Affiliation: Workers' Compensation Board

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

Notetaker: Steven Noble

Date: Thursday, April 16, 1998

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A: Number Two?

Q: Yes.

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

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

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

A Claim for Suicide.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Q: So you would get the appropriate notice?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A: That is a very interesting question.

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

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

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

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

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

Section 6.3

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

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

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

Q: What is that decision again?

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

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

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

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

Those are all my submissions.

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

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

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

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

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

A: That’s correct.

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

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

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

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

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

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

Q: I understand.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Section 6.1 of the Act is as follows;

6.1 Where

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

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

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

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

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

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

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

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

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

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

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

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

This example demonstrates the following:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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