be some merit in that. Mr. O'Brien pointed out that you can a decision in this context of the Appeal Division saying one thing and then -I think the example was the Charter -and then comes the new case law from the Supreme Court of Canada. Well, you know I think the Review Board has to have a look at that new case law and as the Supreme Court would do in the face of previous Court of Appeal Rulings make the decision that they feel is the best view of the law. Now that's not a situation - that's not a justification for just going off and doing your own thing. And that's a very serious concern from my clients' point of view and I guess from the employers' is one of the things we value most from the system is predictability. Workers and I'm guessing employers come to lawyers and they say I've got this case - can you tell me about it and am I going to win or not? What are my chances of winning here? And the - the - one of the factors that goes into that is the predictability of the tribunal or the court that you are appearing in front of. And if they are all over the map then it's hard to -you know - you end up giving lawyers advice we think but that. And so it is octopus advice on one hand; on the other hand; on this hand so - so predictability is an important aspect of this as issue as well. In the court system theirs is it - between court judges and that's probably something as I understand it - cometie is something that is between judges at the same level - doesn't mean it is binding if your fellow judge makes a decision it doesn't mean it's binding but out of respect and out of efficient use of the system you defer to that - your fellow judge's decision. We think that there is some value in that - that concept in the appeal system here. That is the fact -and implicit in all that Mr. Chairman is a very important administrative point is that the members of the Review Board have to know what other members of the Review Board are doing. That is you - there has to be some internal review of the issues that are currently alive in the system about what decisions are being made. There has to be a systematic review within each level of appeal and the communication of that review. So that's resources; the Review Board has recently hired legal staff. That's a good thing - they could probably use some more and I think they could use a lot more support in terms of writing their decisions and researching their decisions. But those are cost questions. As I've said that's an allocation of resources and - that's - that would be absolutely fundamental to issues of consistency is for within the Review Board people to know what other panels are doing. A sort of rambling answer to your question.

Q: Should a decision of the Appeal Division be binding on the Review Board? If there is a refining process at all taking place?

A: Yes, yes. I think the simple answer is yes; the Appeal Division is a superior level of appeal. And but this goes back to what I said earlier - and this is how judges and lawyers not only make their living but bring their professions into disrepute in the public. Not every case is the same. And so you can have a case in that's different in facts or as we talked about earlier the Supreme Court of Canada could have said something four years ago and there is a recent decision that says something different. So those matters have to be - it can't be a parroting of the Appeal Division decision by the Review Board. It has to be and this is where I guess the independence comes in. It has to be a reasoned - a reasoned reconsideration of previous decisions and as I said if - it - there has to be a genuine reason to change the previous - a genuine reason to not follow the previous Appeal Division decision. So I would say - yes it's binding except for when there's genuine reasons to not be binding.

Q: Does it follow then that a Review Board decision would be binding on the adjudicator?

A: Yes. Yes; I don't know that that's - that's a particular issue - it used to be - this the section 96 referrals I talked about historically. It was a big issue before and even then - before that history - I think the old boys review made recommendations rather directions to the Board and so there was some latitude in the Board not following the recommendation.

Q: If the appeal system was compressed down into a single level of perhaps the model that was proposed by Mr. O'Brien - would this result in more cases going to the courts? I

A: I think that that would be undoubtedly true; and I think as I said before there's a function in the second level of appeal of making decisions appeal proof. And the - we know that people in the court system read the newspapers and they know what happens in other - in - other tribunal situations and the - my experiences is that judges are alive to what is going on outside in the world. And when see that an important issue affecting entitlement to workers' compensation which can have a dramatic effect on someone's life is given only one level of appeal judges understand that - they never say it; you never hear them say that but they understand that an appeal - a judicial review that comes to them from an appeal system that's had 2 or 3 times at the issue is different than something that comes to them that has only been looked at once. And that's just a - that's objective view of - a subjective - that's my subjective interpretation about how the courts work. I think it is a fair one.

 

ALAN WINTER

Q: Okay; there all sorts of other aspects - like how you get non-medical facts, decide how you get medical facts and so on.

A: Yes, and you'll see I'm going to go through all of it - there's a mix and I think I'll be there in a minute - external versus internal - the Review Board suggests external. The time limits I don't agree with; I don't agree with the Medical Review Panel provision being binding for a lot of reasons we talked about so I'm going to go through all those things.

And then Mr. Steeves said today that two levels of appeal -he left the impression that the Review Board is an ad hoc, quick - which in my submission it isn't necessarily most of the time - but an ad hoc, quick informal appeal that doesn't have to worry about right or wrong because there is another level above them that is going to fix it up. Again - there is no way you are ever going to convince the Review Board that that's their role. And nor should it be. If they are going to remain as a valid level of appeal they are going to do whatever it takes to be right in their mind. And I don't think they believe they can be wrong because they know there is a quick fix above us.

Q: I don't think he is saying that in all fairness; I think he is saying that the process is that is being used at the earlier level might be more informal as opposed to that at the higher level.

A: I think the Review Board thrives on informality. And I'm not sure that you'd see any difference if you took out the high level and left the Review Board there. And then Mr. Steeves said that if you only have one level there would be more judicial reviews. He may be right. And more successful; I disagree with that. I think the law on judicial review is becoming more and more and more difficult to go to court to convince the courts to interfere in a decision made by a specialized tribunal. So there may be more but I don't think there is going to be more success. The other comment I want to make before I move to internal/external is Mr. Steeves has proposed the - for the employer not to have party status at the Review Board and we've already talked about the concern about if the employer wants to appeal what they have to do. But even on the respondents' side - it raises a lot of concerns in my mind. Take the cancer cases as he's referred - those cancer cases were all - the employers were respondents - they went ten days. Those were very significant cases to put in the system; the precedent value - it just says - as we anticipate the brain cancer would be precedent when the employer said we don't oppose. The precedent value is such that the employer should obviously have the right to be party status. To probe the whole aspect of the case from the view point of being a party as opposed to just being a witness having the opportunity to come up and present evidence but that is the end of that.

Q: can we go back a second to your part about the courts not allowing more claims - do you not accept Mr. Steeves' point that that courts would probably give consideration to the fact that a case has been already through a multi-level of appeal and review in making their determination as to whether or not what type of consideration they gave in their review?

A: A. - I don't accept it; B. it may happen but you are never going to read it I think because C. the law is quite clear about giving deference to specialized tribunal. Period. That is law on judicial review; and it is an extremely tough test to get around - excess of jurisdiction or patently unreasonable so no I don't think that the courts are going to say - well it only went to one - the Appeal Division - that we are going to start overturning more because they didn't have the additional safeguards. I don't think safeguards are three or four levels. It's having a competent, well-trained appellate level.

Q: So one level would be the end of the road?

A: With judicial review also; you can't take that away - nor should you. But yes one level would be the end of the road. One formal level.

Finally Mr. Steeves said that employers have more resources to employ -this one of the reasons why they shouldn't be at the Review Board - to employ consultants and other representatives. And I indicated to him that I was going to challenge that because of the information we received -I got it yesterday - we got a letter from the Review Board -and Mr. Steeves had asked the Review Board for information about how many people are represented and not represented by whom and the Review Board said they had that information. It came yesterday; I got it. So I'm sure - it was addressed to Mr. Robertson so I'm assuming that the Royal Commission has it. When you look at it it's shocking about the level of representation that the worker has as opposed to the employer. The numbers in all years except 19 - in all years the level of representation for the worker are substantially greater than the employer. And what was really surprising was the number of lawyers involved for workers. But the main categories are worker's advisor, lawyer, and union representative. For the employer you have some consultants, you have some organization, some lawyers but the percentage when you work out the unrepresented is always much greater on the employer's side for their appeals than the worker's side. So I don't think that justifies the argument that employers have the resources. So those are the submission on one level; I would like to turn to the issue of Internal versus External - assuming we end up with one level.

Q: Large employers would go there - like - they would show up - I mean MacMillan Bloedel probably don't need anybody to represent them do they?

A: I'm not sure I agree with you. Sorry - that large employers show up that readily and but I do agree that large employers generally have a more claim focus - they either have a claims department - or they have a claims and an occupational health and safety department. If they have a claims department; yes you are right and only the claims person goes to sit and listen and I think that is comparable in their experience and their expertise to the union business agent for example - I think that is an equal level. But a lot of employers don't go - was my experience. A lot of employers when it comes to budgeting legal fees or representation fees -they don't budget Workers' Compensation Board as a separate heading; they budget Workers' Compensation Board for assessments. And they know they are going to pay assessments and that is in their budget. And the legal fees are for the other ones that are a direct challenge like a labour relations board hearing or a human rights hearing or an employment standards hearing or a wrongful dismissal or a penalty hearing on a Workers' Compensation Board matter that they get involved in because they are challenged; it is a direct fault issue. But when it comes to claims it's taken a long time to get employers to get involved. And that's why I've been finding the tone disturbing over the past couple of weeks - because I have spend significant efforts - right or wrong - to get employers to get involved in the system; understand the system - go to the appeal levels and try to figure out what is going on - you have a much better ability to deal with Workers' Compensation Board on a day to day basis if you understand it as it is going through the system. And then to be told that we are becoming too aggressive and we shouldn't be involved goes kind of contrary to that but those are going to be some of the philosophical decisions that the Royal Commission is going to have to work out.

Internal - external - the primary factor if not the only factor of any import raised by the Review Board is independence. The need for independence and the perception of independence. And that is a very important factor; I don't want to belittle that. But I tend to rephrase it now based on experience in the system and I asked Mr. O'Brien about this - I tend to call it the ability to work effectively within the system. And I would like to focus on that - which level - internal or external is going to be able to work effectively with the system. I think everybody agrees - all counsel agree and I think all the presenters agree - policy development rests with the governance system not with the appellate system. The problem becomes how do you ensure that that line of separation is maintained? And that is one focus of internal versus external. Internal -the governing structure is supposedly responsible for - accountable for the appellate structure - when it is internal. We are going to talk a little more about this tomorrow on the Hughes' Report. But it very much depends for this policy line separation for the governance to have the ability and the willingness to effectively oversee the appeal tribunal and hold them accountable for that. And I think our system has been weak on that in governance.

If it cannot be effectively done through the governance system and the internal system then external probably is the better way to go. But you still have the same problem. You know so okay I don't think you are going to find any difference when you go external about policy creation and implementation. I think you are going to get tough decisions through the system and I think both the Appeal Division and the Review Board do the best they can. And both - in a lot of cases - make the same decision and both in the view point of the outside communities may look at that decision and say hey you are creating policy. Internal, again, governance is supposed to deal with that; external you can't use governance to deal with that. You are probably looking at a third party court. I am always hesitant to be recommending a strong role for the court but if we go external I think we have to do that. And that is the recommendation of the Review Board when you read their submission about the role of the court on those kind of issues. So that brings me to another reason for external - I'll continue on the policy - Don Munroe's advisory council said this on page 22 - about one of the concerns - the disadvantages he called it of a free-floating internal tribunal. And the first disadvantage has to do with the division of responsibility for policy making on the one hand and adjudication on the other. Whether one chooses an internal or external system it is irrefutable that only one body should be making policy. Further that body should be the Board of Governors with the advice and the assistance of the Executive side of the system. We all agree with that. From the experience of at least one Canadian jurisdiction - and here is the key - and this strikes us as predictable. The establishment of a purely external tribunal of last resort sets up a competition as to where the general policy making for claims really resides. This is counterproductive, both to the work of the system and to its overall credibility.

My personal view is that that is a correct opinion - the predictability of that is you are going to have that tension. And it wasn't just Mr. Munroe's again. I know Mr. O'Brien disagreed with that and explained why but it was made up of 13 very diverse people working with Mr. Munroe on that coming up with the - as I said at the beginning - I think he even mentioned this which he was surprised about - a unanimous report. So it is a fact that you have to weigh in mind is independence - it certainly an role and we'll come back to that - but there are also other factors that will have to be looked at.

Q: Mr. Winter can I interrupt before I forget. Would the making of policy by an external appellate tribunal be reviewable on judicial review with a privative clause?

A: I think it depends on how the legislation is worded.

Q: Go to jurisdiction?

A: I think it would have to be - A. you can deal with it in the privative clause if one wanted to but I think most of the jurisdictions actually put it in a provision allowing similar to what was recommended by the Review Board suggesting or - not suggesting - but allowing to go to court on that issue. If you don't put in that provision it depends on how you word authority to create policy because if the authority is very clearly written that it rests with one body and another body tries to exercise that authority you have an excess of jurisdiction. I think that is a judicial review matter. I think the problem is always going to become as it was when you talk to the Appeal Division now - we didn't create policy - now you get into the discussion of - did you didn't you? I think the internal if it is well run - the governance structure is supposed to have a better role in saying - well we don't have to debate this - whether you did or you didn't - you did. These are the reasons we think you did. This is the problem we have; we are going to deal with it. When you have an external from the governance, they don't have that ability. Maybe they have an informal line of communication but there is no ability for one to say to the other - you are accountable to us. We are responsible for you.

Q: Surely it is not that hard for a tribunal to determine when they are venturing into making policy as opposed to apply it?

A: I had - I thought it was fairly obvious - I keep using the case - I keep getting told I'm a lawyer that is why I us it - the legal fees case. The policy is quite clear - no legal fees. Period. I tend to agree that that's a fair amount of discretion. And there are cases that have gone to court on that. The Appeal Division didn't just say there is a potential to use our discretion here. They went a step further to say we will recognize legal fees when there is a flagrant abuse. And that has now become the test. That is a policy issue they could have recommended to the governors that - I think you should put in a test of flagrant abuse and you were there you can go to the transcript. I was asking Ms Kobayashi about it and that is the attitude you always get from them. And again I think that is the proper attitude you are going to get from an appellate structure. Nobody if they are doing their best is going to come and say to a third party -yeah we know we created policy - we know we can't - but we did it. Obviously they believe they didn't do it.

Q: Isn't the judicial review the deterrent to the tribunal to make policy and if they do err then the courts can straighten it out?

A: They could and I think the section 621 kind of example - one judicial review was kind of similar to that but again I don't think it is wise to build a system that is going to be leaning on the courts more and more. And I will come back to why I am leaning toward an internal one just to continue the internal/external - you have a very fragile system; we have been unstable for a long period of time. We need stability; we don't need new ways of instability and using the courts for judicial review to enter our fights which they will turn into of whether you created a policy or not - I just think is wrong for our system at this time. I'll come back to that in a minute. I just don't think it is the time to have that fight going on. But I accept your ultimate point. If it is an excess of jurisdiction the courts can say that. What you then end up having I think also is - okay - nobody is going to say the court is choosing sides but that is what it is going to become. Well - you know this case they said the governors were right they created policy - nyah, nyah, nyah, nyah. And this case the Appeal Division well you were right you didn't create policy, nyah, nyah, nyah - I think it starts to harden the positions with each other about what is policy and what is not policy and who is role is it? Because you have a third party arbiter that is always probably going to give you a different decision and different lines because policy is not an easy issue to decide when is it interpreted and when is it created? I think those are easier decisions to deal with internally.

Q: So you are balancing the perceptions of those who are being dealt with in the system -that it is independent of the Board and the value of that against the problems you raise?

A: And again I think independence has a humungous value and as I said if people are convinced at the end of the day that the internal governance system cannot control policy then I don't think internal works; I think it has to be external. Because you are not going to court but you are still going to have the problem. And then we still have the same problem but there is no one to go to say we have a problem. Governance doesn't deal with it; the Appeals tribunal in good faith doesn't believe they did it. And I think Mr. Buchhorn said it is not for the parties to have to take this dispute to court. When you use the external you are probably going to build in the system itself to take itself to court because it is two different parts fighting each other. But again my concern is going to be the stability issue. So let me just elaborate on that. There has always been bickering in our system - the Review Board and the Workers' Compensation Board before we had a Appeal Division obviously had tensions and it is recognized in the administrative inventory and that is to be expected. The Appeal Division and the Review Board have had tensions. Worse times and better times; I've reviewed some of those with the witnesses and certainly there are tensions. It leads to bickering. We are at a point in time when we have gone through the governance system in the 1990's -we went from commissioners, to governors, to administrators - three separate systems just in the 1990's. We've gone through 3 separate Chief Executive Officer's/Presidents and are still looking for another one in a 5 or 6 year span. You've heard - we've had discussions the employer community has raised concerns about he delay in getting important things done. And some of the answers that labour or I think it was mainly Mr. Steeves has asked the witnesses - Well isn't part of that because the governance structure is falling apart? And it may be true; but again it's been a very unstable 6 years - I know what the premier said when this commission was created - it was a focus from the disabled workers' side. But if you go back and look at history I think a big factor was they first found that the existing governance structure was - dysfunctional was the word used. Got rid of that and put in a Panel of Administrators and we moved to a Royal Commission.

So I think there was more than one feature of the system that prodded a Royal Commission. And I think governance was an extremely important feature of why we have a Royal Commission here. And I think it is an underlying need for stability. So what we need in BC right now is stability; a strength of leadership and when we take healthy bickering that's fine but we don't have healthy bickering because we are not stable enough to have bickering that is healthy in my submission. You have a very polarized labour/employer environment right now. And BC has often been that way.

I don't think it will be very difficult for employers and labour to choose sides. We'll see an external appeal function that we think is doing something wrong; if labour likes that decision we'll support the governors and we'll go to them and they will be on the other side or vice versa. I think you will see a lot of that in BC just because of the nature the relationships are right now. Again the system I don't think can handle that right now and that's why I think it turns dysfunctional at the governance level. The majority rules. Labour and employer; it doesn't work. So some comments on Independence. Again, I've already expressed my view that it is a very high profile issue but it has to be balanced with others. Can there be independence of an internal within the Board as an appellate? I think it can; it's there now. I think it works. I think the Appeal Division has a significant amount of credibility with the people that understand the system - that work with the system. I think they have as much credibility as the Review Board and as much discredibility in certain cases as the Review Board. I think a concern is having the Chief Appeals Commissioner sitting as a governor and not a voting governor. I think that does create a stronger perception of loss of independence. If you are going to create external or internal you have to separate the judicial function from the administration function. Having the Chief Appeals Commissioner sit as a non-voting governor really blurs that independence. And that is different than saying the Chief Appeals Commissioner if it is internal has a reporting function. And should be invited to the governors' meetings to report on what's going on - significant issues at the Appeal Division - I think that is mandatory. And should be included but not as a non-voting member. And so if we slip down to external, I think the exact same thing applies. Nobody seems to say that if you have an external the chair of the external should be a non-voting governor. Everybody seems to think that's an odd premise. But when they are internal they should be. I think it works both ways. I don't think either of them should be on - a non-voting governor. And I think in one system, two system - both of them should have to report for the same reasons - so that the governance system has knowledge of what is going on within the system overall from an appellate viewpoint.

Q: It is interesting that the Commissioners' model that worked well or otherwise for so many years was the ultimate internal appeal mechanism -where you had governance and appeals - in the same agency - despotic might be the word.

A: It was despotic. It was despotic. And as long as the despot is in your camp you are going to be happy with that system and so you know nobody has advocated that system - the employer community probably would advocate it if we thought we had a chance of getting it but we were generally more happy with that system and the Review Board had a very different role. I think anybody away from the Review Board would say especially the employer community - we dreaded going to the Review Board in those days because it seemed to be pro-worker decisions and the policy was we knew what the commissioners were going to do. And we had to go through them to get there and there was a real change in the view of going to the Review Board once there was an Appeal Division and there are all sorts of philosophical reasons why that perception may be there. But certainly that was very different system - the ultimate - you're right - the ultimate internal system. Those are my comments on internal/external; I'd be happy to answer any other questions if I can be helpful on this point. If not I'm going to move to the Medical Review Panel for a few minutes. The employer community says the Medical Review Panel should be replaced with a system whereby the appeal tribunal has the discretion to refer a medical issue to an independent specialist or panel - it doesn't have to be a panel necessarily - for an opinion and the referral could include a requirement that that the worker attempt to be examined - that would be up to the tribunal and the parties can ask the tribunal for that referral. But it would be a decision of the tribunal whether to do it or not. It is similar to the proposal made by the Review Board in their written submission on healthcare advisory panels - the main difference being that the certificate should not be binding. That would be the employer's view - the Review Board's view is that it should be binding. The employers' view is that the opinion coming out of the Medical Review Panel or the Healthcare Advisory Panel - whatever we call it - would be made available to the parties who would be provided the opportunity to respond. It would end up being part of the overall medical evidence and the overall evidence before the tribunal which would determine how much weight they should place on it. One would have to be very naïve believe that that's not going to be given extreme weight because the tribunal itself made the decision to go out and get it. And so unless there is a good reason not to give it high weight - I can't imagine why it wouldn't be given high weight -but again it should be a matter of weight - not binding. Why? There's a variety of concerns with this Medical Review Panel system. And I don't think they go away simply if we make it part of the appeal structure. Why? One - Legal evidentiary issues versus medical issues. It is not always that clear. And if you keep the system separate that becomes a real problem. We've gone through from the Medical Review Panel into the appeal system to say we think this is a legal and it comes back saying - no - we are going to let them decide the matter. It still has connotations that it is always difficult to separate just one aspect of a decision and call it medical without realizing it's in a whole complex set of circumstances that influence that. A good example is the ability of the Medical Review Panel to weight and provide a presumptions of the standards in the Act. Section 99, Schedule "B" are some that have been raised. But if it is binding there's nothing you can do about it. It is an extremely difficult appeal to get it back into the system to say well I missed this. I'm going to talk about this section 6.3 - Schedule "B" - a submission made by Mr. Steeves at the end of this part of my discussion. But if you leave it within the Medical Review Panel to be binding you are always going to have that problem of either applying other parameters that flow from the workers' compensation system - I don't think you have that when it is part of the appellate tribunal. They have to bring everything back and weigh that medical evidence part of that and apply all the other standards and presumptions that flow to that evidence as they do with other evidence. There a lot of natural justice concerns arising from a binding Medical Review Panel and I'll give you examples of cases that I've been on.

Starting with - I had a case for a large employer - that it was a respiratory disease that went back many years - denied way back then. A re-opening in the late 1980's denied. Went through the whole process- denied all the way through - brought an Medical Review Panel. Accepted. This was the first time the case had been accepted so there is a whole bunch of background stuff that was never put in because it was denied. They not only accepted they found that the gentleman had retired about 12 years earlier because of what is now being called a compensable issue. The employer never ever addressed why the person retired. And he had all sorts of evidence on early pension; we had the sick leave records - we all sorts of good stuff to say - that's not true. It's not accurate and we demanded natural justice on the fact side. So we do; we appealed. The Review Board said no; it's a binding certificate and that's part of the medical decision about why he retired - no. Went to the Appeal Division; same thing. And so we are stuck with a finding, which I think was non-medical but it doesn't matter what it was - we are stuck with a finding that we didn't have natural justice to answer. That would never happen in a system that a non-binding medical certificate is brought back into the system and then all the evidence can now be put in that surrounds that certificate. Another example - the psychological cases - Mr. Sayre and I went through a very difficult psychological case; the Appeal Division rejected the case - they knew it was a pre-existing psychological disease. The evidence went on for three or four days. The complainant said -listed a tyranny of events that happened and the employer listed a tyranny of witnesses saying it didn't happen. It was all a matter of perception. It did not happen. Case denied on a different issue; went to a Medical Review Panel. The employer's fear - we asked to be involved. We said you are not going to - you don't have to do a physical. You are going to - part of a psychological examination is going to go through all of this stuff again. And you only get one side - and the Appeal Division decision didn't recount all the evidence. Nor do I think all the evidence was given to them. I think they generally just get the decision. But anyways they get the whole file - they are not going to go through a file this thick and look at all the evidence. And we were denied the right to come to say we want to hear what she says and we want to answer. And it is a big concern with psychological about what are they going to say is the cause and they only hear one side of the story. Now in that case it ended up the Medical Review Panel denied it. So we didn't have to worry about where do we go from here? But that is a concern I don't think you would ever face if it wasn't binding. We don't have to be involved at that level - it is coming back to the appellate system and we will be adjudicated with the framework from all the facts before them. Last example - the suicide case that went through the system and it is reported. We are going to talk more about this case tomorrow but it was a manager working for the government; went in on the weekend and decided - for whatever reason he had - to commit suicide at work. The Appeal Division made a finding that on the evidence there was no evidence available as to why he killed himself. So denied based on speculation. Went to a Medical Review Panel. Now, this person is dead. The Medical Review Panel found 50% was caused by work stress as to why the person killed himself. I don't know how that can happen. How a finding like that could be overturned and the person is not there anymore. But the fact of the matter it was. And if that could be brought within the overall system and it would have got to an Medical Review Panel and brought back. The tribunal then could have weighed what it thought was maybe speculative or non-speculative. What evidence did the Medical Review Panel have that we didn't have? Maybe that makes a difference. But that wasn't there in that case. So those are all the natural justice kind of concerns - the evidentiary kinds of concerns that I think flows from a binding Medical Review Panel certificate that I don't think would be lessened simply because you have one panel dealing with all that.

Q: How would it relate to a single level of appeal that you are suggesting - what would trigger an Medical Review Panel in the modified form that you are suggesting? What would trigger that examination?

A: It would be triggered by the tribunal. If you are asking what would be the reasons for why the tribunal would want to do that? A. It can be at the request of the parties - it should be built in that the parties can request it; normally it will be because they have no evidence - no medical evidence or they have conflicting medical evidence and they want another opinion or because it is in a specialty that they don't have that evidence that they want that opinion - that specialty. I think those are the primary reasons you'd see it. But it is certainly advocating we take it out of the hands that have a unilateral right to go to a Medical Review Panel.

Q: Similar question - we've heard from many workers how new evid - with the additional levels of appeal they were in a position to present new evidence that may not have been available at the time of the initial appeal. How would that the single level of appeal address that issue - where there is new evidence that may change a claimant's position on a file?

A: This is after they made their finding? Okay - there's two ways I can see that that can be dealt with in the system. First off - and I'm going to be advocating when we get there that the reconsideration provisions stay. I'm not sure what I gave you would meet that but that does allow new evidence - that is the only ground for reconsideration in the Act -that is when we get into the kind of test that you see in other tribunals about there having to be substantial evidence -there has to be an explanation about why it came up after or why during due diligence you couldn't find it? So that is the first avenue that is accepted for new evidence - the other way is to go back to the Board. And seek a re-opening.

Q: Is there any way the onus can be put - a greater onus can be put on the adjudication under the case management system to compel those looking at the file to use a little more diligence. Is there any way that - to make sure all the right evidence is asked for or all the information is requested?

A: Is there any way to make sure - I think if you want to make sure you are going to have to legislate - I would be very concerned about putting in this lack of flexibility and in very stringent legislative language - that you have to do something by such and such a time. I don't think that would help our system. I think what we could only do is encourage and try to identify procedural failures now or omissions now that stop that - I think case management is trying to do that. I think case management as you heard - all three counsel have the same view - a lot of the things the Board is trying to do all sound good but we are all a little skeptical from dealing with the Board in past experience. We are all hopeful that the future experience will show that these things are going to work and we won't know why you are deliberating. I think case management tries to address that concern of getting full and proper evidence from a variety of sources - medical, non-medical, psychological, vocational - all those sources at an early date so that a full and proper decision can be made at an early date which again hopefully will take out a lot of the need for appeals. But I wouldn't be advocating legislating that.

Q: So for this single level of appeal that you are proposing - what would it be if - the scope of review available to it - would it be trial de novo?

A: If it was one level I would be advocating a trial de novo. I'm not trying to put restrictions on a worker's right to getting the full information in and understanding what the first level of adjudication may not have been presented and going on appeal to present it if you can't get it back in. Equally when we are talking about grounds I'm going to be looking for de novo for employer appeals too. But certainly I advocate de novo; my clients don't necessarily do that; some actually advocate grounds even for the first appeal but if we are only going to have one level of appeal I think de novo is the way to go.

Q: Even on the employer side?

A: Even on the employer side - I'm going to get to that one if I can bypass the one level Medical Review Panel. But I'm going to chat, probably after lunch on the grounds that currently just an employer appeals. So continuing with the Medical Review Panel - some of the comments that Mr. Steeves raised this morning -he wants a recommendation that the Medical Review Panel is required to comply with section 6.3. Remember section 6.3 is the presumption from Schedule "B" that if you work in this industry process you get this disease - the presumption was if the contrary is proved. And so I don't know what they means and he wants a recommendation that the Medical Review Panel has to be bound by that. I take it that technically he can't go to an Medical Review Panel on a section 6.3 Schedule "B" issue because if they are bound by it what can they possibly do?

Q: I don't think he's saying that - let's get to the section - section 61 - requires the panel to certify to the Board somewhere in there is something to do with the issue of causation. I think what Mr. Steeves is saying is -61.1(b) thank you - I think what Mr. Steeves is saying where that has already been determined statutorily then it should be made clear that that is not an adjudication in the first instance - if causation is to be revisited -that it should be made abundantly clear that by a rebuttal of presumption rather than an initial determination which has been statutorily made.

A: Okay; but I guess I was at my second point - my first point was I faced this issue with Mr. Steeves before when we were in court on section 6.3 in the melanoma cases and the issue was - the test - just can't come with medical evidence - it says it wasn't caused by this but the presumption says it was - and so that is what I'm saying what does an Medical Review Panel do? If it does fall under causation issue is raising what is in Schedule "B" based on the recommendation that we've asked - what role there would be left for that issue on causation? For an Medical Review Panel? The reverse is -okay if you are going to allow them to go there I think that is proof to the contrary. Isn't that a rebuttal of presumption -you are going through an independent group; an Medical Review Panel in binding certificate if you leave that - that says it was not caused. Example - what we went to - we went to the Medical Review Panel on the melanoma cases it is not caused by coal tar. And what we are going with the melanoma is it is not caused by benzene. Now that's a bad example because it is not on Schedule "B" but skin is in Schedule "B" - it says cancer of the skin and it is an either or and the or is coal tar. And our argument was no - melanoma is not caused by coal tar. It's the other organs. And we went to the Review Board; we lost at the Appeal Division; we won at the Judiciary review; we lost at the court of appeal and we are at - we went to an Medical Review Panel but unfortunately the person had passed away. My view is if you are able to go to an Medical Review Panel on that you get a panel of specialists that say melanoma and the others we have is not caused by coal tar - doesn't that rebut the presumption? Isn't that what the contraries prove when the policy says it is on the balance of possibilities; isn't that what it does? If you agree that's what it does then I don't understand the recommendation I guess.

Q: Doesn't it go to a burden of proof?

A: There is no burden of proof in an inquiry system. What the Schedule "B" does when you read the policy is takes the onus off having to put any evidence in. The onus is supposedly is always on the Board - instead of having to investigate you already start with the presumption that it was caused by work - now any investigation you do in the inquiry is you rebut that. As opposed to the other way around - you don't have anything so you are looking for the evidence to see - was it or wasn't it? You don't have the was it or wasn't it - you are starting with it was. But clearly on workers' compensation law so I understand - I think it's in my manual whether the Royal Commission thinks it should be clear is that there is no onus in an inquiry system. And so you go to an independent group that's going to give a binding - I think that's one of the problems with a binding certificate. How does that weight with section 6.3 - I don't think - it doesn't matter if you are going to keep it binding that you are ever going to get it resolved. But if you accept the Medical Review Panel as a panel of independent specialists dealing with that issue that is before them and they determine that it was not caused by contrary to Schedule "B" again the problem I would have -and someone is going to have to explain to me is - that doesn't rebut the presumption. And if you agree it doesn't rebut the presumption then I come back to my point about Mr. Steeves' recommendation and what he's asking you to do is to say when it is Section 6.3 you can't go to an Medical Review Panel because what can they possibly do on causation?

Again, I may be misquoting Mr. Steeves but I thought he said the reason why he didn't want the Medical Review Panel to be at the front end of the process was doctors don't understand legal issues and then I missed it - I think it was policy issues and other types of issues. Again, that's the exact reason why it shouldn't be binding. I don't care where you put them in the system. They don't understand those issues; it's not their focus. And you don't give the people that have that focus the ability to bring those issues back from a Medical Review Panel certificate because it is binding on everybody.

Mr. Robertson asked the question of Mr. Steeves about getting the tribunal - first to do findings of fact and then sending it to the Medical Review Panel's so you have to find the fact and assuming that we still have multiple levels of appeals, Mr. Steeves raised a valid concern - what if you want to dispute the findings of fact? We already have that problem - it's another problem in our system. You come out of the Review Board - the Review Board finds on a finding of facts cause and the worker for some reason wants to appeal the finding of facts to get more. And the employer goes to the Medical Review Panel. And you have two rights -nobody in the Act says what takes priority. Because the Medical Review Panel clearly you can go from every level and now what do you do? You go to an Medical Review Panel after the Review Board findings, which are your right, and they are bound by those non-medical facts. At the same time you have a dispute of those non-medical facts going in a different direction. The Medical Review Panel is not bound by it is not supposed to follow. Again it causes all sorts of problems in the system when you have multiple levels. You have one level and then maybe again they did it after the finding the problem then becomes a lot of times the Review Board or any Appeal Division finding don't set everything out obviously and you have to ensure that they or you have multiple decisions in the system through Review Board findings. All you have to gather is your facts; you place a lot of faith on the Medical Review Panel.

Just like to get all those non-medical facts and have the panel be bound by them. The last issues I want to raise on the Medical Review Panel is if the Royal Commission determines that they are going to leave Medical Review Panel's in the structure it is as an independent appeal form there are a couple of problems with their existing structure that the employer community would like to raise. First - only a worker - a dependent of a worker can take - if they are aggrieved by the cause of death to an Medical Review Panel -the employer doesn't have that right. Both the worker and the employer have the right to go to an Medical Review Panel for a medical decision but when it's a dependent -only the dependent has the right. From the employer viewpoint that doesn't seem fair. It doesn't make a lot of logical sense. Two cases - One which we have currently -is that we brought a valid Medical Review Panel - we have crystallized rights. We have the medical certificate - it's a cancer case - we don't need an examination. But if the claimant happens to pass away before the Board can have the system we lose that right to have the issue adjudicated still. And there are important issues about whether certain exposures cause certain types of cancers. But we lose that ability because the fact is the worker has passed away.

On the other hand you take a case where as in the melanoma case the employer just does not believe that that causal connection is there and were denied the ability to have that tested by independent specialists. So we would ask if the system is going left that section 63 widened to allow the employer to have the same ability to appeal the cause of death. The other issue is -just to raise it - relief of costs and section 39(1)(e)-the Appeal Division has held that on a medical issue arising from a relief of costs you can't go to a Medical Review Panel. The employer can't. It is only for claims issues. And so you take the funny situation of a low back - if an employer is able to argue about section 5.5 and section 39(1)(e) we can get to the Medical Review Panel on the section 5.5 - proportional entitlement but not the section 39(1)(e). If the employer does not want to have to argue the section 5.5 it is prepared to accept the entitlement but they want to argue the section 39(1)(e) we still can't go because it was a pre-existing disease or condition as opposed to a disability. The Appeal Division had concerns about that but under the language said that this is what it is - the decision for your review is 93-0389 and it is reported at 9 WCR 361.