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 entitlement?

MR. O'BRIEN: I would hope that by the time we were to institute this proposal if it was to be instituted, we'd have enough data through our experience to provide to that new body so they could make some pretty reasonable provisions as to what the criteria are from single-person panels, and have some sound evidence to base that on.

MR. SAYRE: I want to come back to the question of the role of the Health Care Panel in this process that you proposed. First of all, I gather that at some point early in the appeal process a vice-chair or the whole panel, I'm not sure which, would have to consider whether there's a need to refer a medical issue to the panel, is that right?

MR. O'BRIEN: Well, it could be at any time in the process, preferably the earlier the better, yes.

MR. SAYRE: Yes. Would it be something the vice-chair would do early on or would it be something that would wait until the whole panel was prepared to hear the case?

MR. O'BRIEN: I would think that the way that will most often happen is -- probably there are two different routes that'll take. One is that there will be requests from representatives or appellants for such a referral, and that request would be dealt with by the vice-chair in consultation with the panel members.

The second would be simply after reviewing the file, one or all of the panel members may come to the conclusion on reviewing the file there is a critical issue here that is best dealt with by such a referral, rather than simply weighing what medical evidence is available. So either one of two ways that can happen.

I suppose thirdly, in a small number of cases it might actually come up at an oral hearing.

MR. SAYRE: Do you see this being something that could be the subject of a preliminary application by the parties to --

MR. O'BRIEN: As I say, I think a large number of the referrals would come as a result of that, yes.

MR. SAYRE: Okay. If that were done, however it's initiated, if it's decided to refer the matter to the panel, would the entire range of medical issues go to the panel as is done now under Section 61, or would it only be a much narrower medical issue.

MR. O'BRIEN: Yes, I see it being a narrower, more focused medical issue.

MR. SAYRE: Do you see that there would be any role of the parties in selecting who the panel members were and nomination process the way there is now?

MR. O'BRIEN: The proposal suggested the panel appoints.

MR. SAYRE: So there wouldn't be be any opportunity for the worker or the employer to nominate a member of the panel. Do you think the panel would tend, or would you propose that the panel would be more or less a permanent body that would sit together and hear a number of these appeals on a pretty regular basis?

MR. O'BRIEN: Well, the proposal is that there would be a list, there would be a series of these panels that would be developed, and basically we'd go to them in rotation, in rotation by expertise.

MR. SAYRE: Yes. It might be a narrower list than the present options that are open to the parties to appoint doctors, is it fair enough to say?

MR. O'BRIEN: I don't think so, no.

MR. SAYRE: Now, the 1987 Ombudsman Report, are you familiar generally with that?

MR. O'BRIEN: Yes, I've read the report, not in recent months. You'd have to refresh my memory.

MR. SAYRE: As I recall, one of the recommendations that were made at that time was that there be a common appeal registry set up to deal with the Medical Review Panel appeals together with the Review Board appeals. I stand to be corrected but I'm pretty sure that was part of the recommendations. And in any event I'm wondering whether in your consideration of how to better integrate the Medical Review Panels with the rest of the appeal structure, whether you considered as opposed to giving the new Appeal Tribunal control over the Medical Review Panel process.

MR. O'BRIEN: I think that -- we looked at the Ombudsman's Report and I think concluded that there were some administrative problems with that and we preferred this model. We felt this would be a more effective model.

MR. SAYRE: One of the concerns that you've mentioned about the Medical Review Panel is that the process is controlled by the Board at present. If there were a common appeal registry that dealt with both levels of appeal, that would solve that problem, wouldn't it?

MR. O'BRIEN: Well, I guess is this, that I'd really like a Cadillac with all the bells and whistles, but by gosh a Pontiac's pretty nice.

MR. SAYRE: Well, I'm not sure that we want a Pontiac given the importance that we've I think agreed that these decisions have.

MR. O'BRIEN: What I'm saying is that it may well be that you can't have the full and total control, and maybe something else is an option. That's possible. That's what these dialogues are about.

MR. SAYRE: One of the recommendations that certainly raised my eyebrows a few inches was that the hearings of the new panel be public.

MR. O'BRIEN: Yes.

MR. SAYRE: Do you know of any other social benefit appeal system which allows the public to attend appeal hearings?

MR. O'BRIEN: No.

MR. SAYRE: Why would you recommend that, given the sensitivity of a lot of the medical and other information that is necessarily discussed at these appeals? Isn't that a real affront to the worker's right of privacy?

MR. O'BRIEN: I think that the right of -- the recommendation first of all goes on to say that they can be in camera for a good reason. If there is a particular reason that is raised by the parties or by the panel itself they can be in camera. I think that the need for transparency in the dying days of the twentieth century overrides privacy needs. I think as well, just in a practical sense, I don't know, you've been at a lot of Review Board hearings -- do you think we're going to attract a big crowd at a new appeal tribunal? You've been at a lot of hearings at the Appeal Division. You know, they attract a little more of a crowd, but it's not a big crowd. I don't think you're going to get a whole lot of attendants, but I think the opportunity should be there in order to ensure that everything is handled in a very transparent fashion.

The same kind of issues that occur in workers' compensation occur in many other areas which are dealt with in the courts, are dealt with in an open fashion. ICBC claims for example are dealt with in courts, and the same kind of issues arise there that arise in workers' comp: issues of rehab, psychological issues and so on.

MR. SAYRE: At least in that sense you see this as being somewhat more of a court-like process.

MR. O'BRIEN: No, I'm saying that we have an example at least of one area where very personal kinds of information are dealt with in an open and public fashion, and I think it's important we do that.

MR. SAYRE: Mr. Steeves mentioned the pilot -- well, mentioned the Part 1 and Part 2 process that was started around 1992 or 1993. Do you recall that there was also a pilot project started at that time to do an early vetting of appeals to see whether there was some way of expediting them or resolving them in a quick fashion?

MR. O'BRIEN: I wasn't at the Review Board at that time, and I've talked to a number of people who were involved in that process and I've also looked for some documentary evidence of the process, and there is precious little by way of written reports that I could find that were helpful to me to tell me just how successful or unsuccessful that had been.

What I understand happened is that the pilot project was usurped by the Part 1, Part 2 process, that the decision was made not to go ahead with the pilot project because this is what we're going to do instead.

MR. SAYRE: I can tell you, because I was involved, that that's quite incorrect, that it was the same committee that developed the Part 1, Part 2 process developed the pilot project, and it was intended to expedite appeal, somewhat the same way that I think you're intending the ADR process to do. And within a month or so after the committee concluded its work, we were all informed that the pilot project had been discontinued because the Review Board saw no point in it and felt that there was no benefit in continuing it.

So my question for you, and it doesn't sound like you're probably going to be able to answer it, but what has changed that makes you think now that if you have this ADR pilot project that you're proposing, that it's going to be more successful than what was tried back in '92 and '93. And I see Mr. Steele is coming up to the table. He was, I think, one of the three vice-chairs that was involved with the project.

MR. O'BRIEN: I'm allowed to answer the question.

MR. SAYRE: Please.

MR. ROBERTSON: Before Mr. Steele starts, Mr. Sayre, I must remind you that your learned friend Mr. Winter has got only 25 minutes left, and that doesn't leave any time for Commission or Commission counsel's questions. I certainly don't want to cut you off and we can sit beyond the lunch break if the Commission have a lot of questions, but I would ask you to start to wind up now so that Mr. Winter isn't filibustered.

MR. O'BRIEN: If I can just make one additional comment to that, Mr. Robertson, in deference to my growing years I'm going to need a little short break here momentarily.

MR. ROBERTSON: We'll take that into account.

MR. O'BRIEN: I hope so.

MR. SAYRE: I have just one more area to cover after this question.

MR. ROBERTSON: I think if Mr. Winter could start after we'll take a short break for you then.

MR. O'BRIEN: Okay, that would be great, thank you.

MR. STEELE: I would just like to add a comment with respect to the pilot project, and that was that there were a number of factors that we were looking at, and the aspect of expediting appeals was essentially to see if there were any obvious errors on the record that could be sent back to the Board to be dealt with in an expeditious manner, rather than in essence any fast track for the appeal process if it was in fact found to be required. What we found in the pilot project is there really weren't very many obvious errors on the record that could be corrected in that manner. So that was one aspect of it that ended up with the pilot project being ended.

The major factor, however, that ended up with it being discontinued was that the problem was getting the files, that we were able to get the initial appeal letter and the decision letter. But the process of actually obtaining the files from the Board turned out to be a much more complex problem than we originally anticipated, and by the time we were able to actually get the files and effectively work on them, we found that there wasn't in fact much to the time saving, and therefore that was one of the major reasons why the pilot project was terminated at that time.

MR. SAYRE: So with E-file and better disclosure processes now, that might well be different.

MR. STEELE: There might be if you have a clear understanding of what you are hoping to achieve by bringing it faster to the appeal, or the Appeal Tribunal as we'll term it now, because at that time there were only limited factors that were being looked at, that maybe now under a system there might be other factors that could be dealt with that couldn't be at that time.

MR. SAYRE: Can you bear with me for a couple more questions, and then I'll be finished.

MR. O'BRIEN: Absolutely.

MR. SAYRE: My last area was to ask you about the issues of the employer's status on an appeal, and in particular their right to disclosure of information from the worker's file. Are you familiar with the Ontario practice at what was the Workers' Compensation Appeal Tribunal?

MR. O'BRIEN: Yes.

MR. SAYRE: I understand the name has been changed.

MR. O'BRIEN: Yes, it has, yes.

MR. SAYRE: So just to put it on the record then, the process as I understand it is that there is a Tribunal Councils Office that goes through the Board's claim file and selects out the documents that it considers relevant to the decision under appeal, and then the parties have an opportunity to add to that. And that is the record that goes before the tribunal.

Now, you weren't, as far as I could tell from looking at the proposal, you weren't envisioning anything of that sort taking place in front of the Appeal Tribunal here, were you?

MR. O'BRIEN: No, we hadn't identified the disclosure issue as something we wanted to deal with in these submissions.

MR. SAYRE: So as you're proposing it then, the Appeal Tribunal would have, as all the tribunals do now, would have access to the entire claim file.

MR. O'BRIEN: That's correct.

MR. SAYRE: That's right?

MR. O'BRIEN: Yes.

MR. SAYRE: And then if the parties were seen to be entitled to natural justice and full disclosure as we usually understand it, that would mean that they would also be entitled to the entire claim file.

MR. O'BRIEN: That's the underlying assumption. We didn't focus directly on that. We left that for the discussions around the whole disclosure issue to be dealt with, so we didn't focus directly on that. We assumed that the system would remain as is.

MR. SAYRE: Have you done any projections on the added if it were necessary to go through the file and select documents considered to be relevant?

MR. O'BRIEN: No, as I didn't want to envision that possibility.

MR. SAYRE: It would probably be substantial, wouldn't it?

MR. O'BRIEN: I would think so.

MR. SAYRE: Those are my questions, Mr. Chairman.

THE CHAIRPERSON: We'll take a short break now then, and Mr. Winter will commence.

(PROCEEDINGS ADJOURNED)

(PROCEEDINGS RESUMED AT 11:43 A.M.)

MR. ROBERTSON: Can we call the hearings to order again, please?

Because we're running a little late, in order to ensure that Mr. Winter has adequate time and that if the Commissioners have any questions, we're going to sit through rather than break, and keep Mr. O'Brien and other staff members around into the afternoon. So we'll probably go through until approximately 12:20 to 12:30, and then we'll come back at 1:30 for the opening submissions of the three counsel for the interested parties. Mr. Winter.

MR. WINTER: I'll take that to mean that the Commission doesn't want me to go to 12:30 on my own.

Mr. O'Brien.

MR. O'BRIEN: Mr. Winter.

MR. WINTER: What I'd like to do is debate with you -- I like debating with you -- some of the points that you've raised in your recommendation. And I think that the Review Board has recommended a lot of the points, the overall concept of things that the employer community itself will be, and has been, recommending. For example, the employer community is advocating one level of appeal; the employer community is advocating accessible, not published decisions, written from a viewpoint of respecting privacy; advocating time limits on the appeal process. So those are areas, I think, for brevity, I'm going to avoid some of the questions I may have had. But there are other things that are in the recommendations that I'd like to debate with you a little bit.

I'd like just one preliminary background because I think you provide a value that others haven't. You've been both with the Review Board and the Appeal Division. I just wanted to get a little detail. If I understood it, you worked on the Review Board then went to the Appeal Division and then went back to the Review Board.

MR. O'BRIEN: That's correct.

MR. WINTER: Could I get some time frames?

MR. O'BRIEN: God, you know, at my age it's hard to remember that. I've been back at the Review Board for four years now. I was at the Appeal Division for four years prior to that and at the Review Board four years prior to that.

MR. WINTER: It sounds like you're ready for a change.

MR. O'BRIEN: Well, retirement sounds good to me, I don't know.

MR. WINTER: I want to start with the internal versus the external of the one level. My understanding for the employer community -- and just so that you understand who I'm acting for in the employer community, I act for a group called the Employer's Coordinating Group which is made of three organizations coordinating for the employer community: the Business Council, the Coalition of B.C. Business and the Employer's Corp., and all have different focus, different constituents.

I think there's unanimity among the employer community that we'd like to see one formal level of appeal. While there may not be as much unanimity as, do we want internal, do we want external; there's pros and cons from both.

Reading the Review Board's submission, certainly it's quite clear it's recommending an external. When I get through it I see really one reason being advanced of significance, and that's the question of independence. The potential for perception of conflict and then actual conflict that the leaning is towards the external to avoid the perception against independence. Is that fairly accurate?

MR. O'BRIEN: Yes, there are a number of other secondary reasons, but that's a primary reason for sure. The primary reason is the independence issue.

MR. WINTER: And the secondary reason I saw was the reverse, trying to answer to criticism of that, if you have an external they may be prone to interfere in an area that's not within their jurisdiction, i.e., creation and development of policy as opposed to interpretation. And you and the Review Board in submission tries to answer that concern, and at the end of the day comes up with does not believe that that in reality will be a concern that can't be dealt with.

MR. O'BRIEN: That's correct. The experience seems to be in Ontario, for example, that that hasn't been a problem.

MR. WINTER: And in particular that you did note that the Munroe, Don Munroe Advisory Committee in 1987 felt that -- there was 13 people -- that it was a predictable problem. If you have an external appellate tribunal being the final say in the appeal system that that advisory committee felt it was predictable you're going to have this tension, this problem over who really is the final sayer of policy.

And in your paper, in the Review Board's paper, you don't agree with that predictable conclusion.

MR. O'BRIEN: Yes, I think frankly that that was a throw-away. Our view is that, or my view is that the focus of Munroe and that group was the governance issue, that the whole appellate structure was simply something that had to be dealt with because of one of the things they did with the governance issue. It wasn't an essential focus.

MR. WINTER: It was essential from the viewpoint that they took the existing governance structure of all three primary functions, being rested in one group, the Commissioners, and that's responsibility for administration which went to the CEO president; responsibility for the executive side of development of policy which was now the panel of administrators; and responsibility for final level of appeal which was the Appeal Division. So from that viewpoint it was significant. And then they did chat a bit about the appeal structure.

But you would agree it was 13 very diverse background people that reached, so it says, a unanimous conclusion that they felt it would be a predictable problem if you had an external, where the appellate tribunal, when the power to develop and implement policy lay with the governing structure, they felt that was a problem. You would agree 13 people unanimously concluded that.

MR. O'BRIEN: I would agree that that's what the report says, yes.

MR. WINTER: Okay. I want to talk to you about my concern of internal and external, just to see if you have thoughts on it. My concern falls -- I understand the independence, and I agree there's a need for independence and a perception of independence.

But I add another factor in here, especially in the way we've been structured, and that is there has to be an ability for the system to work effectively together. All the different components have to work together. Whether it's an internal or an external appeal tribunal, I see that as a component of the Worker's Compensation overall system. I take it you would agree that the appellate tribunal is going to be part of the system.

MR. O'BRIEN: It's all part of the system, absolutely.

MR. WINTER: And you would agree there has to be an effectiveness, an ability to work together, however that's done.

MR. O'BRIEN: Well, there has to be a respect as between the various levels within the system and an understanding of what each other's role is, for sure.

MR. WINTER: So, to put it in very basic terms, there's got to be the initial respect that the governance structure would appear to be the one that has the authority to develop and implement and create policy, and the authority of the appeal tribunal would be to interpret and to ensure that it was applied according to the policy statements, but not to develop or create policy.

MR. O'BRIEN: No, no. And also to test that policy against the legislation to make sure that it was appropriate.

MR. WINTER: The lawfulness.

MR. O'BRIEN: Yes, for sure. And I think that's a reasonable and responsible process for any administrative structure to expect to have happen is to have some body test their decisions.

MR. WINTER: My concern is with the ability for an external in our present system to work effectively with the governance structure. And the reason I raise that is I think bickering within the system has a healthy component when you have a stable system. But I'm not so sure I could describe our WCB system that we've had over the last five years as stable, particularly when you look at the governance changes we've had from 1991, the Commissioners, the Board of Governors and now administrators leading to a new structure presumably when the Royal Commission's finished. I don't consider that as a stable system, do you?

MR. O'BRIEN: Well, I think that the Worker's Compensation's system, as long as I've been involved with it, has been a system very much in transition, a system very much dealing with difficulties, systemic difficulties in a variety of fashions, yes. And that doesn't represent -- well, it represents a form of stability.

I mean, the Worker's Compensation system has continued to pay wage-loss benefits, has continued to provide rehab. We talk about the appellate process. It deals with a very small proportion of the cases dealt with by Worker's Comp. So there may not have been stability at the governance level in the last few years, you're absolutely right, but you know, when I walked around this compensation board when I worked here I saw adjudicators and rehab consultants who'd been here for 20 years and 25 years. And there is stability there.

I saw people OSH, that there was stability there. I saw some very senior people here, one of them I see in the room here. I won't name him but he's sitting the fourth row from the back, who's been here for, I don't know, probably 15 years. That's stability.

So I think that the view from the outside often, Mr. Winter, the view from the outside is that -- political view is that view that you see in the press, the glamorous view about cars and so on. Remember the Audis, and all of that stuff.

The reality is that in most of the cases the Board works very well and it's very stable and just keeps on plodding along. So I don't think there's instability. If anything, I think we've got a problem with too much stability at the Board, and it's too hard to change it.

MR. WINTER: Okay. Again, you're going to take to me an area of debate that I don't really want to go into. I think maybe all the groups --

MR. O'BRIEN: I don't want to go to any debate on it, so --.

MR. WINTER: I think all of the groups may agree, but particularly, the employer community says the change at the senior level of governance causes an instability throughout the system when we have continual change different views of what our system should be, how do you get there, how fast can you get there, is different when you have just the commissioners versus the Board of Governors versus the panel of administrators. As you work down the system you may well be right. Change is a lot harder to get through when you get down to the people who have been there for fifteen, twenty years. Whether that's good stability or bad stability I'll save for another day.

MR. O'BRIEN: Absolutely.

MR. WINTER: My experience is that the Review Board, the predecessor boards of review, has been a centre of what I call this healthy bickering for want of a better term. For example, I did not -- you know, I saw a tense relationship between the Review Board and the then Commissioners before 1991 and I think that was recognized in the admin inventories that the Board had. What was your impression of the relationship between the Review Board and the WCB, particularly to governance structure where the appeals went next, before 1991?

MR. O'BRIEN: The Review Board, in my view, rather than being, you know, in a bickering kind of process, and the old boards of review are the same, has always acted as a bit of damper on radical swings, the kind of swings you are talking about from one philosophical direction to another philosophical direction. It's added as a bit of a damper and the Review Board has always said, "Look, here is the legislation, here is the Act. Is what you are doing consistent with that?" Okay, so they've acted as that damper, rather than as a bickerer.

Under the old commissioner system, you know, there were some problems on issues that we had with the commissioners and some of those problems took many years to solve. I think, for example, the retroactive adjudication issue that the Review Board made findings on time after time after time for about six years and with a change in system the appeal division picked that up and made the same findings as the Review Board had for six years, and there was some change to policy arising from that.

My recollection is, and you know, there's one of the ex-commissioners sitting in the audience here as well who is now a vice-chair at the Review Board. I don't think there was hostility, there was disagreement over issues. The same thing has happened laterally with the next body, the appeal division. There have been disagreement over issues. I don't think there's been hostility. There's been learning back and forth.

No, I don't think that's -- and I think you've characterized it in the fashion that I would expect perhaps someone in the adversarial process to characterize it, but I don't think it's quite correct. You are a little off the mark in the way you characterize it. It's a little less dramatic than the way you characterize it. It's a little calmer than that.

MR. WINTER: I guess it's as fluid a topic as independence. I mean, what's actual independence and what's perceived independence may be the same problem as what is actual tensions and --

MR. O'BRIEN: Sure. Well, you asked me on my perspective from the inside, you know. And that's my perspective from the inside which may be different from yours on the outside. I don't know.

MR. WINTER: And I think you raised my next point. I mean, what we find is that the tension and the bickering has switched from the Review Board to the WCB between the Review Board and the Appeal Division because that's the next level now, and I think that's just part of the system. The concern is within the overall -- what we consider to be an unstable system right now, that bickering may not be helpful.

Turn to the Appeal Division. You were at the Appeal Division I take it when that infamous report came out of the Review Board. It was supposed to be confidential. What people have referred to as the Michael Carton report that was supposed to internal only. What was the reaction of the Appeal Division to that kind of document that comes public at that time?

MR. O'BRIEN: Well, you know, I remember when I first saw that, I started paging through and seeing, you know, which ones of those are my decisions, you know, and how wrong was he. That was the reaction, of course. There was some dismay over that, some disconcerting -- you know, we were a little disconcerted by it. We had some discussions about it, and you know -- you know, you've raised the issue. It's a difficult one to deal with because it involves personalities and I'm not sure this is the place to deal with personalities. But it was Michael Carton. We all know Michael.

You know, and frankly, after a little initial, "Well damn," kind of hostility, that's what we said is that, "Oh well, that's Mike Carton." Okay?

So there wasn't a big hostility. There was no big flap about it. If the Review Board had adopted that report, okay, if the Review Board had formally adopted that and said, "Here's our position: We want something done about this," then I can tell you it would have been a real problem. The Review Board did not do that and they didn't do that and the person that was responsible for not doing that is here as well, for very good reasons and valid reasons and it didn't become official.

So it's another one of those things that floats around, you know. There's a lot of that. There's a lot of that in society.

MR. WINTER: Like the extension issue is an irritant to the system. For the Appeal Division to say the Review Board were going to review your decision to grant an extension or not, and then have the merits heard is an irritant to the Review Board, isn't it?

MR. O'BRIEN: I can't remember the last time we even talked about it at the Review Board frankly. It's not an irritant.

MR. WINTER: Well, the way you've handled it, you said you've come up with a compromise or something you can live with. As I understand it, you refuse to have that case sent back.

MR. O'BRIEN: We reached an agreement that the Appeal Division would hear the cases on their merits if they overturn us on an UOT, so --.

MR. WINTER: And so even if the Act seems to contemplate these issues or supposed to be dealt with first by the Review Board, a decision of the officer that affects a worker is supposed to be considered by the Review Board, you've reached something you can live with by bypassing your role in the system, because you don't like what the Appeal Division is doing on overturning your assessed appeals. You're avoiding the situation instead of --

MR. O'BRIEN: Oh, nobody is pretending it's the best solution, but it's a solution.

MR. WINTER: We got into irritants on certain cases where the two tribunals just didn't agree so you'd get recurrent situations, the estate, the right to estate which I know the super panel is looking at, the Chairman's Panel. But that causes problems in the system when the outside world has to try to figure out what to do now and a lot of people will go through the Review Board to get to the Appeal Division knowing what's going to happen there, but we have to go through the Review Board. And you agree, that can be a problem in the system when you have inconsistent findings between the two and we can't figure out some way of sorting that out.

MR. O'BRIEN: And frankly, we generally do find ways of sorting that out, you know, and particularly in those jurisdictional issues, which, you know, the Appeal Division can't tell us what our jurisdiction is and we can't tell them what their jurisdiction is, even if they are a tribunal that's after us, or superior to us, we have to decide our own jurisdiction. That's just a matter of law.

So there's some of those issues that, yes, are difficult to sort through but they are difficult issues, and you know, if that's an irritant then that's an irritant but certainly I don't think we find it so. We find it as an interesting issue that has to be dealt with.

MR. WINTER: And you do deal with it to the best of the ability to people that have assigned that case.

MR. O'BRIEN: Sure.

MR. WINTER: And what the Appeal Division is out of your hands.

MR. O'BRIEN: Yes.

MR. WINTER: But again, for the system as a whole there may be problems there. I think you've identified it in your report that for the outside parties for preparing and representing, there's difficulty and for the interim, the adjudicators have conflicting opinions on where they do it.

MR. O'BRIEN: And we think it's unfortunate that happens.

MR. WINTER: I have a question now that comes to mind about the Chairman's Panel. So you've raised that as an area where you can have consistence and you use the Charter issue as an example. It's my understanding that any other panel of the Review Board still is not bound by the Chair's Panel even. They can still decide the way they used to and not follow the Chair Panel.

MR. O'BRIEN: That's correct.

MR. WINTER: So you have a hope that the Chair Panel would carry a little more persuasion maybe, with the rest of the panel but it's not binding.

MR. O'BRIEN: That's correct.

MR. WINTER: Again, for the sake of time, I'm going to move off that area. There's a couple of other things in your report I want to chat about, in the submission.

MR. O'BRIEN: Oh, good.

MR. WINTER: Let's start with the time limit, the 90 days. And again the employer community certainly supports a time limit on the appellate structure. Your recommendation follows quite closely what the Act currently says with for the Appeal Division.

MR. O'BRIEN: I think it's word for word.

MR. WINTER: Yes, and it's on page 21. I have a problem with that. It says:

"Decisions of the Appeal Tribunal shall be made within 90 days of the date…"

and this is the key word:

"…on which the appeal is commenced."

And then you have the same ability for the Chair to provide extension for a variety of reasons as are currently in the Act.

It's the 90 days from the commencement that I have to ask you about. If you really think that's realistic from a one level. The concern I have is that the Appeal Division seems to manage the 90 days fairly well from commencement, and that's when disclosure has been given. But they have a much lesser volume than what currently the Review Board has and what I would anticipate a single appeal tribunal would have. And I question the 90 days from commencement as being something that can be met. And I wanted to know if you had thoughts.

What I see as being more workable is two stages, maybe two things. A certain time frame to start the appeal which will talk about it, you propose a year; another time frame from which submissions have to be closed, for want of a better term, whether it's going to go to an oral hearing and that's closed, we are going to go to an oral hearing or submissions are closed; and then a final time frame which 90 days may make sense, from when the hearing is scheduled or submissions are closed. But that's not what you proposed. You say 90 days to cover the whole gamut once the form part 2 comes in.

MR. O'BRIEN: I don't think that's what it says. I think what it says is "commenced" and you know, I think the Appeal Division has done some useful work in defining "commenced". I think we need to build on that and I think that the kind of thing you are talking about may well be where you build to.

MR. WINTER: Okay, so I take it we are not in disagreement. I think we are on a wavelength then. From when the form 2, if that's going to be commencement, is actually filed, it's probably going to take more than 90 days to finish.

MR. O'BRIEN: Yes. Commenced is when the evidence is in, when all the evidence is in.

MR. WINTER: Okay, and that could take a while. And what I think the employer community would be looking at is having some reasonable time frames on that end too. Do you have a problem with that concept?

MR. O'BRIEN: No. You know, I think we need to deal with time limits. We put this issue, we've put this in here for the simple reason that we think that there ought to be some finality. And finality, people ought to know when it's going to be final and if you are not going to do it in that time frame, you'd better have some good reasons for it, and I think that those time frames need to be worked through and they need to be -- ones that are both reasonable and responsive to what the community needs.

Hopefully some of the more difficult things, the more time consuming things get dealt with through the precursor process, the ADR process.

MR. WINTER: The other time frame you've proposed in the submission is one year to bring the actual appeal as opposed to current 90 days to the Review Board and 30 days to the Appeal Division. And I just wanted to talk to you about that because again I have some concerns with that. I'll start with the rationale. If I understand your rationale, it's based on the experience at the Review Board. A lot of parties, they bring their appeal within the 90 days and then they start asking for extensions. They are provided six months when the appeal is processed.

MR. O'BRIEN: Up to six months.

MR. WINTER: Up to six months to get the part 2 in, and then it's quite easy to get an extension. It seems like normal practice, if the appellant applies, they'll get an extension. And you are using that experience to justify why it should be a year. Is that accurate?

MR. O'BRIEN: Well, we are using that experience to justify why it should be a year, is that accurate?

MR. WINTER: Well, we are using that experience and we are also using our experience with EOTs, and we've given you the data in the back in an appendix on EOTs. We are also looking at the experience of other tribunals who have, either no time limits, which is the other alternative, or a fixed time limit that is a fairly long one that makes sure that everything that is going to come in comes in.

Our problem is with EOT process. The EOT process is a most difficult, most time consuming process and it's one where making judgments that are right judgments is just really tough, and we think that we'd like to avoid that, frankly. We'd like to put in place a system that's a more automated system.

MR. WINTER: And again, I think what we'd be looking at is to have a short time frame to let everybody know you've planned to bring an appeal and then start building the next time frame for when you have to finalize that initial process, again the part 2 asking for the hearing.

And the reason for that, if you are an employer, or you are a worker, and let's say the employer's side, the case has been denied. And it seems like it's the end of the day and you put away the file, people leave, people go to different positions, memories fade, and a year later now you get a notice of appeal. So now you have to gear up for a case that's a year old and it's going to be a fair time away before you actually get back into that case. I don't think that's good for the system. I don't see the value in the system on the other side when the worker thinks they've got a successful case and a year later an appeal comes in saying that now they have to revisit the case.

I see timeliness at the front end being quite important and I would be interested in your comments.

MR. O'BRIEN: Well, I think that when we look at the number of EOT applications we get, we find that there are significantly good reasons for the extensions in most cases up to about the year, once we get past the year that generally there aren't particularly good reasons. We'd like to capture those reasons. We'd like to capture those cases.

We understand the concern over delay in the system as a whole, but I guess we balance that off against the needs of the individual appellant. Many people simple don't get to it, and yet they should have an opportunity to have their case heard on its merits, and there's a lot of good reasons why they don't get to it. And we allow those appeals right now on EOTs.

I'm not sure that one year is particularly onerous. In most of the situations you are talking about, the employer is going to continue to have good records, fresh recollection, good evidence. I can't see that it's a significant problem for the employer in that situation. So to me, the something less than a year is punitive and I'm not sure that the year compromises the employer's ability to participate in the appeal.

MR. WINTER: See, and the way I see it is that representatives, I think, tailor their practice in the area, be it legal or otherwise, to the rules, and so we've tailored our practice at the Appeal Division to be ready, because we know we have a 30-day time frame and that they have a 90-day time frame and it's not as easy to convince them to extend. The way I deal with the Review Board cases is that they come on my desk, and I know I have six months, so it's never a priority until I get close to six months. Something else always comes and I push it down.

I don't like to get more than one extension. I don't think it's fair to the system, fair to my clients. So I ask for an extension, and a lot of times I ask for a specific extension. I say, "I want 30 days I'm going to finish this in 30 days," and I guess six months. I didn't ask for six months, but I get six months. And what happens? I don't think I've ever done it in the 30 days. I've waited the six months and I've got it in. I won't ask for a second extension unless something strange has happened.

And I see that as a problem with the system as opposed to a problem to be able to represent adequately my client, or I presume a representative on the worker's side representing their clients. You give us six months, we are going to take six months.

MR. O'BRIEN: That may be true, and I'd be interested to hear from the worker's side advocates if that's true in their case, but it seems to me that if you are a worker's side advocate, you've got somebody leaning on your case because they are wanting that wage loss benefit, they are wanting that rehab, they are wanting whatever it is. It may be a quite different situation that you are talking about. So I'm not sure that what you are suggesting is typical of advocates on both sides.

MR. WINTER: Again, we'll have to hear if they do honestly want that.

MR. O'BRIEN: And if it was, I would bet that they wouldn't admit it. He did.

MR. WINTER: Yeah, I did. Let me ask you another question then. I want to deal just for a minute on the substitute you have for the MRP, and this is your healthcare advisory panel recommendation. And again, the employer community is clearly advocating that we'd like to see the MRP process abandoned. I think the difference that we have is that we'd like to see the MRP process brought back as part of the appeal tribunal process, but not binding as a certificate. And I want to explore a bit with you why you felt, firstly, when it is incorporated within the appeal tribunal and that it should be binding.

Now, I'll start with: Why don't you explain that? And then I'll give you some of the problems I found with it.

MR. O'BRIEN: Okay. Well, if it's not binding, then why bother having it? Why not just get a medical opinion. That's all it becomes then, is a medical opinion that you weigh along with everything else. Well, you know, you don't need any kind of a fancy process to get a medical opinion. You send somebody off to a doctor and you get a medical opinion, period.

So you know, we think that where there is -- you use these kinds of processes where there is a real and genuine ambiguity or a real and genuine conflict between medical opinions already. You've already got one orthopod saying A and one orthopod saying B. Getting a third orthopod simply tells you now you've two orthopods saying A and one saying B. It doesn't tell you what the right answer is. We ought to use these selectively and we ought to use them in those kinds of cases.

And where we do, then let's give it some weight. Let's give it some weight so that the people who are providing that certificate know that it's an important and significant issue, and they give you their best shot. And let's be done with it once and for all instead of having more arguments about whether that ought to be -- you know, now the opinion that's accepted or whether we prefer still old orthopod B's opinion. So there's some finality to that issue.

MR. WINTER: And I think all your explanation was exactly the points I would have made, and then you came to the conclusion that it should be binding. I think it should be rarely used, in those cases where you have a real ambiguity or divergence or you need medical evidence that's not on the file.

What you said is, so you have medical orthopod evidence here and you have contrary medical evidence there, why do we need a third one so it's two against one. That's exactly what you are doing. You are going out and you are getting the third one but you are saying not only it's just a matter of weight, binding weight. What I would see that use, is when you do have that ambiguity, you should be able to have access to an independent medical opinion, because normally the opinions you get from the employer or from the worker -- although from hopefully an objective third party professional, probably wouldn't have been tabled if it didn't support the position of that party whereas you are going to get something completely independent.

By why not just a matter of weight? Probably to most weight. Examples of concerns. I've seen too many MRPs that don't really understand the WCB system. Example, how do you apply to Section 99 balance of doubt? How do you provide the Section 6.3 schedule B presumption to an MRP when you are not there being able to make those discussions. And now you've got a conclusive and binding decision that has to be worked in there regardless of how it fits with Section 99 or schedule B. Do you see that as a problem?

MR. O'BRIEN: Well, once again, if you bring this in-house and make the panel responsible for obtaining the decision, the panel then becomes responsible for making those kinds of explanations for ensuring that the question asked is the appropriate question that is going to be reflected in a final decision. I think you get a better certificate in that fashion because it's a more direct certificate by the people who are responsible for making the final judgment.

MR. WINTER: And so if this MRP certificate had an area that the parties felt was objectionable on the facts, you are saying that we could just raise it within the hearing to say that -- so it's binding but it could be challenged in some way or another.

MR. O'BRIEN: Well, before the fact. If they think that the facts that are being presented to the panel making the MRP panel, the H-cap panel, are incorrect, then they've got an opportunity to debate those facts before hand.

MR. WINTER: Okay, there's also a natural justice concern as I found in certain of these cases where the employer is not invited to the examination or put in his submission. I take it you would continue to have that process.

An example is a psychological case where the examination is going to be taking a history and a lot of time, the psychological evidence, is from the perception of the worker of what happened at the workplace but the employer disagrees. But we don't get that information until the MRP. That becomes a concern when the certificate is filed and binding. And yes, I understand that you say we still have a hearing for you, but we are stuck with this certificate that may have been different if they had a different view of the evidence.

Do you have that contemplated in dealing with the advisory panels?

MR. O'BRIEN: Well, you know, that's a problem and I think there's some real doubt whether either party is going to be included in a psychological assessment. I think the psychologist or psychiatrist is going to make his assessment independently. The facts on which -- the background facts are facts that will have to be decided by a panel. The employer and the worker's reps have an opportunity to make submissions on that. And if you get somebody you don't like, then you know, there's avenues to go.

MR. WINTER: I think it's a very difficult avenue to go to court on a medical review panel.

MR. O'BRIEN: Yes, and properly so.

MR. WINTER: And again I'm not thinking of ways to try and build court into the process. I don't think that builds stability into the process when court is used as a common tool as opposed to the most unusual.

MR. O'BRIEN: Yes. Well, I just -- you know, I think you are raising what is probably a pretty legitimate issue but I think it's one that is pretty minuscule in terms of number of times you are going to have that sort of a problem, and I think we are going to minimize those problems pretty dramatically by this process.

MR. WINTER: And I thought the way that, to minimize it altogether was make it a matter of weight, understanding that the panel is going to probably place the most weight on it.

MR. O'BRIEN: Right.

MR. WINTER: Okay, that's enough on that point. I want to ask your comments I asked of Ms. Kobashi when she was here too, about legal fees. There has been some proponents and some submissions put in that the Board should open up and be much more liberal in reimbursing legal fees. Their current policy is that never, and the Appeal Division has challenged that as a discretion and the Appeal Division's decision is if there's fragrant abuse by the Board then legal fees can be considered.

Do you have a view on opening up, liberalizing, legal fees? And I'll tell you, I'm opposed to it and I'll tell you why after I hear your views.

MR. O'BRIEN: Well, first of all, if you'll recall that the published decision, the first published decision of the appeal division on legal fees that I was -- I was a member of that panel, and I think we did a hell of a bang up job on that.

MR. WINTER: Creating policy, I must say.

MR. O'BRIEN: The second issue, the second point I should make is that the Review Board has, in fact, authorized payment of legal fees on one occasion and that was on our back decision some years ago. So there are special circumstances, I think, where these things can take place. I don't believe we ought to liberalize it.

MR. WINTER: Okay. By the way, did the Board pay the legal fees in the Review Board suggested it?

MR. O'BRIEN: No.

MR. WINTER: There's that problem again, isn't it? And that was my view on liberalization. I don't think I have a problem with what the panel did in your case, the problem I have was that that should have gone to the governors into the policy manual, as opposed to having an Appeal Division decision creating what I consider to be policy.

My concern was the liberalization of legal fees. I think workers or employers, it could be small business. If they know that somebody else is going to pay for the legal fees, why not get a lawyer? It just makes common sense I think. And as I said to Ms. Kobashi, I think lawyers are very good on selling ourselves, especially if somebody else is going to pay, and I'm not sure that's best for the nature of the system we are looking for in Workers' Comp. I take it you agree with that.

MR. O'BRIEN: You recall my comments is that the appellate process as it currently exists is one that should be non-adversarial as far as possible and should be an inquiry process. And I think that, you know, that that should hold in the future as well with any new tribunal.

MR. WINTER: Okay. If I might just have two minutes, I'm going to move off of my questions that I still have and just see I've covered off everything that was raised by Mr. Steeves and Mr. Sayre and I won't be more than two minutes.

I was just curious on this extension of time issue. I understand what's happening now, and that if the appeal division says there's an extension of time, they'll just hear the merits. And so let's take this scenario case. A worker claim denied. Whatever it is, three years later, two years later, comes to the Review Board and the Review Board says, "On the circumstances we are not going to grant an extension of time." The Appeal Division says, "We are going to grant an extension of time. Here is the matter based on the understanding that's been reached now," decide on the merits that the person is entitled to claim wage loss pension or whatever, sends it back.

It goes through the system again. Now, the assessment on the pension is, whatever. It comes back to the Review Board. Will you hear the second issue or is it going to be: Well, we've already said we're not going to hear this, we're not going to hear it again.

MR. O'BRIEN: Yes, that's a matter of debate at the Review Board.

MR. WINTER: Okay. I'll take that to mean there's no definitive answer yet.

MR. O'BRIEN: You've got it.

MR. WINTER: Okay, the rest are points I'll make in submissions. Thank you very much for your time.

MR. O'BRIEN: Thank you.

MR. ROBERTSON: I had a couple of questions that are on the legalistic side. The first is the question of the non-use of stare decisis as between the Appeal Division which is presumably a higher level of appeal within the system, albeit internal and only applying decisions of the Appeal Division on a case by case basis rather than the Review Board feeling bound by the appeal decisions interpretation of the statute or decisions on questions of law.

Can you articulate for me the reason why stare decisis on questions of law would not apply as between the appeal division and the Review Board?

MR. O'BRIEN: Well, it's our view that Section 99 of the Act applies equally to the Review Board and to the Appeal Division and to the Workers' Compensation Board in the first instance. And it says that each case has to be decided on its own merits, period.

It's also my understanding of general administrative law, that tribunals of this nature are not to be held to a account on their previous decisions on a stare decisis basis.

But I'm not sure that I'm answering your question very fully, and --

MR. ROBERTSON: Or absent Section 99, if Section 99 were amended, would you be of the view that it would be a good thing, that the Review Board and adjudicators were bound by the Appeal Division decision on questions of law.

MR. O'BRIEN: You see, I guess I would have a problem with that in the construction as it now, or in any construction I could think of, frankly, is the -- that then enters into the whole area that I think some of our colleagues have been concerned about, the who makes policy. It's only the Board of Governors of the governing body, whoever it is at the Compensation Board that can make binding policy, and I think that that's the way it ought to be. I don't think that some appellate body should be making policy and I think that if you've got a stare decisis principle in place, that that's exactly what happens.

Clearly, where there is debate between the two levels of appeal, if that's what exists, or between the Board and a single level, if that's what exists, there is the alternative of having a decision rendered that does the weight and that's a decision from the courts and that combined both parties. So I think that there is that alternative there. It isn't as if it's absent in the system, it's just somewhere else.

MR. ROBERTSON: Let me give an example of the young widow case and let's make it hypothetical, that the Review Board believed it had jurisdiction to determine whether those provisions were contrary to the Charter and justifiable, and the appeal division also felt it had jurisdiction. And the Appeal Division made a decision that it contravened the Charter.

I have trouble understanding why the Review Board would not accept that opinion on the law and whether the Charter is breached made by a higher level of appeal.

MR. O'BRIEN: That's an interesting one, of course, because the law is in transition in that particular area and when the Review Board had the opportunity to look at that after the Chair's panel concluded that we could deal with Charter issues, there had been some new law and that new law changed the situation. We were not in the same position that the Appeal Division was when they made their decision. So we didn't have to fact that particular issue.

My view is, and this is a personal view, my view is that where a final appeal body, no matter how you structure it, makes a decision on an issue of that substance and that nature, that any other appeal to tribunals below them, ought to pay very close attention to that and ought to give due respect to that and accorded tremendous weight. And only where there is significant reason to differ from it, ought you to do so.

I mean, even the Supreme Court differs from itself on occasion. So I'm not sure that we ought to be simply bound as a matter of law, but we certainly ought to give a lot of respect and a lot of credibility to decisions made by the higher body.

MR. ROBERTSON: My next, final question is also on the legalistic side, and it was clarification of under the new system that you propose of the parties being able to apply on judicial review to deal with errors in law or the Board also referring to the court the decision on questions of law. And where I got a big confused is when you said that the current privitive clause would still stand in that kind of model. And I'm having trouble understanding how that can be the case because currently, the parties could always apply to the courts on judicial review subject to the patently unreasonable test. So it doesn't seem to me there's any change there, and if the Board makes a reference on a question of law to the court under a statutory authority, surely that would not be a patently unreasonable test, that would be an opinion of the court on a question of law.

MR. O'BRIEN: Correct. So the privitive clause applies on application by the parties.

MR. ROBERTSON: Okay. So that would be nothing new.

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

MR. ROBERTSON: And your reason why a mere error in law not ought to suffice on judicial review on this kind of a circumstance with a single appeal level is what?

MR. O'BRIEN: Well, I'll do it once again, because there is an opportunity, of course, for the -- if it is a mere error of law for the Board itself to request that review, the reconsideration, and then to take it forward. So it's not as if that's the only avenue by which that error can be corrected. There is a second avenue.

MR. ROBERTSON: Okay, and your answer would be that aside from the Board referring it, the usual argument in favour of a privitize clause, and that is the expertise of the tribunal is the reason.

MR. O'BRIEN: Yes.

MR. ROBERTSON: Okay, thank you.

THE CHAIRMAN: I just want to ask a couple of questions to assist me in clearing up what the role of any proposed appellate tribunal would be in the policy development.

You start with a statutory provision that then results in policy being developed to meet the objective of that provision. It then is applied to a particular set of facts in a case and ultimately a decision is made and it gets appealed. Now, if that policy is patently unreasonable or constitutes -- if its contrary to law, if it constitutes an error in law, I think we are all pretty much in agreement that the appellate tribunal would have some authority to deal with that in whatever form.

Now, the more interesting cases go further down the chain. And that is where the policy is neither patently unreasonable nor constitutes an error in law, but the appellate tribunal simply sees or interprets the statute differently. There appear to be some circumstances where that has happened. And do you see that as a role of an appellate tribunal to make a decision that would articulate policy in a manner that would basically constitute an alternative interpretation, equally valid, but that would give, apparently the right result in that case?

MR. O'BRIEN: Well, you know, I don't think that the tribunal ought to enter into a witch hunt with respect to the policy where there are two equally credible alternatives to meeting the legislative requirement.

Policy, by it's very nature, is intended to be applied sensitively. Policy that yields a result that's the wrong result in this particular case, need not always be applied, and in fact, we've never had any disagreement with the Board over that particular issue where the tribunal has found that, in this particular case, policy A that is normally applied and is applied in every other case, ought not to be applied, and here are the reasons why: We can distinguish this case from the normal case that the policy is intended to deal with.

That's the normal route and I think that's the route we generally take. I don't think the tribunal ought to be saying to the Board, "Look, we understand that there are two policy alternatives here, each one equally valid and we like this one, so you'd better take it." I don't think that's the role of the appeal tribunal at all.

THE CHAIRMAN: So in that instance, then, Mr. O'Brien, where the policy is, as it were, distinguished, would that decision then be -- how would you characterize that new decision then that's sort of refined the state of affairs. Is that now policy or is it not?

MR. O'BRIEN: No, the decision is a decision on that individual case only. You know, policy can never be binding as such on anyone. It can't be binding on the adjudicators. Perhaps more binding on a claims adjudicator than it is on an independent tribunal. It can -- policy is guidance, is guidelines. In fact, the Board's own policy manuals state that, and that's normal in policy manuals.

Policy manuals cannot supplant the law, they cannot become the law. They are only guidance. So where the policy simply doesn't fit a particular case, it doesn't fit that case. That doesn't create a new policy, that maybe a flag that if you get two or three cases like that, it maybe a flag to the Board that they want to take a look at their policy and see if it needs adjustment. But that's up to them.

THE CHAIRMAN: Okay. I suppose your views would be similar in areas where policy is simply -- there are policy voids or gaps where the appellate tribunal encounters a situation that hasn't been -- there's no policy guidance. The decision on that basis would also involve articulation of principles that would not be constituted or be regarded for future cases as Board policy until the governing body were to address it as such?

MR. O'BRIEN: Absolutely. And I think that we've had examples of that and I've made reference to them in the submission. Examples of that kind of process happening in Ontario on a more stylized process, or more restrictive process here in British Columbia, with the Ontario process producing, frankly, better results. Where the tribunal made decisions on case by case issues and the Board of Governors in Ontario then went ahead and made a policy decision that was not particularly consistent with what the tribunal had found, by the way, but the tribunal, of course, found itself to be guided by that policy from there on.

THE CHAIRMAN: There's a saying, and I'm not sure where this comes from, that I recall from law school, that hard cases make bad law. And I guess what it means is that sometimes you are stuck with a rule that you really can't get around. It's on all fours and it just gives a really rotten result in that case. What do you do there where there just no way around a particular situation? Do you apply it and give what seems to be an unjust result, or how do you deal with that?

MR. O'BRIEN: Yes. Well, you know, if it applies on all fours you end up holding your nose and you sign it. You know. There is, and I think should continue to be, opportunity for informal dialogue between organizations and I think that where you have cases like that you bring that to the attention of the agency and say to them, "Look, you may want to take a look at this policy. It applies, but damn, it produces unjust results."

THE CHAIRMAN: All right. I'm going to pass the opportunity over to my fellow commissioners if they have any questions. Otherwise I can continue.

COMMISSIONER EXELL: I'm also struggling with this whole issue of how policy is made and where the buck stops in terms of the final so-called right policy by which then the Board and all the adjudicators within the systems live by.

In the case of -- I guess you would agree then that the Board of Governors does have the final authority to not only make policy by which the Board operates but also the legislation governing that policy.

MR. O'BRIEN: I understand the first part of the question and I agree with it. I'm not sure I caught the second part. Also legislation governing it.

COMMISSIONER EXELL: And the legislation. You don't foresee -- I believe you recommended an external tribunal, are you not?

MR. O'BRIEN: Yes.

COMMISSIONER EXELL: What role do you see that external tribunal playing in creating policy or --

MR. O'BRIEN: None.

COMMISSIONER EXELL: What about in legislation or recommendations on legislation?

MR. O'BRIEN: I don't see the tribunal being involved in recommendations on legislation at all.

COMMISSIONER EXELL: Or policy.

MR. O'BRIEN: Or policy. That's the Board's responsibility.

COMMISSIONER EXELL: So then why again, refresh my memory, do you find that there's an advantage other than the perception of independence to have the tribunal external. I am pursuing this because I was one of those 13 members of the Monroe Commission who saw consensus on this issue.

MR. O'BRIEN: Well, in the independence of the tribunal is one of the key issues and it's one of the issues that's been commented on by every commentator or every analyst, everybody that's looked at this whole issue of administrative law for the last 20 years or perhaps more. And I think it's important that that independence be a matter of real independence of the panels for the panels to make decisions and also apparently independence to people coming to the tribunal can feel that they are getting a decision that is the best decision in their case based on the facts in their case.

The issue of policy, for example, is one area where it's most interesting. We have, often, people come to us at the Review Board and say, "Well, look, this is what they did and here is what their policy is, and I think their policy is wrong." They feel free to come and say that. I'm not sure that people raise that argument with the policy maker.

And it may be that they are right. It may be that the policy is contrary to the law. You know, that should be examined. There should be an opportunity to examine that.

COMMISSIONER EXELL: So is the issue not so much that -- well, I think what I hear you saying is that if it should -- your last statement and the fact that when these issues arise they should be somehow laid before the Board of Governors in such a fashion that they will be dealt with as opposed to perhaps swept aside or ignored. Maybe that is the issue you are trying to get at.

MR. O'BRIEN: Well, I think that there has to be an independent evaluation where there's an appellate, where there's an appeal with respect to it. An independent evaluation of the lawfulness of policy, not simply an evaluation by the policy maker, not simply a re-evaluation by the policy maker.

COMMISSIONER EXELL: And conversely I guess, some way to compel the body to deal then with that evidence if it comes up.

MR. O'BRIEN: Yes.

COMMISSIONER EXELL: And is there something in the system to make that happen right now, to compel the Board to deal with issues that are laid before it?

MR. O'BRIEN: The mechanism that's in the system now, as I understand it, is for the chief appeal commissioner to request that a policy be reviewed or request policy guidance. The other mechanism, of course, is the one that's not in the legislation but it's inherent in the nature of the process, that where the final appellate body, the Appeal Division makes decisions saying that policies are contrary to law, then you know, that signals to the governors that anybody that appeals a decision like that is going to have their appeal granted.

So maybe they ought to take a look at it. So it's that indirect kind of route, and that's essentially what we propose here.

COMMISSIONER EXELL: So in your view is there any way to make the Board, the panel, the Board of Governors, are there any mechanisms to make it more responsive? I mean, in other words, what happens? To put it bluntly, what happens if they chose to thumb their nose at whoever comes from the appeal tribunal.

MR. O'BRIEN: Yes. There really -- you know, we looked at a variety of potential, or a variety of possibilities in respect of that. And for example, given the appeal tribunal the opportunity to make a referral to court to have a binding decision made. And you know, that smacks now of policy making on the part of the tribunal. I don't think the tribunal ought to have that authority. So we were unable to find any of those kind of mechanisms.

I suppose that the responsiveness mechanism has to do more with construct of the appeal, or of the Board of Governors themselves, how you structure that than it does with the appeal tribunal.

Now, there are public account --

COMMISSIONER EXELL: Well, yes, it does, but it's all bound together.

MR. O'BRIEN: Oh, I understand. None of these things are entirely isolated but I think that's where the emphasis has to be in this particular one.

COMMISSIONER EXELL: All right. Thank you.

MR. O'BRIEN: Thank you.

COMMISSIONER STONEY: Just one quick clarification because we are way beyond time. This report, and the recommendations that were included in it, this is your report. You said earlier, I think in response to Mr. Steeves, that you did not go to the chairs or to the vice-chairs or to the panel for endorsation of this?

MR. O'BRIEN: No, this is a report that I prepared as part of my responsibility as chair of the tribunal. This is a submission I've made as chair of the tribunal. I have consulted widely with all members and vice-chairs at the Review Board and the report is prepared with tremendous amount of editing and participation by this group of people here, the senior staff at the Review Board. They kept telling me that my spelling was wrong and that they didn't like this stuff I put in and so on, but it involves a tremendous amount of input. It's not simply out of my head.

But I do not claim it to be -- we didn't take a vote on it, no.

COMMISSIONER STONEY: Just another quick thing. Currently, and I'm thinking about your remarks earlier, all of the panels maintained their own independence to make decisions -- they are not bound by the decision of the panel next door or down the street.

MR. O'BRIEN: That's correct.

COMMISSIONER STONEY: So do you perceive that in the future that that would continue, that panels would still operate independently so one that was reviewing on Thursday could be making a different decision than one that had made a decision on Monday with basically the same type of evidence in front of them?

MR. O'BRIEN: I think that that can always take place, because the panels will weigh the evidence differently. I think the panels are constrained to make their decisions within the law, to begin with. They can't go beyond the law.

Secondly within the law to begin with. They can't go beyond the law. Secondly, within any regulations, any lawful regulations that are made, and thirdly within the policy of the Board the panels must make decisions that are consistently with the policy, unless they find the policy to be unlawful. So panels have all sorts of constraints on them.

What they aren't constrained in doing and what they can't be constrained in doing is weighing the evidence themselves. You know, that's the responsibility they undertake when they accept their Order in Council. So they must weigh the evidence themselves.

THE CHAIRMAN: All right. That concludes our questions and the session for this morning. On behalf of the Commission and the interested parties, Mr. O'Brien I want to thank you and your assistance in the presentation made this morning. Thank you.

MR. O'BRIEN: Thank you very much.

(PROCEEDINGS ADJOURNED AT 12:40 P.M.)

I HEREBY CERTIFY THAT THE FOREGOING is a true and accurate transcript of the tape recording supplied to me to the best of my skill and ability.

G.K. Bemister, Transcriber