RICHMOND, B.C.

APRIL 6, 1998

MR. ROBERTSON: Welcome to the Royal Commission's public hearings. For those of you that were not here in February and March, the Workers' Compensation Board has been kind enough to provide this excellent room for the Royal Commission's purposes. My name is Terry Robertson, I am Commission Council.

A couple of comments just before we get underway today: The presentation this morning will be unlike the balance of the next 7 days. The presentation this morning will be by the Board of Review of the Workers' Compensation System. Mike O'Brien will be the presenter. The Review Board could not present during the February and March sittings, so we are just cleaning up that remaining presentation.

The format will be that Mr. O'Brien will present and he has a panel of individuals with him to answer questions of counsel and the Commission. I want to make it clear for those of you who don't realize it, and I'm sure most of you do, that the Review Board is an independent appellate body completely independent of the Workers' Compensation Board and appointed through Order in Council. And the fact that we are out there and the Review Board is here at the Workers' Compensation Board doesn't mean that they are a part of the Board in any sense.

The rest of this week up to Good Friday and for three days of the following week will consist of presentations by counsel for the interested parties who have been given standing with respect to these public hearings, and they are John Steeves, for the B.C. Federation of Labour, Jim Sayre representing the interests of injured workers and Allan Winter representing the Employers Coalition.

Before Mr. O'Brien gets underway I'd like to introduce you to the Chair of the Royal Commission, Judge Gurmail Gill.

THE CHAIRMAN: Good morning, everyone. I don't have anything to add other than to remind everyone who we are. We are the Royal Commission. I'm Judge Gill, this Oksana Exell and of course Jerry Stoney. Mr. Robertson neglected to mention that during the closing submissions that we'll be receiving starting this afternoon and the couple of weeks following will also be, as I recall, the Workers' Compensation Board will also be present through Mr. Bates to clarify any matters that may be needful of being clarified during the closing submissions by the other interest groups.

We'll start then with the matters scheduled for this morning. Mr. O'Brien, good morning, and whenever you are ready, proceed.

MR. O'BRIEN: Well, good morning. Thank you very much for inviting me to appear. I'd like to thank Judge Gill, Mr. Stoney, Ms. Exell for the opportunity of appearing at the Commission today. I'd like to acknowledge Commission staff and counsel for organized labour, injured workers and the employers, as well as counsel for the Board.

I'd like to acknowledge the members of the general public who are here today, interested parties, staff of the Workers' Compensation Board that are here today, my friends from the appeal division, and lastly my colleagues from the Workers' Compensation Review Board.

I'm not going to spend time today reviewing in detail the Review Board's submission to the Royal Commission. Those were presented in writing some time ago, and I trust that most of you have copies of them. For those of you who don't, we do have copies of the recommendations themselves at the front table here, and please feel free to come up and grab one.

I don't have any slides or overheads or computer generated graphics to show you. As one of my predecessors, Bud Gallagher said, "We make coveralls at the Review Board, not tuxedos." So we don't have the facilities for those kinds of fancy things and we haven't attempted to do them.

In my presentation I will review the history of the Workers' Compensation Review Board simply to put our recommendations into some kind of a context. Secondly, I'll focus on some of the more significant issues in the appellate process in Workers' Compensation, and some key recommendations that attempt to address those issues.

Turning firstly to the history of the Review Board, it was first established in 1974 as the old Boards of Review. I notice that the agenda this morning still calls us the Boards of Review although that's been passé since 1985. We still get that a lot.

When the Boards of Review were established in 1974, there were three panels. One of the panel chairs was a gentleman by the name of Wally Hourback, and Wally is not with us today, he's at home recuperating from an illness, but he's still a Vice-Chair at the review board some 25 years later. He is on secondment to the Attorney General's department at the moment but is still a vice-chair.

One of the first support staff hired at the Review Board was Bev Greenlaw and she's with us today. She's our current manager of finance and administration. Those three panels, in the first year of the Review Boards existence, the old Boards of Review, were faced with 2,081 appeals. They issued 1,421 findings and consequently ended the year off with an inventory of 660. For the next decade input exceeded output every year except for two years and those were '78 and '79.

That lead, of course, to some significant changes in the Review Board structure which were made in 1986 through legislative change. The pressing concern of that inventory, and as well concerns about the lack of consistency and about efficiency at the old Boards of Review led to those changes. New legislation and the regulation that went along with it, provided for the establishment of positions of chair at the Review Board and registrar, and that went to the unification of the Review Board as a whole to change it from a collection of boards of review to one review board. The number of panels was increased to 12 and in 1987 to 14 panels.

The number of appeals received in 1985, that is after the first decade of the Review Board, was 4,045 and that's just about a hundred per cent increase from 1974. Since those changes were made, those legislative changes were made in 1986, we've made a number of additional changes at the Review Board in attempts to cope with that volume and cope with increasing demands from the community.

We've adopted a standard format for publication of our decisions. They are written each in the same fashion so that the reasons for decision are clearly set out.

We created and adopted a policy and procedure manual which sets out in detail how the Review Board conducts its activities. That manual is, of course, available to the public, and about 500 copies of it have been circulated.

In 1990 we held a major seminar, a three-day seminar to go over the contents of that manual with advocates in the community, and there were several hundred advocates in the community who attended that seminar. We've continued that that education thrust with participation in the CLC Harrison Winter School. We've participated with the Workers' Advisors in their education seminars. Capilino College in its labour studies program and others.

A number of years ago, we changed our notice of appeal as a result of significant input from the community. We now have a two-part notice of appeal which provides additional opportunity for advocates to prepare their case before coming to the Review Board and seeks to minimize the no-shows at the Review Board in order to better utilize our time.

We've established a thorough selection process at the Review Board to take the politics out of appointments of Order in Council staff at the Review Board. We've established a document and a set of principles called the "Hallmarks of Oral Hearings at the Review Board" for the guidance of review board panels and to ensure that anyone who comes to the Review Board knows what they can expect from an oral hearing.

Several years ago we unanimously adopted a code of conduct which governs all activities of Order in Council staff at the Review Board.

Since 1994 the Review Board has published annual reports. There is no legislative requirement for such, but we felt it was necessary to keep the public informed as to what our activities were. We publish a variety of statistical data as well as some narrative data.

In order to cope with some of the issues that we've talked about, we've held extensive internal training sessions at the Review Board annually. Those have dealt with consistency, with writing skills, weighing of evidence, with a variety of medical issues, and with such items as to how to weigh credibility, how to assess credibility.

Four years ago we established a performance appraisal system at the Review Board to identify training needs for Order in Council staff and eligibility for re-appointment. Last year we expanded the single person panel process at the Review Board in order to provide more opportunities for oral hearings without expanding the total number of staff at the Review Board.

We've established a legal research capacity and a library facility at the Review Board to provide our adjudicative staff, our Order in Council staff with that form of data.

While all this was going on, over the last 20 years since 1975, the number of appeals coming to the Review Board has increased by 438 per cent. Since 1985, the '86 changes in legislation, we've experienced a 177 increase in appeals. And in the last five years from 1992 to 1997, a 70 per cent increase in appeals.

We've added two panels since 1987. One of the figures that popped out as we were preparing this presentation was the total number of appeals the Review Board has received since its inception, and that number is 125,024 up until the end of 1997. That's a significant experience base at the Review Board.

So how are we constituted to deal with all of this? Well, we have 50 support staff at the Review Board. They consist of secretaries, registration clerks, computer staff, the librarian and legal researcher that I talked about, and our manager, Bev Greenlaw. We have 25 vice-chairs filling 21 full-time equivalent positions, so we have some part-time vice-chairs. Of those vice-chairs, half are lawyers and half have been promoted from within the ranks. They have either been management or labour members prior to becoming vice-chairs. We have 18 management members filling 13 full-time equivalent positions in that rank and we have 16 labour members filling 13 positions in that rank. And I know the labour people will tell that's appropriate because it takes less labour members than it does management members to do the same job. I don't necessarily agree with that, but that's what they'll tell you.

Of our vice-chairs, three of them are currently doing criminal injuries appeals and they are co-ordinated by Peter Steel. We have one senior vice-chair who works both as a sitting vice-chair and does administrative work, and that's Doug Strongatharn. [phonetic]

We have one registrar, Susan Pulskyshebash [phonetic] and three deputy registrars, Norm Denny, Kevin Johnson, and Michele Galphand; the hardest working group at the Review Board.

And lastly myself as the chair.

Our annual budget at the Review Board is a little over 8 million dollars. 70 per cent of our appeals are heard by way of oral hearing. Half of those oral hearings are in locations outside of the Lower Mainland so our panels travel approximately 50 per cent of the time.

In the last number of years we've seen a significant shift in the way people appear at the Review Board. At its inception, the Review Board had very few represented appellants, or respondents. Now, over 80 per cent of appellants and respondents appear at oral hearings represented. This, of course, is not a requirement, however it is a trend that has taken place.

Review Board hearings continue to be informal, and they are inquiry in nature, not adversarial.

I'd like to turn my attention from that brief historical overview, to look at some key issues in Workers' Compensation appeals. I'm going to discuss two issues that I understand have been raised with the Commission. Those are the issues of timeliness and consistency.

Turning first to timeliness, there are two elements to this issue. First, there is the length of time required to obtain a finding from the Review Board or any one of the appeal levels in the Workers' Compensation system, and there's also the total length of time that an individual appeal can be caught up in the system as a whole.

Let's, first of all, look at the issue of timeliness at the Review Board. We have an announced target of producing findings within 3 months of an oral hearing or distribution of the read and review. During 1996 our worst performance in achieving that target was with respect to in-town oral hearings. That's our worst performance and there we took an average of 3.9 months from the date of oral hearing to the date of finding. The median for that same period was 2.8 months. Now, all of this data is in our published annual reports and it is available to you.

The difference between the median and the average, reflect, in our analysis, the fact that there are a number of findings that take many, many months to resolve. Often that takes place because of a need to do further inquiry following an oral hearing, whether it be obtaining additional medical evidence or other forms of evidence.

1997 was not as good as 1996. We saw a one month increase in both the average and the median lengths of time, and this was due almost entirely to a typing backlog. That typing backlog developed in consort with a provincial government freeze on hiring. We've resolved that issue with the government, we have our staff up to full compliment and that backlog is dwindling down.

But you know, we continue to struggle with volume. That's been a fact of life at the Review Board since its inception. The waiting period for an oral hearing is now six to eight months in spite of our having added 31 weeks of oral hearings in the last two years. We have 31 additional weeks added in the last two years and still the waiting period grows.

The data indicates, and I think this data will be confirmed by the Board, that we should see a decrease in appeals in 1998. It looks like about a 16 per cent decrease over the 1998-99 period and that should result in a reduced waiting time for oral hearings. But that's a projection, and we all know what those are.

Let me just say one thing about this issue of timeliness. You know, timeliness must not be pursued at the expense of reaching the right decision. As in all aspects of human endeavour, the pursuit of timeliness involves trade-offs in other areas, and those are areas such as thoroughness of inquiry. Those trade-offs must be carefully, carefully monitored.

I'd like to turn our attention now to the second part of this issue that is timelines in the appellate system as a whole.

A typical appeal that proceeds through all stages within the system will take two and a half to three years from an initial adjudication to a MRP certificate. That is, if each level performs at a normal level of efficiency. They can take much longer and I see one of our friends in the audience who knows how much longer they can take. However, on average, if it proceeds through all stages it will be two and a half to three years. In my view that's simply too long to resolve an outstanding issue.

In a published decision, number 92-1968, I said, writing as an appeals commissioner, and at that time writing about a specific case:

"The worker's permanent partial disability pension was first decided some 28 months before the second review board heard his appeal and some 34 months before their finding was issued. To sent that matter back for further reconsideration by the board and potentially further appeal through the system again engendering even further delay is, in this panel's view, entirely inconsistent with the aims of the Workers' Compensation system."

I have to tell you that my frustration with the delay in the Workers' Compensation system is no less today than it was when I wrote those words.

So our recommendations at the Review Board that we've given to the Commission deal with the timeliness issue in six different ways.

Firstly, recommendation number one, suggests a single level of appeal to telescope those current three levels and similarly to telescope the time frame.

Recommendation number five sets out a 90-day period for the making of decisions by that appellate tribunal. We believe that the appeal divisions experience with the 90-day time limitation has been a positive one and we think that should be continued.

Recommendation number seven provides the appeal tribunal with the opportunity to develop its own policies and procedures to streamline its operations and effect the issue of timeliness.

Recommendation number nine balances the timeliness issue by providing the appeal tribunal with inquiry powers and an inquiry obligation and that reflects my concern that timeliness not be the only driving factor.

Recommendations number fourteen through thirty set out administrative functions of the appeal tribunal to ensure that all parties are clear as to who is accountable for what activity, and this goes to the development of a system which is more transparent, more easily organized for efficiency and effectiveness.

The recommended appeal process supports the development of alternative methods of resolving disputes and we believe that those methods can have a significant impact on the timeliness of resolution.

The second issue that I want to turn my attention to is that of consistency. And once again, there are two types of issues surrounding consistency. These are consistency as between various levels within the appellant system, or within the compensation system for that matter, and also consistency within any individual tribunal as between one panel and another.

From the Review Board's perspective, consistency from one level to another is promoted at the present time in a variety of fashions. We do have significant cross-fertilization of staff between the appeal division and the Review Board. There are several examples of this occurring with myself, for example, having worked as an appeal commissioner, and there are several appeals commissions who have been members of the Review Board.

At the Review Board we circulate appeal division decisions to those panels whose findings have been appealed and this provides them an opportunity to see where their reasoning differs from that of the appeal division.

We maintain a research assistance index which is simply a collection of helpful Review Board findings. Where appeal division decisions are contrary to a finding that is contained in the research assistance index, that appeal division decision is also placed in the index. So that's available to all the adjudicative staff.

The Review Board's legal researcher produces a regular internal journal which summarizes significant or interesting review board, appeal division and court decisions in workers' compensation.

Most importantly, from my view on the issue of consistency between the different levels in the system, the appeal division and the Review Board have been able to enter into a dialogue of sorts through the exchange of significant decisions which build upon each other. Such a dialogue tends to produce well-reasoned, well-researched decisions.

Let me give you an example of that. There is a debate over whether appeals tribunals in the workers' compensation system have jurisdiction to hear Charter arguments, and that resulted in two different positions being taken. Several decisions were written at the Review Board level which said we didn't have that jurisdiction. Those were taken on to the appeal division where contrary results followed. On further reflection and analysis a chair's panel at the Review Board concluded that the appeal division's decision was more likely the correct one, and subsequently we have heard Charter arguments at the Review Board. That sort of dialogue produces consistency.

We have a similar dialogue going on right now on a specific Charter issue and that's the so-called "young widows issue" where the appeal division has made a particular finding and the Review Board has found contrary to that. The appeal division is now considering that issue again. We'll see what the result is.

That sort of respectful dialogue between the levels within the compensation system, and there I include all levels in the system including the policy making levels, produces, I believe, thoughtful and positive results and does improve consistency.

Our recommendations, of course, deal with the issue of consistency quite specifically. Once again, recommendation one would reduce the number of levels of appeal within the system and therefore reduce the potential for inconsistent decision making.

The recommended appeal process sets out a reconsideration function for the appeal tribunal which provides an opportunity for the Workers' Compensation Board to return a matter to that tribunal for further consideration where it disagrees with an outcome. Where the appeal tribunals reconsideration still does not satisfy the board, referral to the courts is mandated for a final and binding determination. At the present time there is no such statutory mechanism and thus there is a significant potential for unresolved disputes between the final appeal level and the Board.

With respect to the issue of internal consistency within a tribunal -- and I have to remind you of the old adage that consistency is the virtue of fools and the hobgoblin of small minds.

Having said that, I can only agree that the principle that like cases ought to be decided in a like manner, no matter which panel you appear in front of, is fully supportable. But to expect identical findings on similar cases is not practical. Each appeal has different nuances and even subtle shades of difference can change a finding of fact that an appeal turns on.

We've taken a number of measures at the Review Board to pursue reasonable consistency in the decision making process. And the first of these, of course, I've referred to before, and that's the development of a policy and procedure manual and that manual provides for a consistent base of methodology.

I've also referred to on-going education programs dealing with core issues that go to consistency. As part of these programs we've examined generic issues such as the weighing of evidence and specific issues such as evaluation of subjective complaints which is a major problem in Workers' Compensation. And in addition, we've looked at medical issues such as fibromyalgia, as well as more philosophic subjects such as our development of a code of conduct and conflict resolution exercises.

Exploration of these matters as a group at the Review Board tends to move that group towards more consistent thinking.

I referred earlier to the research assistance index, and we are currently transferring that to a computer base to make it more accessible. The positions of librarian and legal researcher, in particular, have been very helpful for us at the Review Board in working towards consistency.

We rely heavily on the reporter series to follow significant trends at the appeal division. We also publish in the reporter series, although in a more limited fashion so that the public in general knows what they can expect on certain issues at the Review Board.

Our annual reports for the last three years included a series of typical findings of the Review Board to provide guidance to the public and to encourage consistency at the Review Board.

And lastly, we have developed, very carefully, the role of chair's panels that is identified in the legislation, and have restricted that role to so-called leading case decision-making. That is chair's panels will be convened only where an issue arises that produces different conclusions within the Review Board that can't be resolved by dialogue between panels over some reasonable period of time.

Although as chair I also sit as a single person panel, and also sit with labour and management members, I reserve the more formal chair's panels of myself and two vice-chairs to those type of situations. By being very selective in the use of chair's panels, I believe we've gained considerable respect for that decision-making vehicle as a tool toward consistency.

We've also, of course, addressed the issue of internal consistency in our recommendations to the Royal Commission.

Recommendation number two talks about multiple process options. Part of the objective here is to match the complexity of an issue with an appropriate process for resolution. For example, we believe that rehab issues are best resolved through a process that includes considerable dialogue between the worker, the employer and the rehab consultant. Inconsistent decisions result, I think, in the rehab area where those decisions are made on an adjudicated basis without that sort of dialogue.

Recommendation number ten provides an opportunity for the appeals tribunal to be more accountable. It's our view that accountability of this nature leads to more consistency.

Recommendation number eleven is that the appeal tribunals decisions all be public. This provides an opportunity for the legal community and the community of appellants and respondents to make more reasoned arguments based on current practice, and therefore to have an opportunity to encourage the tribunal towards more consistency.

The production of an annual report in recommendation number twelve continues a practice that we started at the Review Board and sets it as part of the legislative requirement. And we believe that enhances consistency.

The reconsideration appeal process that we've talked about, and ultimately resolution by referral to the courts is a powerful tool for consistency.

And lastly, recognition of the Board's ultimate authority in policy making makes for consistency.

Now, in our recommendations, in our written submissions we identified three basic principles underlying any appellate process, and you'll recall if you've read it that those principles were independence, accountability and effectiveness. Up until now my discussions have dealt primarily with the third principle and that's the principle of effectiveness. The issues of timeliness and consistency are issues of effectiveness. But we ought not to lose sight of the important principles of independence and accountability.

All of the major studies that have been done in Canada in the last decade ranging from the Eulette Report in Quebec to Ratouchne in Ontario and the oft quote McAuley, have dealt with the twin issues of accountability and independence head on.

Decision-makers in an appellate process, simple cannot make decisions that are free from bias and outside influence and appear to be doing so without statutory and administrative protection of their independence.

On the other hand, organizations charged with the responsibility for making such decisions must be held accountable to ensure that the decisions they make are done so in good faith and in the public interest.

Our recommendations attempt to provide the new tribunal with the tools necessary to balance these competing interests. Our recommendations in favour of independence include recommendation number three that sets the appeal tribunal out as being external to the Workers' Compensation Board. Our experience at the Review Board leads us to conclude that such an arrangement makes retention of independence from the Compensation Board simpler and easier.

Recommendation number seven gives the tribunal full authority to establish its own policies and procedures ensuring that its decision-making is not subject to supervision by any agency other than the courts.

Recommendation number nine provides the appeal tribunal with independent powers of inquiry, powers external and apart from those of the Board.

Recommendations fourteen through eighteen ensure that the chair of the tribunal can be seen to be independent from political patronage, and similarly recommendations twenty through twenty-seven, ensure that members and vice-chairs of the tribunal can be seen to be independent from political patronage.

Recommendation number nineteen sets out restrictions on the chair's authority to interfere in the decision-making process of panels. On the other hand, on the issue of accountability, recommendation number five makes the tribunal accountable for producing timely decisions, the 90 day recommendation.

Recommendation number eight ensures that the tribunal is transparent in its operations and as such is accountable to the public at large.

Recommendation number ten, the recommendation that the tribunal's hearings be open to the public, ensures that the day-to-day operations of the tribunal are subject to scrutiny by the public and by the press, and there can be no appearance of a star chamber process.

Recommendation number eleven, that the tribunal's findings decisions be made public ensures that those decisions are public and can be examined for consistency, thoroughness and to ensure that they are in the public interest.

Recommendation number twelve, however, creates the direct link between the tribunal and government ensuring that there is political supervision of the overall activity of the tribunal as opposed to supervision of its day-to-day activity.

Recommendation number nineteen sets out the accountability of the tribunal chair to ensure that the work of the tribunal is conducted according to sound principles of financial and personnel management.

Recommendation number fourteen and twenty, ensure that the functions of tribunal members are known to the public, that they are not cloaked in any mystery or secrecy.

In effect, our recommendations provide a framework within which the competing interests of independence and accountability can be balanced and then rebalanced to meet changing needs.

That concludes my remarks. What I've attempted to do is to provide you with some historical overview of the Workers' Compensation Review Board. I've also attempted to focus on the basic principles that we believe underlie any sound appellate process, and in particular, a sound appellate process for workers' compensation in the Province of British Columbia in the 21st century, and these principles are independence, accountability, and effectiveness.

Thank you for your attention.

MR. ROBERTSON: Counsel will now have the opportunity of asking any questions that they have as far as the Review Board is concerned.

MR. STEEVES: Good morning, Mr. O'Brien. I'd like to start off by asking a few questions about the current state of the Review Board and then move onto your proposal and so just to sort of get us grounded here, the current system of the Review Board, the intake of appeals runs on a part one and a part two system, correct?

MR. O'BRIEN: Right.

MR. STEEVES: And just so everybody has the same information, part 1 needs to be filed within 90 days and that starts off the appeal, correct?

MR. O'BRIEN: That's correct.

MR. STEEVES: And then Review Board sends back a letter indicating a number of things, but basically giving the appellant about six months in order to send back the information that they rely on for the appeal and they enclose a part 2 form which is to be completed and sent in by the six months, correct?

MR. O'BRIEN: Yes, up to six months, and that's a good explanation, yes.

MR. STEEVES: Okay, and that system came in -- were you chair at that time?

MR. O'BRIEN: No, I wasn't. I was here at the appeal division at that time.

MR. STEEVES: Okay, that was -- what? Two chairs before you, eh?

MR. O'BRIEN: Yeah.

MR. STEEVES: Okay, and that would have been about '92.

MR. O'BRIEN: '92, '93 in that area, yes.

MR. STEEVES: And that was brought in through a -- you may not know this. Were you at the appeal division at that time?

MR. O'BRIEN: I was at the appeal division, yes.

MR. STEEVES: That was brought in through consultation with the communities and people from labour and so on were involved in that.

MR. O'BRIEN: Yes, it was quite extensive consultation for a fairly long period leading to that recommendation, yes.

MR. STEEVES: And the reason it was brought in was to solve a problem of delays at the Review Board, that is that appeals were taking too long to get in front of panels and specifically the information that was being brought to panels -- this is the second reason actually, was that the information that was being brought to panels at the date of the hearing or just before. So by having a part 1, part 2 system, the panel, as well as the respondent, would have notice of the new evidence.

MR. O'BRIEN: Yes. Not having been there it's -- you know, if you were at those meetings you can probably speak better than I can.

MR. STEEVES: I wasn't there.

MR. O'BRIEN: But I've read the minutes and the record of those meetings and it seems that there were, in addition and perhaps even more importantly than the items you've mentioned a couple of things. One is that there's a very high no-show rate at the Review Board so we are running about 70 per cent occupancy, as it were. When we had oral hearings only 70 per cent of the oral hearings would go ahead, scheduled ones, and that was a real problem and it's a problem of utilization.

And the second problem was that often we'd go ahead with the hearings, however appellants or respondents would request additional time following the hearing to provide more information, more evidence that they had not yet been able to collect.

The system part 1, part 2 was intended to attack those two issues.

MR. STEEVES: Okay, you're adding more detail on what I was talking about, that the idea was to give notice and to generate the evidence for the appeal before the actual hearing.

MR. O'BRIEN: Yes, in broad terms.

MR. STEEVES: And when it was first brought in, the concept was, as I'm instructed that you would send in your part 2 and you would get a hearing date within about six weeks. Do you have any information about that? It's a historical question really.

MR. O'BRIEN: Yes, I don't particularly have any information about that. I think that was what happened at the time. I'm not sure that was a direct result of that. I think that was a result of what the available staff versus the number of appeals at the moment was.

MR. STEEVES: Okay. But whether it's six weeks or not, the idea was that you would get a hearing fairly soon after filing the part two.

MR. O'BRIEN: Yes.

MR. STEEVES: Now, what's happened to date is, -- I think I wrote this down -- did you explain earlier that it's 8 to 9 months --

MR. O'BRIEN: I think I said 6 to 8 months, yes.

MR. STEEVES: 6 to 8 months. And that would be a period from the time the part 2 is filed until --

MR. O'BRIEN: Until the date of oral hearing, yes.

MR. STEEVES: -- until the date of oral hearing. Now, one result of that and certainly what I've seen is that people filed the part 2 without the proper information with the intent of collecting the information and bringing it to the Review Board hearing. Are you aware of that?

MR. O'BRIEN: I'm not sure how much that's changed. I think that we've -- the part 1, part 2 process has always been, at best, an imperfect process. It's tended to reduce that. There may have been some change, there may have been an increase in the number of times that people come to the oral hearing bringing information with them, but I don't think it's statistically significant.

MR. STEEVES: Well, what I'm suggesting is that a time period of 6 to 8 months from the part 2 date to the hearing date would almost encourage that kind of approach, that is the appellant would want to get the part 2 in as soon as possible in order to get the hearing date, then they've got enough time to write to the doctor, get the reply, put the information --

MR. O'BRIEN: Taking a gamble that I can get the information before the hearing date and --

MR. STEEVES: Quite.

MR. O'BRIEN: That's possible. You represent appellants so I guess you would be able to speak to it.

MR. STEEVES: I don't do it, I take over the files when that tactic hasn't worked.

MR. O'BRIEN: Gotcha.

MR. STEEVES: But my point is that because of the long delay between the part 2 date and the oral hearing that the system has changed and in fact the idea of having the original disclosure of the evidence prior to the hearing date has been diluted.

MR. O'BRIEN: That's possible. I don't have any hard evidence on that. And I'm not sure that, you know, the part 1, part 2 ever did produce, like 100 per cent disclosure prior to hearings. Like I'm pretty sure it didn't.

MR. STEEVES: No, I think that's right. So what I'm suggesting --

MR. O'BRIEN: It's hard to know what those shifts are because they are really pretty subjective.

MR. STEEVES: No, indeed, even at the beginning the part 1, part 2 process particularly unrepresented workers would file the part 1 and then file the part 2 and just show up and expect everything to be in place. That's always been true. What I'm suggesting is that because of the delay now, that the number of times that that's occurred has increased.

MR. O'BRIEN: And I'm not disagreeing with you, I'm just saying that I don't have any hard evidence of that.

MR. STEEVES: You talked about the increase in the numbers in the last few years. That started about '95 or something like that? '94?

MR. O'BRIEN: Well, actually, if you look at the increase it's been there since '74. You know, there's --

MR. STEEVES: No, but there's been a big, in the last couple of years there's been a big peak.

MR. O'BRIEN: The percentages have remained reasonably constant but their per cent is in larger numbers so it's bigger real numbers of increases, you're absolutely right.

MR. STEEVES: Are you saying that the percentage of decisions of the Board that are appealed to the Review Board has stayed roughly the same since 1974?

MR. O'BRIEN: We don't track that figure so I don't have answer for you there. What I'm saying is that the increase in appeals at the Review Board has been roughly the same over any five year period since 1974. It continues to increase at relatively the same rate.

MR. STEEVES: And at previous hearings of the Commission we've established that the allow rate at the Review Board is in the 30 to 40 per cent, historically. I'm being a bit conservative. I think it's closer to 40.

MR. O'BRIEN: Yes. Well, it's run in that -- yes, it's run in the 35 to 40 per cent range with a couple of years dropping down to 30 and a couple of years up over 40. So, you know, generally it's in that 35 to 40 per cent range, yes.

MR. STEEVES: And I guess the question from a worker's point of view is, would that high allow rate and increase in numbers -- are there discussions between the Review Board about the kinds of decisions -- between the Review Board and the Board about the kind of decisions that come to you and about trying to get the allow rate down? And I'm not talking about individual cases of course, but I'm talking about a systemic analysis and do you do that systemic analysis and do you share that with the Board on an ongoing basis?

MR. O'BRIEN: Actually I think it's probably the opposite. The Board does an analysis. As I understand it, the Board reviews all findings on the Review Board as they come in and that they do some analysis of them and categorize them and so on.

We have had irregular discussions with the Board since I've been at the Review Board as chair, and my understanding from previous chairs is that the same practice was true then. There has not been any ongoing forum for discussion of any trends that we might see, and I have to tell you, that at the Review Board we have not done any very significant or comprehensive analysis of trends. We simply haven't had the capacity to do that analysis. So I don't think that it's been a matter of dialogue between the Board and the Review Board, I think it's an internal function at the Board to examine what things are happening at the Review Board, what kinds of decisions or what kinds of appeals are going to them and what kinds of decisions are being made. It's been primarily a Board function.

MR. STEEVES: Wouldn't it be a good thing for the Board to do their analysis and you to do your analysis and to share the information?

MR. O'BRIEN: Yes, absolutely. It's interesting and I think Mr. Bates will recognize some of this, that we've tried, perhaps a half a dozen times over the last ten or twelve years to reach some agreement on data collection forms. We collect data using a different descriptor than the Board does. So for example, we might have 20 ways that we identify an appeal; the Board will have 30 ways. So we can't match data very well. And we've tried a number of times to obtain some better matching of that data and it always creates a problem, of course, with historical comparisons. If you start to change your data collection process at some point, unless you have some fairly sophisticated methods, then your historical comparison disappears on you. So we haven't been able to achieve that with the Board. It makes it difficult to do what you are suggesting.

MR. STEEVES: Yes. Would that be a downside to being independent of the Board?

MR. O'BRIEN: Yes, I expect it would be. Although I suspect that -- yes, a down side of being independent, not a down side of being external.

MR. STEEVES: Well, I want to get into that in a minute, whatever the difference is there. With respect to -- just moving into another area, I think you indicated you have how many vice-chairs? 30-odd is it?

MR. O'BRIEN: Twenty-five.

MR. STEEVES: All right. And members?

MR. O'BRIEN: Let me just get those numbers for you. Yes, we have 21 vice-chair positions and 25 vice-chairs filling that and 13 member positions on either side with varying numbers filling that.

MR. STEEVES: So roughly 75 total? Something like that.

MR. O'BRIEN: Yes. Well, I think that's about 47, 21 plus 26.

MR. STEEVES: Oh, I thought you said 13 for labour and management.

MR. O'BRIEN: That's 26 plus 21 vice-chairs.

MR. STEEVES: All right. Okay.

MR. O'BRIEN: We both have accountants to do our taxes, I hope.

MR. STEEVES: I do. When someone is hired as a vice-chair, can you tell us the kind of training they go in?

MR. O'BRIEN: Yes, we vary the training depending upon what their experience has been, but generally speaking the training will be about a two-week process of pure didactic types of training. They'll come to the Board and have lectures from various Board staff, from the medical staff at the Board telling them what they do, from the disability awards people telling what they do, and so on. We have a series of lectures at the Review Board on decision writing, decision making, a variety of other topics of that nature, content of the Act and so on.

They then work on a buddy-system with an experienced vice-chair for a period of time and their findings, initially aren't our findings, are reviewed by someone else and discussed with them for completeness, thoroughness and so on. And we generally try and -- although not always successfully, try and give them a reduced workload for the first six months in order that they have more time to spend analyzing decisions.

Generally with new vice-chairs we place them with more experienced members so they can have the benefit of those members' experience.

MR. STEEVES: In the two-week training period, is there a curriculum for that, a written curriculum?

MR. O'BRIEN: Yes.

MR. STEEVES: And so it's the same in every -- same training?

MR. O'BRIEN: It's relatively the same. We use different people at different times in the curriculum so it's going to change -- the content will change somewhat. There are some vice-chairs, for example, if we have someone who has worked for many years at the Review Board as a member, they may not participate in all of the elements of the curriculum so it's -- rather than a curriculum I suppose its a series of modules and we'll select those modules that are appropriate to the particular individual.

MR. STEEVES: Can we turn to your submission to the Commission? I wonder if we could start at page 8.

Now, at page 8 the submission starts as a topic there, "Critique of the Current Appellate Process and Structure". And the first point there is "Our Analysis" and I just want to be clear, Mr. O'Brien, this submission represents the Review Board, does it?

MR. O'BRIEN: Well, it's a submission that was put together by, essentially myself and my colleagues I referred to earlier, the senior vice-chair, the registrar, the co-ordinator of criminal injuries, and then initially put together by us on the basis of our discussions with Review Board staff. A draft was reviewed with staff and was finalized. So it's -- I suppose on one level it's my submission, on another level it's the groups submission, on another level it's the Review Board submission; there are elements of each.

MR. STEEVES: Does it represent a consensus of the Review Board?

MR. O'BRIEN: There was no attempt to reach consensus.

MR. STEEVES: all right. And can we take from that there was some members of the Review Board that are opposed to this submission and where it goes?

MR. O'BRIEN: My expectation is that there are members of the Review Board who are opposed to some elements and will support other elements on just about every part of the submission. We have a pretty feisty group. You know, they are pretty independent. They don't get led around very easily. So I would expect that there is that kind of disagreement on it, yes. If there wasn't I would be absolutely shocked. In fact, I'd be disappointed.

MR. STEEVES: I would be shocked too. And I gather that this is an entirely new appeal system which is to say if your recommendation was adopted, the starting point would be abolition of the Review Board, the appeal division and the medical review panel.

MR. O'BRIEN: Yes.

MR. STEEVES: And that would mean that all the people in those three levels of appeal would be out of work.

MR. O'BRIEN: I expect that the new appeal tribunal would draw upon experienced and competent individuals who are in the system.

MR. STEEVES: Well, they might do that but they might hire entirely new people.

MR. O'BRIEN: They might, that's possible.

MR. STEEVES: Yes. And have you given your -- put your mind to the financial cost of, say none of those people were re-hired again, how much would that cost in severance pay?

MR. O'BRIEN: No, I haven't. Yeah, for a couple of reasons, I guess. One is that I don't expect that that's the case. That's an extreme potential which I simply don't think will happen. Secondly, there are too many variables to be able to sort that out.

MR. STEEVES: Well, that may be extreme but the other extreme is that everybody would be hired. I mean that would be absurd because it would eliminate the cost savings from having one level of appeal, correct?

MR. O'BRIEN: Yes, that's absolutely correct.

MR. STEEVES: All right. Just going into the negative comments, and I gather these negative and positive comments, they apply to all three levels of the appeal, the Review Board, appeal division and the medical review panel, is that how you intended that?

MR. O'BRIEN: I would think there are some that are specific perhaps to part of the process and not to others, but I think generally that these are comments that we hear about the process in general.

MR. STEEVES: Okay. Just under timeliness there, I wanted to raise with you a concern that workers have with the Review Board, as it turns out, about timeliness that is getting decisions out of the Review Board, and I think you are right, that it's improving but what workers see, and what we see is that there's still some problems there. And for example, this happened to be an employers appeal, and the vice-chair wrote to the Board on March 31st, 1994 for medical information and the Board replied on May 15th, 1997 over three years later. Again that was an employers appeal so I was just watching it happen.

Another example is a hearing that was held in October 1995 and we still don't have a decision yet.

And so those are concerns about getting decisions out and as you know, there's problems with ERA for decisions that are made after 30 months, and my question is: Why do we have those kinds of delays?

Well, first of all, do you accept that those delays -- are those delays acceptable in your mind?

MR. O'BRIEN: Well, I think that I've given you my comments on whether they are acceptable or not.

MR. STEEVES: And that would be yes or no?

MR. O'BRIEN: And I'll reiterate that and my comments are that those delays are not acceptable in a general sense. There will be cases where in fact the delay, the length of time taken is one generated by the appellant or is one agreed to by the appellant, where for example, where the appellant agrees with the panel that a further medical opinion is necessary, further medical examination is necessary, and delays are engendered in order to make an appointment and have that examination and then receive from that physician the report.

Those kinds of delays are delays that are acceptable delays to the parties, when they will produce a decision that we can all live with.

MR. STEEVES: I've got no problem with that. Mr. Winter and I were doing the cancer cases and we needed some time and the Review Board was obliging. No problem with that, but the two examples I used are ones where the Review Board asked for information, it didn't come for three years, and then we have a decision after the hearing of over two years, of over three years.

MR. O'BRIEN: Let's deal with that first one. The Review Board asked for information. I agree with you that there are times when obtaining information is in ordinately long and we should look at other methods of getting that evidence.

MR. STEEVES: I guess my question, Mr. O'Brien, is how do you as management make sure this doesn't happen?

MR. O'BRIEN: I don't think you can make sure. I don't think there are any guaranties that you can make sure that this doesn't happen. And what I'm trying to do is answer your question with the specifics you've given me which are pretty thin. On that first one, if the delay is because we've chosen the wrong avenue to get the information then we ought to correct that, we ought to chose a better avenue for getting the evidence, if that's the cause of the delay.

Those are things that we deal with all the time. We have, as I mentioned to you, a variety of workshops and seminars to assist panels in being able to make that selection as well as they can, and sometimes they'll make mistakes and they won't make the right selection, of course.

The second one, I'm not sure -- you know, there's been a long delay but you haven't told my why so I don't know what one could do about that.

MR. STEEVES: Well, the reason is that the panel hasn't made a decision and letters have been written and in fact, phone calls have been had with the vice-chair and there's still no decision.

Let's focus it a bit. Do you have a system where if a file is with a panel for, say, let's be generous, say four months and there's no decision, you are notified of that or someone at a management level is notified of that?

MR. O'BRIEN: Yes, there's a system in place where panels themselves are notified of decisions that are outstanding 30, 60, 90, 120 days and I get copies of that. I review it and where there are problems we see if there is some help we can give people to get the decisions out. That help can be anything from additional research time to taking people off oral hearings for a period of time to give them time to think about some of these difficult questions.

You know, some of these decisions just take a long time to make. Some of them are just hard decisions to make. They take many days of discussion.

MR. STEEVES: Mr. O'Brien, does any discussion take over three years to make?

MR. O'BRIEN: It shouldn't, not on that basis.

MR. STEEVES: Why has that not been tracked and picked up by management at the Review Board?

MR. O'BRIEN: I'm sorry, why has what not been tracked?

MR. STEEVES: The fact that the hearing occurred in October 1995 and there's been no decision yet.

MR. O'BRIEN: We keep a list of those. It's tracked.

MR. STEEVES: Still on page 8, down at the bottom, jurisdictional disputes, I was wondering about the term, jurisdictional disputes. You are correct in the sense that you and the appeal division have a dispute about the right of appeal on extension of time matters. That is you say that it's a procedural matter and once you've made a decision there's no other appeal, and the appeal division said you're wrong on that and they'll hear appeals and decide them. That's that specific example, right?

MR. O'BRIEN: Mm-hmm.

MR. STEEVES: Now, is that jurisdictional dispute or is that a superior level of appeal, the appeal division overruling an inferior level of appeal.

MR. O'BRIEN: Well, it's a dispute over whether the appeal division has jurisdiction to hear a question of extension of time. We say they don't, they say they do.

MR. STEEVES: And shouldn't that be the end of it?

MR. O'BRIEN: It has been the end of it.

MR. STEEVES: Well, it's raised here as a jurisdictional dispute.

MR. O'BRIEN: Well, yeah, sure it's listed there as an example of the kind of thing that arises right now as one of the problems in the system that probably shouldn't occur. We've been able to deal with that problem, not particularly perhaps the most satisfactory manner, but it's been dealt with in a reasonable manner. The appeal division does not send these back to us, they don't ask us now to accept their jurisdiction.

MR. STEEVES: Does the Review Board accept that the appeal division is a superior level of appeal?

MR. O'BRIEN: Well, if you mean that in the sense that we are bound by their decisions as in the court system, the answer is no. There is no Stare decisis so they are not superior in that sense. If you mean in the sense that the appeal division comes after the Review Board, then yes.

And I think you are using it in the traditional legal sense and the answer in that sense is no. The legislation is specific about that.

MR. STEEVES: So you take the view that if the appeal division makes the decision on the interpretation of a section of the Act a Review Board panel could take a different view of that.

MR. O'BRIEN: Yes.

MR. STEEVES: Do you also insist if your panels do that, that they give reasons for going at a different direction than the appeal division?

MR. O'BRIEN: I certainly would encourage panels to do that. It seems entirely appropriate to me, yes.

MR. STEEVES: But is it the Review Board policy to do that? Is it required of panels.

MR. O'BRIEN: It's not a requirement.

MR. STEEVES: All right. Over to page 9. Under the "Lack of Finality" and I guess this is correct, if you have three levels of appeal it takes time, and I think your estimate, or your result of your research is, what? Two and a half, three years?

MR. O'BRIEN: Two and a half to three years, yes.

MR. STEEVES: For an average appeal, and the cancers took longer than that.

MR. O'BRIEN: They weren't average appeals.

MR. STEEVES: They weren't average appeals.

MR. O'BRIEN: No.

MR. STEEVES: Have you given any thought to how long our one level of appeal system would take? That is assuming it went through all the steps?

MR. O'BRIEN: What we've suggested is a 90-day time limit to be dealt with in the same fashion that is dealt with at the appeal division. In fact, it's the same language we've suggested. Presumably there should also be some time limit with regard to the reconsideration function and it would seem a 30-day appeal notice period on a reconsideration would be appropriate. So you are getting up to four months. You know, a 90-day time limit applies again and you're at 7 months. That's it. That's if, once again, if everything goes as it should.

MR. STEEVES: Yes. The second paragraph of that section on finality, the third line down in the sentence there, it says:

"Certificate of an MRP on medical issues are not binding on anyone."

Is that how you meant to write that?

MR. O'BRIEN: I believe so, because the MRP certificate is binding only with respect to a particular case. So where a MRP certificate says, for example, that fibromyalgia can be caused by trauma --

MR. STEEVES: Oh, by that you mean it's only binding on the individual case.

MR. O'BRIEN: Yes. Yes.

MR. STEEVES: But you would agree that the Act says a certificate is final conclusive --

MR. O'BRIEN: Yes, with respect to that case, yes.

MR. STEEVES: Thank you. Down at the bottom you talk about medical review panel issues and the number of issues that have arisen with respect to medical review panels and those things are steps to go through in the Act aren't they? Whether it's a bona fide medical dispute, sufficient particulars, all that sort of stuff.

MR. O'BRIEN: Yes, and each one of those steps produces disputes, produces appeals.

MR. STEEVES: Right. And isn't that inherent in every level of appeal in the Review Board for example? There's issues about extension of time, correct?

MR. O'BRIEN: Mmm-hmm.

MR. STEEVES: There issues, the Review Board, one of the leading cases you are working on is whether an appeal survives the death of the appellant. That's an issue at the Review Board?

MR. O'BRIEN: That's correct, yeah.

MR. STEEVES: Another one is: What is a decision? For the purposes of Section 90, for example, you take the position that if the Board refuses a worker a First Aid certificate that's not a decision affecting a worker.

MR. O'BRIEN: Yes.

MR. STEEVES: So within every level of appeal these are just issues within the level of appeal.

MR. O'BRIEN: Absolutely, yes.

MR. STEEVES: Yes. Turning over the page. You talk about Board domination of the process as a negative comment. I wanted to be clear. On page 19 you talk about the Board having a primacy role with respect to policy, and so you don't have any problem with the Board determination of the substance of claims, or do you?

MR. O'BRIEN: No.

MR. STEEVES: Okay, and I wasn't clear then how the Board dominates the process? I mean it's true that the Board is not there and we like to have a go at them from time to time, and you'd like to hear from them from time to time, but how does that mean the Board dominates the process?

MR. O'BRIEN: Well, I guess what we really referred to here in a couple of fashions is, first of all, the issue of the Board's presence and we think that, particular in the ADR process that we've talked about, that the Board's presence would be useful and we haven't had an opportunity to have that in the past.

And secondly, I think it goes to one of the recommendations we make later about obtaining independent medical and other advice. Not just medical advice but, for example, medical rehab advice, those sorts of things. That doesn't seem to have happened in the system. We seem to have been locked into using the Board's advise.

MR. STEEVES: But you have the authority under Section 6.3 of the regulations to do that on your own.

MR. O'BRIEN: Absolutely. I agree with you the authority is inherently there although I'm not sure that the authority extends to, for example, voc rehab. That's a debatable issue. Some say yes, some say no.

And what I'm really saying here, what the criticism is that we've heard is that that kind of authority has not been -- either has not been broadly enough stated or simply hasn't been exercised enough. That's the criticism we hear.

MR. STEEVES: Yes. Do you agree with that, that it's not being exercised enough?

MR. O'BRIEN: Yes.

MR. STEEVES: And is there some activity in the Review Board to exercise it more?

MR. O'BRIEN: Oh, I don't think we are making any great changes at this point, no.

MR. STEEVES: Well, if you think that it should be exercised more, why not exercise it more?

MR. O'BRIEN: I said two things, that it wasn't broadly enough stated and secondly, it hadn't been exercised sufficiently. There's a cultural change that has to take place. This is probably not the time to try and initiate that.

MR. STEEVES: So that's something that's in your control rather than the Board domination of the process?

MR. O'BRIEN: It's something that's historic in the system and we can effect that, yes.

MR. STEEVES: The last point under the negative comments there, you are talking about OSH appeals. You say concerns have been expressed by employers from time to time, they have less access to the appeal process than workers because of this limitation; that is they get one crack at the appeal division and workers get two. I guess ultimately three if you include the medical review panel.

MR. O'BRIEN: Yes.

MR. STEEVES: And I guess implicit in that is employers want more than one level of appeal.

MR. O'BRIEN: What I hear from employers is they want the same -- and I hear this from time to time. I think what is stated or what I hear, second hand from other people and so on, is that employers would like to have the scales balanced, they'd like to have the same opportunities that workers do and --

MR. STEEVES: And some employers have asked for a separate OSH appeal system. Have you heard that?

MR. O'BRIEN: Yes.

MR. STEEVES: All right. Moving into the positive comments, just the last one, the inquiry approach, from the point of view of workers, workers see less of an inquiry approach and more of an adversarial approach. And you indicated 80 per cent of cases now are represented parties. Did you mean both the appellant and the respondent?

MR. O'BRIEN: That's the total, the total representation. If we just take the amalgamated representation it's 80 per cent.

MR. STEEVES: So in every appeal there's two parties. Does that mean that --

MR. O'BRIEN: That's not the case. In a significant number of appeals the second party is not present. The second party does not participate so the 80 per cent is of participating parties.

MR. STEEVES: And that would include if there's a participating respondent.

MR. O'BRIEN: Yes, yes.

MR. STEEVES: And one feature of that and we've seen it talking to the Board as well is more and more employers are participating in Review Board hearings and being represented more.

MR. O'BRIEN: Yes.

MR. STEEVES: I'm not telling you anything new.

MR. O'BRIEN: No.

MR. STEEVES: And one of the things that workers see is that changes the nature of the inquiry process so that they are not only having to fight the Board, they are also having to fight the employer. You are aware of that dynamic.

MR. O'BRIEN: Yes, I think in increased representation for either side does heighten that sort of tension, yeah.

MR. STEEVES: And one of the reason you give for introducing your ADR proposal is the increased adversarial nature of the appeal process.

MR. O'BRIEN: Yes.

MR. STEEVES: I wonder if you could spend some time on your basic principles on page 13. As you say, you talk about independence, accountability and effectiveness. On the independence, I'm wondering what we mean by independence and I guess we should talk about external and internal here too. And Mr. Robertson characterized you in his introduction to the Review Board as independent of the Board. And I wonder if we could explore for a minute what that means. What does that mean?

MR. O'BRIEN: Well, essentially independence means freedom from pressure to make decisions in a particular fashion.

MR. STEEVES: All right.

MR. O'BRIEN: The ability for a panel to make its decision free of external pressure.

MR. STEEVES: And you say the Review Board is independent in that fashion?

MR. O'BRIEN: Yes.

MR. STEEVES: Is the appeal division?

MR. O'BRIEN: I believe so.

MR. STEEVES: And the medical review panel?

MR. O'BRIEN: Yes.

MR. STEEVES: All right. And all of the appeal levels, Review Board, appeal division, medical review panel, their authorities and procedures and so on are pursuant to the Workers Compensation Act? Correct?

MR. O'BRIEN: Yes, or the regulation in our case.

MR. STEEVES: Yes, or Section 90. And all the costs come out of the accident fund?

MR. O'BRIEN: Yes.

MR. STEEVES: And what significance of any do you put to the fact that the Review Board has offices over in Marpole rather than the Board? What significance is that?

MR. O'BRIEN: I assume you mean offices separate from the Board. The fact of Marpole is not important in your question.

MR. STEEVES: No.

MR. O'BRIEN: Some of our staff would say it is. You know, they think Marpole is a pretty independent sort of place. You know, there's sort of a cultural issues and I've worked, as you know, both at the appeal division and at the Review Board and there's a subtle pressure that takes place when you are inside the walls, when you are behind the chain link fence. There is a sense of, perhaps of David and Goliath when you are outside, and that's a sense that gives you some feeling in independence, some willingness to take more of a risk in making an independent decision.

It's not very quantifiable but it's something that has been remarked upon by a number of individuals and certainly has been remarked upon in any of the studies that I've referred to, you know, the need to have that clear independence both from an external perception and also an internalized perception. It's just a little easier to do. You know, it's a little easier to maintain your sense of independence and your willingness to take those risks when you are in Marpole.

MR. STEEVES: Well, the Board's policy bureau currently is not here, it's over on Granville Street. Does that make it independent of the Board?

MR. O'BRIEN: I really can't, you know, make any comments about the policy division. I don't know anything about them. And certainly, just mere separation of physical space doesn't make independence and I'm not suggesting that. My words were that it makes it a little easier.

MR. STEEVES: Yes, and are you aware that the -- were you at the appeal division at the beginning when it started?

MR. O'BRIEN: Yes.

MR. STEEVES: The appeal division at the beginning discussed whether to be within the Board or outside the Board, did it not?

MR. O'BRIEN: I'm not sure that those were public discussions.

MR. STEEVES: Well, they are before this Commission. I'm asking you is whether that debate took place within the appeal division.

MR. O'BRIEN: We talked about it, yes.

MR. STEEVES: And the appeal division decided that it would be physically part of the Board.

MR. O'BRIEN: That was the decision of the chief appeal commissioner, yes.

MR. STEEVES: Okay, and it could have decided to move to Marpole or to downtown or Surrey or any other place.

MR. O'BRIEN: I believe so. I don't know that for a fact but I believe that decision could have been made, yeah.

MR. STEEVES: All right. And I wanted to talk about another aspect of independence, and can there not be, in a sense, too much independence in the sense that we are talking about levels of appeal here, but the level of appeal becomes distant from the system that it's supposed to be adjudicating?

MR. O'BRIEN: I suppose theoretically your statement is true although I can't support it from experience. You know, when you -- you do see the people whose lives are affected and you see them every day of the week.

MR. STEEVES: What I'm talking is --

MR. O'BRIEN: You know, you see the injured workers and you see the employers. I don't know how you can get removed from the system in that sense.

MR. STEEVES: No, but independence becomes a perception that there are different rules for the independent level of appeal than for other people. It takes on it own kind of personality.

MR. O'BRIEN: Yes. I'm not sure what the negative connotation of that is.

MR. STEEVES: Well, it seems to me at some point, independence becomes -- clashes with accountability.

MR. O'BRIEN: Say again?

MR. STEEVES: It seems to me at some point independence can clash with accountability.

MR. O'BRIEN: Well, I think that those two concepts always are in a bit of a struggle and I think you have to be very aware and very careful of that struggle. You know, we've said that they are twin concepts, independence and accountability. You can't have one without the other.

MR. STEEVES: Yes.

MR. O'BRIEN: You see, independence without accountability is not independence, it's something else entirely.

MR. STEEVES: Yes. I agree with you. And isn't one of the comments, one of the perceptions from the worker community is that the Review Board operates on different rules and is not as accountable as other levels of the system.

MR. O'BRIEN: I haven't heard that comment. You don't see that listed in the comments that I've heard.

MR. STEEVES: No, that's why I'm putting it to you today.

MR. O'BRIEN: So are you saying -- I'm not sure I understand the question. Try it again.

MR. STEEVES: Well, the perception is that the Review Board is over in Marpole separate from the Board, which is fine, and they have their own culture over there. You have your own culture, which to a limited extent is true, but that it doesn't -- it's independence becomes a rationale for following different rules than the other levels of the system, that it's too distant from the system, that it's not as accountable to the system as other levels of appeal.

MR. O'BRIEN: Well, I hear exactly the opposite. You know, I don't hear that. I don't hear that kind of criticism or complaint, and you can be guaranteed that I get lots of criticisms and complaints, that's a large part of my job. The comment I hear is that "We appreciate being able to go to a different locale and a different location to have our appeals heard because we know it's not the same people. We know that we are getting a fresh review of the decision." So no, I don't hear that statement.

MR. STEEVES: Mr. Chairman, did you want to take a break?

THE CHAIRMAN: I expect you are going to be some more time?

MR. STEEVES: A little bit longer, yes.

(DISCUSSION ON TIMING)

MR. ROBERTSON: We'll take the morning break now, ladies and gentlemen. Fifteen minutes and Mr. Steeves will continue

(PROCEEDINGS ADJOURNED AT 10:05 A.M.)

(PROCEEDINGS RESUMED AT 10:30 A.M.)

MR. ROBERTSON: Can we call the hearing to order please, ladies and gentlemen. Mr. Steeves I understand will continue by agreement of counsel for about another 10 to 15 minutes, followed by Mr. Sayre as he is not in his seat, and then Mr. Winter, and then questions by Commission and Commission counsel.

MR. STEEVES: Mr. O'Brien, a couple of questions going back to some numbers. Do you have any numbers about the success rates of unrepresented appellants versus represented appellants?

MR. O'BRIEN: Yes, we keep that data. I think that's in our annual reports. If not, we have that data; I can get that for you.

MR. STEEVES: Could you do that? I don't think it's in there. I was looking at the '95 report. I didn't see it in there but --

MR. O'BRIEN: It may not be. I mean, I hesitate when I say that. I can tell you in general that unrepresented have a higher success rate. And of course we understand, and I understand this from your colleague Mr. Patterson sitting behind you has told me on many occasions the reason for that, and I believe him frankly, is that the more difficult cases go on to representation; that the straightforward cases, people just say, "Well, go on off and do it yourself."

MR. STEEVES: I think your point is well taken. I think there was a study back in the eighties that reached precisely that conclusion that unrepresented workers had a higher success rate than represented workers. I think that's Mr. Patterson's comment as one reason. And if I may say so, I think it's a competency issue too. Some people come to the Review Board representing workers and they don't know what they're doing.

MR. O'BRIEN: You can say that.

MR. STEEVES: Yes. Another question on numbers. Do you know what percentage of employers are respondents in say '89 versus '95, or do you have any way of breaking out that sort of number?

MR. O'BRIEN: Sorry --

MR. STEEVES: What percentage of employers of employers would be respondents in say '85 versus '95 or '96 as participating respondents?

MR. O'BRIEN: We have that data and I'm trying to remember how far back it goes. It doesn't go back all the way to '74 but we do have that data.

MR. STEEVES: I don't need it back to '74.

MR. O'BRIEN: And I think we would have it back to '85. Is that right though?

MS. MR. STEEVES: '87.

MR. O'BRIEN: '87.

MR. STEEVES: Well, if you could just say '87 and '97.

MR. O'BRIEN: Yes, we introduced, when we finally got into the twentieth century just before the end of it and we got a computer, and since that point we have the data. So from '87 forward we have the data on that. Have you got a note of that? Do you want to just --

MR. STEEVES: Yes, if possible.

MR. O'BRIEN: We'll give that to you.

MR. STEEVES: And I could clarify that if necessary.

Another point on numbers. Do we know what percentage of workers are represented in say '87 versus '97? Again if you could just make a note of that and if it's easy to push out.

MR. O'BRIEN: And we do have that data and I can provide that to you.

MR. STEEVES: Okay. Mr.O'Brien, I put a document there in front of you which is a table. Do you see that?

MR. O'BRIEN: This one?

MR. STEEVES: Mr. Chairman, this document has T-33 on it. And this is how I spent my Sunday night last night, Mr. O'BRIEN: , and the first page is from your 1995 annual report. The second page is from the '96 Appeal Division annual report, and the third page is from the '96 Medical Review Panel annual report. Are you with me so far?

MR. O'BRIEN: Mm-hmm.

MR. STEEVES: Now, I just want to see -- the purpose of this is to kind of track numbers through the different levels of appeal.

MR. O'BRIEN: Yes.

MR. STEEVES: Okay. So on the first page, these are your -- in 1995 I've circled four numbers there: the denied worker appeals and the denied employer appeals, and I totalled that up to about 3,400. Are you okay with me so far?

MR. O'BRIEN: Mm-hmm.

MR. STEEVES: Okay. Now, where I'm going with this is what happens to those numbers over the levels of appeal. And so on the next page I've circled in 1995 the Appeal Division received 1,475 Section 91 appeals from the Review Board, and it's a fair comment to say that '95 is not a complete overlap because of 30 days and so on and so forth. But at the bottom there I've subtracted 3,490, which is the number of appeals at the Review Board, taken 1,475 from that, and just over 2,000 of the Review Board findings were not appealed.

MR. O'BRIEN: Is that Review Board findings or Review Board denies?

MR. STEEVES Yes, Review Board denies, thank you, yes. That's about 58 per cent were not appealed to the Appeal Division, okay?

MR. O'BRIEN: Okay. I haven't checked your math, but then again we know about my math and your math, so --

MR. STEEVES Yes, yes, I did it twice.

MR. O'BRIEN: Good.

MR. STEEVES And then just taking this forward, the third page is the Medical Review Panel Report, and in '95-96 there's just over 500 or just over 600. I used 600 just to use a conservative figure. And so about 875 of Appeal Division findings were not appealed to a Medical Review Panel. And those aren't denials, those are total decisions, all decisions.

MR. O'BRIEN: Okay.

MR. STEEVES And so the number would be, the 1,475 would be less, I guess. In any case the point here is that there is a -- I'm not sure if skimming off is the right idea, but there's a refinement of the numbers of appeals through the different levels of appeals, so that we have for example the appeals, only 60 per cent, or 60 per cent of the Review Board denials are not appealed to the Appeal Division, and the number gets smaller up to the Medical Review Panel and the number is very small when it comes to judicial review.

My point is that isn't that an advantage to more than one layer of appeal? That is you get the refinement through each level of appeal, you get the parties to take different positions perhaps, withdrawing on some issues, advancing other issues. You get the one level of appeal makes the issues more sophisticated and it moves to the next level of appeal and so on. Isn't that an advantage to a multi-level appeal system?

MR. O'BRIEN: And that, frankly, is why we've recommended a number of different methods of dealing with appeals in the new Appeal Tribunal. We believe that there are a lot of appeals that can be dealt with very expeditiously through an ADR process as part of that single tribunal. We believe and we agree with you that there are a number of appeals that involve very complex legal issues and probably are best heard on a reconsideration basis, thus decided on that basis.

So I don't disagree that from time to time it requires more than one kick at the cat to get it right. There are different ways of getting that second kick at the cat, and we've made recommendations about one way which we think is more effective.

MR. STEEVES That's an internal level of reconsideration?

MR. O'BRIEN: That's having the both the initial opportunity to deal with a significant number of appeals on an ADR basis which could be -- and I mean ADR in its broadest sense. I don't mean just mediation.

MR. STEEVES I want to come to that in a second. You include case management in that.

MR. O'BRIEN: Yes.

MR. STEEVES Yes.

MR. O'BRIEN: Absolutely. You know, case management was a central part of ADR, in my view. And I've also included the reconsideration issues. So I suppose it's a matter of, you know, how you want to take your poison. We could have four or five or six levels of appeal and I'm sure that would get refined at every level. You know, how much do we think is appropriate and important for the system to have?

MR. STEEVES Do you know what other systems have one level of appeal as you've defined it?

MR. O'BRIEN: Well, my recollection is that there is only one system that has the arrangement we have, and that's ours -- the external/internal kind of arrangement. Ontario for example has essentially one level of appeal. There's an internal review and an external appeal and on it goes throughout the provinces. That's standard practice.

MR. STEEVES And in this province there is three levels of appeal plus a theoretical appeal to the courts, correct?

MR. O'BRIEN: Yes.

MR. STEEVES And some of the appeals that are involved in the appeal system are quite significant for the workers involved, sometimes a matter of life and death issues?

MR. O'BRIEN: I think they're all significant for the workers and employers involved, absolutely.

MR. STEEVES And would they be more or less significant than say a traffic ticket?

MR. O'BRIEN: Well, I would expect they are, yes.

MR. STEEVES They'd be more significant?

MR. O'BRIEN: I would expect so, yes.

MR. STEEVES Yes.

MR. O'BRIEN: Yes.

MR. STEEVES And do you know how many levels of appeal there is for someone who gets a traffic ticket?

MR. O'BRIEN: Well, I don't think there's any fewer levels of appeal than there are in the compensation systems.

MR. STEEVES Well, in fact there's more.

MR. O'BRIEN: And all those levels can be added to a compensation appeal, I would take it.

MR. STEEVES All those levels can be added to a compensation appeal?

MR. O'BRIEN: They operate -- you keep using the word "theoretical" appeal. I don't think it's theoretical, I think it's real.

MR. STEEVES Well, by that I mean it's very restricted grounds.

MR. O'BRIEN: And is the same not true of a traffic ticket?

MR. STEEVES No. Not in all levels of appeal. And isn't another advantage to the current level of appeal, system of appeals, you talked about you don't make tuxedos, you make coveralls, and by that I mean that -- I took that to mean that the Review Board's role in the appeal system is to get the decision out as fast as they can and in the best way possible. And I don't mean this in any disrespectful way, I think it's a compliment on the Review Board, but isn't the Review Board kind of a rough and ready kind of appeal system, which is to say they make a decision and then it's done, as opposed to a kind of decision that would be made if the next level was going to court?

MR. O'BRIEN: Well, it's interesting. You asked earlier about the preparation of this submission as to whether there was this unanimity at the Review Board on this, or consensus, and I told you there wasn't. And I think the same would be true of my answer to the current question.

My answer to your question is yes, the Review Board is -- my friend Sarwan here reminded me that I used the phrase earlier "The People's Court," okay. It's rough and ready, I agree with you. I think there are others at the Review Board who would disagree with you, who would say that we do as thorough an analysis as can be done under any circumstances. And they're probably right because that's the analysis they do.

However, what we are proposing here is not just a replication of the Review Board. We're proposing a new tribunal.

MR. STEEVES: No, that's my point, that it eliminates the kind of rough and ready approach of the --

MR. O'BRIEN: No. I don't agree with you.

MR. STEEVES: Well, I guess my point is that if a panel knew that the next level of appeal could be only along policy and after that into courts, they would write a decision differently than if they knew there was two levels of appeal above them.

MR. O'BRIEN: You know, I believe that the panels at the Review Board do as thorough a job as they think are necessary in order to get the best possible answer.

MR. STEEVES: At the bottom of page 18 of your submission is a term that's used throughout. You talk about independence of the Board Appeal Division. What does that mean, Board Appeal Division? It's the Appeal Division of the Workers' Compensation Board? Isn't that, I mean, division, it's a division of the Board as I understand it. But you don't use the same for Medical Review Panel. You just use Medical Review Panel; you don't have Board in front of it. Do you mean Board's Appeal Division?

MR. O'BRIEN: Board Appeal Division. It's the Appeal Division of the Board.

MR. STEEVES: But the Review Board is not of the Board.

MR. O'BRIEN: No.

MR. STEEVES: So should that read Appeal Division of the Board in every case?

MR. O'BRIEN: I don't think there's anything wrong with this construction. I mean, you can change it if you like.

MR. STEEVES: The question is what it means.

MR. O'BRIEN: It's my construction.

MR. STEEVES: It's there for some purpose. What does it mean?

MR. O'BRIEN: Just that. It's the Appeal Division of the Board.

MR. STEEVES: Does it mean to suggest that there's a connection between the Appeal Division and the Board that's not there for the Medical Review Panel and the Review Board?

MR. O'BRIEN: Yes, the Medical Review Panels are independent, they're not employees of the Board. There is a difference between the Medical Review Panels and the Appeal Division clearly, and between the Appeal Division and the Review Board, yes.

MR. STEEVES: So by this do you mean to question the independence of the Appeal Division?

MR. O'BRIEN: No, not at all.

MR. STEEVES: Then what does it mean?

MR. O'BRIEN: I think you're trying to read something that isn't there. It's simply what they are. This is the Board Appeal Division. I'm not -- you seem to be looking for some hidden message in that. There is no hidden message.

THE CHAIRMAN: Is the characterization that the Appeal Division is an internal as opposed to an external body?

MR.O'BRIEN: Yes, yes.

MR. STEEVES: Is that what it's intended to mean?

MR. O'BRIEN: Yes, they're part of the Board, they're the Board's Appeal Division.

MR. STEEVES: And the Review Panel is also an internal appeal body?

MR. O'BRIEN: Pardon me?

MR. STEEVES: The Medical Review Panel is also an internal --

MR. O'BRIEN: Medical Review Panels are external. There is a Medical Review Panel administration within the Board which is different from the Medical Review Panel.

MR. STEEVES: Which controls the process of the Medical Review Panel.

MR. O'BRIEN: Well, I don't think they control it. I think the Medical Review Panel is an independent panel. They control their own process. In fact --

MR. STEEVES: No, but the Board makes a decision about whether it's a bona fide medical dispute and the solution.

MR. O'BRIEN: Once the Medical Review Panel is struck it's an independent panel external to the Board.

MR. STEEVES: Right, but the --

MR. O'BRIEN: But processing medical review applications is an internal matter, yes.

MR. STEEVES: Yes. It's not just processing, there's substantive decisions made by the Board.

MR. O'BRIEN: And those are appealed off to the Review Board, yes.

MR. STEEVES: Yes, yes, but is that part of the Medical Review Panel process? Is that internal or external to the Board.

MR. O'BRIEN: Yes, that's an internal process, absolutely.

MR. STEEVES: All right.

MR. O'BRIEN: The panel once it's struck is an external panel. I'm not sure how much significance that has, but --

MR. STEEVES: All right, could we turn to page 22. This is the detailed description of just a couple of points here. I think we've covered most of them. First of all, the Notice of Appeal, can we take it to the grounds so that would be the current grounds plus OSH matters?

MR. O'BRIEN: Yes.

MR. STEEVES: And have you given any thought to the size of staff that would be required for this kind of model?

MR. O'BRIEN: Yes, we've looked at that in a fairly general sort of sense. I mean, I haven't done any detailed analysis. Obviously part of the problem we have is not knowing what proportion of appeals can be resolved at the ADR stage, because that's a significant factor here. We had hoped to have had a pilot project on ADR underway before the Commission's deliberations were finished so we'd have some data on that, but we simply haven't been able to get that off the ground. So that's one important element in the staffing component that I can't tell you about.

I don't think there's any hugely significant savings in dollars as between this model and the current model. I'm not suggesting that there are huge savings because I don't believe there are. I think there are savings in terms of appellants and respondents getting better answers faster, but I don't think there are savings to the system in terms of the cost of managing this process.

MR. STEEVES: Okay. Can we spend a few minutes on the ADR proposal, page 44. Just at the bottom there you're talking about who you talked to and so on. The proposal that you gave to the Board, was it the same as the proposal we have here on ADR?

MR. O'BRIEN: Yeah, yeah, yeah. There might have been one or two minor grammatical changes, spelling changes. Other than that it's the same proposal. And the Board has -- the Panel of Administrators has approved this on a pilot basis, or what's the status within the Board?

MR. STEEVES: No.

MR. O'BRIEN: No, I think I would best -- Susan just reminded me that the only thing different in this particular version as it were of the ADR submission is that there's reference here to a legal opinion that we received.

MR. STEEVES: Yes.

MR. O'BRIEN: That wasn't in the one that went to the Board. We have not yet received that legal opinion.

MR. STEEVES: So you received the legal opinion after it went to the Board.

MR. O'BRIEN: Yes, yes.

MR. STEEVES: All right. And I'm not interested in grammatical changes but that's the only change.

MR. O'BRIEN: Yes, that's the only substantive change, yes. I'm sorry, the other question was -- the Board has not really a position clear at this point.

MR. STEEVES: Yes, I was going to ask you about that.

MR. O'BRIEN: No, I don't have a clear response from the Board. I've had some expressions of interest at the panel level.

MR. STEEVES: Yes.

MR. O'BRIEN: And I've also had some expressions of concern at the staff level.

MR. STEEVES: All right. And if we could turn to page 46, these are some procedural questions you pose. The first is, does the Board have the statutory authority to employ ADR as a means of resolving appeals? And I gather that the authority doesn't lie in Section 89 or 91 of the Act. Is that the thrust of your comments here?

MR. O'BRIEN: Yes.

MR. STEEVES: And that the authority is in the regulations, particularly 2(1)(d) and (c), or (c) and (d).

MR. O'BRIEN: Mm-hmm.,

MR. STEEVES: And that's I guess your authority as Chairman to assign duties to Review Board staff and members and duties considered advisable?

MR. O'BRIEN: Yes.

MR. STEEVES: Now, are you comfortable with the opinion you've got from Legal Services?

MR. O'BRIEN: Well, you know, as comfortable as you ever are with a legal opinion. I think that --

MR. STEEVES: They're expensive, aren't they?

MR. O'BRIEN: They're expensive. Fortunately ours wasn't because it's provided by Legal Services, but -- Look, I'm comfortable that we can go ahead by agreement with the Board and by agreement with the parties to try this on for size.

MR. STEEVES: But you couldn't do it --

MR. O'BRIEN: I'm more comfortable if there's a statutory provision for it.

MR. STEEVES: But you couldn't do it by agreement if it wasn't authorized by the statute or the regulations.

MR. O'BRIEN: Well you know, I think the parties can agree to -- you know, there's no decision being made by the Review Board here. There's no finding in the Review Board of the results from this. What we have said here is that if we can go through this kind of a process -- and some of it frankly we can do without any involvement of the Board or anyone else, and that's the case management aspects of it, and we in fact are moving towards that now and have been towards that for some time.

MR. STEEVES: No problem with the case management and that's long overdue.

MR. O'BRIEN: Sure. It's the mediation issue I think that sticks in the craw a little bit, and you're absolutely right. If mediation is seen as an opportunity to have focussed discussion led by an independent third party that results in a different decision being made, the Board is entitled to remake its decisions at any point. And that's the kind of model we've looked at here. So I don't think that there's any legal prohibition here.

MR. STEEVES: Just an example. If a worker is injured and is off work for four weeks, that is virtually four weeks of wage loss, potential wage loss, the Board denies the claim, and it goes to the Review Panel, where is the advantage of mediation in that? I mean, the worker is either going to get four weeks or zero weeks.

MR. O'BRIEN: We haven't proposed mediation in that circumstance.

MR. STEEVES: No, I want to come to what you have proposed. But are you saying that it would be applicable potentially in that situation?

MR. O'BRIEN: I would see very little applicability, although I think in Washington State for example, that situation is dealt with through mediation. It's a slightly different process down there, it's a different circumstance. I'm not sure it's applicable here.

You know, I think that some kind of an intervention might be appropriate there. For example let's say that your worker was injured, he says on the job, Board says no, it wasn't out of in the course of. And the Board makes their position known on the basis of whatever facts are available to them. Through an inquiry other facts come to light and those facts are made known to the Board. The Board may well change its decision on the basis of the new facts.

MR. STEEVES: But that's a case management approach. Where's the mediation in that?

MR. O'BRIEN: I'm talking about the whole range here. The mediation element to that is simply that if someone at the Review Board becomes aware of these facts, bringing that to the attention of the Board and trying to get the parties to try to resolve this on their own.

MR. STEEVES: No problem with generating more information either way.

MR. O'BRIEN: Absolutely.

MR. STEEVES: That's a case management point. But the risk from the worker's point of view is the worker goes in there, and I'm assuming they get in there earlier, and they'll take two weeks over four weeks because they don't want to go in front of an appeal and they're afraid of losing because they don't understand this system. And that's the concern from this side of the room.

MR. O'BRIEN: I understand that concern. It's one that's got to be dealt with very, very carefully. I agree with you that there are certain things that you simply can't mediate, in my view, and there are other things that are very subject to mediation. And there are some that probably fall in the middle where you have to take a look at and say, "Well Geez, you know, in this case that just isn't going to work, in this case it might." Those things that are really subject to medication I think are things like rehab which are very much decisions that depend on profession judgment.

MR. STEEVES: Well, one of the areas that you have ADR on is the wage rate, right? Wage rate and rehab.

MR. O'BRIEN: If a worker is a carpenter and has as an argument that his earnings should be on the basis of three years as opposed to one year, why should they -- and that's a statutory right, it's under Section 33 of the Act -- where's mediation in that? What can be mediated?

Well you know, one of the things that can be mediated is not so much that particular question but perhaps the question as to, "Well look, I've got these earnings that are not proven earnings, I don't file income tax on them because they're cash under the table," you know, maybe we can talk about some of those. Maybe we can start to look at some of those. And the Board does from time to time. It may be that mediation can help us to explore some of those areas a little more fully.

MR. STEEVES: So the worker brings his T4s and the Board says, "Oh well" --

MR. O'BRIEN: That's it.

MR. STEEVES: "It should be three years." That's not mediation, that's case management.

MR. O'BRIEN: Well, I think that's a semantic argument.

MR. STEEVES: Well, no. Mediation means a negotiated -- it means a compromise, to most people.

MR. O'BRIEN: Yes.

MR. STEEVES: And I'm asking you, where can there be a compromise in the mediation of statutory rights?

MR. O'BRIEN: There can be a compromise in a mediation of what are the facts of this case. Can we arrive at some facts that we can all agree to? That's a compromise, you know, "I'm going to, yeah, all right, so I wasn't really doing that but I was doing this." I mean we can start to mediate the facts.

That then drives what the statutory right is. You can't mediate the statutory right.

MR. STEEVES: Yes, but if the worker is entitled to it on a certain set of facts, why should the worker enter in a process which will have the possibility of him compromising on that set of facts, and thereby compromise his statutory right? I mean, why not just call it a case management model, which would be fine, long overdue. It's the mediation point.

MR. O'BRIEN: These are the reasons that we've suggested a pilot project to iron some of these questions out. I don't think that there are easy answers to any of those questions. We need to try them on for size. We need to find out where we can use these tools most effectively, and that's what we've suggested throughout both this paper and the recommendations to the Commission. They said, "Let's try it on for size. Let's find the other alternative methods that work.

MR. STEEVES: Thank you, Mr. Chairman.

THE CHAIRPERSON: Mr. Sayre, you're next up, are you?

MR. SAYRE: Yes, hi, Mike.

MR. O'BRIEN: Hi, how are you?

MR. SAYRE: I want to just carry on a little bit with the conversation about ADR before we get into some of the more general issues. I'm curious about the stipulation in your recommendations that the employer be a party to the process, in fact that a case not be referred to ADR unless the employer is active in the appeal. Why is that?

MR. O'BRIEN: Well, I think because our view of ADR, in particular the mediation side of ADR, is that it's most likely going to be successful and of some significant, and I mean really significant value, in the areas of vocational rehab. In voc rehab, often, in fact almost universally, the employer's participation is extremely useful if you're going to talk about job modification, if you're going to talk about retraining on the job, any of those kinds of elements.

MR. SAYRE: You're talking about the employer's cooperation.

MR. O'BRIEN: I'm talking about, yeah, the employer's cooperation and participation in the process.

MR. SAYRE: But if the employer has filed a notice that they're going to appear to oppose the worker's appeal, wouldn't that be an indication that ADR is likely to be unsuccessful?

MR. O'BRIEN: Absolutely, and so you're going to move on to adjudication at that point. No, in most cases we don't get that kind of response from employers on rehab issues. In fact we get more of a positive, supportive response on rehab than we get negative.

MR. SAYRE: I may have misread the proposal. I got the impression that you weren't going to consider a case for ADR unless the employer was already involved in the appeal. Is that not what you're suggesting?

MR. O'BRIEN: That's correct. On the pilot project that was what we were suggesting.

MR. SAYRE: That the employer has to be already actively involved in the appeal.

MR. O'BRIEN: Oh, no, the employer is willing to participate in the process. So for example if it's a rehab issue and the employer is not served or respondents on the Part 1, well in fact he wouldn't have served it on the Part 1, he wouldn't have served it to the Part 2. We would envision this happening at the Part 1 stage, so we'd make an enquiry of the employer as to whether they were interested in participating. If the answer was no, then bang.

MR. SAYRE: That's what I was getting at, because the employer might well be quite cooperative and just simply say "It's the worker's appeal, I'm not to get involved," right?

MR. O'BRIEN: Yes.

MR. SAYRE: Okay. And as I understand it, the proposal is that the negotiations, the discussions during the ADR process be confidential, that any documents or evidence that's exchanged be considered off the record and be destroyed or returned to the party that presented them.

MR. O'BRIEN: Correct.

MR. SAYRE: If it's unsuccessful.

MR. O'BRIEN: Yes.

MR. SAYRE: And that the person who conducted the ADR process, if it is a vice-chair, is not the same person who would chair the hearing.

MR. O'BRIEN: Yes, correct.

MR. SAYRE: So there would be a duplication. If the ADR is unsuccessful then someone else is going to have involved and get up to speed on that file in order to conclude the appeal, is that right?

MR. O'BRIEN: Yes, yes, that's correct. I should also point out just for the record, I guess, that we don't see just vice-chairs doing this, we see members being involved heavily in ADR as well.

MR. SAYRE: But either way they wouldn't be permitted to sit on the appeal --

MR. O'BRIEN: That's right, yes.

MR. SAYRE: -- having done that, would they?

MR. O'BRIEN: Yes.

MR. SAYRE: Okay, thank you. Did you do any consultation process with the larger community before presenting your submission to the Royal Commission?

MR. O'BRIEN: Before the Royal Commission submission.

MR. SAYRE: Yes.

MR. O'BRIEN: No. No, this is an internal submission. Consultation, we didn't do any consultation, no.

MR. SAYRE: Was there a reason why you decided not to sort of bet some of these ideas with worker and employer representatives?

MR. O'BRIEN: I've got to tell you that trying to produce a submission that had real input just internally took us a long enough time, and we thought we'd like to get to the Royal Commission before September of 1998, so we stopped at that point.

And frankly, it wasn't done -- you know, we didn't make a submission that we think is a panacea to all ills. What we were trying to do was provide a submission for the Commission that could give them some food for thought, but also the community at large. I mean, we know that there are people that are going to agree with parts of this and not other parts, and vice versa. And hopefully it serves to focus discussion on the appellate process, and we thought that might be a useful role for us to play.

MR. SAYRE: Okay, thank you. I take it you would agree with me, in fact I think you have agreed with Mr. Steeves, that a workers' compensation decision can be of vital importance to the worker and his family. It can literally be the difference between poverty and a life of dignity and self-support and the ability to support oneself, in the case of a pension decision for example, is that right?

MR. O'BRIEN: That's absolutely correct, yes.

MR. SAYRE: All right now, let's compare that to say a decision under the Employment Insurance Act, which might involve at most 10 or 11 months of EI benefits. Would you agree with me that a workers' compensation decision is potentially a lot more important in the long run?

MR. O'BRIEN: Well, you know, yeah, there's a wider range to the impact of workers' compensation decisions I think than there are in EI.

MR. SAYRE: And they can have a lifetime effect, can't they.

MR. O'BRIEN: Absolutely.

MR. SAYRE: Unless it's changed.

MR. O'BRIEN: They can be anything from a simple payment for one medical visit to lifetime effect, absolutely. And so those workers who are seriously injured and have long-term effects, it's a far more significant issue than EI, sure.

MR. SAYRE: Okay. Are you familiar with the employment insurance appeal system at all?

MR. O'BRIEN: Only very peripherally, very cursorily. I have not looked at it for some months. I can't say --

MR. SAYRE: Now, I'll just quickly tell you then that the system involves an appeal to an informal three-person body called a Board of Referees, which has jurisdiction to hear new evidence and deal with whatever issues are presented, followed by an appeal to a Federal Court trial judge sitting as a tribunal called an Umpire, followed by a judicial review as of right to the Federal Court of Appeal on issues of jurisdiction and law.

Now, why do you feel that injured workers, given the greater importance of a workers' compensation decision, should have less appeal rights than somebody arguing over a few months of EI benefits?

MR. O'BRIEN: Well, perhaps for the very reason you suggested, that workers' compensation appeals are very complex. They're not easy to deal with. They involve a broad range of medical, legal and human issues. I think it's most difficult to deal with workers' compensation from a position of only cursory knowledge.

MR. SAYRE: Isn't that a reason to have extra opportunities?

MR. O'BRIEN: I'm not sure that the EI scheme is as complex as workers' compensation. Perhaps it's easier to hear --

MR. SAYRE: You obviously haven't practiced it. I think it's as important as workers' compensation; it just doesn't have the impact on a person's life, permanent impact on a person's life.

Take the Canada Pension Plan appeal system. Are you familiar with that at all?

MR. O'BRIEN: Only that it's a few more years before I'm going to be eligible for it.

MR. SAYRE: Well, there is also an appeal process if somebody becomes disabled, and of course you are familiar with the fact that there are many injured workers who come before the Review Board, and for some strange reason the Canada Pension Plan considers them totally disabled and the Board may think there's not much at all wrong with them.

MR. O'BRIEN: I seem to recall that on more than on occasion.

MR. SAYRE: That happens from time to time, doesn't it?

MR. O'BRIEN: Yes.

MR. SAYRE: When there is a dispute over a Canada Pension Plan application including an application for a disability pension, the applicant can appeal to a review tribunal consisting of a lawyer and two non-lawyers sitting together as an informal body. There is then an appeal de novo to a Pension Appeal Board, which is three judges of superior courts throughout Canada, who hear all the evidence over again, have complete jurisdiction over law and evidence, and again an appeal, a judicial review as of right to the Federal Court of Appeal.

Now, is there any reason why these systems have felt the need to provide more appeal rights than you think the workers' compensation system should provide?

MR. O'BRIEN: Well, you know, your point is well made. It's a hard question to answer. I don't know why these structures were established in the fashion they are. I wasn't privy to their establishment.

MR. SAYRE: You would agree with me though, I think you said this yourself in your presentation, that while it's important to reach a decision expeditiously it's even more important to reach the right decision.

MR. O'BRIEN: Yes.

MR. SAYRE: There's no question about that, is there? It's just too much impact on a worker's life to reach the wrong decision because you can do it a little more cheaply or you can do it a little more quickly.

MR. O'BRIEN: Mm-hmm, I agree.

MR. SAYRE: No fair person could disagree with that, could they?

Now, the system now provides three opportunities to get the right decision, and your proposal for solving the problem as you presented it, which is that it can take two and a half years and you feel that that's too long, seems to be to eliminate two of those opportunities. And I fail to see how that is going to benefit injured workers.

MR. O'BRIEN: Well, it doesn't eliminate those opportunities. It incorporates for example the medical assessment process within the new Appellate Tribunal. There is still that opportunity there to obtain a binding medical certification on a medical issue. And what it does is incorporate it so that we don't run into some of the implementation problems and the problems of delay that occur there.

It also does provide for a further opportunity of appeal on reconsideration. So it doesn't eliminate that, it simply once again folds it back into a single tribunal.

MR. SAYRE: But there's only going to be one decision, isn't there, only one opportunity for the worker to present evidence and argument.

MR. O'BRIEN: No, there's two plus there is the opportunity to get a medical certificate, as there is now.

MR. SAYRE: I may have misunderstood the proposal. I thought that the Medical Health Advisory Committee or whatever term is used, that that would be an advisory body.

MR. O'BRIEN: Well, their certificate, as the proposal suggested, is binding on the medical issues.

MR. SAYRE: So the panel that is hearing the appeal, once it's referred to that panel, would have to accept those conclusions.

MR. O'BRIEN: That's correct, yes.

MR. SAYRE: Okay. But if panel were to go ahead, for example, and decide the medical issues on its own without referring it to that panel, would the worker have any further recourse?

MR. O'BRIEN: No, that's correct, no.

MR. SAYRE: So even if the doctor looked at that decision of the panel and said, you know, "I think there's a bona fide medical issue here, I really disagree with what this appeal tribunal decision says about the issues" --

MR. O'BRIEN: It would have to amount to an error of law before it could be appealed on.

MR. SAYRE: Yes, and if the dispute is over a medical issue it's not likely to amount to an error of law, is it?

MR. O'BRIEN: That's right.

MR. SAYRE: Now, you mentioned -- I was intrigued by your description of this, that part of the result I think as you put it, it would be fair to characterize it, of the disagreement that has occurred from time to time between the Appeal Division and the Review Board on certain issues of general principle, has been a dialogue of decisions which, in your own words, has led to what I think you've characterized as a better result. And in fact the first example you gave of that was a question of the jurisdiction to hear Charter issues where the Review Board eventually came to decide that the Appeal Division's initial view was the correct one. Wouldn't you lose that under the proposal?

MR. O'BRIEN: Yes, I would see that same dialogue -- because it's a fairly limited dialogue in areas that are of considerable significance under the Act -- I would see that same dialogue occurring where a decision was made by this new appeal tribunal, and then the board of governors or whatever the management of the board structure is, asked for a reconsideration for reasons. That's the same dialogue taking place.

MR. SAYRE: I guess what I'm getting at here is that it seems to me that what that observation of yours indicates is that this is a very complicated system. There are human beings at the Review Board, human beings make errors. There's human beings at the Appeal Division and they make errors. And sometimes people can recognize that the other view was the correct one and change their view. A one-level system doesn't provide an opportunity --

MR. O'BRIEN: -- change as a result of internal, two panels making different decisions on similar facts or on the same legal issue. It happens all the time. That will continue to happen. There is that sort of dialogue that takes place in that fashion as well.

MR. SAYRE: Okay. Just to clarify, as I understand it the proposal you're suggesting that the role of the court in this process would be limited to correcting errors of law on the part of the Appeal Tribunal.

MR. O'BRIEN: Yes.

MR. SAYRE: That would be the grounds --

MR. O'BRIEN: Yes.

MR. SAYRE: -- the only ground for redoing the decision?

MR. O'BRIEN: Yes.

MR. SAYRE: And I think you also said that the Board would be entitled to refer an issue to the court.

MR. O'BRIEN: Yes, on the same grounds.

MR. SAYRE: On the same grounds. Does that mean that the worker would have no statutory right to refer an issue to the court?

MR. O'BRIEN: No, those two rights, the rights for the worker, the employer remain. That's what the proposal is.

MR. SAYRE: To take judicial review in effect.

MR. O'BRIEN: Yes.

MR. SAYRE: Okay. Would you see any change in the present severity of the privative clause in Section 96(1) under this of system?

MR. O'BRIEN: No.

MR. SAYRE: Would there be any easing of the direction by the legislature to the courts to basically keep their nose out of the decisions?

MR. O'BRIEN: No.

MR. SAYRE: Would you agree with me that if we're going to have highly trained, highly committed people as we have at both the Review Board and the Appeal Division, putting their minds to reaching the right result in a dispute, that it's best that they spend as much as possible of that energy and time on the merits of the dispute as opposed to dealing with legal questions, jurisdictional questions, questions do we have the power to do this and so on?

MR. O'BRIEN: Yes.

MR. SAYRE: Does that make sense?

MR. O'BRIEN: Yes.

MR. SAYRE: Yes. Would there be any change in your proposal that would reduce the number of items in which the Review Board seems to get tied up in jurisdictional concerns to the point that they don't get to the merits of a dispute?

MR. O'BRIEN: Well, you know, the proposal does provide the new tribunal with the opportunity to make its own procedures. I recognize we had that by regulation now. I'm not sure that that's going to affect the problem that you're pointing to. You know, that's an issue of independence of the panels, and you know, every time I address one of these issues at the Review Board I end up having to come down on the side of the independence of the panel to make the decision.

If the panel thinks that there's a jurisdictional problems, that's a key part of their decision-making process on the merits of the case. It really is. I mean, you can't make a decision on the merits unless you think you can get to them.

MR. SAYRE: That's exactly the observation I was making, is that -- you would agree with me that from a worker's point of view, if they look at a decision of the Board and say, "I can't accept that, I want to appeal it" --

MR. O'BRIEN: Absolutely, that's the worker's point of view, but from the point --

MR. SAYRE: And they get a decision back talking about past decisions and jurisdiction and sections of the Act and so on, which don't actually talk about were they still disabled, could they go back to work, was the pension adequate, they're going to be pretty unhappy, aren't they? I mean, their dispute has not been resolved in that situation.

MR. O'BRIEN: I guess what I'm trying to say to you is that although I understand workers' frustrations with that, that I think that those are important elements of the decision-making process and important elements of the independence of the panel.

I don't often see those kinds of decision-making processes taken beyond what is in my view reasonable. I think that workers would disagree with me.

MR. SAYRE: So as far as you're concerned then, the proposal that you've made to the Royal Commission does not involve any significant broadening of the Appeal Tribunal's jurisdiction that would reduce the number of times when jurisdictional issues would come up.

MR. O'BRIEN: No, no.

MR. SAYRE: Okay. And the jurisdiction, there is a reconsideration process that you've recommended that's built into that process, but as I understand it it's limited to errors of law. We covered that before.

MR. O'BRIEN: Yes.

MR. SAYRE: So you don't see a role for say a 96(2) type of reconsideration process a decision of the Appeal Tribunal.

MR. O'BRIEN: No.

MR. SAYRE: Now, keeping in mind what we've covered already, would you agree with me that it would be even more important under a single-level system for the worker to have trained representation before this one kick at the can is taken?

MR. O'BRIEN: Well, I guess, you know, that's a philosophic question, and I guess if you look at the data that it was being asked of before, where workers are more successful when they're unrepresented, I'm not sure that that's the answer. I think that -- my personal view is that where we have effective representation in an appellate process, you have a greater likelihood of getting the right answer. We think that's clearly true.

MR. SAYRE: I just want to explore a little bit, the statistic you gave us, I think, was that over 80 per cent of appellants are now represented.

MR. O'BRIEN: No, over 80 per cent of appellants and respondents who appear who are represented.

MR. SAYRE: Who appear, okay. When you say "represented," how broadly are you using that term? You're obviously not just limiting it to lawyers. Are you limiting it to people who have some acknowledged position as a representative, such as a worker advisor or a union representative?

MR. O'BRIEN: It breaks down about one-third, one-third, one-third. About one-third are lawyers, about one-third are from the advisory offices, and about one-third are either from trade unions, injured workers' associations, are freelance --

MR. SAYRE: Family and friends?

MR. O'BRIEN: -- friends of the family, people who have perhaps had some experience in dealing with legal process through, as you suggest, CPP or EI.

MR. SAYRE: Well, just to clarify that figure then, if a worker comes in to do an appeal and his brother-in-law comes in with him, and the brother-in-law is for whatever reason more articulate and is the one that does most of the speaking, would you count that as an appeal where the worker was represented?

MR. O'BRIEN: Yes.

MR. SAYRE: Without any inquiry into whether the brother-in-law actually knew anything about the system then.

MR. O'BRIEN: I am not about to make inquiry as to whether any rep that comes in knows about the system. We'll find that out as we go through the hearing. And of course in the final analysis, if the panel is not satisfied with the evidence that's come out at the hearing through that process is sufficient, the panel will ask questions, and you know that. The panel in fact often will spend the majority of the hearing time with the panel asking questions. So the panel attempts to fill that gap where it exists.

MR. SAYRE: Have you heard from time to time workers indicate that they would have liked representation from the workers' advisors or from whatever other source they might have tried to get that they just couldn't get it or they didn't want to wait that long, so they come on their own?

MR. O'BRIEN: Rarely. Rarely that occurs, and when that occurs at an oral hearing, generally we'll give people an opportunity to suspend the oral hearing and to conduct it later if they haven't had time to get a rep. That's pretty rare though.

MR. SAYRE: Well, my point is that workers can come to the Review Board now in that situation and take their chances and take their best shot --

MR. O'BRIEN: Yes.

MR. SAYRE: -- with the knowledge that if they lose, then maybe at the Appeal Division level they'll at least have one more chance at it, and perhaps they'll get representation then or at least they'll have a better understanding of what they need to do to win.

Under the proposal that the Review Board has made to the Royal Commission, that wouldn't be possible, would it?

MR. O'BRIEN: No.

MR. SAYRE: It's one kick at the can and that's it, and the worker is not going to be come back later and say, "Well, gee, I didn't know that this evidence was important so now I'd like a new hearing or another chance at it."

In your consideration of these changes did you make any estimate of the additional cost or the additional delay that would be involved if workers, more workers felt that they just had to wait until they had a trained representative because it was their only opportunity to win their dispute?

MR. O'BRIEN: Well, I'm not sure that there is an additional delay caused by that. I don't know that to be the case, because of the infrequency --

MR. SAYRE: Well, we haven't tried it, but it's a reasonable expectation that some workers are going to feel that they just don't want to proceed until they're absolutely sure they're ready, because if they lose that's it.

MR. O'BRIEN: Well, the information we have at the present doesn't show that, doesn't show that there's a lot of request for delay in order to get representation. I understand what you're saying, that workers may just go ahead and then get the representation for the next stage, but I don't have any data that suggest that that's the case.

MR. SAYRE: You also said that you have been using more one-person panels lately in order, as I understand it, to grant oral hearings more quickly.

MR. O'BRIEN: Well, simply to increase the volume of work we can produce with the existing staff levels, yes.

MR. SAYRE: How do you decide which appeals go to a one-person panel.

MR. O'BRIEN: Well, we tried a number of different -- first of all, there were some criteria set out in our policy and procedure manuals as to what will not go to a one-person panel, and we've tried several different approaches and one-person panels being selective on the one hand, on the other hand saying, "Look, they should all go unless there is some of these criteria present." Now, we've been experimenting with that for the last year or so and we think we can refine those criteria as time goes on.

MR. SAYRE: Would you still see using the same number of one-person panels if the proposal were accepted? I don't say you, but would you see the Appeal Tribunal using one-person panels to make this one final decision about the worker's entitlemen