Royal Commission on Workers Compensation in BC

Meeting Notes:

Location of Meeting: WCB, Richmond

Date: April 17, 1998

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

Notetaker: Judy Stott

_General Comments

Occupational health and safety – program delivery

Fatality claims and benefits – outstanding issues

_presentation

ALAN WINTER

Topics that I will discuss

Medical surveillance

Selection of doctors

Confidentiality of results

The last issue on medical surveillance is that there was a discussion about mandatory testing

Q: Did you say that the trucking industry has this now federally?

A: No I don’t think that they have it federally but I think that it is being tested. I think that what they are facing federally is a bigger problem because I think – and it is very, very limited knowledge - but I think the States are starting to require that the drivers have to have this testing done. So it is when you go into a different jurisdiction that requires that but the Canadian jurisdiction may prohibit it and that is where you start getting into the detentions of mandatory testing. Inter-jurisdictional labour code. From the commission’s view this is not an issue because your jurisdiction would only extend within our boundaries. Inter-provincial trucking doesn’t fall under your jurisdiction. That is a Canada Labour Code problem and you only have intra-provincial. The external forces from the States may or may not have the same sort of influence on intra-provincial. From safety prevention it is the same issue. It is being in a position that you can take tests to ensure safety and prevention. You don’t want someone driving that is impaired.

WINTER

Preventative compensation and protective rehabilitation and I broke off protective reassignment

Q: How does that differ from saying that there is no disability if someone loses the tip of a finger? It is a scheduled presumed disability that is intended to apply across averages.

A: I think the point is mixing the disability side. When you are reading 23.1 there are 2 concepts in there and you are mixing those up in my respectful submission.

23.1 starts where permanent partial disability results in the injury, the impairment of earning capacity must be estimated from the nature and degree. So there are two aspects to that. First there has to be a permanent and partial disability. When you lose your finger you have a permanent partial disability and the second issue is do you have any impairment of earning capacity. A lot of people who lose the tip of their finger do not have any impairment but we give everybody the same pension because of the average principle. You first have to have the permanent partial disability and the finger is a permanent partial disability. When you get to the underlying sensitivity the question is is there a permanent partial disability. I think that the answer is no. If you answer yes then I agree that you are back into what is the difference.

Q: If you have been employed in the cedar industry and because of red cedar dust asthma you are denied the opportunity to work in that industry anymore because it is medically assessed that further exposure is just going to cause it to continue to flair up. Do you not think that it is a disability for that individual who may have to move out of town or accept lower wages at another occupation?

A: If you are asking me to compare whether a person should be getting a disability with a lost finger and could the impact of a person who can’t go back t red cedar be greater, sure it could be greater. I think the issue is is it a permanent partial disability and I still think no. The person is otherwise functionally healthy they just can’t work in a red cedar mill. They can go and be retrained and not have that problem. When you lose the finger the assumption is that over your lifetime you may find that you can’t earn the same level of capacity you could on average. With the red cedar I don’t think that that holds. You can’t work there but there is all the rest of the world that you could work. Where the Board does take responsibility is to help the person get retrained to do that. They do provide preventative rehabilitation but not preventative compensation.

The problem that you are going to get into when you start moving into preventative compensation is for how long? With preventative rehabilitation you get into the argument of what if the person doesn’t want retraining or doesn’t want to get into a new occupation – then just don’t provide the preventative rehabilitation assistance to them. When you move into preventative compensation it is very different. If a person just says no I am not now what do you do? The rule for temporary wage loss is that when the condition stabilizes or plateaus that stops. When you removed yourself from the situation for which you are getting wage loss and now it is stabilized so wage loss is gone. The argument I heard is that you should continue to get wage loss until the Board gets you back to work. For how long then because you don’t have any disability and you refuse to be trained? You also refuse to go anywhere else because you are getting wage loss. That is the first problem. Then they say we should get into a functional pension but there is no permanent, how do you assess the disability. There is none medically. As I understand it you have an underlying sensitivity and the Board’s policy itself is that there is a permanent disability or an aggravation of an underlying asthmatic condition that will be compensated to a functional. But if there is none it won’t be compensation and I think that that is the problem. I think that the balance is the rehabilitation side. Now how often they do it or how well they do it, those are answers that I don’t have. I guess that is a Board question.

The problem that you are going to get into in preventative is now that you have opened the door where do you stop it? Let me give you another example. I act for Alcan and working in the pot rooms at Alcan can contribute to the development of bladder cancer. I think that was first accepted in BC in 1987. If you look at the claims manual in section 26.41 they have a formula worked out for those Alcan workers exposed to benzene soluble levels. If it is a certain level or greater then you are going to get compensation. Just because you are 5.6 or greater does not mean that you are going to get bladder cancer. What this is for is if you do get bladder cancer and you work at Alcan then it is a tool to be used on adjudication and compensability.

If person is tested and gets 5.0 they are under the level but for the record the appeal division has certainly questioned that level. The person wants to be moved even though they do not have bladder cancer but they are more at risk for bladder cancer. Let’s say they are at 5.6 now what do you do? Let’s say they are at 8.0 and they still don’t have bladder cancer but they are getting much more nervous because they are moving into that range where bladder cancer is very common, especially in older men. Let’s say that they are at 6.0 or 8.0 and they don’t have any disability but they come to the Board and say I want wage loss and I want you to help me to get a job. Where do you draw that line, that is a most difficult question? I don’t think that you can just focus on the very narrow red cedar that was caused by the worker having a sensitivity. How do you draft it in a way that the lines make sense to be applied because the problem with WCB when we talked about experience and can you do it is that every case is so different? It always comes down to arising out of the course of employment or due to the nature of employment if you are under section 6.

Q: Do you just keep working that person in an area where you know that the exposure range is so high that it’s almost inevitable that they are going to contract a disease like that? It sounds like you are just adding oil to an engine that is smoking and you won’t do anything until it blows up.

A: My experience in the preventative is that the employer sometimes wanted to know if they could do anything with respect to workers exposed to red cedar dust. It would be a human rights infringement if you told that employee that you cannot work here anymore because you have this underlying disability. I think that that is the kind of issue that was being raised by the union when they talked about section 6.5 of the act. It says that you can do testing and the Board can then tell the employer that you can’t hire the person in this industry because they are not suitable on the test. I think the concern that they raised if I read it right was human rights.

Q: That is different than the employee requesting the opportunity to move.

A: Now you are really putting in lines here. Is it that much different when the employer says that we don’t think this is safe, we want to move you and the employee says I don’t want to move. On the flip side when the employee comes and says I want to move, you have to move me is that really that big a difference? I guess it depends on what side of the fence you are sitting on. There is no way that I can either side being able to force that issue. Now it ends up being a disability and we are into certain rights that flow from that. That is where the workers’ compensation lines are. What you are being asked to do is extend the lines for when workers’ compensation can stick their nose in it. I think that the line is arising out of the course of employment and it seems to be on levels of disability.

Q: You could go further down the slippery slope to the issue where genetic testing could determine a person’s susceptibility to certain conditions before ever getting it. How does that play into whether that particular individual could engage in that particular occupation?

A: I think that is where we get into the problem Judge Gill. A lot of these issues that the commissioners raised or will be considering have much wider, social, political, public and health issues than just workers’ compensation. It is the same when you go to human rights. As you can see the overlap in some of these areas. I don’t have an easy answer on how those lines are drawn and how you draw them. I have certainly seen cases where people wanted to do testing in advance to see if they had weak backs. Even though they don’t have a disability now they don’t want to put them in an industry where they know it is going to be a disability in 2 to 5 years. That is for a variety of reasons – cost, preventative and why would you want to put a person in a position where they were going to be disabled?

Human rights doesn’t allow the right to deny a person the job if they have a potential bad back.

WINTER

Protective reassignment

Q: How about for some getting pregnant offers some general societal benefits as opposed to getting concussions playing hockey?

A: You’ve hit the nail on the head again. That is not a WCB issue. We’ve got human rights that covers that and maybe their act says that we should do something. Employment standards is where it would be dealt with ultimately for all employees. It doesn’t arise out of the course of employment and you are being asked to expand that parameter to cover it, which I don’t think is the way to do that.

Q: One issue outstanding is whether the agency providing occupational safety and health services or any aspect of those services should be separate and apart from the agency delivering compensation and/or rehabilitation services.

A: The commission has proposed that there should be a separate act and left open the question for whether or not that should be administered by a separate agency or not. Certainly when the government started drafting they heard the same thing that you heard from both the employer community and BC Federation of Labour – we want it in the same agency and the same act. I am not sure that that has been finalized other than I think they were prepared to draft it as if it were a part and still wait on the issue of agency but I don’t know.

On the issue of same agency the employer community believes that the prevention/compensation sides are integrally linked. There is an artificial division that could be done but I don’t think it would be beneficial to the objectives of the system, particularly on the prevention side. Mr. Buchhorn presented on the compensation/adjudication day and they went through case management. One of the slides showed somebody sitting there with a whole bunch of arrows showing other people involved and it was a prevention officer as part of the case management team. I asked Mr. Buchhorn why he had prevention without telling him what the panel had decided or assuming that he knew. He answered me and it is on page 28 of the afternoon session. He said that "Our corporate strategy is to provide much more integrated services in the future. This is an early attempt to involve the prevention division in a discussion about the serious claims and about causation with a view that in many cases it is an issue that may be dealt with in the work place. This model ensures that where there is an opportunity to prevent similar injuries from occurring the prevention officer can then act on that particular issue." If I understood the answer he was saying let them get involved up front in order to understand and help determine what caused that injury as opposed to just dealing with the compensation and getting the person back to work. This is so that we could prevent in the future and have an understanding of that also.

There is the first tie that we heard about in case management and it seems to have made sense. I asked if he saw a real value in having prevention interact with compensation this way and he said absolutely. I explained why I was doing all of this and the recommendation. I asked him after that if he had any opinion he wanted to share on the goals that the Board wants to meet and the impact of not having prevention within the Board to do that. He said that "There would be a significant loss to not having prevention under the umbrella of the workers’ compensation system. We would lose a lot of opportunity for an integrated look at a work place and to ensure that we could do the very best with all the resources that we have brought to bear." That is a very broad statement without a lot of detail but I still think that the kernel of the statement does flow and make sense.

The second area that you should consider is the employer classification structure discussion paper that I went over on funding day. Page 2 says that the employer services strategy project is the services division's response to the strategic plan… On page 6 they go through the general objectives and principles of the classification system. The first bullet – you remember we went through the 8 and talked about them – was that the facilitation and promotion of active prevention and the support of rehabilitation and return to work measures. On the facilitation and promotion of active prevention I tied that into experience rating. On page 8 they talk about the classification unit and they say that the information that that will generate will show the Board which types of business have the greatest number of claims relative to payroll and should therefore be the focus of injury prevention activities. So this is information that will be in the assessment department that prevention can use to help focus who do we go to.

On page 9 and 10 they discuss how the proposed new classification structure will support and further the Board’s efforts to prevent work place injuries and they give 3 or 4 different reasons. I do suggest that you do look at that in more detail as you are going through it. I do believe that there are a lot of ties when you have a properly structured classification system with a properly structure and focused experience rating system, which I think everybody agrees has to tie into safety, I think that that is an integral link. It is a lot easier to do when it is one agency than two separate agencies. Then you start getting into sharing information and do you or how do you and how accessible is it?

Consider the evidence you heard about the work safe program and whether or not it would be tied into experience rating. I didn’t advocate whether it should be or shouldn’t be but I anticipated that it will be in certain industries and I do anticipate that it will be. I think that that is a value. If I understand the priorities of the system the high priority is preventing work place injuries and illness. The next two priorities are very close but in case of injury early rehabilitation or return to work and fair compensation while unable to work or if you suffer from a disability. You can’t prevent every injury so you really want to focus on getting that person back to work and rehabilitated as soon as you can. If you can’t do that then you want to make sure that you have a fair compensation system for whatever is left. That hierarchy seems to be tied into each other and what you are looking at by having separate agencies is separating those. I can see merit in how they interact. For example, we have talked a little bit about the case management system and I think that it applies in return to work too. The prevention side could have some value. In returning to work or maybe the same work environment or even the same job there may be a preponderance of certain types of injuries. think prevention has a role to play there on how to limit those injuries when we put people back in return to work.

Those are the reasons why I think that the employer community is still advocating a link between the two. It leads into the funding issue. There are competing focuses there. We heard the witnesses that came and presented expert evidence and two or three of them explained the Ontario system to us and the other systems when they are generally a separate occupational safety and health agency. So the employers don’t pay for the occupational safety and health agency. It becomes a public interest, a public good so it becomes a public fund. The employers, under the historic compromise, paid for the worker’s compensation side. So that is one focus that the employers like. The other focus is that our existing system is a combined, integrated system where prevention is part of the workers’ compensation system and the employers already pay for that. It would be a hard sell if you don’t change that system – the parameters of that system as opposed to all the changes inside the system. I think it is just going to be a hard political sell realistically to go the government and say we are going to separate that one aspect and general revenue should pay. If you are going to expand who that system applies to within the compensation system as you are proposing then I think that there has to be some consideration of cost sharing. Why the employer community should pick up the expansion for a non-employer or an employer not covered under the act is not that easy to see.

Q: Just to get back to which aspect of occupational safety and health services, inside or out…. We have heard about 3 aspects of prevention service delivery – enforcement, consultation and education. Do you see those functions being delivered by the same agency whether inside or outside?

A: I think we anticipated being by the same agency but we strongly recommend a separation of the education and enforcement side within the occupational safety and health division. There are a variety of reasons but the main one was that the employers’ perception – and this is the area where we interact with the Board and the area where if employers came and spoke about frustrations that would have been it. Employers would have talked about the attitude and the interactions in dealing with Board prevention officers, the safety or the hygiene officer. They come on our property but we are in their world. With that mentality enforcement is the stick and carrot. It just doesn’t reap the benefits that we are trying to get from improving a focus on a culture of safety and prevention.

If the employers as a whole see the Board as the enemy then they are going to have a tough time getting the employer community to work with them on their goals. We are enforced to interact with them when they come but we are not forced to willingly cooperate with them. If we are going to achieve the goals that the commission is trying to set for us on changing the culture and achieving prevention and safety then I think that has to be an objective. How do we do that and how do we change the attitude to get there. What we have suggested is twofold. One, don’t come in and threaten us first and hit us over the head. There may be certain circumstances where that is needed but start with us on a different basis. Try to work with us and make us think that we are working with you. For example, use consultation and education as opposed to enforcement first. We have never come and said to this commission don’t use enforcement against employers. We have always said it is a tool but right now it is used as the first tool on too many occasions.

The 2nd aspect was that there is always going to be a mistrust if you put that same authority of education and enforcement on the same person. It is a conflict for them when they come on our site and they see something and it is a conflict for us. That is not to say that an education officer isn’t going to point out a problem but we are not going to get penalized by that person. That wasn’t the intent of their coming on our property. We want to be comfortable that when the person is coming out to work with us on an education consultation that is both of our focuses and I think that you will find that we will cooperate. The majority of employers that have problems now will cooperate on a different level with that kind of officer. The secondary question is the one that Mr. Sayre raised about there being a separate appeal process on the occupational safety and health side.

I don’t think there is merit in considering a separate process. To create a whole new agency just to deal with occupational safety and health and the assessment issues would create an administrative bureaucracy for no good reason. I do think that there is value to understand the whole system. Mr. Sayre has told me on a couple of occasions going to the ESS training sessions has been helpful for a person who works on the worker’s side. I think that an adjudicator who understands the compensation side as well as the assessment side, as well as the prevention side will be in a better position to decide some of these issues than if they only had one side and one understanding. I think that there is value in incorporating the whole thing and the appeal side also.

Q: Home business

A: I have a question for you. I went back and I assume what we mean by home business is under the heading duties for self-employed persons without employees. On page 28 that is where the commission said that home based business presents a challenge to developing occupational safety and health legislation that addresses the needs of all British Columbians and this would be dealt with next time around. If I understood the commission they are saying that on the health and safety side we should expand the coverage of the requirements and the duty to comply to self-employed persons without employees. I guess the problem I had was understanding what you are trying to accomplish with that. I can’t answer the enforcement side and how we enforce it without understanding what you are trying to cover there. E.g. I decide to go off on my own as a sole practitioner in law. I would be a self-employed person with out employees and I don’t incorporate so I won’t have to worry about that either. I work out of my home. I am working away preparing a fact and the doorbell rings and it is an occupational safety and health officer. The occupational safety and health officer points to the act and says I am coming in and inspecting your property. I would say no you can’t inspect my property unless you have a warrant like the police would have? Let’s say that I am find myself in court justifying why I wouldn’t let him on my property. I think that that is a significant intrusion that I find very difficult to understand why the occupational safety and health side is given the ability to do that and on the criminal or police side we don’t without other legislative protection.

GG: There could be different aspects. The broadest might be whether or not the person can be considered a worker for preventative purposes as opposed to for compensation purposes. I understand your concern about that and that would be one example of how that might apply. Another example would be a self-employed person working at home with personal optional protection coverage. They are potentially in a position to draw on Board resources. The third is the outworker who is not self-employed, e.g. the associate who works for a law firm and works out of their home. Those are the three potential settings that are the context for which this question of home based regulations is being raised.

A: We will try again then because I did consider the associate one but I didn’t consider the personal optional protection. The self-employed is who I started with. I don’t consider and I don’t think most people consider the self-employed a worker. They are working but we don’t consider ourselves a worker. This is back to when we were talking about me being a homeowner. I don’t consider myself an employer when I get someone to come and do my electrical work. I think that when you are balancing different competing public interests I think that you have to balance on the side of self-employed without employees is not a worker on that side.

The personal optional protection, I think, is a different thing because if we are covered under personal optional protection we have to accept that we are playing by their rules. That opens up a different consideration as long as you understand the rules of getting involved in personal optional protection then those are the rules. Now when the officer shows up I think that it is a different focus.

Then you raised the tricky question of the associate. Now I saw different levels of this issue. So there are two levels here. There are clearly going to be situations where the same lawyer, instead of being me going out, we have an associate that works out of their home and they clearly are employed. The other situation that I had on this one was like the real estate sales people, some of whom the Board has considered workers. Our argument was that they are going to other people’s homes so it is not my home as an associate it is your home that I am coming into. And the officer is behind me wanting to come into your home when you are not the employer but I am the employee of somebody else. Those are slightly different situations but they are both clearly an employee coming into the environment. You have to balance again but I still think that you are facing the same problem, particularly on the homeowner or not situation that has a real estate agent come onto their property and there is an officer following behind because they want to inspect. If the officer write officers when inspecting it is directed at the employer so you are still getting a third party involved saying that I don’t want you going back into that house because it is unsafe. Well maybe it is but you have to balance the intrusion and I don’t think that you can involve the homeowner. You have to involve the employer and the question you always have to ask is does the employer have control? You have to limit the Board’s authority over what control they do have. The only control I see over the real estate person’s say is don’t go into that home. I don’t think that you can go further and force the owner to make these repairs. Is that feasible when you get into that industry?

On the associate side there is clearly an employee-employer relationship. Does the employer have control again of the employee’s home. That is a tough question. Could you say that if you can’t keep your home at this level then we are not going to allow you work out of your home?

The easiest one I had was the next level down. I work out of my home but I have an employee there. Now the Board has a lot more authority because I have turned my private residence into a place of employment. I brought someone else in and I am there and have control. I think that the public interest is a lot different when the Board shows up and says we understand that this is a private residence but you are using it as a place of employment. That line I see the balancing of intrusion a lot differently.

I err on the side of self-employed without employees should be out altogether. I don’t know where the government ended up. When I was involved in the preliminaries I am not sure if that concept was incorporated. The one where a person is using their home as an employer-employee base should be in and the gray area I can’t help you anymore than I did other than to try and figure out a control where the employee is there but the employer is somewhere else.

Fatalities

JOHN STEEVES

Medical surveillance

Q: Is that the new occupational safety and health regulation?

A: It is in the new health and safety legislation.

STEEVES

Choice of doctors

Preventative compensation

Protective reassignment

Enforcement, consultation, education issue

Q: Let’s say that they were separated within the same agency and you have a consultation individual on site. That individual observes a violation that doesn’t appear to be putting anyone at risk at the time and it appears to be in the area that the person has been called in to consult on. So there appears to be an element of genuine concern on the part of the employer to ensure that there is compliance. Is that an instance that you think would necessarily in every case merit some kind of a penalty?

A: No I used the word serious in my example. The example of the employers was the branch officer showing up to do a seminar and he laid on a couple of orders. They were outraged and I think that if there is a genuine issue from the employers’ point of view then that does damage to the perception of the Board as an educator when that happens. Take the example of how the education should happen. Let’s assume, in your example that it is not a particularly serious violation. I hesitate to use that language because a violation is a violation. So the education officer doesn’t say anything when he sees the violation and then tells the enforcement officer about it. Then the enforcement officer goes out and writes up an order. Are the employers going to say that that is the way the system works or are they going to say to the education person why would you come out here on an education matter as our friend and then go back and rat on us. I am not sure that that is going to be a solution to the problem that the employers posed. The role of these prevention officers is to prevent injuries and diseases. If they see a violation they are required by the act, by law, by the State to do something about it.

Q: Couldn’t the education officer say to the employer that I have noticed these problems, give them a time line to fix it and then send out the enforcement officer? At least you have given the employer an opportunity to prove whether he is interested in improving the work site or not. At least a different type of relationship is established whereas it is not an official sanction it is really an educational one.

A: I don’t think I have a big problem with that. If the scenario is that we have separate functions and the education officer goes up there to do his education then it seems to me that it is contrary to the concept of separation of education and enforcement. If what you are saying is that there is a way to get enforcement done through consultation through saying that this is wrong and I will give you some time to fix it I think in some or a lot of circumstances that would be appropriate. It would not be appropriate when you have repeat offenses. I think that Mr. McGinn has made this point a number of times that different circumstances require different approaches. If it is an employer who has a generally good safety record, they are responsive and they work with their health and safety committee and something got missed then what you are talking about might be a response. So don’t rule out that kind of role but in some circumstances it wouldn’t be the right one

Home businesses

Q: Would that apply to all circumstances including where the home is clearly being used as a business with employees?

A: That gets into the gray areas. If it is a cottage garment factory with 5 to 10 workers then that is a business not a home business. By the way lots of state agencies have the ability to go into those places and bust them for employment standard issues and all sorts of things.

Fatalities – look at our previous submissions

Q: There was a question yesterday about how many personal optional protection covered individuals there were in the province for 1997 and I am advised that the number was 29, 453 and this year from the beginning of January to the close of business yesterday was 23, 697.

Issue between education and enforcement

Q: If there were such a split between education and prevention who would you see performing the role if the employer has a problem and they are not sure what to do so they ask the Board for advice? Employers have said they have done that and then they get fined. Is that the role of education or prevention?

A: It may be both. There may be some room for the Board doing that sort of thing. Another option that I think you should consider is that if you are talking about building education as a separate function in the prevention side then maybe employers should pay for that themselves. They should hire private people. If their concern is with mixing education and enforcement within the Board then that is the better way to go. It gets it right out of the Board and it is done by consultants. They pay for it directly and they can write the contract so that if it is not good enough they can fire the person and hire somebody else.

JIM SAYRE

First question that we were asked to address is what agency should be responsible for safety and health?

Consultation as part of that process

Home business

Q: If you were working at home and you had an injury would you expect to be able to file a claim?

A: If the injury is caused in my residence while working I don’t see why they shouldn’t be compensated. If it is a repetitive strain injury because I spend all day typing on a computer I don’t see why that should not be compensable. It is a conflict of rights. I would suggest that if the employer sets up the station and this is not an intermittent arrangement but the employee is working at home then all of the things provided by the employer should be subject to the same safety requirements as if they were in an office. The single exception is that the worker should not have to sacrifice the privacy that we all have of not having our home invaded without notice and consent.

The other situation is where the worker is working at home by their own choice and using their own desk, etc. I see real difficulty with the Board saying that the worker needs new furniture. The more serious out-worker concern probably relates to a situation I brought up earlier. For example, logging workers where the safety on the worksite was under the control of the head contractor as opposed to the independent contractors who were doing the work.

I do agree that self-employed people I am not sure I understand why they would be covered. I suppose if they were incorporated and employees of their own corporation that could work. I do tend to agree that that doesn’t seem to me that that should force somebody to spend a whole lot of money improving the things in their home. Short of an amendment to the act to take them out of the system I am not sure how you get around that.

Another example that was brought up was home businesses that have employers. There the answer is clearly that they should be subject to the same regulations as anyone else. If I choose to run a welding shop in my business and hire a welder to work for me that welder should be just as safe in my basement as in a factory or a shop that I set up independently.

Q: Let’s say a person decides that they want coverage and they are working out of their home and they take out of personal optional protection. Do you think that unreasonable notice or a warrant for inspection is acceptable?

A: Like Mr. Winter I am troubled by that. That is the one situation where people have a choice of whether to be in a relationship with the Board or not. If they make that choice then I suppose that can be seen as part of what you are accepting when you choose to be covered by the Board. Following up on that, if that is going to be a consequence of being on personal optional protection coverage then that has to be made clear to people before they buy it.

Q: If that person got up to answer the door to get a package from a courier and they tripped on the carpet then they should be covered. On the same note the WCB should have the right to ensure that the carpet is kept in good repair.

A: That makes sense to me. The personal optional protection often presents less of a dilemma than the person who works at home by agreement as an employee and they have no choice about being covered.

Q: If you take a logical extension of that if you have a thread bare carpet and the WCB says that you need to replace the carpet at the cost of $2000 you may then have to decide whether or not you can stay in business.

A: I recognize that and that is why I say that it poses a real conflict of rights. A person can refuse to be part of personal optional protection and withdraw from it. If the order was to replace the carpet that order would logically have to be directed at the employer.

Medical surveillance

Confidentiality of results

Preventative compensation – I dealt with that briefly earlier

Preventative reassignment

Fatality question

Should remarriage terminate the pension?

Q: I suppose that the compensation claim would take into account any income stream loss that was replaced through remarriage at the time of trial wouldn’t it?

A: I am not really competent to answer that question. I think that the contingency of remarriage is probably one of the things that the court looks at.

Q: If there is a fact of remarriage I think that it is taken into consideration. So even on a loss based system the income stream is assessed. That is what makes this issue particularly difficult to analyze on either a loss based rationale or a need based rationale.

A: I understand that perspective. I felt that the loss is there and it is there at the time of the worker’s death. The fact that a new source of income comes into the family doesn’t seem to change the fact that the original source was lost and it was lost in a situation that the act says is compensable. I will leave you to wrestle with the policy reason. The policy reason is that if we make remarriage a ground for terminating a pension that is going to have some undesirable social consequences. It is going to mean, for one thing, that a survivor who is getting a good pension from the Board and who meets somebody that they come to care about and want to remarry is going to have to decide whether they can afford to marry this person. That is the kind of intrusion in the life of a survivor that I find unsavory. I don’t think that the Board should be managing the act in such a way that people have to go through the dilemma when they make those sorts of choices. Every death is too many but the total number each year is not a huge number. I looked at a 1997 annual report and there were 125 deaths that lead to compensation claims. Not all of those people would have left dependents and not all of those survivors would have gotten remarried. So we are talking about a relatively small number and I don’t know if the Board has the numbers on how many of those 1997 survivors would end up remarrying and how much money the Board would save. I would suggest to you that in the context of the total cost of the accident fund it would be a small amount. Those financial interests to the Board should take a backseat to the human benefits of allowing the spouse to receive that pension without the kinds of intrusions that I talked about.

On the question of stacking and integration

Q: Do you have any thoughts about the extent, if at all, to which some deduction in the maximum amount of fatality benefits that can be payable… Whether some deduction should be made or that portion of the lost income that the deceased worker would have received, a contingency for that amount? Is that an appropriate amount, in your view to deduct?

A: For policy reasons it is not. It would be an invasive process to actually measure that amount. I suppose the Board could avoid that by designating a given percentage of the income as being that but that is based on a lot of hypothetical assumptions, which may not really be relevant. For example, housing costs is the biggest portion of most people’s family expenses and unless the survivor moves into a smaller home those aren’t going to change very much.

The only thing that may change is that the deceased worker will no longer be consuming food or needing clothing. That won’t be a huge portion of the money that the family is spending. Some of the money may be made up into new expenses as well that will result indirectly from the death and from the need of the spouse to get out and about and perhaps work where she hasn’t been working before. It is problematic to suggest that there is any large amount of savings to the family because one of the family members has died. If that does occur it will show more over the long term rather than the short term when the need is the greatest. The symbolism of doing that is offensive.

ALAN WINTER

Issue of contingency for fatalities

Privacy

Education officer

Q: If you have a situation where an issue is raised on a construction site where WCB regulations are called into question. Maybe there is a threat to stop work if it isn’t corrected. Wouldn’t it be wise for the employer to ask for an education officer to give advice with out fear of ticket versus having a prevention person coming out that is going to give you advice?

A: I don’t think that the employer would ever call the Board to come in in that situation if we are only looking at an enforcement officer. The value is that they do think that they need help on what has been pointed out and they want to turn to someone to get that help. It would be the education component. If we only have an enforcement officer the way that the enforcement officer is going to get involved is that the worker will phone. That is what happens on these construction sites. When I am involved with construction workers on a pulp mill it is construction that normally brings in the enforcement officer because the pulp mill has its own rules that work for them and not for construction. If you are going to put those roadblocks I think the employers are not going to get involved. To answer Mr. Steeves question about why employers couldn’t go out and get their own consultant you are probably going to find that a lot of construction workers won’t do anything. This has to be a mutual – if we are going to get employers to become safety conscious to a higher degree than the commission may feel that they have now it is a two way street. The Board has to be involved, the employers and the workers have to be involved. To just say to the employer that it is a noble thing if they want do it then some employers will do it. But we need the Board’s encouragement to explain to us also why it is of value and why we should do it together. That is what you will be missing if you tell employers to go do it yourselves. It is the same as your example Mr. Stoney. If a worker bring something to the attention of the employer it is a problem and the employer will either fix it or say that they don’t think it is a problem. Very rarely right now are you going to find that the employer is going to get on the phone and ask the Board for help.

JOHN STEEVES

MR. BATES