Title:
Affiliation: WCB
Staff Present: TR, GG, OE, GS, SN, PL
Notetaker: Steven Noble
Date: Wednesday, April 8, 1998
- General Topic - Compensation Adjudication Benefit Levels and Healthcare Issues
- JIM SAYRE
- This is indeed a very important subject - in some respects one could say that the majority of complaints that injured workers have brought to the Royal Commission have stemmed from unfair decisions, unfair decision making, or at least perceptions on the part of injured workers of those things having occurred with their claims. That being said it is not the easiest subject in some ways to deal with when we talk about the substantive areas of workers' compensation laws as we've been doing in the last couple of days and will be doing in the next few days. There is lots of details of the policy that we can address and say this needs to be changed and that needs to be changed and we can discuss those in fairly concrete terms. When we talk about decision making it is a much more subjective process and I don't know that if you recall but my predecessor at the Community Legal Assistance Society, Alan McLean, and I did a joint presentation to the Royal Commission back in November and his - the theme of his comments was that the workers' compensation system as it is today without changing anything in the Act or anything much in the manual would work just fine if the Board would only just administer it properly and follow the spirit as well as the letter of the policies. He and I don't quite agree on that and I've made a good deal of effort in the past and will continue to make a good deal of effort to persuade you that there do need to be some changes in the - both the statute and the policy to better accomplish the goals of the system. But I certainly do agree with his comment to the extent that if the Act and the policy are administered and if decisions are made in the spirit envisioned in Section 99 of the Act, for example, and in the spirit generally described in the policy manual that a great many of the complaints and some of the most bitter complaints that injured workers have brought to you over the past year would probably not have arisen. So it's a - the challenge I guess is to figure out a way - for you at least - is to figure out a way that the Royal Commission and with your global role over the system itself to address the concerns that really come down to the individual decision making level. One of the things that I will be talking about in a few minutes is the concept of accountability. That phrase came up many times on the part of injured workers that the Board has to be held more accountable for the decisions that it makes. It is a popular word these days and it is easy to say it. It is may be not so easy to propose a process that would actually improve accountability but I am going to make some effort to do that in my submissions today. These other branches of the topic that I will be discussing this morning include one branch where I can talk as long as you will let me talk probably about substantive problems with the policy and that is the question of benefits and in particular wage rates.
- One of the three sets of materials that I've given you this morning is a collection of correspondence that I did back in 1992 to 1994 at a time when the Board was - had an average earnings working group in place and was actively considering changing the way that wage rates were being determined. And our advocacy group came up with numerous recommendations and identified numerous problems with the existing policy that is described in that correspondence; some of them very broad problems in the sense that they apply to thousands and thousands of claimants - others quite narrow and specific problems that would only apply to one industry or in relatively rare circumstances but all of them problems with the policy to the- the practice of the Board in that failed to - in our view - failed to accomplish the statutory purpose set out in section 33.1 which is to determine a wage rate which best represents the actual loss of earnings that the injured worker has suffered due to the injury or disease. So I will probably come to that at the end of my remarks if I don't get so buried in some of those details that I fail to come back to the broad questions that also have to be discussed today.
- The other issues that I will be addressing fairly briefly include the question of net versus gross earnings - this is not a matter of our agenda - the position of injured workers I think is that the 75% of gross standard that now exists within the Act is probably as good as anything that is devised and it is also workable and a practicable standard. However, it is a major plank of the employers' position in front of the Royal Commission that that needs to be changed to something that is based on net and I'll be making some brief remarks about that and then probably coming back to that at the end of the day in my opportunity for rebuttal to what Mr. Winter is going to be telling you this afternoon.
- So what I have distributed this morning just to make sure that you have it is the third chapter of my - our ongoing saga of our submissions - it starts at page 18 - secondly excerpts from the January 1998 report of the Auditor General which focuses on the process of accountability -and I won't be referring to that in a great deal of detail but I've summarized some of the recommendations in my submission and I wanted you to have that as background material and it is just excerpts - I believe the Royal Commission may already have a full copy of that - it's been provided previously so...
- And the third- and the third is a collection of correspondence about wage rates that I mentioned earlier.
- Workers I think - in fact I know having spoken to so many of them -workers understand that the workers' compensation system is not a sort of an institutionalized Santa Claus; it's not a welfare system; it's not a system that is capable of simply doling out large amounts of money to anybody that gets hurt on the job. They understand that the system has rules and that some claims simply don't fit within those rules. And it is certainly not going to be my position before you this morning that the Board should stop administering the system according to the rules that have been set out for it and to become motivated simply by sympathy for every person who comes before the Board in financial need.
- There will be people with conditions that are very real conditions but simply as a matter of medical fact have not arisen out of their employment and the Board is going to have to continue hopefully with courtesy and consideration and the realization of the impact their decision has on the worker - that they are still going to have to continue to turn some of those claims down. What workers cannot accept - or should not have to accept - is rude, insensitive treatment by the staff of the Board that they deal with. Nor should they have to accept a decision making process which ignores the evidence that they have given or either says openly or seems to be saying implicitly that anything they say is probably biased and misrepresentation because they have an interest in the matter. And certainly they should not have to accept a decision making process - one that deals with medical issues fails to give full consideration to the medical profession- professional medical opinion of their own treating physicians. The people that best know their own condition because in most cases they have been supervising and treating and dealing it since the time the accident happened or since the worker realized they had some disease condition. We made a number of fundamental recommendations at the beginning of our submission - I've quoted two of them on page 18 -that have particular relevance to the decision making process and that is that injured workers are responsible, hardworking adults - they've been in the workforce until they suffered a work injury - they are not professionally lazy people - they are not - for the most part they are not children - occasionally we will be dealing with teenagers as a result of the high school work studies program and that is an issue I'll come back to on wage rates. But they are not children either - they are in the transition period to adulthood and they are before the Board because they have been performing adult work rules and they have had the misfortune to become injured. They are certainly not criminals. And they have to be dealt with respect for their autonomy and their dignity and their right to privacy throughout the process and perhaps with heightened respect in cases where the Board decides it is going to have to reject the claim because of the lack of adequate evidence.
- And the second one refers to the complaint that this Royal Commission has heard from injured workers about the Board ignoring the medical opinion of their own physicians in preference to opinions from their own medical advisors. To put it briefly our position on that type of medical dispute and medical decision making is quite simple -the Board should not override the opinion of the treating physician based on the opinion on its own staff. Even if its own staff were to come to the claim with an open mind and not with an institutional bias in favour of the Board's financial position it is unreasonable to think that the worker is going to have respect and any objectivity of that process. If their claim is going - being turned down because a Board doctor says their own doctor is wrong the worker is going to walk away saying something was wrong; I was shafted. And the Board cheated me; the Board did not deal with me honestly with the evidence before it. In situations like that if there is a need for more medical evidence than the worker's own physicians are providing or if the Board after looking at that evidence in a bona fide sense feels that the treating physician is wrong the process should be that the Board defers that matter to an outside specialist who hasn't been previously involved for an objective third opinion. If that objective opinion disagrees with the treating physician then the Board will have to weigh the two and come to a conclusion or perhaps come to a third one if it comes down to that. But in any event at no time in our submission should the Board in dealing with a medical issue such as whether the worker's disability arose out of employment have in front of it evidence from the treating physician that says yes it did the claim should be accepted and then to have it rejected because the Board medical advisor says I don't think the treating physician is right; no it didn't.
- We heard a great deal over the past - over the first two weeks of the presentations - the Board's presentations about the case management process and it's given me a dilemma in how to deal with the submissions throughout these two weeks because in one sense case management is simply a pilot project that is being conducted in Prince George which really doesn't have a lot to say about how the Board has been administering the majority of claims that has come before it. On the other hand the case management proposal or approach to handling claims is one to which the Board has really nailed its flag. The Board has repeatedly told us that that is going to be the solution to almost all of the problems that workers, unions, and employers for that matter have brought before it in terms of how claims are handled. It is all going to be better; it is all going to be solved under case management. And I don't think - that is the Board's proposal in a sense to the Royal Commission in how the system can be improved - or how the system will be improved even if you don't make drastic changes to the policy. Our view of the case management proposal as it has been described to us and to you by Mr. Buchhorn and others over the past two weeks is a cautiously optimistic one. We support the idea that a worker should be involved from an early stage in the claims management process; that the worker should not simply be a third party passively waiting for the Board and in some cases doctors and others to decide what is going to happen with his or her life. And to the extent that case management is going to bring the injured worker into the process and make them an integral part of the decision making process - keep them advised of information as it's received - make them a part of the planning process for getting them back to work and getting proper treatment for their claim - getting vocational rehabilitation if that is going to be necessary and appropriate - all of those things are good. I don't see how any of us on the workers' side can say that those are bad ideas. And that is why I say we are cautiously optimistic about it -if the Board really does what it says it is intending to do over the - told us over the last couple of weeks what it is intending to do and if it does that in good faith then I think that perhaps a great many fo the complaints that you've been hearing from injured workers will not be recurring in the future. And the best test of that ultimately would be to come back in two years and look at the appeal rates and see whether in fact that in fact only half as many injured workers are feeling it necessary to appeal decisions and whether when they do appeal decisions the tribunals are finding that the Board was right in the larger percentage of the cases that is present today when - I don't know of very many appeal systems where the tribunals having heard the evidence allow such a large percentage of appeals as is happening at workers compensation right over the years. 30-40% of the appeals in front of the Review Board are routinely allowed - that is a very high figure of errors on the part of the Board at that stage - and even more of the appeals that are rejected at the Review Board of course end up being allowed after they go to a Medical Review Panel or Appeal Division. So it is not only that a lot of workers are unhappy and disputing Board decisions a lot of them - their unhappiness is being upheld in a sense as a result of the appeal process. And that is something that would be a useful barometer if you could look into a crystal ball and come back in two years and see that case management is really going to fix that systemic problem in that deal of time. You can't do that - you have a deadline by the end of the summer with hopefully to come up with specific recommendations and what we are going to be asking you to do is to take some of the positive elements of the case management proposal that would in fact if they were carried out in the spirit that they were presented solve a lot of the problems with the decision making process. And to recommend that they be made part of the Act so that the Board has to adhere to them. So once this Royal Commission has completed its role and the spotlight is no longer on the Board as it is today we don't end up going back to the same old decision making processes that have led to so many complaints over the years. I don't have a draft before - that I can put before you at this time -what such a Code of Conduct might say but I'll try to give you one by the end of next week so you will have my suggestions for that. It won't be anything very startling and it will obviously have to be in fairly general terms but it will at least give a statutory basis for people in appeals if the Board is not doing what it tells us it is going to do - it will give us a statutory basis for claims just as Section 99 does today - in a much more - even more general sense to be able to say you didn't administer the claim in accordance with the fundamental principles outlined in the Act and here's one of them.
- The next subject that I want to deal with this morning is accountability -the term accountability has been used repeatedly by injured workers who have come before you - a great many of them are angry that their sense of what is needed is that they would like to sue the Board -I've talked a lot about the historical access to the courts in the sense that in certain circumstances the workers should be able to sue the person responsible for their injury and you may be tired of hearing it but I'll be coming back to it from time to time before I - in other parts of my submission. But in some cases the workers are angrier at the Board by the time they have gone through the decision making process and the handling that they received at the Board - they are so angry by the way they are treated by the Board that the focus has shifted from the person who has caused their injury to wanting to sue the Board; wanting to sue the adjudicator or the Board officer that turned him down and treated him rudely and made decisions that ended up in some cases costing - forcing them to sell their house or lose their houses and lose other assets that they have accumulated - in some cases led to - contributed to family break up because of the tension that results from being out of work for so long and not having adequate income. So accountability is a very real issue for injured workers and it means accountability at a very real, concrete claims level - not in some global sense of the Board not making accurate statistical reports to the stakeholders but in a very real sense - you screwed up on this claim; you are causing a great deal of loss and I'll tell you what that loss is and I want compensation for it or I want some remedy for it.
- It is difficult to think of how the current process can deal with that other than a very - frequently a very slow process of filing an appeal and ultimately if the worker is right hopefully that appeal will end up being allowed. But simply getting retroactive benefits - even if there is some interest attached doesn't always make up for the delay or large gaps in or the large period of time in which the worker had not income. You've heard many stories of the tension that can result and the damage that can be done to family life as a result of the financial strain of being out of work and there is no way that simply receiving retroactive benefits two years later after a Review Board decision, or a Medical Review Panel decision that is going to magically make up for that and restore everything to what it would have been if the Board had granted proper benefits in the first place. So there is a need for - from the workers' perspective - for accountability that can result in some sense of justice on their part that if they had been treated very badly by the Board that something has been done about it or at least it's been recognized.
- Q: How does that work in connection to your views on the appeals process?
- A: The appeals process is obviously the fundamental way that the Board is accountable in the sense that the decisions can be overturned and changed if they are wrong. I don't suggest that in every case where a Board decision is overturned on appeal that that means the officer was guilty of some misconduct - obviously not in the criminal sense - the conduct in the sense that there should be some sanctions or reprimands or anything of that sort - we are dealing here with a large grey areas of medical and other facts and it is possible for reasonable people in good faith to look at those facts and make a decision which is later to be found to be the wrong decision. On the other hand there are many cases that you've certainly heard about directly from the people directly affected by them in which the Board has not followed its own policies. And the worker's most bitter complaint is that even though the policy says they should have received some benefit or other - they didn't get it and that their loss suffered from that. And in cases where the Board has deliberately failed to follow its own policy or where the - or where it can be shown that the treatment of the worker was abusive and humiliating and insulting then - I think it is reasonable to have a separate external process in which the worker can make a complaint to a body that is not seen to be simply a rubber stamp of the Board's conduct so it wouldn't be adequate to make a complaint or a manager or a committee of Board managers because the worker would have no confidence if the committee said the officer's conduct was okay - that is not going to satisfy a worker who - the kind of people who have been coming to you complaining about this. But if there was a complaint to an external body with representation from injured workers, or workers' representatives that the workers generally felt was an objective tribunal and they listened to the complaint and said well they understand your anger but we don't think the officer really did anything wrong here - it turned out the decision in hindsight was not the right decision - we don't find that there is any misconduct. I think a worker would be much better able to accept that so I guess what I'm recommending is a process that serves a same function as a policy complaint process - under that legislation.
- Q: Are you aware of any other jurisdictions Mr. Sayre that have anything comparable in the compensation field?
- A: No. No I'm not but as I started -when I began my submissions on Monday and what I am suggesting to you is that BC can and should have the best system in the world - you know it doesn't bother me that I can't point to other jurisdictions that have already done it. If it is something that needs to be done to make our system better than I would encourage you to - that this Royal Commission make BC the best and the first if necessary to have such a process.
- Q: The regular appeal process if you want to call it that - your position is that that should ultimately be through an external tribunal as well - I don't recall?
- A: Well, it is now through the Review Board - the only internal tribunal as I would term it is the Appeal Division and we will be recommending that the second stage tribunal become an external tribunal simply because of the appearance of objectivity that would result from that - and some other issues that I'll be getting into when I talk about appeals.
- Q: So whether it is one level or two levels or five levels of appeal- the final level in your submission should be an external?
- A: Yes, in fact, not only the final level but all levels - I don't see any particular argument for having a formal level of appeal that is internal to the Board. I think there can be informal review processes that are internal and that weed out a lot of the easy cases. But when you get to a formal hearing in front of a formal appeal tribunal I am going to be suggesting that it should be external.
- And I think this is an appropriate time to refer to something that as far as I can recall has not even been mentioned in either the Board's presentation or anything that we've said to you but it could be a significant part of the accountability process and that is the role of the Ombudsman. The - historically the BC Ombudsman has heard a great many complaints about the Workers' Compensation Board. There was a very important report that the Ombudsman issued in 1987 I believe it was - when Steven Owen was the Ombudsman - that made a number of significant recommendations. I think that that report was a very important part of the process that led to the establishment of the Munroe Committee and ultimately to the present legislation as it now stands. Since that time within the last few years there was a decision which I don't believe has any legislative foundation to it. That complaints to the Ombudsman's office about the Workers' Compensation Board be redirected to an internal Ombudsman who is a gentleman named Peter Hopkins who works at the Board. And I've known Peter for years and have a great deal of respect for him. He's one of the fairest people I know here and I think he has done his very best to resolve complaints when he's received them. But once again as in the other comments that I've been making about the complaint process and the appeal process, the problem is that when people go to the Ombudsman it is very often that the stage that they are at is that they have exhausted their appeal rights. They have firmly viewed - at that point they are firmly viewing the Board as their adversary and their enemy and to be directed from an external Ombudsman's office to an internal part of the Board to process your complaint is not going to be satisfactory to a lot of those workers. They are not going to feel that that is really providing the objective advisory view that the Ombudsman is supposed to provide and of course the other problem of the Ombudsman's role as a solution to the accountability problem is that the Ombudsman has no authority as such.
- I understand that Mr. Hopkins is able to resolve a good many of the complaints that are referred to him, particularly things that deal with rudeness and failure to respond to communications - that sort of thing - quite quickly and effectively because he does have access to Board officers and he's respected by people throughout the Board and when he comes and says this is wrong or you shouldn't have done this or you should respond to this person's complaint action is often taken fairly quickly.
- From what sort of third hand knowledge I have of the effectiveness of that office I'm not - you know certainly not here to criticize them in the sense of saying that they don't try to do their best to resolve problems but there's two difficulties with that process; one is that it has no decision making authority. So in the end if Peter Hopkins goes to a manager and says your officer has done something wrong in administering his claim. I have looked at the documents and I don't think it should have been done this way and I think the decision should be changed and the manager says I don't agree with you that is the end of the story. He can't go any further - he has no power to order that it be changed so it doesn't take the place of formal appeals. And he also has no power to order that there be any remedy where he finds that something was done that was wrong and it should not have occurred.
- So the kind of cases that I have referred to when the worker has come and said that because of the failure of the Board to follow its own policies they've - for example - say a worker comes and says the Board cut off my wage loss benefits - they didn't tell me. There were continuity benefits available; it took over a year to assess my pension. The Board wouldn't give me any money, the bank foreclosed on my house, I had to move, my family has been disrupted by this - there is nothing that the appeal process; nothing the Ombudsman can do except to say you know that shouldn't have happened and perhaps you should be entitled to some retroactive benefits that the Board should have awarded at that time but it is not going to restore the home.
- And it is not going to compensate - even in a financial sense for the disruption that occurred. So what I'm suggesting is an external body that will have some teeth and some authority to provide positive remedies and we could talk at length perhaps at another time about what the nature of remedies would be but I don't know that it's possible at this point to specifically, concretely outline them. But some remedies that would give workers some satisfaction that if the Board has done something wrong that has injured them that the Board - that can be recognized through the complaint process and remedied. And secondly that if the officer has done something wrong in the sense that' I've also referred to and you have often heard of - something wrong in treating them rudely and cutting them off when the evidence clearly said that they shouldn't have been cut off - that in some of those cases the officer - there should be some consequence for that officer - there should be some element in the process. We know that Board officers when they make decisions know that they can't go and allow every claim. They go and give every worker the maximum wage rate. Because if they do the manager is going to be standing at the desk saying - what are you doing here? Your statistics are - you are spending twice as much money or authorizing twice as much money as any other officer in this department and we can't have that. So there is going to be accountability if the officer errs in favour of workers and don't follow the rules and are too generous to workers but there is no process by which there will be accountability if the officer is in the other direction.
- And what is needed in my submission is a complaint process where clear errors at least can be identified and if nothing else there can be a formal recognition by the complaint process that this decision was wrong and hopefully that officer is going to think -well I don't want too many of those documents sitting in my personnel file at the Board. I don't want to be known as the one officer who is constantly making bad decisions because when my performance review comes around that's going to be considered. And maybe I'd like to be a manager someday and if I am the object of a disproportionate number of complaints to the complaint process and many of those complaints have been upheld hopefully - I'm saying hopefully - the Board is not going to promote people like that. In fact if they don't clean up their act the Board may - again hopefully - remove them from the decision-making role and find another role for them or show them the door. If it is that extreme. For accountability - for any of that to work there has to be a process where the people who most know when something wrong is happening - that's the injured worker - has a way of initiating the process and it simply isn't adequate in my submission to say that you can go to the person's manager and make a complaint because the universal role of us as workers' advocates and the managerial complaint process is virtually a waste of time. I can tell you we talked about that at our advocacy group meetings and the majority of advocates say that they don't even bother to do it. Some say that it is actually damaging to the worker because all it results in is a manager writes a little better decision and sort of documents the decision a little better so it makes you a tougher case to meet when you finally get to an appeal. So it's - we are looking for something much more objective and much more external than that kind of a process to deal with decisions from the Board - through the errors.
- Q: I gather this process that you are suggesting does not - you would be suggesting to be the primary mechanism of performance review and quality decisions at the Board will it be in the most unusual of cases - how would you define those?
- A: Well I think they become defined - they define themselves in the sense that the workers who want to make complaints are directed to this process and then the complaint tribunal process will further refine them. As I said I think it is probably beyond what we have time to talk about today to talk about all of the procedural aspects of how that kind of a process might work. I don't see it being a simple leap from the complaint by the worker to a full-blown hearing in front of two or three people who listen to evidence and then make a decision. There needs to be a front end process at the middle in which complaints based on misunderstanding by the worker - where there's better explanations and where managers do look at the complaint again and so - so in many ways that process would roll in the role of the Ombudsman as it's always been understood and filter out the complaints that are on the one hand that may be issues of new evidence that has arisen where it really is not that the officer did anything wrong - the officer wasn't aware of everything and those things can be solved quickly if there's somebody to drive that process.
- Q: Do you believe the Ombudsman's position should be external as well?
- A: Well, yes, I do -as I said the perception - I don't think that - part of the Ombudsman's role is obviously to try and solve problems for people when they can but the other part is to give them the sense that if - if the problem can't be solved that they've been given a fair hearing and the concern I have about an internal Ombudsman is that the person that is unsuccessful at the end of the day is going to walk away and say well the Board just turned me down again. And they are not going to have any more confidence in the fact that the Ombudsman who works for the Board says that the Board's conduct was okay then they had in the first place. As I said Mr. Hopkins is a very courteous and pleasant person - and I think that they may walk away with the sense that they've been treated with more respect than they were perhaps by the other officers that they dealt with - that isn't usually the crux of what they were there for. They are there because they think the decision itself was unfair and the benefits they received were unfair and if they are not going to get that remedied then it would be helpful to have in a sense that at least an outside body had done they could for them. Now having said that I understand that the -as I said this was an administrative practice, there was no legislative change when the internal office was set up and what I've been told is that if the person doesn't want to deal with the internal Ombudsman they can get an appointment with the provincial Ombudsman and the provincial Ombudsman won't literally shut the door in their face but they have to know enough to demand that. And the routine of the provincial Ombudsman's office as I understand it is to refer all inquiries to the Board's Ombudsman. I think that it would be better if - as I said if the Ombudsman's role was rolled into the complaint process and handled with the sensitivity that Mr. Hopkins has been able to handle a lot of these things then it would accomplish as least as much as his office is able to accomplish. I can feel that the Board would cooperate with that - with whoever was performing that role just as much as they are cooperating with the present internal ombudsman. And it would be seen as external and objective and independent of the Board and those are good things in themselves.
- Q: I don't understand the role that you are describing of the Ombudsman - in my view you are describing something that - a position that service -let's call it the quality of service that the individual is getting -that the worker is getting and also you seem to be asking that the Ombudsman look at the substantive issues of the claim itself and in my view that it would make sense that that be part of the formal appeals process whereas I think the Ombudsman's office in the Board itself - at the Board has been set up to look at the issues that you started with which is the quality of service and the quality of treatment that workers get -would that not - not be sort of more of appropriate to narrow the role of this Ombudsman/quasi-complaints department?
- A: I think you are right in a broad sense. That the role of - the focus of the complaint process and the focus of the Ombudsman's process is more on the procedure and the treatment that a person has received and than on the substantive correctness of decisions. But at the same time it is virtually impossible to separate those from a worker's perspective when the worker feels that they've been mistreated and they've been told that one of the remedies that you have is to talk to the Ombudsman that mistreat may be two things. It may be that I was treated rudely and the officer didn't listen to me and didn't listen to my doctor. Now that is a procedural complaint. But as a result of that the Board made the wrong decision. And of course the worker is angry because the decision is wrong and at that the same time the way the decision was made. So I don't know that it is possible to neatly divide the two streams and ...
- Q: So is it possible
- A: At the outset of the process.
- Q: Given what you've said - then it would make sense to have an Ombudsman's office - is it not better that whatever complaints take place that they are treated as part and parcel of a - they are treated in their entirety -although the managers' review doesn't work clearly the manager is someone who would be familiar with the case and that's where the best - where one would get the best redress or the best satisfaction I would think if let's say in theory -let's say the manager who was reviewing the complaint hadn't worked for whatever reason and I'm not sure - you may be able to make comment on that on why that doesn't work?
- A: Well, I can tell you one of the reasons why and I'm not sure if this is still the Board's position or not - Mr. Bates may be able to update us on this - that there was a tension between the adjudicators and the managers at one point -where the adjudicators were letting the managers know that they weren't happy being overruled by their own managers on their own decision. There was a - I believe at one time a document that said in effect that the Board managers will not change a decision unless the decision has been found to be contrary to policy or contrary to the Act so instead of the managers simply saying I'm going to take an objective view of the evidence and see whether you've overlooked something or you failed to recognize that the balance of the evidence is in favour of the worker or is equally balanced so it should be decided in favour of the worker - manager was almost acting like a legal tribunal looking for errors of law and if they didn't find one they were saying - well - you know I'm not going to second guess my staff here by changing this decision. And it was at the time that most complaints that I can recall made by our group about the managerial process - that's the way it worked and I'm not sure that that has really changed - I'm not sure if that document is still considered to be the definition of how a managers' review works but the concern about any managerial review process where it goes to the manager of the person working is that something in terms of human relations it is difficult for somebody who works together with the person making the decision to be constantly going in and saying - you messed this one up - you messed that one up -it's not tactfully but it is a lot easier if it is done by an external tribunal that walks in.
- Q: You would be surprised - in a lot of agencies and organizations that is perceived to be an integral part of the manager's role.
- A: Yes.
- Q: To do that kind of education and training on the job. Mr. Bates may be able to find us a copy of that document that you are referring to; I'd be interested in taking a look at it.
- A: To return generally to accountability -we have set out in our submissions 3 types of accountability that need to be secured if the Board is going to be -if the Board's performance is going to be better in the future and if stakeholders are going to be given a way -including the injured workers and clients -are going to be given a way of ensuring that it continues to be improved. The first of them is the accountability at the highest level - the decision making level - the policy making rather - the accountability of the system as a whole to its own governing body and to its stakeholders and it's really what the Auditor General's report of January 1998 was all about. And my understanding is that the Board has generally accepted the recommendations and intends to follow what the auditor general has suggested. The second level of accountability is the lowest if you will although it's lowest not in the sense of importance is the accountability of the Board about individual decision making for its workers and that is what I've been talking about in terms of a complaint process. So where something wrong has happened or it appears as though something wrong has happened there is a way in which that complaint can be addressed other than to try and overturn the substantive decision a long time later through an appeal. The third type of accountability probably from an institutional and structural point of view may be the most effective. And that is some way that the managers who are responsible for the people making the individual decisions can be held accountable for the performance of the people under them. And it strikes me that what we need here is and be what the Auditor General was getting at in the recommendations. Perhaps I should get to that right now. What the Auditor General said was strikingly simple in some respects and strikingly profound in others. On page 17 to 19 the Auditor General in dealing with accountability for the Board's prevention of injuries role said that the Board needs to examine the causes of serious injuries including factors that may have influenced the worker and employer behaviour and report on that to the governing body. Now that - that ties in while - well I'll discuss it in a moment - let's just go through all three of them. At page 16 the Auditor General recommends that the Board assess the adequacy of the compensation process by examining the income which workers had before they were hurt and comparing that to the income which workers have - including their compensation after they are injured. Workers have absolutely no problem with that standard of performance. And if the Board can live up to - can come up with a good record in terms of that standard of performance the complaints that you have heard would dry up in a hurry. And at pages 16 to 17 dealing with the rehabilitation process he recommends that the Board report on the effectiveness of vocational rehabilitation services by looking in more detail at the return to work results to determine whether workers have really been able to restore their pre-injury income and in particular look at the durability question. Not only have they gone back at some stage to a job which pretty well restored their pre-injury income - I guess taking into account the compensation that they are going to get if there is a pension there. But that have been able to retain that job? Three years later - two years later however long have they still - have they still been successfully rehabilitated or has that job dried up and have they found themselves destitute again? We think that those are pretty good standards on measuring how well the Board has done in achieving the three most important goals that it has -to preventing injuries if possible, and if prevent them then to compensate workers for what they have lost as a result of the injury, and while doing that to as far as possible restore their earning capacity so they continue to earn their own income as opposed to just asking the Board to replace it.
- The Auditor General accounts sometimes think in complex terms but this is refreshingly simple and direct. It says if you want to see if they've done it look at the results and report on those results. Now what we are saying about the accountability process at a managerial level is that that same definition of accountability can be examined not just on the global basis on how the Board as a whole has done but on the basis on how each department, each area office has done and that would in our view would make it possible for Board management to identify problems - areas - where for some reason or other the workers are doing a lot worse in terms of matching their pre-injury income than workers as a whole. Or where the Board is doing a lot worse in terms of restoring people to a durable form of rehabilitation and return to work than the Board as a whole does. And that won't be the always be the fact that the managers have done anything wrong or that the Board has done anything wrong. There may be communities where the nature of the work available as such is that there just isn't very much work available for people with significant disabilities. And that may be that after examining that the Board is going to say well there is nothing wrong with what you've been trying to do but maybe we need to try to find some new strategies to deal with the particular problems in this area.
- But you can't even get to that part of the sensitive administration and decision making process unless you have the information to base it on. That seems to us as a question of accountability at a middle management/managerial level of the Board's management again to its own governing body but also to stake holders and ultimately to the injured workers who are supposed to benefit from the whole thing.
- I was going to turn now to the question of Benefit levels unless there's any other questions that you have for me about accountability or decision making?
- Q: I just had one question Mr. Sayre - I didn't quite understand the model of the Ombudsman being part of a public complaints process in that sense that they could grant remedies to injured workers. Doesn't that undermine the traditional role of the Ombudsman?
- A: I'm sorry; I wasn't very clear about that -I wasn't meaning to suggest that the Ombudsman be moved in or merged in. What I was suggesting was that part of the complaint processing - the complaint process at the front end involve some of the kind of things that the Ombudsman's office has traditionally done. It wouldn't replace that office; you would still have an Ombudsman. I think one of the advantages of an Ombudsman is if at the end of the day there is no formal appeal rights left; there is still somebody can come to who might be able to persuade the agency that they should voluntarily change what they have done. And that's why when the Ombudsman's office was first enacted - when the Act was first enacted in BC and so the Ombudsman wasn't given any actual remedial powers; they were essentially intended to focus on situations where the appeal routes had been exhausted. Or where there were simply no appeal remedies or it was the kind of thing that couldn't be appealed - like cases of being treated rudely or letters or phone calls not being returned or that sort of thing where it is a process to complain as opposed to effective complaints. And we think there's still a role for - an important role to be performed there and it should continue to be performed by an Ombudsman's office. In spite of Mr. Hopkins' qualities I have - and I mean that very sincerely I have concerns in a philosophical sense about having that role performed internally. And we are suggesting that it might be beneficial to consider restoring the external nature of the office or to look for some kind of a hybrid but that's separate from the complaint matter altogether.
- Q: I think what I then need - want clarification on for the benefit of the Commission is we have the appeal process that deals with substantive issues and errors being made or poor exercise of discretion and then we have the Ombudsman who deals in a non-legalistic way to try to rectify injustice. You say that the ordinary disciplinarian process by - through management is in your view ineffective. I'm not exactly sure what this public complaints commission would do - what part of the territory you are anticipating that it would cover?
- A: I wasn't - I am not sure that I would say that the disciplinary process is ineffective; I'm sure when management wants to discipline someone they've got a lot of teeth and can do it.
- Q: Are you saying that it is not utilized?
- A: I'm saying that workers don't - that's not an effective way for a worker to be able to complain about mistreated - is to go to a manager and say you should discipline this officer. It has simply been the experience of advocates that that does not generally lead to any kind of satisfactory result.
- Q: What kind of remedies would the public complaints commission - not commission - the public complaints body provide to workers?
- A: In extreme cases they could be given authority to award some additional compensation for actual proven financial losses - again I'm not talking about someone just doling out money in large wads but where a worker can show that they suffered a foreclosure of their home or additional moving costs and that sort of kind of thing because the Board policy was because the officer simply didn't follow policy in providing continuity of income benefits - it seems reasonable that in addition to whatever retroactive benefits may be payable if the worker can show that there were extra losses suffered because of a failure to follow the Act or failure to follow the policy there ought to be a remedy for that -and ideally there are ought to be a remedy that doesn't require some sort a very difficult law suit in the Supreme Court against the Board assuming there is jurisdiction to sue the Board for that kind of thing.
- Q: So it's a financial remedy only then that the public complaints body would provide?
- A: To the extent that I've thought about that I think that the financial remedies would be a relatively rare and would be saved for the most clearest, and most extreme cases. And as I said would be saved for cases where there can be proven financial losses that more commonly there would be remedial orders and in some cases I think it would go to a significant way to making the worker feel somewhat vindicated if there was simply a formal apology from the Board about the way the case was handled. I think some of the most prominent people that have come before you - workers whose cases have been well known and have talked about it have said that the Board didn't even ever apologize to me for what they did to me. That was a significant part of their grievances about the whole - about the way they were treated - is that there was never even a recognition that anything was wrong so in a sense that is a free remedy that a complaint process could give that would restore some sense of vindication to a worker who hadn't not been treated the way they should be. And the other type of remedy and again only in cases where it is fully indicated that some sort of direction that the officer clean up their act then this sort of conduct not be repeated by that officer. And that is probably the most important remedy in the sense of improving the system - that there is going to be a sense on the part of the officers that you know I don't really want to be the most common name that this complaint tribunal sees in front of them when they see - whey are dealing with these things - it is not going to be good for me; it's not going to be good for my career and while I don't want the manager at my desk because I'm constantly giving away benefits that I shouldn't be giving I also don't want the complaints department at my desk constantly doing things that I shouldn't have done so I've got to try and make the right decision for workers and the Board. And I guess....
- Q: Have you thought through the model carefully enough to consider the labour relations consequences of such a body's decision -whether the trade union representing the Board officer would be involved - you haven't got to the details? I'm just wondering...
- A: You mean whether an officer could file a grievance if the complaint process said that they should be reprimanded or ....
- Q: It seems to be sort of intervening into the Labour Relations area?
- A: I would say and I think I have to say in my capacity as a speaker for interests of injured workers that if it came to a dispute between the employment rights of the Board officer and the complaints process that said the Board's officer had mistreated the Board's client - the injured workers - that the latter should be found to be more important. The Board - the grievance process might be able to protect - should be able to protect the - any employee's employment rights in the sense of their income if it shown that they didn't do anything wrong and that is still going to be adjudicated in ordinary terms in these issues of litigation - there's issues of justification and people saying - look I've done well for ten years - I was under stress when I did this and you've got to take this into account in deciding whether to punish me - those are all Labour Relations concerns but they don't really answer the complaint of the worker who is affected and treated badly by the process. It's a different focus.
- Q: I don't want to take you into too much detail; you've got limited time. I was just curious.
- A: That is as far as I can go on that.
- Q: Before you go on to benefit levels I just want to explore a little bit about how the Board goes about gathering information that it needs to fulfill role in the inquiry model of decision making - and let's start perhaps with one of the areas that -are you going to go further into the issue of medical disputes and the role of Board doctors in providing opinions and ....?
- A: I can.
- Q: If you are going to do it later then I won't ask the question now; I don't want to side track you...
- A: No, actually I'd prefer to deal with it now because I've dealt with generally already and I wasn't sure if I'd have time to come back to it.
- Q: Okay; well the issue to me is how is - how does the Board go about getting alternate -opinions - medical opinions should it deem it necessary to have a second opinion or - you are not suggesting are you that the only source of medical opinion that the Board would rely on would be that provided through physicians chosen by the worker?
- A: No, no - I'm not going that far -I'm acknowledging that the the Board - if the Board has reason to think that the work - the advice of the worker's own physician is wrong or believes that they can refer that to an outside specialists for an objective second view on the question. It could even be built into a modified Medical Review Panel process where the same people who are authorized to sit on Medical Review Panel are used in rotation by the Board to provide those second opinions. The Board already has in a sense a list of recognized specialists in various areas of medicine that are - have some role to play under the Act. That could be in addition to that role.
- Q: So it is an independent examination type model that you are suggesting?
- A: Yes. And I suppose in a sense; I mean one has to be realistic about the Board - how an institution of this size works - there are probably going to continue to be doctors employed by the Board in some role or other -one of those roles is likely to be to occasionally answer questions by non-medical staff making decisions. It is reasonable if you have non-doctors making medical decisions that they are going to need some medical information. It would be unreasonably cumbersome to require that they go out and get an outside opinion if they just want to know what the doctor is saying.
- There needs to be people who can provide in essence an interpretation of what the medical information is and I don't' think it is realistic to say that in the process of doing that a Board doctor who says - what is the doctor really saying - that the doctor should somehow be legislatively prohibited from saying I don't really agree with that view. I mean we can say that but it's not really going to affect what goes on in the offices as there is interaction between adjudicators and advisors. So in that sense a dispute can arise because the Board in - partially through its own medical staff tends to have some doubts about the opinion of the attending physician in favour of the worker. But the dispute in my submission should never be resolved on the basis of that internal medical view. Before any decision rejecting the claim; or rejecting the opinion of the claimant's own doctor is made there should be an outside opinion obtained which supports that decision. And if the outside opinion doesn't support that decision then the Board shouldn't make it. And I'm pretty firm on that; that that is a workable standard the Board could follow. It would resolve a lot of the frustrations, which the workers have brought to you about their own doctors not being listened to.
- Q: My other question is apart from the issue of whether you get the right decision or the wrong decision on the basis of the information - once you get it all in - what are your views with respect to the adequacy of the information that is being gathered in fulfillment of the inquiry obligation - the adequacy of that information to make the appropriate decisions -and if you think it is inadequate - how would you suggest it being improved?
- A: Are you referring specifically to medical information or all information?
- Q: All information.
- A: I think that inadequate information is at the root of a great many of the problems that's been presented to you and at root of a great many of the decisions that end up being overturned on appeal. One of the things that I mentioned briefly yesterday that I think partially answers your question is the need for accurate information as early as possible on a claim. In order to do that the need for the worker to be advised of the information the Board is getting so that if it is inaccurate in the worker's view that it can be corrected at a time when everybody's memory is fresh. So that would apply to information for example about how an injury occurred which might have a bearing on whether the Board accepts the claim or not. I've seen -I can recall one case I saw which an injury was stemming from when a worker had fallen off a ladder and at various points in the claim file the length of the fall was described any where from 4 feet to 18 feet. That's a pretty broad range of differences there. That's the kind of thing where if in that process the first time there was any difference in - it turned out I don't think it was really significant. I mean the issue was that there was no question that he fell; there was not question that there was serious internal and other kinds of injuries suffered. And the issue really was what those injuries were and what compensation was available so in a sense the outcome of the case didn't depend on the exact number of feet but there may be cases where that kind of factual dispute will have a very big bearing on how the Board decides the claim or even whether the Board accepts it. And the earlier that that is identified and the worker is advised that there is another information being given to the Board that is different from what the worker has said the greater chance that it can be clarified. And in the case I'm thinking of as I recall now one of the differences was in the form 8 - the first report of the medical - the doctor who treated the worker who was of course describing third hand the history as he had recalled it when he completed the form and he had something like 8 feet and the worker had said in the worker's own report that it was 6 feet. Those were two pieces of evidence from supposedly the same source - the worker - which were different - and which were received very early on in the claim. If there had been an ongoing disclosure process and the worker had been advised that there is a difference here. And you know what did you tell your doctor? What was the actual distance of the fall? That would have been clarified. Now that type of process - that early resolution of differences that can be simply factual differences I think could go a long way toward making Board decisions more accurate and avoiding costly and complicated disputes down the road. So I think ongoing disclosure is an important new element that needs to be injected into the decision making process. It may be - if I understand claims management as it was described by the Board - that that will sort of happen indirectly as a result of that because the worker is going to be supposedly brought in much more early to talk about return to work and other factors and have much more earlier contact with the Board over the claim. Hopefully, as part of that process the Board will be routinely copied with things that are relevant to what is going on in terms of claims management. But I don't know that that would have necessarily led the Board to say -well, look I've got two documents with two different versions of the facts; one is true. Which one do you say is true? And then if the Board doesn't want to take the worker's word for it they can also ask the employer or the coworkers - you know - how high was the ladder? How high up was he on the ladder? And try to resolve independently in that sense. They don't have to take the worker's word for everything. But there needs to be some rationale, accurate way of resolving and clarifying facts as early as possible. That is kind of a lengthy answer but....it is the best I can do.
- Q: Thank you.
- I'm going to; I think I'm running short on time or am I?
- Q: You've got an hour and 20 minutes and so far you are about 45 minutes so...
- Okay; good. I'm not quite as short as I was afraid I might be. Before going to benefit levels because we have been talking about the adjudication process and among other things about the initial process that has gone through when the Board receives a claim. And one of the things without going too deeply into it because I'll be bring it up again tomorrow, but one of the things that we have recommended as a substitute for experience rating assessment as a focus for the Board to carry out its prevention role is that the Board identify the causes of injuries at an early stage. We say that it makes no sense for an employer who is blameless in the sense that there was nothing that they did wrong or failed to do that a reasonable employer would have done that could have prevented that injury. It makes no sense for that employer to suffer any financial consequence as a result of that claim. On the other hand the Board can't accurately promote better safety and safety prevention programs if it is not looking at why accidents occur . And that is one of the things that the Ombudsman focused on in the January 1998 Report is that the Board needs to analyze the causes of serious injury in order to understand how they're happening and why they are happening so that you can prevent them from happening. It makes good sense to me that that - that if we are going to take that prevention role seriously it's meaningless if we don't look at what is actually going on and why people are coming to the Board with injured bodies. The Board now -in fact you've heard considerable evidence about the 39.1(e) process. The Board has said that as a matter of policy that in every claim the Board has to consider whether 39.1(e) would apply. We think that that whole process is a waste of people's time and ultimately a waste of employer's money because it's a matter of shuffling money from one pocket to another without any real focus on whether the employer whose pocket it ends up in or it ends up coming out of I guess is a better way to put it - whether that employer is really at fault for what happened.
- But if the Board could administratively force its officers in the case of virtually every claim to look at 39.1(3) and make at least a quick decision on whether it is applicable - surely they can also administratively require its officer to look at the cause of an injury and make a cursory decision on whether there is a reason to think the employer was to blame for this injury in the sense that it should lead to a higher premium next year or a higher assessment next year. So in place of the present experience rating assessment process which really ignores the employer's fault for an accident or an injury we suggest that there should be a focused process that specifically examines that - which would if the Board ultimately decide that the employer should be held to account for the way that that accident occurred then the employer would have the right of appeal separately from the worker's claim - not necessarily to the same tribunal either. That's another issue perhaps we can talk about on appeal day is that we don't have to have a one size fits all appeal process. In the interests of workers and the interests of employers are totally different under the Act and the - I think it would be foolish and illogical to assume that they have to be treated exactly alike in every respect so that appeal process might be to a different body that has different qualifications and operates by different procedures than the Review Board and the Appeal Division and the Medical Review Panels and whatever - with whatever changes may be made in those tribunals that workers go to for redress. But the whole thing - in order to start the whole thing has to start with an examination at the claims level as earlier as possible in the process of why the injury occurred. And I think that is what the Ombudsman - at least implicitly is saying when he recommends that the Board has to examine the causes of - I'm sorry I said the Ombudsman - the Auditor General was saying when he said that the Board needs to examine the causes of serious injuries in order to be able to carry out its prevention role. So that would have to be a new component of the decision making process that would be made in the case of each claim.
- Q: I take it that it would have to be part of the claims intake process as opposed to what is traditionally the prevention division?
- A: The initial filtering; I'm not necessarily saying the same adjudicator would make that final decision although it may be appropriate if they do. At least in complex cases it may be that the Board would want to have a separate body of decision makers deciding who would have their own expertise and their own policies on when employers should be held accountable for injuries that would make the final decision but the rooting processing obviously has to start with the claims adjudicator that receives the initial claim and makes the decision and if you look at the decision and the worker trips on a flight of stairs and falls down the stairs and there is no indication that there was anything wrong with the design of the stairs then I would assume that it wouldn't go any further. There'd be no reason to hold the employer accountable for that injury. If we are talking about a repetitive strain injury that it is sort of based on the nature of the work then there would need to be some fairly detailed examination and it might be something beyond what the adjudicator would do and it would be referred to experts that would need to assess that workplace and say is there -you know - has the employer failed to design the work process in some - in a way that protects workers from this kind of injury and if so perhaps the employer should pay a higher assessment as an incentive to better design that process.
- Going on then to benefit levels - I've left to the end but certainly not because it is the least important of the subjects that we are talking about this morning. It's been a bit of a pet - pet bit of advice that I give to my clients when they come to me but also when I talk to groups of law students about the workers' compensation system -that one of the least understood or at least understood in terms of its importance areas of the compensation system is the determination of wage rates. Which is the heart of the benefit level process. A worker's benefits are based on two factors -one factor is the wage rate as it has been set by the Board and how it has changed during the course of the claim. Of course it changes after 8 weeks as present policy in most cases and it may change again. It can change again at the time a pension is assessed. So it may not be same rate from the beginning to the end. But that rate is one factor in the benefits the worker gets; the other factor of course is the degree of disability. And for wage loss benefits almost claims are 100% of disability. When we get to the pension stage very few claims are 100% of disability. And the percentage that is ultimately assigned either on a functional basis or a loss of earnings basis is the second factor that leads to the amount of money that the worker is actually getting per month.
- The third factor which can interfere with that process and I - before I go on I wanted to point out to you because it is a bit of a response to a question which I think you asked me Judge Gill, yesterday, about the historic trade offs that were made and whether it was reasonable to think that the intention of the system was somehow that people get less than their full compensation in order that the broad body of workers - even if they are at fault get something. When I look at the language of Section 33.1 and section 23 and section 29 and section 30 I don't see any support for the view that workers are intended to get any less than full compensation for what they have lost by reason of the injury. In fact I think the Act says exactly the opposite. I think that the golden phrase in section 33.1 of the Act that the wage rate shall be set in a way that best represents the worker's actual loss of earnings by reason of the injury.
- Q: That section applies to a formula that ends up with something less.
- A: It often ends up with something less - those are the problems that I'll be at least introducing to you. The reason I gave you all that correspondence from 1992 to 1994 is that I knew we wouldn't have time to go through all of the areas where the present policy and the way it is interpreted by the Board has led to a failure to accomplish that goal. But that is the goal that is set in section 33.1. And it is a goal that was enacted by the legislature of BC. So I'm with the greatest of respect for people did the best they could 100 years ago to do something about the terrible situation of injured workers at that time I am not that interested in what their intention was about the workers' compensation system; I'm much more interested in what the intention of the legislature that enacted our current legislation has and ultimately as a Royal Commission which has the authority to recommend changes in the law I'm most interested in what the system ought to be. Even if it is not that way now. But certainly the starting point for your recommendations is what is the present goal of the system as set out in the present legislation. And it is my submission that there is no support in there with the one exception of the statutory earnings cap that I'll come to in a moment. But other than that there is no support in there for the notion that the legislature meant workers who are injured on the job to end up poorer than they were before they were injured. And I think the Ombuds - I keep saying that - the Auditor General is quite correct in saying that if you are going to measure the Board's performance in terms of its compensation obligations the way to do it is to see whether the workers actually do end up as well off after their injury as they were before.
- Q: I just don't get that because if I determine someone to be earning $100 a week and then the legislation says you get 75% of that how can that not be less than what he was earning?
- A: Well, because it is non-taxable and that's - I think that will be my next subject is this gross/net debate and whether there should be a fundamental change in the way that that is done but I think the intention was that 75% - $75 that you don't pay taxes on is in a rough justice sense comparable to the $100 that the worker does pay taxes on. Obviously every worker is going to gain a little bit or lose a little bit by that depending on what their taxes would actually have been.
- Q: But if you are looking at the intention of the legislature -when that legislation was enacted was the impact of income taxes as it is today? Such that 75% of gross is close to a 100% of net? If you are looking at the intention of the legislature you have to look at the impact of tax at the time that was enacted.
- A: I thought about this last night as I was working on my submission because I expected this question to come up and I think that the answer is more complicated than I'm able to give you and it may in fact be something that you will want to ask your researchers to look into. The income tax system is just part of the overall taxation that workers pay. And it is not a simple calculation. The problem with any formula - whether it's 75% of gross or 80% of net or 90% of net or 100% of net is that the tax rates are graduated. And certain things - certain parts of income are not considered taxable. So when a worker gets $50,000 a year that's not the taxable income. There is parts of that $50,000 that are excluded from the tax system. Parts of it are taxed at one rate and then the next part is taxed at a higher rate and the next part is taxed at a higher rate yet. The province has its own tax rate which is generally based on the federal tax payable and I think - I'm not sure if it is eliminated or simply reduced there is also surtaxes also that are applied in some cases. I have no doubt that high-income earners pay a lot more than 25% overall for their income tax.
- Q: I think....
- A: Low-income earners probably pay less.
- Q: I think the Board in one of their discussion papers has provided an analysis of various income levels but you are talking about the intention of the legislature. You can't look at the impact of income tax in 1988 to determine whether the legislature intended 100% recovery when they enacted that provision in the Act. But rather than go down that slippery slope of impact of tax - you would agree that all other Canadian jurisdictions operate on a percentage of net which means the worker is not getting 100%?
- A: I will take the word of the people that have said that. I haven't personally looked at every act across the country to see whether that is true or not but I am sure it is. If that is what you've been told. But as I said I don't think BC has to slavishly follow what is done in other jurisdictions - if we think it is wrong or it's cumbersome or if it's not going to accomplish anything I suppose we have kind of got our foot in the door so we might as well go on with that discussion now. You are going to hear a lot more about this issue from Mr. Winter and I may have some additional comments at the end of the day but what I will say is this - you may have recalled that when we had the Board's presentation on the issue I asked some questions about the complexity of actually assessing a worker's net income. And the answer I got was quite illuminating I think is that when that is done - when these jurisdictions have a percentage of net approach they only do it once. In other words they figure out what the worker's taxable net income would have been as of - I guess as of the day of the injury or perhaps as of the date of the wage rate determination and then if things change that could have affected that net income they are not taken into account on a regular basis. Now we know from our own personal experience with the tax system that there is a lot of different things that can affect what one's net income is. When you look at your pay cheque stub there's a lot of things that come off it. And even if we just look at income tax that depends on what deductions a person has. People have deductions have in particular for their own portion that they are allowed to deduct to support themselves but they also have a deduction for a spouse if the spouse is not working. But if the spouse goes out and gets a job and has their own income then you can't take that spousal deduction because the spouse is earning too much. If you have no children - you don't get any deduction for children but there is a personal deduction that applies for each child that the person has as a dependent. If the child is earning more - which is the teenage years - and starts to earn a lot of money that deduction may become less. It strikes me that it is going to be a very cumbersome process for the Board to use a net basis for wage rates in order to accurately determine what the worker is really losing on an ongoing year by year basis. And it seems to me from the answer I got to my question that what the Boards are doing in other jurisdictions is not that. They are not accurately determining it; what they are doing is saying as of the time you were injured when you might have been a young single person paying the highest rate this was your net income so you are going to get 90% of that and if ten years later you have 5 dependents and would have been paying at a much lower rate because you would have had much more deductions that's not going to change anything. I believe Mr. Buchhorn assured us that if the Royal Commission told him to do something that required the Board to continually revisit the wage rate in order to make those adjustments in the process that he was sure the Board would do it. And I am sure the Board would too if that was the law - the problem is does it make sense to do the system that way? And to have those kinds of continual adjustments in there - for one thing it is intrusive into a worker's life. It means that the Board has to be continually questioning the worker about their family circumstances in order to see what their net income base was in 1994 is still what the base was in 1996 and is still what the base was in 1998 and so on. How often will those reviews take place? Is the Board going to require that workers submit their income tax returns to the Board each year? Or each two years so that review can happen automatically? Presumably if the worker would benefit from the review then you could say to a worker - well if you want us to review it you can submit the information to us. I imagine that Mr. Winter is going to be suggesting that if there is a review process that it has to work in both directions. And the Board has to have some way of discovering that the worker had 5 dependents two years ago but no longer has anybody that could be the basis for a deduction. The spouse may be working - there may be a divorce and that's the other factor of course is that there is a lot of family break up and family maintenance may be a deduction that the worker could claim from taxes. Is that taken into account in determining the net base? That requires a further intrusion into the worker's - the details of the worker's family life by the Board on a regular basis. And when I thought about those things it just seems to me as a matter of policy staying with a gross income base is not a bad solution. It's not perfect - obviously some workers gain and some workers lose if we have a percentage of gross approach. But I suspect that some workers will still gain and some will lose if we have a net approach. Because a net approach because of all the complexities that I've been indicating it is going to be almost impossible to truly duplicate on a year by year basis exactly what the taxes would have been if the worker had not been injured. And what it seems to me evident - self evident from some of the problems that I've raised is that if the Board does try to accurately track the changes in net income over the years that there's going to be a lot more money spent on decision making and correspondence in disputes that are made over the decisions that are made about that because those will all be presumably be appealable decisions. So I'm not sure again - I'm not obviously speaking for employers; I'm not sure that employers in a global sense benefit from a process that may make the system more complicated and ultimately make it more expensive to administer unless the additional money comes off what workers are getting and this is what I'm really hearing from the employers' group. Is that they want - they don't want workers to get full compensation - they want to take a chunk away from that so that they get less than they would have made when they were working as they would describe as an incentive to try and get back to work. And that's why they argue for 80% of net. Philosophically if the alternative is 100% of net as compared to 75% of gross - sure why not? 100% of what the worker actually would have gotten is fair compensation - almost by definition. If you determined it accurately. The problem is how do you do that and is it possible without invasions of privacy and without a great deal of additional expense to determine that accurately. But I don't see that in the employers' position; I see them wanting to give workers a substantial amount less then what they have lost by reason of the injury. And it is my submission to you that that is unconscionable. As I recall when we were questioning about this I tried to ask questions about and I was quite properly I think brought up short by you Mr. Chairman about how employers would feel if there was some law that said that while they may have lost a certain amount of money as a result of poor products being supplied to them in the course of their business they are only entitled to get 90% of the actual, proven losses that they could suffer if they went to court. I mean where else in our compensation and legal system do we have a system which measures people's losses and then says you are not going to get your loss you are going to get a percentage of it? Because we don't think it is good for you to be fully compensated. That is an insulting position for employers to take on toward injured workers and it would be an insulting recommendation for this Royal Commission to make in respect to wage rates and benefit levels. I'm urging you not to go down that road. If you do recommend a change recommend a change that is at least intended to fully compensate a worker. And if you think that can be done better than 75% of gross then certainly it is within your powers to make - to recommend a change that does it better but I have some real concerns about the ramifications of doing that in an administrative sense then in a sense of how workers are going to be affected by it down the road.
- Q: Let me just see if I can sum up your position -make sure I understand it. At the outset in the early in the 1900's when the legislation for workers' compensation was first instituted I would hope we are common ground that the award in terms of wage loss benefits that injured workers receive after application of the appropriate formula in fact ended up with workers receiving less after their injury in terms of wage loss benefits than they did before their injury. And that over time those net benefit levels received under workers' compensation have increased not so much as a result of amendments to the workers' compensation legislation but as a result of changes to income tax legislation. Now bear with me for a moment and allow me to complete that - is it your position that if that is the case indeed that the historic compromise ultimately or at least initially provided for less than full compensation in terms of economic loss that that should no longer be the guiding principle today?
- A: Yes. We do not accept the view that the historic compromise as Mr. Dotzler described it has any particular - is of any particular weight for this Royal Commission in terms of what should be done for the 21rst century. It was a compromise made 100 years ago - it was a good deal at the time in very very different circumstances. The question today is what is a good deal at this time in these circumstances.
- And we say that the standard as far as benefit levels is concerned is determined what the worker is actually losing by reason of the injury - it says that in 33.1 -determine the pension percentage - the disability percentage in terms of how disabled the worker is - it says that in 23 and in 29 and 30 and combine those two factors so that the worker will end up receiving full compensation for their financial losses. Workers of course do lose other things - they lose as compared to the court system - we've been through that road before in terms of pain and suffering and general damages. At least in terms of economic losses workers should get full recovery and in our view that is the intent of the present legislation. It is the standard that is set in the present legislation and certainly there should be no lower standard set in any recommendations that you might make.
- What I had hoped to do this morning is to develop a thing that I had started before the break - which is that the goals set out in the legislation is to pick a wage rate which measures what the worker is really losing as a result of the injury. It seems to me that that - you can't really argue with that if you read section 33.1 with the single exception to the fact that we've got this statutory maximum wage cap that contradicts that goal in case of people earning more than $56,000.
- What I can do is to try to give you a flavour of some of the problems with the existing system. I don't think that this Royal Commission is going to feel that its role is to examine the nuances of all the different kinds of wage circumstances that can come before the Board and decide how each of them should be handled. I'm sure that you are going to feel that would be too much of a micro level sort of thing for the mandate that you've been given. But I think we can come up with a better approach that will avoid some of the problems that exist right now.
- So carrying on and if you want to look at my written submission on page 23 and roughly halfway down the page at this point - it is my position that while the Act clearly sets the standard of matching the work of setting the wage rate that will result in the worker getting compensation for what he or she has actually lost that there are complexities and at the same time restrictions in the language of section 33.1 as it has been interpreted at least by the Board that often frustrate that purpose. So we have the goals set out in the section; we have other problems with the language that result in the Board deciding that they can't accomplish that goal. And I will try to focus on some of the more important ways in which the present system falls short of achieving the goal and then leave it to you to look at some of the correspondence that I've given to you if you would like to do that - to see some of the specific detailed recommendations that our group made in the past. And I can tell you right now that as far as I know none of these issues have been dealt with - these were all matters that were before the Board of Governors in 1992, 1993, 1994 - they did set up a working group that involves stake holders as well as Board policy people to consider changes to the process and that group came up with some recommendations that would have gone some way to resolving some of the problems that we've identified. And then entire process stalled because there was not universal consensus and to put it bluntly the employers didn't agree with some of the changes that were recommended and were insisting that there be changes - there'd be other changes as well such as dealing with net/gross issues and the Board basically said they weren't going to impose this until we have a better agreement so even the changes that ended up being recommended by the Board's own working group were never implemented. And all of these problems that I've outlined in this correspondence is still outstanding from our perspective. Just to give you an idea -one of the problems that's fairly easy to describe and also very common issue that faces workers is where somebody has been unemployed during a part of the year prior to their injury which is normally the time period over which the wage rate is determined. The Board takes the view that because of the use of the word earnings in section 33.1 -the term average earnings - that they cannot consider Unemployment Insurance Commission benefits in calculating that because benefits are not earnings. They also take the point of view that because of other aspects of the language that they have to use a period - continuous period of time ending with the date of injury. So they couldn't for example take a worker who suffered an injury yesterday and say well there was some difficulties in their employment --there was a plant shut down and so on in the last year so this has been a bad year for that worker but a typical year looking over their work history - 1996 was a pretty typical year for that person in terms of what their work history was. We are going to take the 1996 earnings and we are going to adjust them for Canada Pension Plan and use that as the best representation of their earning capacity. In my submission that would be a kind of common sense decision. We won't argue whether 1996 was the right year to take - it would be the kind of an approach that would directly address the purpose set out in section 33.1. But the way the language is presently written in the Board's view at least prevents them from doing that so the best they could do in that situation -if the worker had an unusually bad year prior to the injury would be take a longer period of time than one year to average out the earnings. They could agree to use three years instead of one year or they could shorten the period if for example the worker had been unemployed for a long period of time and had finally gotten a stable full time job 4 or 5 months before the injury. They could say we are going to take the period of time but that is fairly rare to do and it is very difficult to persuade the Board to do that.
- Because that basically amounts to giving the worker a wage rate based on the date of injury earnings. And the board's preference or bias if you will is that date of injury earnings should rarely be the basis for long term benefits and certainly for pension benefits. So generally what we are stuck with when we represent workers who are appealing wage rates is some argument over which period of past - of the past ending with the date of injury is the best approximation of what they've really lost as a result of their compensable injury.
- Now one - the Unemployment Insurance Commission problem is an easy one to understand if you've got somebody - if you average out a year of a person's - the last year of the person's work history and they were employed for 6 months earning $2000 so they earn $12,000 and they got $6000 in Unemployment Insurance Commission benefits for the other six months the Board will take the $12000 that they earned - their earnings divide it by 12 -not by 6 and say that their average earnings is $1000 a month. Their average income was $1800 a month because they also got a thousand dollars a month in Unemployment Insurance Commission benefits for other 6 months but that is ignored. It has always been our view that that is unfair to workers - and it contradicts the purpose because it means the worker at the end of the day does not get the same income that they were earning before they were hurt. And we agreed with the Auditor General that's what the Act is intended to achieve. So we hope that you will address that kind of problem and that is probably the most - when you think of the number of people that end up being unemployed from time to time in their working life - that is the most common problem is that affects thousands and thousands and thousands of workers and reduces benefits on thousands and thousands and thousands of claims. And in our submission in all those claims where people have reduced average earnings and reduced wage rates because they were unemployed during the period that was considered relevant - those workers are undercompensated. And you are going to hear something from the employers' side that they think workers are over compensated - well our view is that having dealt with so many workers on a case by case basis are great many more of them are under compensated because of the kind of problems that I'm going to be talking about in the next few minutes.
- On a broader more philosophical difficulty with the present approach is that what the Board should be examining - the focus of the process is on the future after the injury. Let's be clear about this - what the Board is addressing in section 33.1 is the earnings that the worker is not going to be able to receive because they are hurt and are unable to continue in their previous job. It seems to me that the proper term for that is their earning capacity. They should be looking at what was the worker's earning capacity, which was taken away either permanently or temporarily and either totally or partially as the result of being hurt on the job. Instead the Board focuses almost exclusively on the past. And their explanation for that - later for Mr. Bates if he wants to clarify on this -but the Board use the past to determine what the future would have been. So while they agree that philosophically they have to be looking at what the worker would be losing in the future they say that the only practical way of doing that is to focus on the past. Now that leads to some real anomalies - it is quite common for a worker who has had a number of injuries to have different wage rates on different injuries depending on what time and what particular earnings history they might have during the year prior to each of those injuries. That makes no sense really. Unless the worker has - unless the worker's physical capacity has completely changed from one injury to the next why should the wage rate be different for an injury that occurs in January 1998 than it was for an injury that occurred in January 1997? I'm necessarily - I'm not talking here about permanent disabling injuries but just an injury that may result in a couple of months off work and then return to the same job. Logically the worker's long term capacity would be the same unless something major changes in either in their qualifications -that in their qualifications that would mean that they were no longer be capable of doing the same kind of work that they were capable of then but instead it is a much more arbitrary process that is based on a particular earnings history just prior to the date of each injury. And that is a philosophical problem that seems to stem from the Board's interpretation of the specific language that's in section 33.1. We think what needs to be done to address that and to free the Board up to accomplish the purpose that is set out in the section is to simplify that language and focus much more clearly and specifically on the question that I think the section was intended to get at set a wage rate that best determines the worker's earnings capacity at the time of the injury. What the worker or just use the phrase that's in the Act now - the actual lose of earnings of the worker by reason of the injury. Because of the problems with the Board it is the restrictive interpretation of the word earnings it might be better to say earnings and other income at the time of the injuries so that it is clear that where a worker - and I'll give you a reason of why that is just to - when Unemployment Insurance Commission benefits - in some ways it is easy to understand in other ways it is a complex issue. There are a lot of seasonal workers in the province and seasonal workers because of the fact that they have had Unemployment Insurance Commission as part of the social safety net for so long that is in effect part of their earnings structure or part of their income structure. Everybody counts on it. When seasonal workers and seasonal industries bargain wit their employers - in forestry and construction and so on they don't say we need ongoing income security from our employers even when there is no work for us. Because generally speaking both sides say - well, let's Unemployment Insurance Commission pick it up - or Employment Insurance as it is called now. We both pay for it - let's let the system pay benefits during the break up period and the freeze up period for loggers and then we'll pay you when there is actually work for you - and both sides agree that that is a reasonable way to do it. So in effect in those situations it would be our position that Unemployment Insurance Commission or Employment Insurance benefits are actually a part of the worker's income by reason of their occupation. It is not an unusual event which occurs because after years and years of stable employment they became unemployed for once in their life and then they went on to some other stable job. That would be a different situation - in the second situation - in that one probably the most appropriate thing would be to pick a period of time, which avoids using that unemployment period and ignoring the Employment Insurance benefits. Because that is not a normal part of that worker's income. In the case of some seasonal workers it is a normal part. And of course if a person is disabled and cant' work then they can't re-qualify for new Employment Insurance claims and it is certainly something that they will lose as a result of becoming disabled. They lose it just as much as they lose their actual earnings from their employer. So while it is easy to describe - describe what is wrong with the present system the solution may involve a number of different elements depending on the particular kind of circumstance that the Board is faced with in that claim. Another big problem that has been raised by many unions and I'm sure you've heard a lot about it - is that benefit packages are not included in these rates. Benefit packages can be a very large chunk of what the employer costs out when they determine what they are paying to have an hour of employment. I believe I was advised by somebody at one of our meetings that the benefit package, I think it was in the construction trades is worth over $5 an hour. Somebody can correct me if that is wrong. In effect by the Board saying that we are not going to take that into account when we determine somebody's average earnings - they are taking $5 per hour away from the compensation that section 33.1 says they should receive. And that is just not fair. Again when you look at the details of benefit packages and the different types of benefits and how a worker's - how the worker is affected when they become disabled it's the actual taking them into account can be a complex process. And that is the Board's excuse for not having done it so far. And it certainly would be a reason for being very careful and accurate in deciding how those packages should be taken into account in the future. In some cases workers who are suffering temporary disabilities are allowed to continue on some of their benefits and in other cases they lose that after a time and of course in other cases there's non-culpable dismissal where the worker can't go back to the job so the company ends the employment relationship and if they had any benefits ongoing at that time the benefits cease. So there might have to be different start periods or changes in the wage rate depending on changes on whether the worker is getting the benefit part of the pack - of the wages even though they are not getting the actual salary.
- But again the goal of the process if we accept what is in our view a fundamental principle of the workers' compensation system - is that the worker should get full compensation for what their real losses are. The goal of the process has to be to take to somehow cope accurately with those complexities so that the worker doesn't end up losing something and the Board saying well it is just to complicated for us to figure out so we are not going to give you anything.
- Q: How do you see the Unemployment Insurance Commission component if it was to be compensated for would be funded in terms of assessments?
- A: I think it would be funded the same way it is now; one doesn't fund these things differently. The employers in each industry provide enough money through assessments to pay for the cost of the claims that are made as a result of injuries in that industry. And it is our view that what is happening now is that in industries where Employment Insurance and Unemployment Insurance Commission are a basic part; a regular part of the worker's income those employers are in effect getting a break by paying less then they should be paying because the workers due to the fact that Unemployment Insurance Commission is not considered as part of the wage rate are getting undercompensate. So the cost of those claims is lower and the employers are paying less than the real costs to the workers. The workers are in effect swallowing part of their losses in those cases because they are not getting compensation. The employer should pay the full compensation rate and so it wouldn't be a separate assessment process at all. And it raises problems - it was an issue that was examined by the federal government during the social security reviews is that they felt some industries were in effect taking a free ride of the Unemployment Insurance Commission system in a way that was not intended by the system and that was one of the reasons why they re-introduced what is called the intensity rule in the Employment Insurance Act which is that people who have claims over the past five years - if you get 20 weeks of benefits over the past five years then your benefit rate is reduced by 5% for any future claim up to a maximum of 5% reduction. The seasonal worker that ends up accumulating say 50 weeks or a 100 weeks of benefits as a result of seasonal lay offs would end up getting a 50% Employment Insurance benefit rate as opposed to a 55% and that was specifically to address the fact that the government felt that there were industries which were using the Employment Insurance in effect to subsidize the cost of the industry when it might have been more appropriate for the employer to actually be covered in those periods when there was no work. So of course that is beyond the mandate of this Commission to consider but I certainly would take the view if there is nothing unfair of employers paying the workers' compensation assessments that result from providing fair compensation to their injured workers.
- I think there is one other issue that I think I will raise because it is of general importance to many workers and it has been a subject of some Appeal Division decisions and again it seems to be a matter of where the Act needs to be changed to make it possible for the Board to do what it - what it has been directed to do by the legislation. When the Board does really use a period of several years as a basis for determining average earnings they have been refusing to adjust the old years' earnings by a rate compensating for inflation so say you take a - now that may not seem too significant now when we've had a number of years with very low inflation rate but a person who was injured in the late 80's was drastically affected by that because inflation rates were quite high at the time. Say a worker was injured in 1989 and the Board agreed that they would use the 5 year average to determined what their rates were well what they would do is take the 1983, 1984, 1985, 1986, and so - take the 1984, 1985, 1986, 1987, 1988 - earnings and divide by 5. But what they refused to do was to take the 1983 earnings and adjust those to make them equivalent to 1988 dollars or 1989 dollars. And of course a dollar in 1983 bought a lot more than than a dollar did in 1988. So the effect of that refusal to adjust old earnings for inflation is that again workers that - whose wage rate were being determined on a multi year average ended up being under compensated. And I had a couple of cases where the Appeal Division on that and was just told that there was no basis on Board policy for the Board to make those adjustments and they wouldn't do it. And I thought at the time - I seriously considered challenging that in court but because of resources we didn't do it. We thought it was an error in law - we do think it is an error of law but it would certainly be the kind of a difficulty that this Royal Commission could remedy quite easily by suggesting that the Act specifically provide for those kinds of adjustments if we are going to continue wage rates over a period of years like that.
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JOHN STEEVES
Section 7: Compensation and Adjudication
BACKGROUND
- Mr. Chairman I for time reasons yesterday and something I missed; you didn't hear from me on the protecting system except for the extent of my comments on the hot line. This is section 6 of our submission and in summary and very briefly the point here is that it appears from the numbers that in 85% of the cases employers are in breach of the Act for not filing a form 7 within 3 days and very little is done about it. There's significance to that in terms of delay of decisions on claims and we recommend - our recommendation there is as it is written there is that there be an automatic fine of $250 and that there be an end to interim adjudication. Since then we've heard from Mr. Winter and to show you what kind of people we are we feel the employers' pain and we think there should be rather than an automatic fine a consideration of a fine.
- So that is our protecting the system. The section 7 of our submission is on compensation and adjudication and we start of with a background section.
- The Board purports to be in transition to a new Case Management Model of adjudication. There is the promise of increased service to workers and they are certainly in favour of that possibility. However, for workers there is an issue of whether this is a new model with solutions to the old problems or whether it is really a continuation of the old problems but given a new name.
- However, workers are interested in genuine change that improves that way they are treated by the Board and that gets them back to work as soon as possible. In this spirit workers wish the Board and that gets them back to work as soon as possible. In this spirit workers wish the Board will in attempting to improve the quality and speed of decisions. The recent report from the Auditor General - Mr. Sayre referred to this - suggests that the Board is on the right track and it has made "considerable advances compared to other organizations" in areas of - and that should be measuring outcomes, quality of outputs and service quality as opposed to outcomes, quality of outputs and service quality. It is important to point out that these improvements were made by changing management and without reducing benefits. We also point out that the changes in management came about before 1995 and indeed you've heard from all the Vice Presidents - they came on the scene here before 1995 - many of the performance measurement ideas developed before 1995 and so contrary some might want you to believe the world didn't start in 1995 - it started before that - during the previous governance structure.
- For workers, major problems at the Board have often been ones of management of the Board. Specifically, workers are most concerned about the quality and speed of decisions they receive from the Board. Criteria are needed to judge these issues.
- For Workers it does not matter whether the adjudication model is run by claims adjudicators or case managers as long as they do not have an interruption in their income while they are injured.
- CHANGES IN MANAGEMENT MODELS AT THE BOARD
- The most frequent problem with the old model of adjudication is the turn over in staff assigned to a file. A worker could never count on the same person being responsible for management of the file from one day to the next and this is an especially acute problem where there are added problems such as English as a second language. To their credit the Board accepts this as a serious problem with the old model. As Mr. Buchhorn put it "claims were dealt out like a deck of cards." The solution to this problem is probably more a matter of the change to EFILE than the change to case management.
- An important issue that affects quality of decision making is workload. The 1996 inventory, "Still in Transition (page 42) described the Richmond Service Delivery Location handling 15,000 wage loss claims and about 1500 re-openings per year using ten to twelve adjudicators. This meant that most decision-makers were adjudicating 1300 claims per year, more than 100 per month or about 5 per working day. And that is a pretty high caseload. The 1991 inventory reported staff felt "crushed by the continuous flow of cases". At the same time, claims had increased from 169,000 in 1997 to 203,000 in 1991 but there was no corresponding increase in staff. There has been a very modest reduction in claims made each year but there is still cause for concern when we see a reduction in the number of adjudicators from ten to twelve to eight to nine. And we have one doctor available for 700 files in the Richmond Service Delivery Location - that is the information from the Board with respect to under the case management model.
- We recognize the effort and changes for the better at the Board but we still believe that some kind of steps for a standard of decision making is necessary.
- RECOMMENDATION: We recommend that the Act be amended to require all decisions on initial entitlement by the Board be made within 45 days of receipt of either the Form 6, the Form 8, or the Form 7. Decisions on pensions should be made within 60 days of the date of plateau - that is to recognize intervening matters such as employability assessments. For valid reasons two extension of no more than 15 days each could be granted by a Manager. Any further extensions would only be with the approval of the Divisional Vice-President.
- It is unjust for workers to have to undergo the delays of the appeal system and then have to wait another unreasonable time for the Board to implement a successful appeal decision. A further problem arises when the Board's implementation is inadequate and another appeal is required. The BC Federation of Labour believes that part of the solution lies in appeal panels retaining jurisdiction for implementation of their decisions.
- Q: Why would you ask for 2 extensions of no more than 15 days each? I just want to understand your generosity here.
- A: Well, I think the spirit behind it is to recognize that in some cases; I mean the cases Mr. Winter and I always talk about are the cancer cases. Some cases are genuinely difficult and so in those situations there should be some extra time but those are unusual situations and we think that going to the Manager for an extension is will be filter on those and there's sort of a - when you are designing these sort of things the hope is by having it in place you don't have to use it. That is having the - having to go to a manager for an extension means that you won't - there won't be any extensions or very few.
- Q: So you will probably build in some more - some caveats around these extensions in terms of the types of cases and circumstances?
- A: There would have to be some terms of reference, yes that's right.
- RECOMMENDATION: We recommend that the Act be amended to require that there be a statutory time period of 20 days for the Board to fully implement appeal decisions (except for pension decisions which should take 60 days) and that the appeal body that made the decision retain jurisdiction to consider whether the Board has fully implemented the decision.
- TRAINING OF BOARD STAFF
- Workers value competent, well trained staff because there is generally a correlation between competency and the ability to make fair decisions. Training includes initial and well as continuing training.
- The Board's Training Education Centre was shut down in 1995 and it has not been reopened. The closing of the Centre was described by Hunt as [in 1996], "the most obvious manifestation of a failure in the commitment to adequately develop staff talent and creativity" (Still in Transition, page 261). Board staff tell us that they are not given the opportunity or the time to be trained for new assignments and on a continuing basis.
- The reason we were given for shutting down the Centre was that there was a "service crisis at the time" and so "every available trained adjudicator" was put on the floor and was given case loads. [Those are quotes from the summaries of the presentations by the Board and their answers to questions]. The result of that training is done by means of a "mentoring" program. A person who starts work in Occupational Diseases for the first time goes through this kind of training. When asked if there was any formal and structured training including a curriculum on occupational diseases and on the Act and Board policy the answer was that the Board would be surprised if that didn't exist.
- The current Learning centre offers only voluntary courses in areas such as improving computer skills and things such as "exceeding your customer's expectations" or "thinking creatively". The centre does not have any courses on the Act or Board policy (see Tab 15 of the BC Federation of Labour documents).
- RECOMMENDATION: We recommend that the Board on a priority basis prepare a policy on the training of Board staff. Such policy should focus generally on increased competency in all areas and it should include the necessity of reopening and staffing of the Training Education Centre, the need for initial and continuing education and the need for curriculum.
- Q: have you considered Mr. Steeves what percent of the payroll should in fact be dedicated to training? Have you given that any consideration?
- A: We haven't; it's not - we didn't have the time to go into that detail and in fact it is beyond our expertise we have at our fingertips; it is a fair question and that's a - I - I assume corporations and other organizations use those kinds of numbers so they must be available.
- APPEALS AS A MEASURE OF THE QUALITY OF BOARD DECISIONS
- This is the theme here in this entire section Mr. Chairman - in how to improve the quality of decision making at the Board and this is another way of looking at that.
- We think the appeal system is an important indicator of the quality of Board decisions - it is not the only indicator but an important one.
- As the slides from the Board show the allow rate for appeals of Board decisions taken to the Review Board has hovered around the 40% level since 1987. In 1997 it was 35% and in 1991 the allow rate was about 44%.
- Allow rates at the Appeal Division and the Medical Review Panel increase these numbers substantially. The 1996 Annual Report of the Appeal Division (13 WCR 251) indicates that the 1996 allow rate was 26% and the partial allow rate was 15% (in 1995 the allow rate was 22% and the partial allow rate was 12%.) The 1996 Medical Review Panel Department Annual Report (13 WCR 237) does not give this information. In pointing out these figures we acknowledge hat some appeal involve complex factual, medical or legal issues and we also acknowledge that defining an acceptable allow rate is fraught with difficulty - and if you remember I tried to track Mr. Buchhorn down on that and he declined to be pinned down on that and I think that - I understand why he did that.
- In our view it is time that some linkage was made between decisions made at the Board that are against workers and how those decisions are treated by, primarily, the Review Board. As part of the appeal process evidence is gather that the Board did not seek out or medical opinions that carry greater weight than the Board's are obtained. What is missing in our view is a recognition that what happens at the Review Board is of significance to how decisions are made at the Board. Why does the Board not do much of what is done for preparation of appeals? The consistency over time of a high allow rate adds weight to the need for this recognition.
- In answering questions in February on this issue the Board was reluctant to say what allow rate would be acceptable from their point of view. Instead they discussed the error rate: looking at 200,000 claims and allowing for 2-3,000 of them being overturned, that would be less than a 1% error rate.
- We have some concerns about these figures and how they have been used. First of all, the number of 200,000 is a rough average of claims reported per year from 1987 to 1996 (see page 51 of 1996 Annual Report). But we know from the Annual Report from page 20 of the Annual Report (Statistics '96) that the actual average number of claims accepted per year from 1987 to 1996 by the Board has been about 145,000. Using an allow rate of 98% or 96%, there must have been something less than 150,000 claims which required a decision. So we are talking about three groups here; we are talking about claims filed, claims that were accepted, and claims that require a decision. This means that the error rate must be higher than 1% because the number of claims requiring a decision are 25% less than 200,000. And by the way it must also mean that the - looking at the difference between the number of claims accepted and the number of claims requiring a decision - the difference is roughly about 50,000 - so somewhere out there are 50,000 claims that are filed that don't get to a decision letter - to the point of decision and obviously some of those are form 6's and are never followed up and form 7's and form 8's and so on. But still it's a significant number and - that would bear some examination.
- Looking at the error rate is a relevant consideration but it is not responsive to the historical allow rate of 35-44% at the Review Board. It is not responsive to the kind of problems that are caused by workers being cut off compensation and then having to wait for a year for a decision to get them back in the system or to get them a pension that they can live on.
- In 1994 the Review Board received 8,589 Part I appeals so using admittedly gross numbers we can estimate that over 3,000 worker had to go through the appeal process in order to get back into the system; to get their claim re-opened, average earnings calculated properly, compensation re-instated, assistance in returning to work and so on. In 1995 the numbers of Part I Notice of Appeals received by the Review Board was unusually high at 11, 386 (see Review Board 1995 Annual Report, page 11).
- As we see it the need is for a coherent system of making decisions within the Board in order to ensure the best quality possible. The performance standards have to be clear, they have to be consistently applied over time and there cannot be undue pressure on decision-makers. We are somewhat concerned, for example, about the creation of the position of "Expediter" who has the responsibility to make sure files tagged as 17 day files do on fact get decisions made within 17 days. We all want decisions in 17 days but this technique must fast track the relatively simple decisions and give them priority over more complicated matters.
- RECOMMENDATOIN: We recommend that the Board develop meaningful performance standards to measure the quality of decision making (not just speed or volume).
- Q: Do you have any idea what those other standards might be; what those indicators might include?
- A: Well, the standard part of this section would be - an obvious one it seems to us is how decisions are tracked through the system? And our - it was never said by the Board but as we said there's - I asked Mr. O'Brien this - it seems to me that what is going on here and what is going on in Marpole are - in terms of quality of decisions - very different worlds. And we are not they should be merged; we are not saying bring the Appeal Division or even if you did that it wouldn't necessarily be a solution to the problem but we are saying is what happens on appeals is relevant to the quality of the decisions that are made here so just as a big starting point we think that's something to have a look at. And we should all value the - I asked Mr. O'Brien whether he's done a systematic analysis of their - of how they looked at Board decisions and the Review Board has a unique perspective in how decision are made and that should be valued within the system.
- COMPLEX ADJUDICATIONS
- One of the features of decision making on workers' compensation issues currently is the increasing complexity of the claims that are coming to the Board. [I don't think there is any dispute about this. I think Mr. Pinto described this and I think everybody accepts that that is true.] Board staff are having to deal with very complex issues of causation in occupational disease cases.
- One area where we believe the Board had responded appropriately is when the Sensitive Claims Unit was formed. This unit handles a number of sensitive issues but most particularly they deal with fatal cases. The professionalism of the staff in this unit and the quality of decisions and the speed with which they are made are a little recognized aspect of the Board. [Something positive going on here.]
- An emerging area that is increasingly affecting all workers' compensation systems is multi-causality. This issue is a big part of the growing significance of occupational diseases but it has some overlap with the adjudication of injury claims. For example, low back pain can be considered from a multi-causal point of view. We choose to address it here because we have been focusing on the quality of decision making at the Board and the challenge to the Board into the 21rst century will be how to make good decisions on increasing complex issues. [And then we go again Mr. Chairman into the Institute of Work and Health Paper by Shainbaum, Sullivan and Frank some of this material is an overlap with our opening and you will recall the policy issue that they posed for us; whether to - the system should be focused narrowly in the future or whether it should be focused on issues of multi-causality. I've given you three examples of what that paper talks about it and I'll leave the details to your leisurely reading. I will summarize them as we go along and the first is health and status at work.]
- A good discussion of multi-causality is contained in a paper prepared for the Institute for Work and Health in 1997 by E.B. Shainbaum, T.J. Sullivan, and J.W. Frank, "Multi-causality and the Future of Workers Compensation". The authors make the following statement,
- Under most workers' compensation legislation, an injury or disease must be caused by the employee's work if it is to be compensable. However, the seemingly simple question of causation is becoming increasingly problematic in view of what we are learning about the multi-causal nature of disease. Existing mechanisms for determining entitlement to workers' compensation may no longer be sustainable in light of growing scientific evidence showing that multiple factors contribute to disease.
(page 1).
- The following are some of the conclusions of this paper and they are examples of the kind of issues that are being addressed by some authors in the field.
- Health and Status of Work
- There is a powerful connection between health and the social and the physical environment, " In particular, the correlation between social status and health is well established. Higher status individuals live longer and healthier lives than lower status people". (page 6).
- The significance of this for workers' compensation is reflected in the Whitehall studies in Britain. The first study (starting in 1967 and tracking over a 10-year period) found that office workers in the highest employment category had about one-third of the mortality of office workers in the lowest category. In Whitehall II, twenty years later, the results were the same and they had other findings such as workers in lower status positions were more at risk for ischaemic heart disease, chronic bronchitis and chronic cough. (page 8). Another study has concluded that "there is something that powerfully influences health and that is correlated with hierarchy per se." (page 10)..
- These Studies counter the suggestion that factors external to the work are only responsible for certain diseases. Occupational position and job factors play a large role in disease causation. (page 13).
- Cardiovascular Disease
- "Workers who face high psychological demands, on the one hand, and who have low decision latitude and little control over job demands or how to use their skills, on the other hand, are at an elevated risk for cardiovascular disease" (page 16).
- The highest risk for heart disease for men in both blue and white-collar occupations has been found to be associated with hectic work, combined with few possibilities to learn new things and low influence on planning of work and working hours. (page 17).
- These findings suggest that systemic factors involving how the work is organized can be of causative significance in cardiovascular disease.
- Musculoskeletal Pain
- The authors note the pervasive nature of back pain, which affects 80% of adults some time in their life. In the United States, it is the second most common reason for work absenteeism, the third leading cause of total work disability and the leading cause of activity limitation in young adults. The rate of disability due to low back pain is increasing at a tremendous rate. (page 20).
- The tendency in workers' compensation is to seek discrete, precipitating events for personal injuries in order to establish causation. However, it is plain that back pain and other musculoskeletal diseases are multi-factorial in origin and, therefore, the search for a specific, precipitating event may be fruitless in the majority of cases. (page 21). We note that this may not be true in BC since back strain claims have been relatively constant since 1987 (taking into account claims volumes). (See 1996 Annual Report, page 53).
- One possibility is that the stress generated by high demand/low control jobs may affect an individual's ability to cope not only with the emotional pressures but also with the physical and mechanical loads of the workplace. Workplace features such as monotonous work, time pressure, perceived high workload and little control over one's job have been linked with musculoskeletal conditions such as back pain and other musculoskeletal injuries. (page 23).
- This kind of analysis obviously is quite different from the prevailing approach to claims adjudication. Nonetheless, we believe this is the direction that the future of workers' compensation will take.
- The authors of the Institute of Work and Health paper take their discussion into two policy options, which they pose without any specific conclusion or recommendation.
- The first option is that, "we can foreclose the entire issue of attribution of responsibility for disease by imposing narrow constraints upon workers' compensation and by limiting entitlement to cases and unequivocal, acute injury and to diseases that are limited to industry i.e. that do not normally result from other causes. (page 31).
- They acknowledge this approach would result in cost saving at the outset and short-term gains to the system. The down side of this approach is that there may well be a return to tort litigation for those conditions outside the narrowed coverage and there may be challenges pursuant to the Canadian Charter of Rights and Freedoms on the basis of discrimination for mental/physical disability;
- The second policy approach would be to look at reducing or eliminating the distinction between work related and non-work related diseases and injuries. The authors then talk about a universal disability concept.
- We believe that the option of universal welfare is probably too ambitious an issue for this Royal Commission. However, we believe that the possibility of this being seriously considered in the future should not be foreclosed.
- In the meantime, we believe that issues of multi-causality must not be solved by applying a narrow interpretation of coverage of workers' compensation.
- RECOMMENDATION: We recognize that t