Royal Commission on Workers’ Compensation in BC
Feb 17 Morning Session
Name(s): Joe Pinto, Gerry Massing, Susan Nickerson-Graham, Rex Eaton, Keith Sullivan, Doctor Dale Farber
Title: Central Services, Associate General Counsel, Policy Director and Policy Director,
Affiliation: WCB
Location of Meeting: Richmond, Day 2
Date: February 17, 1998
Commissioner staff: GG, OE, TR, D , JS
Notetaker: Judy Stott
GENERAL COMMENTS
Scope of Coverage (what)
PRESENTATION
Joe Pinto:
- Issues arise primarily out of interpretation of Section 5 and 6 (entitlement)
- Vast majority of claims are between 80 and 85% where initial decision of whether the worker deserves compensation is simple – obvious cause, effect, happened at work, no problem with employer
- Challenge is to get information quickly, settle a rate and get compensation to worker as quickly as possible
- Rest of percentages are the cases where the employer raises concern or Board staff raise question
- In most of those cases the Board is in favour of acceptance
- So disallow rate is around 4 or 5 % as of late
- Reasonable to ask why so much angst when Board ultimately allows most claims that come before it
See Submission provided to the panel, which covers
- Section 5(1) - where in an industry within the scope of this part, personal injury or death arising out of and in the course of the employment is caused to a worker, compensation as provided by this Part shall be paid by the Board out of the accident fund
- Section 5(2) – compensation for a disabled worker injured at work – wage loss and medical aid
- Section 5(3) – an injury resulting solely from serious and willful misconduct of the worker results in no compensation unless injury results in death or serious/permanent disablement
- Section 5(4) – where the injury was an accident and it arose out of the employment, unless the contrary is shown, it shall be presumed that it arose out of employment
- Some believe it should mean any event and others believe it should be something out of the ordinary
- Section 5(5) – deals with an injury or disease that is superimposed on an already existing disability; won’t spend a lot of time on it – subject to permanent disability
- Section 6(1) – deals with work related disease and defines it as an injury for the purposes of compensation
- 6(2) – date of disablement shall be treated as the occurrence of the injury
- Section 6(3) – worker at or immediately before date of disablement was employed in process or industry listed in second column of Schedule B and disease contracted is disease in first column of Schedule B then it will be deemed to have been due to the nature of that employment unless contrary is proved
- Should have had 6(4b) up there as well
- Issues and challenges can be divided between traditional and recent
- Traditional issues:
- General principles and policies reasonably well-defined and accepted but sub-issues not entirely resolved
- Adjudication of individual cases can be complex and/or contentious and/or time consuming
- Examples of traditional challenges/issues:
- Travel to and from work generally not covered and policies list several exceptions; when individual cases present themselves the line as to where coverage absolutely begins and ends is not always clear so employer or worker are upset by decision
- Access and egress – principle that coverage is not confined to exact premises of employer
- coverage goes beyond that
- e.g. leaving store in shopping centre, traversing public mall to get to car park – is that covered or not?
- much discussion spent with adjudicators trying to determine if coverage should be allowed or not
- Deviation from employment – arises for people who travel or who deviate from work duties, engaging in personal activity
- E.g. a worker, during lull of employment activity, picked up a spare, raw piece of material and was honing it on machine and was injured – should that be covered?
- General rule is that substantial deviation from work practices would not warrant coverage
- Specific cases are challenging and difficult
- Normal body motions – e.g. walking into room and twist back suddenly – did arise in place of employment but not as a result of employment
- Non-incident – incident isn’t required as basis for compensation of coverage but without one it is difficult for adjudicators to decide if work was cause or if it was other outside causes
- Delayed onset – report injury several days or hours after they experience symptoms and they think they can relate it to work
- longer they wait the less likely they are to give coverage
- Non-work related assaults – random act of violence like cashiers in retail stores who are robbed or health care workers attacked in their place of business is covered
- a criminal roaming the streets who commits random act of violence on person who is working at the time is not covered or at least there is no clear adjudication pattern both within adjudication ranks and even at most appeal levels
- Most diseases – agreed that the principles are generally established but there are some diseases where there is a clear and obvious connection and adjudicators don’t turn their minds to whether there is a need to worry about whether the presumption can or should be rebutted
- In other diseases that are scheduled the connection is not always obvious, the conditions are multi-causal
- Application of presumptions in Sections 5 & 6 – great debate both within the adjudication body, at the appeal levels and among stakeholders as to how those presumptions are to be treated
- More recent challenges/issues - general principles and policies not established or accepted or issue possibly out of scope of the Act
- Examples of more recent challenges/issues:
- Multi-causality generally – how is it to be handled, how is it to be adjudicated?
- Stress and related claims – subset of multi-causality
- Exposure is also a subset of multi-causality
- Preventative compensation/protective reassignment – also rising out of multi-causality
- Serious and willful misconduct – section 5(3) – unrelated to above
- Want to show the commission what has happened in acceptance patterns over the last 20 years and what is likely to be happening in next 20 to 30 years
- Statistician showed that complexity mix is increasing, trends adjudicators are facing are becoming more complex
- Asked for 30 years of trends in injuries, diseases and acceptance patterns but only started doing this 20 years ago
- See chart, which shows accepted claims categories in 5 year segments
- E.g. struck against, by, caught in injuries have decreased as a proportion of total but from an adjudication perspective they were easier to adjudicate because there was obvious cause and effect
- E.g. slip on one level, fall from one level to another – not a lot of change in the pattern and there isn’t much contention in this area
- Repetitive motion – increased but more contentious issue and more difficult to prove and compensate
- Application of force/exertion – adjudication challenge is whether the force is accustomed or the exertion is minimal and then it is questionable whether the injury is work caused or not
- Would have thought there would be more growth in inhalation, ingestion of toxic substances but perhaps the Board is getting more claims in this area and maybe they aren’t accepting as many as would be expected
- Acts of force and violence has certainly increased
- So if we accept the thesis that mix of claims that Board is accepting can apply to general mix of claims that Board gets - reason I am drawing that distinction is because we don’t code all claims in this fashion, only accepted claims are done this way - then disallow rate, leaving aside some periods of aberration has seen general trend in upward correction
- The upward correction in disallow rate is reflective of complexity mix that board is receiving
- Likely to see in future that there will be more claims of the proportion of claims that involve issues of multi-causality
- That presents the increased entitlement challenge that the Board has been wrestling with since its inception, but particularly more in the last 10 to 20 years
- Problem that we are facing in dealing with this entitlement challenge and the issue of medical causation is the lag in time
- There is debate about some of the more recent conditions and some may argue that they might be 30 or 40 years old – what exactly causes them and what elements of work cause them has not been established for the most part
- Establishment often comes after many years of scientific study, restudy and then acceptance in the general community
- Stress and related claims raises issues of multi-causality and a whole host of other issues
- How does one determine with some degree of certainty and reasonableness what cause the mind to collapse?
- If one is satisfied that there were a variety of factors that contributed to the psychological condition then how does one establish that the work cause was greater than the other causes?
- Legal issue – Board accepts that, as courts have often said, that this legislation is broad enough to accept mental claims and to say that we are not going to accept them as an arbitrary policy would not stand up to legal challenge
- The other side of that argument is, was stress meant to be covered, did legislators mean for it to be covered?
- Within the policy arena in terms of the type of cases that come before the Board I categorize them into 4 areas:
- 1) There are events that lead to horrific, life threatening mental stress and the Board has established that they do accept these kinds of claims
- 2) Other end of claim spectrum is perhaps a worker in government who is dealing with complex situation and feels that work has burned them out - Board as general rule does not accept those kinds of claim
- Decision 102 gives some reasoning for why those kinds of claims are not accepted
- 3) In between those two types of categories there are claims that are coming to Board, not in great numbers but more so in recent years, issues that may be considered normal in the workplace and are, to some degree, abnormal – discipline in the work place, performance appraisal, labour relations, harassment
- 4) There are also issues generally associated with allegations of discrimination
- Tendency of adjudication body for middle two is that they are not accepted, there have been some exceptions where harassment is bordering on horrific - e.g. rape versus gradual harassment
- Exposure claims (allergies, sensitivities) – allergies have been increasing over the years
- Raises the issues of how you sort out cost
- Testing in environment may not always show exposure but scientists are postulating that we are all exposed in the environment that we live
- Board has tended to accept claims with obvious exposure – typically one shot exposure more under personal injury then under diseases but some are accepted under disease as well
- Whole set of compensation issues that arise out of this topic as well
- Where entitlement has been established there may not be eligibility for compensation from the work exposure or only brief compensation because once removed from exposed environment they should return to normal or perhaps they have been sensitized which leads to protective reassignment or preventative rehabilitation
- Preventative compensation/protective reassignment
- Somewhat new
- Compensation policy – what if a need is identified - if a worker needs to be removed from work place?
- I think that you are all familiar with Reporter Decision 3 where then Chairman Ison and Commissioner Cobal said that there is no room in scope of coverage in this Act for payment of compensation on a preventative basis
- So policy 32.60 on preventative measures is listed in the Rehabilitation Manual
- If everyone agrees that the worker shouldn’t go back to work place because of risk of permanent injury as a result of chronic exposure there are conditions in the vocational rehabilitation that allow for preventative rehabilitation
- Policy 86.30 – preventative rehabilitation is for those workers who can return to their old job but they are medically deemed to be at undue risk for permanent disability due to vulnerability or increased permanent disability
- There is no provision in policy or in legislation to deal with situation where worker is at risk to develop one
- Have developed own working definitions around general term of health protection, concepts of preventative rehabilitation and preventative compensation
- Also assembled both protective reassignment legislation from jurisdictions across Canada and so called preventative compensation references in other jurisdictions in Canada
- Serious and willful misconduct – growing angst in employer community
- Section 5(3)
- Very rarely does Board disallow a claim as a result of serious and willful misconduct and that hinges around the phrase "solely the result of serious and willful misconduct"
- The Board must still pay compensation where there is a serious injury
- Application is very limited and very few claims are turned down
- Where the Board does accept a claim where there was serious and willful misconduct if the injury is severe the employer will be relieved of the cost of claim
- This rarely happens and so little reference to that happening
SUMMARY
- Some types of injury are declining
- Adjudicators’ perspective, though, is that those were easier claims to adjudicate
- Looking at next 20 to 30 years, complexity mix is rising and adjudicators will continue to be challenged with traditional and new issues
QUESTIONS AND ANSWERS
JOHN STEEVES: Federation of Labour Council
Q: Section 5(2) is the issue on the fourth slide, compensation payroll starts on the first working day following of injury. What that means is that if a worker is working from 8 to 4 and is injured at 8:30 in the morning they don’t get paid for that day
A: That is correct.
Q: That means there is a waiting period of 7.5-hour waiting period?
A: That is correct.
Q: Section 5(4) – I don’t know what it means. Philosophers call it a syllogism, which means that an accident is an accident. Do you know of the number of claims in which 5(4) has been used to allow the claim?
A: We don’t have anything in the records with respect to when a particular section of the Act is used.
Q: Can you give an example where it might be of benefit to workers?
A: From my own adjudication experience there was a case of suspicion that there had been assault in work place and it could have been related to a drug deal. Employer asked Board to investigate claim because worker claimed to be rushing from one area to another and believed it was a story. I relied on presumption that I couldn’t establish anything except what worker said had happened. Because it had clearly happened at the workplace and then no evidence proved it wasn’t work related so in that case presumption worked in favour of the worker.
Q: Problem as I see it is that where the accident arose out of employment – in order to get benefit of presumption you have to prove that the accident arose out of employment and that is the syllogism I’m talking about it. From the worker’s point of view that is a problem, do you see it as a problem?
A: Where I do see it as a problem is in less obvious accidents. If I was walking in this room today and my ankle gave way, is that an accident arising out of employment or was that simply the normal workings of my ankle unrelated to employment. Great debate is whether or not that is an accident and if it is accepted then does the inner working of my ankle rebut the acceptance?
Q: If we saw you fall in the room then it wouldn’t be a problem to prove it happened out of employment but if you walked in here alone and it happened it might be a problem proving that it happened, particularly if it happened 8 am Monday morning. It would be conceivably more difficult to prove.
A: Correct
Q: Section 6(1) – should we talk about this on the Occupational Disease day?
A: Prepared to address the issue under Occupational Diseases and it is currently before the policy bureau. It should go to the panel of administrators within next few months because of issues arising out of decisions of the appeal division and compensation services’ practices.
Q: Normal body motions – perennial problem since 1917. From a worker's point of view we can see a worker at a workbench who drops a tool and he bends over to pick up the tool and hurts his back. Board says that bending over to pick up tool is natural body motion and therefore can disallow claim. Can you comment?
A: Not sure that Board would decide that in every instance. That claim is in a gray area.
Q: How is that gray?
A: One side is that it is a work-related motion. The other side of the debate is that that activity is a motion that occurs in daily living. Unless there is an unusualness in bending down it doesn’t bring it within the scope of employment. Don’t think that Board has provided explicit directions on this. There has been a body of decisions, Reporter decisions 121, 145, 115, 99 and I may not have all the numbers. In general world it would be ideal for management to say to staff that that claim you mentioned is either accepted or not but don’t think management has authority to mention that kind of definitive statement. It wouldn’t fit in the scope of Section 99 where each case should be adjudicated on its own merit.
Q: From worker point of view it is not gray. Had it not been for work the injury would not have occurred. For a truck driver who gets in a serious automobile, the fact that he could have been driving his car on the weekend, no one debates that. It is becomes a question of credibility of injury and of the worker. It is a trivialization of worker’s injury.
A: Don’t think for vast majority that it is credibility of injury. Where the question arises is is it a personal injury? Would think that for most part that kind of activity will result in coverage particularly if there is little bit of stress and strain on back that is beyond bending down.
Q: Why does it need to be unusual stress. The bending down is required by work?
A: If I just walk in this room and feel pain in my back then that is a work related motion. I am speaking to you now because it is a work required motion but if I feel a pain in my jaw should I be compensated? Not taking a stand just showing complexity of it. We have sought clear guidance from the policy makers on where the line should be drawn. I think that where the line is currently drawn is that there has to be a little more than the simple act of normal activities of daily living.
Q: To use truck-driving analogy the worker didn’t swerve over double line yet claim was accepted.
A: I agree with you that the in the evolution of compensation of the body of adjudication decisions an activity like driving that you may do in normal life and do at work will be accepted if done at work.
Q: Don’t need unusual stress or unusual motion?
A: Yes; sub-issues of this area are not necessarily resolved and I think that you are making this point.
Q: Where we agree is that this policy needs work – you say that exertion needs to be proved and I’m saying body motion is enough.
In list of traditional challenges and issues I wanted to include one more and that is issue of diagnosis. From time to time someone is ill/sick and there is no diagnosis. For WCB purposes we don’t need a diagnosis do we?
A: We need to establish personal injury or disease and then disablement from that.
Q: But we don’t need diagnosis?
A: I guess the answer would be yes. I think that I would require a diagnosis for the most part, even a tentative one to conclude that there has been an injury or a disease.
Q: Would you deny a claim if there were no diagnosis?
A: We form a conclusion on what we think the diagnosis is or we seek some guidance from the family physician or Board physician. You will sometimes see NYD – not yet diagnosed – on medical form. If the Board was to conclude that it is simply back pain then it is conceivable that it will not be accepted. More often than not adjudicators, staff and advisors will conclude that there is compensation issue and it is just that it has not yet been diagnosed.
Q: In case where there is genuine complexity and conflict among doctors about diagnosis would that be a reason to deny the claim?
A: Conflict among more than one diagnosis is not a basis to deny a claim.
Q: What if there is no diagnosis, would that be reason to deny claim? I should tell you that there is court decisions saying that WCB doesn’t need diagnosis but rather a disability.
A: My understanding is that you need to establish personal injury or occupational disease. Do not necessarily have to have diagnosed. Board often presented with report saying that diagnosis not been made but personal injury has been sustained. If report says that personal injury cannot be determined then it may be disallowed.
Q: In list of examples you talked about most diseases and said that some are easy.
A: Some are easier than others.
Q: An example may be mesothelioma – exposure to asbestos - or sarcosis.
A: We don’t see many of those any more.
Q: Those are generally routine. You talked about Schedule B and Section 6(3) being non-rebuttable. Are you aware of Section 6 (11) that has the conclusive presumption between lung and heart. It is the only non-rebuttable presumption in Act. Do you not think there is room in act for non-rebuttable schedule for the relatively easy ones as you say such as mesothelioma or sarcosis?
A: Not expert with diseases but I suppose there is room for non-rebuttable when sign says absolute. But even in the ones we talked about there are not obvious signs.
Q: Are you saying that we need absolute proof in order to get compensation?
A: No I don’t think that I am saying that. In order to have a non-rebuttable presumption you would have to have pretty conclusive evidence so that there is not anything to rebut
Q: You are an experienced adjudicator and you should know that there are no absolutes in this business.
A: You are asking for a non-rebuttable presumption and I am saying that I think that it would be situations where only certain things cause a disease and only way exposure would occur was in the work place.
Q: Multi-causality was how you posed it and I wasn’t clear on what you meant by multi-causality. Talked about stress and I presume you meant stress could be caused in home, work, etc.
A: I think multi-factorial may be better. I saw the term multi-causality in something sent to us from your group.
Q: The situation arises in complex claims where there is more than one cause. I.e. lung cancer – demonstrated exposure at work to something that causes lung cancer but they also smoke. We all have problem of how to sort that out. Our approach to that is that the way of posing the standard of proof is whether the disease was as likely as not to have been caused by the work. Do have any problem with that standard?
A: I think that is reasonable.
Q: Lung cancer example above – approach or test is to ask whether the exposure at work was as likely as not to have caused the cancer. Do you understand my point?
A: I think so.
Q: Do you agree with it?
A: I think that the Board understands your point but it is an issue of epidemiological evidence. If there is evidence that it can occur in ordinary course of life, by smoking and also by chemical exposure in work place or elsewhere then Board will give benefit of presumption by designating that particular disease. I.e. lung cancer, chALLENge is that presumption is not given widely because there are so many other factors that can cause lung cancer.
Q: I don’t think I disagree with that. Problem arises that the Board will approach case as to whether the work was 50% responsible. They would look at only exposure at work and compare with non-exposure versus looking at exposure at work and smoking history. Have I lost you?
A: I think so and we should defer this to diseases.
Q: In addition to the list of more recent chALLENges/ issues I would like to add increased employer presence in claims and appeals.
A: That is a fair comment. Also the changing nature of work place with more people working from home we will have issues dealing with what injuries/diseases result from work and what arises out of the normal daily activities.
Q: SCD claims – repetitive motion injury has jumped over the last 20 years and the reason for that is technology right?
A: Yes I think that work processes that require greater repetition have contributed to more claims being submitted to the Board for repetitive injuries.
Q: In 1977 Board policy wasn’t suppressing claims, nor are they now, but now technology has changed
A: Perhaps Board policy was or the practice was for repetitive claims back in the 70s and 80s.
Q: Perhaps multi-factorial. You talked about disallow rate and used figure 4% - is that historical rate or did you just round off to 4.5 in 1997?
A: There is discussion across Canada that the average rate is in the 4% range. In Nova Scotia, for example, the rate is much lower. The benefit of doubt clause was different. The normal thinking is that it is closer to 4% though.
Q: We agree that there is an increased presence of employers in the claims system in last few years and that may be a factor of increased disallow rate from 93 to 97. Do you agree?
A: May be the case but heard from employers that the Board is disregarding their concerns on these issues but there could be some impact.
Q: Stress – whatever that is – should I talk to you about that under Occupational Disease Services?
A: Occupational Disease Services folks are better able to talk about how they adjudicate the cases that come before them. We’ve centralized the adjudication of non-traumatic or non -post traumatic stress in Occupational Disease Services. You haven’t had benefit of policy paper on stress. The bureau is working to bringing that to completion.
Q: Let’s leave it. One point though – harassment was mentioned. Concerned about you saying that if it was horrific harassment then it could be compensable but not gradual harassment. Seems to me that gradual harassment could be most insidious particularly from health point of view ultimately leading up to a disability. Did you want to clarify?
A: Get into whole area of harassment and in itself it is a very sensitive topic. I was trying to search for a word that described borderline. E.g. we may receive a claim from someone saying that their company was harassing them over a period of time. If the perception or reality is that you are being harassed then that may be horrific but wanted to show the normal stuff arising out of workplace – kidding, employer talking about inability to work with other workers or lack of performance, ability to work effectively, efficiently etc. An example of compensable harassment is boss dragged somebody into room and left them feeling threatened so that is horrific.
Q: I am not sure that we disagree but my point is that if person is working and being harassed, there are remarks by coworkers, supervisors and it can be proven. Over time it wears person down and creates a disability and perhaps diagnosis of depression. This is the kind of insidious example I am talking about. It can be more disabling because of the length of time it takes.
A: Trying to show that where Boards’ adjudication practice and its interpretation of its long standing policies is at the Board has not considered this in a long standing way at a policy level.
Q: You are not excluding the type of example I used?
A: I am telling you that as a general practice we do not accept that type of claim.
Just to clarify the paper we are providing deals with harassment over time. The example that you have given will be discussed in the paper. Gradual exposure is discussed as chronic stress.
Q: Ms. Nickerson-Graham do you agree with Mr. Pinto on disallowing gradual stress?
A: There is some blurring and overlap between the trauma and exposure over time. Board certainly looks at it from trauma perspective and gradual trauma may be seen as trauma.
When you said do you agree with Mr. Pinto on dealing with gradual stress I am referring to what I think our adjudication practices are. I am not saying whether stress, more generally, should be covered. The adjudication body would love to get some direction. Policy makers would also like to get direction from government as to whether this scheme should cover this type of claim.
Q: Binder with blue cover – may want to look at Tab 9 where there is a case of gradual onset of depression that was accepted.
Q: In your distribution of standard claims you had posttraumatic stress listed as percentages. Can you give us any sense of the numbers that would be?
A: No the thinking process I was going through was the percentage of the mix so I didn’t generate that number.
Q: Can you generate that number?
A: Yes
Q: That is posttraumatic stress as in the DSM IVR, is that what you are talking about?
A: Generally but I haven’t seen all the cases that were accepted. Generally we rely on the posttraumatic stress disorder diagnosis.
Q: Is it only the post traumatic stress syndrome as in DSM IVR or are there others as well?
A: I don’t know if we can tell you if it was based on the post traumatic stress syndrome DSM IVR. I think that we can tell you the volume of claims that were accepted for post traumatic stress syndrome.
Q: Always thought of stress – perhaps psychological disorder is a better term – as being in three categories. Person falls and is impaled by rebar and he or she experiences post traumatic stress disorder. That claim would be acceptable. Second group would be a person who has a psychological disability as a result of their disability – i.e. chronic back pain. The third category, which is what I think that we are dealing with, is things like burnout. That is the area where the dispute seems to be – do you agree with that overall analysis?
A: Yes I think so. There is physical and mental category and I didn’t discuss those today. The Board is moving towards the model of prevention. I was trying to look at the mental category and give you a sense of what our practices are.
Q: Section 5(3) – reason that seriousness is in there is because if someone has serious disability with respect to time loss or the extreme is that they have permanent disability then the Section determines that the person has been punished enough by their misconduct.
A: Seems to be the implication. Can still be guilty of serious and willful misconduct – it is sole cause of accident - but still forgiven in terms of getting compensation where you have permanent disability or death.
JIM SAYRE : Representing injured workers
Q: You gave us a detailed breakdown of short-term disability claims by the type of claim and is the same kind of breakdown available in terms of the claims that have been disallowed?
A: No I am not sure if I made that point earlier or not. The Board only codes in this fashion for the accepted claims and accepted short term disability. For example, medical aid claims or disallowed claims are not done in this fashion.
Q: So the breakdown you did give us does not include all the claims that the Board has each year?
A: No that breakdown or percentage allocation is focused around accepted short- term disability claims. I think, our numbers people aren’t here but I think that it is around 80,000 or 90,000. The thesis I was making was that I think that there is a change in the mix and that change is probably applicable to the disallow claims as well.
Q: Is there any breakdown at all with respect to the types of claims that are disallowed or the numbers of each?
A: I am not aware that there is a systematic coding of that. In order to understand the rise of disallow claims in the last 3 years we asked our IS group to identify different areas like different types of injuries and different industries to determine if there were any trends in those areas. It didn’t indicate to me any reason why the disallow rate has started to grow more recently. One of our then senior policy advisors did a review of disallow claims over one quarter to get an idea about adjudication practices, types of injuries and those kinds of things and his report didn’t point to any one thing either.
Q: Would that have been in 1995?
A: It would have been around then or possibly even 96.
Q: I noted that on the chart there was quite a spike in 1995.
A: Yes
Q: I think the commission would appreciate any information that you could give them and us on the types of claims that are being refused as well as the ones that are being accepted.
A: We would be happy to make what is available, available to you. Most of this, at the current time, requires manual review of the files. We are generally bringing in different mechanisms for coding claims and injury types that will have point of registration coding that will allow for more information about all kinds of activity in the future.
Q: Interjurisdictional exposure – if a worker contracts a disease from long term work exposure like mining where they may have worked in a number of different provinces or even other countries the work outside BC would be treated as non-work causation. Is that correct?
A: Correct until January 1, 1998. The interjurisdictional agreement had within it, Section 7. The goal of Section 7 on occupational diseases was recognition by Board across the country that if worker had all exposure in one province then they would undoubtedly receive compensation. If their exposure was a result of working in different provinces and wasn’t sufficient in any one province to provide coverage or to make them eligible for coverage some workers were falling between cracks. We now finally have an agreement among all other Canadian Boards, except Ontario, to look at the cumulative total across Canada and then to allocate costs back. There are rules and protocols on how the costs will be charged back. This agreement went into effect on January 1, 1998.
Q: What if worker now has a disability resulting from years of exposure? Can they make a claim now that it is after January 1998?
A: My colleague Pam Cohen, one of our adjudicators, will be here on Occupational Diseases day and she is coming specifically to talk about that a bit more. She has been involved in the adjudication protocol. I think that if the disability manifested presents itself now then it was intended to apply to the disablements that first occur or identify after January 1, 1998.
Q: So Ontario is still holding out on that?
A: Yes there has been dialogue in Ontario about trying to bring them into that agreement but for variety of reasons, despite being one of leading Boards to bring this to fruition, they have decided not to go ahead. Efforts are still proceeding though and our panel asked that every effort be made to ensure that every province participates.
Q: Will that agreement have any implication to work outside of Canada – i.e. neighbouring United States?
A: No I don’t think so.
Q: Quite interested in part because I have claim from one client who has had his claim in front of BC’s Board for well over 10 years. I now have a pending appeal in front of the WCB appeal tribunal in Ontario on trying to get them to contribute their share. We got there without the jurisdictional agreement but it would have been enormously simpler if we had had it.
A: Agreement is a step in right direction. Not perfect because BC picks up more than its share of costs as a result of being a place many people come to but there is some guarantee of coverage.
Q: You mentioned that ICBC had become more diligent in requesting rulings under Section 10 or in any case where there might be possibility of both parties during the course of their employment. When that happens does that result in a delay in the way that the claim is handled?
A: If there is possibility, it all depends on whether the other party is a worker or not. If other party is a worker then it is a quick process. If there is delay in making the election in case of third party then it can slow the process down.
Q: Would you agree with me that the entitlement to WCB has been set out in Section 5(1)? Would you agree with me that if a claim as a matter of law arises out of employment and if it occurred during the course of employment that there really is no power at the Board to say they are not going to pay benefits for that type of claim? The Board can’t give guidance to say that we are going to exclude certain things from compensation because we find it easier to run the Act if we did that.
A: I was trying to say that those are pretty broad words and pretty narrow definition can be given to those words and fairly broad definition can be given to those words. A fairly clear definition can also be given to those words. It can be broad in the sense that it is not all that specific and there is a range of options that adjudication staff might have. The trouble with Section 5 is that is that it leaves things to definition. I think that the Board gives definition to that or perhaps the courts have set the tone and then adjudicators have to try and apply their adjudication of individual cases in keeping with those principles that have been laid down over the years. The Board clearly cannot do something that is outside of the words. I agree with you on that.
Q: Would it be helpful to the Board and to the goal of speedy adjudication if the Act were amended to set out a general principle which could be applied in say cases of travel to and from work or normal body motions? Would it be helpful for the Act to deal with those issues rather than leaving it with people like yourself to deal with?
A: Simple answer, yes but at the end of the day I am not sure you would be that much farther ahead. Looking at adding more to the Act then there may be more issues of leaving it up to interpretation of those sections. Others and I have thought long and hard over whether or not there should be clear rules in policy that would make life easier for adjudicators and for stakeholders to understand what the basic rule is. Some of the policy has been written so that on one hand you can do that and on other you could do that. To have an absolute rule would be problematic given the words of Section 99. Perhaps the discretion that is then exercised out of that clear rule gets to a more senior level. I am thinking out loud about how you establish what that line is. E.g. the disability awards committee has discretion in certain pension issues or in the vocational rehabilitation committee they may deal with exception cases while the adjudicators deal with basic rules, things that are more black and white. Most of our adjudicators would probably like to see that and perhaps our stakeholders would like to know what the basic rules are.
Q: The West Coast leaf – legal education and action fund – has recommended that the Act be amended to expressively include sexual harassment as a work place injury and to provide some special procedures for dealing with such claims and so on. Do you have comments or concerns about that?
A: No comment would be appropriate from my level. I suppose clarity in all of these highly contentious areas is useful - clarity in legislation and failing that clarity in policy. Whether it should be in the scope of the Act is not for me to say.
Q: Stress – when you refer to stress it is not a term in the Act or in the Policy Manual?
A: No
Q: It seems to be used as short hand term for any kind of psychological claim. It doesn’t clearly label something else like post traumatic stress syndrome or some other clear diagnosis.
A: I think that the term stress refers to mental-mental kinds of claims. What I was offering you in my presentation was a spectrum of that type of claim ranging from post traumatic stress to gradual burnout. Stress is bit of a misnomer but it has become common in all the jargon around North America.
Q: The leading decision of the Commissioners that is part of official Board policy now is Decision 102. Is that right?
A: Yes
Q: That decision refers expressly to stress caused directly by the pressures of work. The Commissioners referring to the facts talk about emotional exhaustion. If a worker suffered from emotional exhaustion and the doctor said that he or she needed a couple of months off work I take it that kind of claim would be very unlikely to be accepted today. That could be emotional exhaustion but I take it that would be very unlikely to be accepted today. That seems to me to be quite different from someone coming in and saying that they are suffering from depression or anxiety syndrome that arises out of work. In terms of adjudication is it still handled as if it fell within Decision 102?
A: I think the then commissioners, through a series of guidances that various chairs and other commissioners provided over the years it has expanded to at least a direction. The adjudication body developed a practice of applying a no coverage practice generally. I think it was in Decision 348 that you have to think about these decisions on their merits. The essence of the outcome is that coverage is generally not granted in the instances that you described. I don’t think that administration or the administration within Compensation Services ought to be moving coverage on its own in any significant direction without some clear debate and guidance from the panel or legislation.
Q: Subject to the requirement under Section 5 and 6 of the Act that if a condition falls within that statutory definition then it must be accepted and under the Section 99. You would agree that the Board couldn’t escape from the obligation to adjudicate these claims on their merits.
A: I may have alluded to this earlier that we have been wrestling around with the plain words and some of the court decisions and even some of the thinking of the appellate groups. The section could be construed to allow for induced psychological injury from non-physical causes. I guess that it is also a question as to whether the legislature did intend this to be in the scheme of coverage. I would like to see some legislation on that and eventually, after public debate, some clearer policy.
Q: Fairly recently in Supreme Court of Canada in a case called Gibbs they dealt with an attempt by a private disability plan to give inferior benefits to people with mental disabilities as opposed to physical disabilities. They found that was discrimination and that it was not lawful. What I think that I am hearing from you is that the Board, in effect, treats people who come to the Board with mental disabilities that they say developed from the work place in a quite inferior way as to how they would treat those coming in with physical disability. Interested to hear the Board’s response to that.
A: I am not sure that anybody at the Board who is speaking in the next couple of weeks who will be able to respond to that. The governing body presented already. I guess it goes to the issue of whether system administrators can or should broaden the scope of coverage. There needs to be thoughtful debate in the community about what is in and what is out. That is why we are here. I guess I have to say on behalf of the Board that we are not providing inferior coverage. We believe that the scheme originally was envisaged – and this is the thinking of several generations of commissioners and others - didn’t provide for that even though the words could allow for it.
Q: Preventative compensation – I don’t know how deep we want to go into this. It has been my experience over the years that the problem where that term is usually used, in denying what the person is looking for, arises not so much because the claim is turned down at the outset but because the benefits are cut off after a short time. This is on the basis that the immediate symptoms have resolved. These are cases like red cedar dust asthma and bursitis that is caused by floor layers who have to kick carpet all day long. Once the worker is away from the condition his or her normal body function returns. But the medical evidence is clear that if the worker returned to kicking carpet or to a sawmill where cedar logs were being processed they would immediately become impaired again. I want you to correct me if I am wrong but the problem is that the Board does not regard that residual condition as an impairment. Therefore it says that you are no longer impaired so you are no longer entitled to short term benefits or pension benefits.
A: The Board applies its normal standard for measuring residual impairment and absent the residual impairment registering on the impairment scale I guess that you are right there is no impairment. We are then into the issue of whether or not preventative rehabilitation kicks in.
Q: I was looking at the section of the manual that you mentioned in your presentation. I think it was paragraph 32.60. It struck me that the final sentence of that might be where the problem lies. It says where the worker is left with a permanent impairment the worker may be entitled to a permanent disability pension. Of course, neither the manual nor the Act defines impairment. The key sections of the Act are 23, 29 and 30 and they talk about temporary and permanent disabilities but disability isn’t defined either. In a sense the legislators have left people like yourselves with the problem of deciding whether something like sensitivity to a work place condition like cedar dust or kicking carpet should be regarded as an impairment or not. Is that basically a problem that you are left with in deciding where you use preventative compensation as an explanation for why there is no money payable?
A: I think that you could characterize it in that fashion. If you read Chairman Eisman’s original printing in Reporter Decision 3 I think that the then commissioner gave a lot of thought to this issue of what the purpose of this Act is and what role this Act has in providing for prevention and specifically the compensation aspects of prevention. That thinking is still pervasive in the Board’ general policies. There is no provision absent disability for coverage.
Q: That begs the very question I wrote, which is what is disability? If you have a floor layer who can’t kick the carpet without his knee blowing up so that he can’t work anymore I think 99% of the people on the street would probably say that that is a disability. The Board, over the years, has said it is not a disability because if you don’t kick carpets you’re fine.
A: To say that the person cannot work anymore, they probably would be found to have a disability. It seems that after some time it becomes obvious that the person shouldn’t be going back and doing that. We have counseled workers with cedar dust allergies not to go back to that area and the questions they come back with are what are you going to get me, where are you going to put me and what are you going to pay me? For workers who are going back to work their claims come in and are adjudicated. It is questionable whether or not Section 57 should be used – continuous return – and that compensation wont’ be paid. I don’t think that went very far. The argument from the employer is why should we pick up the cost for that prevention? We are well aware of the issue and both the positions on it.
ALLAN WINTER: Representing the ECG
Q: There was some discussion on Section 6(1) – thereby disabled from receiving full wages at work and that is one of the areas of controversy. Is that some kind of appellate decision that is either being followed or not being followed because the panel hasn’t done anything?
A: We can get into this more on Diseases day. In a nutshell there was a series of more than one appellate decision that said once you have met the test for temporary disability that you are thereby disabled. The Board has taken the position by practice and in interpreting its own policies that a loss of one or two days does not meet that definition. We may pay you compensation for one or two days but if you are left with a measurable permanent impairment you may still not get a pension because you are not disable from earning full wages. Now the appeal division took issue with that interpretation and said that once through the door on temporary basis then shouldn’t have to go through the door again for permanent compensation. What I was alluding to was that the Division, in 93 – 94 area they moved the practice and then moved it back because they realized that the Board of Governors had not adopted the appeal division’s thinking. They hadn’t instructed the Division to move in that direction. I know that that created some consternation in the worker community.
Q: What I thought you were first referring to was the other set of cases like the firefighter who retired and then had heart attack. The appeal division cases had said that they are not disabled from earning full wages because they are retired at the time of the heart attack. Those cases are being applied I take it?
A: I think that there is consistent interpretation within all the levels of the system, as far as I am aware of. If you don’t have disablement that prevents you from earning full wages prior to retirement then you will get medical aid but not compensation.
Q: My understanding of the intent of the compensation aspect of the Act is protection of loss of wages arising from a work related injury or disease. Is that your understanding of the intent?
A: Yes and I know that some of the old legislation – and I know that is because of some court chALLENges in the Nova Scotia legislation - it seems that the intention in disease was that there needed to be a loss of earnings. The presence of a disease process in and of itself was not necessarily enough to entitle you to permanent compensation. There was some court cases in Nova Scotia that led to the government removing certain words in the legislation and to not provide benefits.
Q: That doesn’t deal with case of someone who has retired from workforce altogether and then the onset of the disease comes. In my understanding that wouldn’t fit under the current Act because there is no loss of wages. The argument may be that there is loss of enjoyment of life and my understanding is the Board does not cover that.
A: That is the correct interpretation.
Q: Mr. STEEVES asked you some questions about normal body motion and whether or not there should clear rules/legislation. The example that you used is of someone bending down to pick something up and it resulted in a back injury. The problem that I have with trying to come up with something in the legislation providing a clearer rule saying it has to be done this way is that there are so many motions that could occur in any given circumstance. They would have to be weighed before you could make a decision as to whether the motion occurred during the course of employment. Do you agree with that?
A: I think that I made that point.
Q: For example, I think that you know that a lot more people are starting to work out of their home. Let us say that someone is working at home where they drop a pen and also see their child’s crayon. When bending to pick up both utensils they injured their back. That is the kind of issue where if you draw a line and you bend down to pick something up because you dropped it at work and you hurt your back it is going to be accepted. I think that that is inconsistent with what the intent of the Act is yet again – of weighing all the evidence and making a decision based just on the merits of the case. I take it you agree with that as a concept?
A: Can you ask that again?
Q: When in law school we dealt with a book that dealt with damages, MacGregor. You could find a point A and an opposite point B so no matter what you wanted to prove it was in there somewhere. That was my understanding of what you are saying about policy. What you seem to be asking for is not necessarily a clearly defined rule that it is always going to be here or there but rather clearer direction from manual.
A: Not necessarily asking for anything but for the subset of claims where these actions arise it is difficult for adjudicators, workers and stakeholders to understand what the rule is. The rule creates as many problems as it solves. Under the current regulation I don’t know that a rule is, in fact possible, an absolute rule. If the rules were clearer in policy but discretion to depart from rule rested with the advisory committee or structure that might solve some of the internal angst around some of the where do I draw the line. It might also allow for more consistency when the rule is departed from.
Q: Stress – employer community is seeking to exclude chronic stress or psychological disability that doesn’t arise from an acute traumatic reaction. It is my understanding that that is the trend in other jurisdictions. Legislation is being amended to exclude chronic psychological disability not related to acute traumatic reaction. Is that your understanding?
A: I believe so.
I understand that there are at least 5 provincial legislatures that have precluded compensation for gradually caused mental stress, therefore they would have the trauma requirements. There are a couple of cases, one out of Prince Edward Island and one out of Nova Scotia that may have precipitated changes in those jurisdictions. Ontario has had some recent changes. I think that Manitoba is one Board that does allow for stress claims and then deals with it through policy.
Q: What these other jurisdictions are doing is similar to what BC has been doing through policy, through the interpretation given to policy for dealing with chronic stress, chronic psychological disability. Is that accurate?
A: For the one that I am aware of that is correct.
Q: When Connie Monroe, then chief appeal commissioner, dealt with psychological disabilities in 1993 she goes through a variety of policies, both in the manual and the reporter series that touched on the subject of psychological disabilities. Then she said that viewed as whole the governor’s views are ambiguous if not inconsistent. I think that is a point you have already commented on in other areas. She then says that the most common reading of the governor’s policies in regard to claims involving mental – i.e. psychological and emotional aspects of the work environment – is as follows. I am just going to read the 4 and tell me if that was your understanding of how the Governor’s policy was commonly being read. 1) The Board does not regard any psychological impairment as an industrial disease. Is that accurate?
A: Yes
Q: (2) To be compensable the psychological impairment must come within the meaning of personal injury or alternatively be the consequence of a compensable physical disability or industrial disease.
A: Yes
Q: (3) The definition of personal injury includes psychological impairment but the psychological impairment must be traumatically induced to be compensable. Therefore the stress of work could not give rise to compensable psychological impairment.
A: Generally I think that that is correct yes.
Q: (4) A state of emotional and physical exhaustion due to the stress of work over time is neither compensable as an injury nor as an industrial disease.
A: I can’t say unequivocally that appeal bodies and the Board haven’t allowed those types of claims but that is generally the interpretation.
Q: Correct me if I am wrong but I had the impression that you thought that such a policy may be unlawful? Did you say something like that?
A: I think that Susan alluded to decisions in other jurisdictions where on similar awards that existed in those legislations at that time there were concerns raised by the courts about an absolute policy that said we won’t accept stress claims. That resulted in at least a couple of those jurisdictions in changes to their legislation to make it clearer that, in effect, what the Board was doing was in fact now within the definition of the legislation. The point I was making is that I think there has been a body under this current legislation you could allow a whole range of things.
Q: I think it comes back to what you indicated that there is a lot of wording used in our statute that is not defined – personal injury, injury both are not defined. Arising out of the course of employment is a very broad term that could be interpreted through policy narrowly or broadly. That function is one that rests with the governance structure. Yes I agree with the questions that you have had that are still restrained by the legislation itself. You can’t create policy without the legislation. The fact of the matter is that we are talking in broad terms about injury arising out of the course of employment. That is prone to having policy parameters put around it. Do you agree with that?
A: I think so.
Q: The case Mr. STEEVES referred to, Tab 9 of his book, which is on page 15. The panel refers to a Yukon case.
A: Yes and I believe that the court deferred to the Board’s ability to define or limit chronic stress under their definition of disablement.
Q: That is the point I am trying to make. Yes I acknowledge that it was judicial review. The fact of the matter is that the issue that went to judicial review was that it was patently unreasonable or unlawful. The court said no that Yukon Board had ability to create policy and that it wasn’t patently unreasonable to exclude psychological impairment within the meaning of that. Is that your understanding?
A: I have not read that case. I have read the appeal division decision though. One other point though, your friend raised the issue of Gibb’s. That was a schedule on the Human Right’s Code. I guess that one of the issues when legislative or policy changes are made is that I suspect that there may be charter issues that arise from that not withstanding chronic stress or stress claims.
Q: I haven’t read the Gibb’s case. I don’t have a problem if the philosophy is that someone who comes in with a physical injury gets A and someone with a psychological injury gets A- whatever then that is going to be found to be discriminatory under Human Rights legislation and the charter. When looking at treating chronic stress differently then physical stress we are getting into causality. We are getting into an issue of chronic stress is very subjective, it is gradual over time and can you really show that work was a predominant factor. That is a significant concern.
A: Those are all issues and there are considerations as to whether it should be a public health issue, a human relations issue, depending on facts of course. There are a lot of issues and causality is a big issue.
Q: My understanding is that there were a variety of Board’s that had policy similar to BC and then we are getting into this polarization, diversity of opinion, including in the courts and the legislature, in fact, steps in. Legislature, at least in some jurisdictions, have provided a little more clarity on what will and what will not be compensable when we get to chronic stress.
A: That is correct.
Q: I take it that the whole premise for dealing with this issue with the Royal Commission on the recommendations that you will be seeking them to make on chronic stress?
A: The approach is taken by various Boards and various legislatures and they also vary greatly. Even on the causality issues, with the various Boards how they deal with it, what tests are needed, standards of review, it varies greatly.
Q: I look forward to reading the briefing paper as opposed to going much deeper on it today. Will you (Nickerson- Graham) be one of the panels when we talk about Occupational Disease?
A: Yes she will.
Q: Mr. Pinto I want to talk about Section 5(3). Section 5(3) was obviously put in the Act for some purpose – it is in the Act. From what I understand the Board hasn’t found it because you are not aware of any case in which Section 5(3) has actually been used to deny compensation?
A: I think the point was that when I said I canvassed around recently I wasn’t getting a lot of holding up of hands. I am aware of the odd case where there was minor injury and Board felt that the injury was attributable solely to serious and willful misconduct. I have an example of a question that came through recently about worker working with eye protection on a jack hammer. The eye protection got dusty or foggy so it was removed and then an object popped up and caused severe injury to his eye. Employer did not disagree that it was a work injury but felt cost should be reduced because it was serious and willful misconduct. In order to grant that you have to prove that it was solely the result of serious and willful misconduct. It was not accepted. That kind of claim is the kind of situation that frustrates employers. The worker knew he shouldn’t take the eye wear off and that company felt that they had done a good job in ensuring that people wore the proper protection. This person removed their eye wear but does this language allow us to say no compensation, I don’t think so.
Q: I see two problems with Section 5(3). The way that policy describes that it should be applied is wrong. WCB is based on a no fault system but it seems like there is still a degree of fault. They take you outside of employment. There are cases where compensation has been denied because it has been found that the worker has done some conduct which took him or her outside the parameters of employment and therefore did not arise out of or in the course of employment.
A: That is a denial under 5(1).
Q: Exactly, horseplay or assault may take you outside of employment. A substantial deviation could take you outside. What I fail to understand about this policy is isn’t that what serious and willful misconduct is? It takes you outside of reasonable parameters of employment. It is not adjudicating under 5(1) first. It is out if you find serious or willful misconduct. Isn’t that the only reason to deny compensation? Your serious and willful misconduct took you outside of employment.
A: I think that in creating 5(3) as separate from 5(1) legislature intended that you deal with 5(1) first of all. If you decide that the claim is so unremoved from employment then you just stop the claim there. If an example I gave you, that is not an unremoved activity but is it serious and willful misconduct. The worker was doing work but they did take their glasses off. The employer wants to know why he is being stuck with this claim since the worker wouldn’t have had this problem if he had left his glasses on. This is a no fault system and this is a serious exception to that general rule.
Q: It is not in there that there is serious exception for relief of cost. Nowhere in 5(3) does it even mention relief of cost. It says that compensation shall not be paid if it is less. If there was no Experience Rating Assessment system, which is discretionary in Section 42 then it wouldn’t be an issue anyway and 5(3) would be there. That serious and willful misconduct takes out compensation and doesn’t entitle relief of cost that is a policy issue. Difficulty I have is that I agree it is no fault system but where is the line? For your case the decision was made, person took off their glasses when they shouldn’t have and they got injured in the eye but it is a no fault system and that didn’t cross the line as serious and willful misconduct. Take example of horseplay – there are clearly cases that are not related to the course of employment and how do you separate that from serious and willful misconduct?
A: I guess section 5(1) in a situation of horseplay might be where I am working in this wing of a large premises doing my work. If I was really infuriated with someone at the other end of the building and I headed off to settle a score I would think that you would turn down that claim under 5(1). I suppose you could arguably turn it down in 5(3) but that is job abandonment, it is a substantial deviation issue. In 5(3) I suppose the time it arises most is willful refusal to wear, where there is a clear rule. I think that there are some things written in the reporter series about the violation of the clearly understood enforced rule. Lockout procedures might be an example – did you do it all wrong? You are always tempering that application, for example with the lockout procedure, with a sense of were doing it for the good of the employer? That thinking goes through the mind of the adjudicator. If a worker is doing his or her job and takes his or her eyeglasses off an adjudicator is not going to see this as serious and willful misconduct. The intention of the legislation is that when you are generally doing the work of the company and through some advertence then we ought not to penalize you on the compensation side.
Q: I don’t disagree with that. I think that what you just described is the exact same tug an adjudicator has to go through under either 5(1) – did this arise out of the course of employment so they can be compensated or not – or under 5(3) – is this serious or willful misconduct. It is the exact same situation. In the case that you just described you could argue that it was such a deviation from a work rule that it took them outside of their employment. They were doing something that clearly they should not have done. They air on the side of, no I think it was to the benefit of the employer and I am not going to find that as arising out of the course of employment. If you go through the exact same exercise where you find it to be serious and willful misconduct – same result. It may be easier to reach a different conclusion if you think it is only for relief now as opposed to denying compensation. The employer community is taking position that they really are the same but what is really confusing the situation is the proviso at the end, unless there is permanent disability or death. What the employer community doesn’t understand is that if we are successful in our argument that really serious and willful misconduct is the same as taking you out of employment then it shouldn’t have that proviso. Once you are out of employment you should not receive compensation. Once you are outside of employment you shouldn’t receive compensation despite the severity of the injury. The second concern that the employer community is raising has to do with the word solely. It is hard to imagine anything in our life that is sole. There is always some other factor somewhere that could have had some involvement, be it that it was solely my intention to put my hand in the machinery. Then again if the machinery wasn’t there I wouldn’t have been injured. It is very difficult to envision a situation where with the word, solely, Section 5(3) can have any meaning. What are your thoughts on that?
A: I guess the use of the word solely is a tough test and it is applied as a tough test so that we don’t do many claims under 5(3).
Q: That is why employer community is looking for the phrase to be termed "primarily" or a less tough test.
A: That is for others to answer other than me.
Q: I have a couple of questions on protective reassignment. You said this was an Occupational Safety and Health issue but we finished Occupational Safety and Health and you are the one here. Protective reassignment, if I understand the example that was used when we did talk about it in Occupational Safety and Health was and let’s take the case of a pregnant worker. Protective reassignment was a perceived or an actual danger, hazard or risk flowing from the work that that worker was doing because this worker was pregnant. Is that your understanding of one area where we get into protective reassignment?
A: I think that provision is only in Quebec.
Q: I am puzzling with where the nexus to employment is. I understand that the person is pregnant and I understand that there now may be hazards for that person to face but where is the nexus that it is arising out of the course of employment that brings Worker’s Compensation into debate. I ask because human rights are in that debate. The employer has a duty to accommodate and so we get into human rights there if the employer is not making any steps. If they have taken all reasonable steps where there is no ability to accommodate up to undue hardship human rights doesn’t say it is okay the person is entitled to leave. What we are getting into in Worker’s Compensation is &ldots; and so pay. If you can’t find another job I think the premise that should be advanced is should WCB pay compensation? I am asking the panel to comment on where is that nexus to employment?
A: When we have looked at this issue of protective assignment and primarily from the issues it raises around preventative compensation it arises at 2 levels. It seems to me that in two types of situations there may be a need to protect a worker. In the first type of situation the offending agent exists in the workplace but the need didn’t necessarily arise in the first instance from anything having to do with work. So you may have an inherent condition or you may be pregnant or there may be other reasons why you need to be protectively reassigned. That is the one subset. The other subset is where you have had exposure, this is the allergy/sensitivity group where you have had some exposure that was caused by work and further exposure may lead to a need again to try to prevent it. Both instances raise issues on what are the regulations on reassignment if there are going to be any and who is going to pay for this person particularly in the first instance versus the second?
Q: You have identified the two subsets, the concern being who pays. I just wanted to get your thoughts on the nexus because even with the red cedar and allergies the manual does allow for rehabilitation. What I was asking questions here was more on protective reassignment versus the issue you talked about, which was preventative compensation. I see a different issue about protective reassignment to a different position that I think has nothing to do with a pregnant person that work wasn’t the need to have a change – I think that is how you described it - that work wasn’t the nexus there. The argument should be that work, i.e. the employer should pay if there is no other position to put you into. I think that I have your answer on that.
A: Protective reassignment is a somewhat distinct issue from the issue of preventative compensation. The protective reassignment may occur in circumstances where a worker is facing a potential for disease in the work place. There may be accommodation in the work place to address the issue and, in fact, that typically may be the recourse leaving preventative compensation to address a minority of issues.
Q: Mr. Pinto you talked about disallow and I think Mr. STEEVES asked about employer involvement. I take it that we are in agreement that Worker’s Compensation cases and applications appear to be getting much more complicated?
A: That is the thesis I was trying to advance. Certainly there has been an increase in the complexity mix.
Q: I first started practicing in this area in 1980 and my first occupational disease case was in 1988 so the first 8 years I only did injuries. From my perspective it is a much more complicated case when you get into the occupational disease versus the injuries. Is that the experience that you have at the Board level also? And that is a generality.
A: It is fair to say that disease cases are generally more complex then the average injury and that is why I put them in the 15 to 20% of cases that the Board has had to turn its mind to in more detail.
Q: Clarification of 4% disallow - is that all claims or is that only based on the list that you gave us.
A: That is based on all claims.
Q: This chart here, the STD claims that is not all claims is it? I didn’t really see where occupational diseases would fit in there.
A: They do fit in there under STD claims.
Q: I raise the point of employer involvement because whenever I hear, at least the connotation, that employers are doing something wrong about getting involved is that the perception at the Board, that there is something wrong with employers getting involved in appeals?
A: I think the short answer is no.
Q: One example I give of why employers should get involved is firefighters. My understanding of why heart failure got on Schedule B is that there was a very significant push made by firefighters to have them include it. Employers took a hands off approach and it was included. The next one that came along was cancer and they took a very substantial approach to it but this time employers got involved so not all cancers are found to be related to firefighters. Who knows if all cancers would have been accepted if employers hadn’t been involved. The fact of the matter is that these things cause precedence both for the employer and the industry. So doesn’t it make sense for employers to get involved in making sure that the cases do fall in what the Compensation Act says – it arose out of and in the course of employment.
A: I am assuming that is rhetorical.
COMMISSIONERS:
Q: Board does not provide preventative compensation in cedar dust asthma example and other examples that were given but vocational rehabilitation is provided is that right?
A: Yes if it meets the test of that brief policy that I read. So if there is undue risk or increased sensitization yes.
Q: Does the worker while in vocational rehabilitation get compensation?
A: Once the eligibility has been established then whole array of vocational rehabilitation opens up. Vocational rehabilitation doesn’t always mean payment benefits. It could simply mean providing information on how to get a different job if the person had lots of skills.
Q: If it was retraining then worker would be financially supported?
A: Correct
Q: Test for relief of costs versus tests for denial of a claim that appeared under 5(3) that wasn’t clear to me. It appeared as though while there are very few claims denied under 5(3) relief of cost is granted. Is there a different test?
A: If you decided that injury was solely result of serious and willful misconduct but you are allowing the claim because of serious injury then you will automatically give relief of cost.
Q: As long as we require work relatedness to be a precondition of compensation can you think of better test than what is currently under 5(1)?
A: No I think it was canvassed at length in last Royal Commission process as well and judge said it as well as could be said. That is a test almost universally in most of the schemes of this type of coverage.
Q: Does that test necessarily then require that the claim is accepted in its entirety or denied in its entirety? Or are there degrees of acceptance under the current system?
A: I think that is the conclusion the current system allows, the exception being 5(5). There is a limitation with respect to pre-existing disability and perhaps as I alluded to this morning the application is only in case of permanent disability. We will talk about that in pensions. Very limited application because it is also now not being applied to loss of earnings pensions by policy following an appeal division decision. From a short term, temporary point of view it is all or nothing. Once through gate it may be temporary/partial.
Q: If all or nothing then threshold must be quite low in terms of there being a work related aspect. What is the threshold for a claim to be accepted?
A: I am not sure if I fully understand. Threshold is neither low nor high. It starts with on plain meaning of arising out of being in/at work. If it is not obvious then need to determine what other inquiry needs to be made, perhaps medical advice. Person saying back has been getting sore over last 2 weeks from sitting in Royal Commission hearings the question that will arise in the adjudicator’s mind is does that fit within the meaning? Section 99 says that when you are sitting and not knowing which way to turn – if there is a ballence of probability – then the decision will favour the worker.
Q: As I understand Section 99 you ask is it more probable then not that work had something to do with this condition as opposed to was work at least 50% responsible for the condition. Do you see the difference?
A: I think I do and let me tell you how we apply Section 99. If in answering the question more probable than not and I say I don’t know then we give the decision to the worker.
Q: If you have a worker who has a bad back as result of non-work activities or congenital defect and they then experience a load on their back because of work duties and he becomes disabled. 80% of condition is not work-related and even though the work contributed to 20% would the entire condition be compensated or not? Maybe I’ll start dealing with short term.
A: That would probably be characterized as an aggravation of pre-existing condition. We would accept that if at some point we thought that the aggravation had resolved and you returned to your normal state of bad back we would stop the claim. Would we say we will accept ½ your wage loss because we think ½ short term disability is non-work and other is work-related the answer is no. You either come into the system for short term or you don’t.
Q: Clearly there is some threshold that an adjudicator must decide in terms of work relatedness to get the person into system.
A: I think that they have to include in the example that you had of the original bad back that there was something substantial that took an otherwise bad back and made it that much worse. There is no precise threshold that we can point adjudicators to. That is a judgement they make after gathering the facts on each case.
STEEVES: You say that aggravation would be accepted and that would be true if the example were 80% non-compensable and 20% compensable but if 80% was an underlying asymptomatic condition it would be treated as an aggravation. That is what you meant right?
A: If the position is underlying and asymptomatic then we may not even know about it – no x-rays on file, etc. That issue arises later.
STEEVES: If the 80% was a pre-existing disability and then another 20% was superimposed on that as a result of a work related injury then that would be a matter 5(5)?
A: That is right.
Q: So 5(5) is related to manifest disability as opposed to a latent one?
A: That is right. It is Reporter Decision 270 or 271 that talks about the application of 39(1E) and relieving employers of cost. It said that employers would not be spared the cost of temporary disability even in the presence of pre-existing condition and disability.
Q: Even if it is latent?
A: Can you clarify latent?
Q: In other words, a back condition that has not yet resulted in a disability but it contributes in combination with a work related event.
A: Whether latent or manifest. Decision 270, which I think is the one on proportionate entitlement as it was called in 5(5) said that really the application was limited to permanent. So employers will pick up the cost of the collective whole regardless of latent or manifest for temporary disability. What 271 said is that there has to be a relief mechanism the Board has to apply more vigourously and that is where the 39(1E) kicked in. So for the pre-existing condition latent or manifest you can get relief of cost.
Q: That is only for equity between employers or between classes. That is not with respect to equity for employers as a whole and the non-work related component? In other words the system was not the system. It doesn’t transfer costs outside of the Worker’s Compensation system it only redistributes it within the system?
A: Correct, there is no doubt that in temporary the system is picking up the cost of non-work component. I don’t think that there is issue with that.
Q: I also have difficulty understanding what Section 5(4) means and how it is applied. It says that injuries arising in course of employment&ldots; wouldn’t that solve problem of walking in here and twisting your ankle? That is clearly a motion of life but wouldn’t that presumption then apply if given its ordinary meaning because of being at work then it could be presumed to be accepted because it arose at work?
A: That is the $64 million question that is going around the system. I think at the end of the day we accepted that the presumption applied but if it is simply a matter of my ankle being shaky then the presumption could be rebutted.
Q: On who is the onus to prove otherwise or to rebut the presumption under 5(4)?
A: Onus is on the Board to rebut the presumption. Are you suggesting it should be on employer?
Q: Well I was wondering if it was because if you have a presumption and the very body that applies it also has to go out and find evidence to rebut it I am not quite sure I understand how that works.
A: I think that the Board has the obligation if it is not going to accept the claim to rebut the presumption. It needs to do that whether the employer raises the issue or not. There is concern that the Board sometimes goes further than it has to rebut a presumption. I think that the other side of this from the employer community is that you never think about the rebuttal and why don’t you think about it more?
WINTERS: Section 5(4) is a section where they have actually interpreted accident as requiring an incident to occur where there are other sections where they do not require an incident. That may be one of the explanations on why a presumption is or is not brought into being. The example of someone just walking in and twisting their ankle without any incident, I think that the Board’s policy is that that is not an accident so therefore 5(4) doesn’t apply all together.
Q: So it is a discreet event that may not be considered an accident?
A: That may be correct. The troublesome word is "accident." The definition includes the phrase "&ldots;includes a fortuitous event occasioned by physical or natural cause." With the ankle example the question was does that fit with natural cause concept but it is preceded by words fortuitous event occasioned by a natural cause. I would point out that there are many newcomers to the system and perhaps critics of the system that say the Board spends far too much time worrying about claim acceptance and spend more time on rehabilitation and recovery process. Others might speak to that as the week goes on. Absent of clear direction to do that it is troublesome to ignore the sort of gateway that you have to walk through.
Q: Pre-existing manifest disability that contributes to a work related claim is not deducted for the STD part of claim but is deducted for PTD part of claim but not with respect to loss of earnings pensions?
A: I am not as familiar with loss of earnings pensions. One of the thoughts was that the pre-existing disability, the measurable disability, had already reflected itself in the income level of the worker and the worker should therefore not be penalized twice by reducing loss of earnings compensation in half.
Q: Is there any apportionment at the rehabilitation stage with respect to non-work related component of the disability?
A: No we have benefits where they are paid as sort of a compensation equivalent.
Q: You mentioned that you looked to the intent behind legislation or even to the previous Royal Commission for instruction. At the same time you talk about the need to have discretion at the adjudication level. I want to understand what you are looking for in terms of a ballence and clearly there are some areas that you have thought of that lack in definition and there is need for better definition. On the other hand it has also been said that there is too much variance so what one does need to do is provide some discretion. Can you summarize where you see the major pressure points or what is the framework that is required to make the job of compensation a little easier.
A: The legislative language in Section 5 is pretty broad. I am not offering opinion and even if I was offering I don’t think that there is another way to word Section 5(1). I think where the government means to include some of these highly controversial topics, or exclude them, then I think it is going to be useful for stakeholders to solve this problem of governance and to assist governance people in giving direction to the adjudication body to say so. If they think that there is something that is clearly not meant to fit in those words of Section 5 and 6 then my personal view is that somebody should say so. Or if there has been great debate about including it then say that it is included – maybe that is just my initial reaction. I think the second thing that I was talking about is in the issue of policy. We have all recognized that these policies as they were written were really meant to be guidelines and in some cases procedures and in some cases the thinking out loud of the commissioners. There is no clear here is where we think the path is. Not talking about Section 91 but coverage stops. As an example, once you leave adjacent premises should policy say that definitively? To reflect Section 99 should there be something in policy that then says where senior management or an appeal group or a committee, etc. thinks there should be departure from the rules that are laid out in policy then that departure can be had. I think that most adjudicators yearn for clearer direction.
Q: Clarification – how long would a person have to be on disability benefits to get in the gate? In Section 6(1)&ldots; at the work in which he was employed therefore disabled from earning full wages. What is the measurement to decide that you have qualified under that section?
A: We will talk about that on disease and disability days. I think that the element they have been following historically is that there is some continuous loss or some ongoing sense of loss or ongoing job change not necessarily associated with a loss. In the policy it seems to reflect that the policy as it is written and the way it has been interpreted by disability awards process is that it needs to be a continuous process. It doesn’t necessarily have to result in reduction of pay but that you might have to take a different job that ultimately might cause you to lose income down the road or promotional opportunities.
Q: Because it reads "from earning full wages." I am thinking of person who is approaching retirement and they are diagnosed with something that is work related. They are off work for a week or 3 months or 2 days. Is there some measurement here to decide that you have qualified or is it just as it reads?
A: I am not aware of any but we will talk about this on other days.
There has been some talk about rule making and drawing lines here and potential changes to the legislation for clearer guidance. Just note that as you go down that path drawing a line doesn’t always eliminate the controversy. There are parts of the statute that are reasonably clear but the controversy still exists. For example, we pay benefits at 75% of gross and that is pretty clear under the statute but it doesn’t eliminate the debate in the community as to whether that is an appropriate result or not.
Royal Commission on Workers' Compensation in BC
Feb 17 Afternoon Session
Name: Ed Bates
Title: General Counsel, Legal Services
Affiliation: Workers’ Compensation Board
Staff Present: TR, GG, OE, GS, SN, PL
Notetaker: Steven Noble
Date: Tuesday, February 17, 1998
GENERAL COMMENTS
- Topics include Section 10/11 Issues
PRESENTATION
Section 10 goes right to the foundation of Canadian workers' compensation and the origins of the scheme in the province of Ontario and some of you may recall that Ralph Meredith who was Chief Justice of Ontario was commissioned to do a world wide study workers' compensation schemes and to make a recommendation to the Ontario legislature. In 1913 he filed his final report and declared that the guiding principles should be to get rid of the nuisance of litigation and to meet with swift justice the body of men. What followed from that recommendation has been referred to as the historic trade off or historic compromise between workers and employers. That is in return for a no-fault workers' compensation legislated entitlement be determined by an expert administrative tribunal without recourse to the courts. Workers gave up their right to initiate legal proceedings against the employer. In no-fault compensation entitlement in return for protection for lawsuits. However, not all industrial accidents were caused by the negligence of the employer or indeed by anyone else. In some cases there is no fault involved and workers' compensation is the only remedy for the worker. Perhaps on occasion the worker himself or herself may be at fault and therefore have no cause of accident. But on occasion liability for the accident and responsibility for the accident that causes injury or death to the worker is caused by what is referred to at the Board as a third party. Other than an employer or a worker. In these cases the cause of accident remains and that cause of accident upon compensation being paid to the worker is subrogated to the workers' compensation board under one of two primary schemes both of which I will address this afternoon.
We are talking of course we remind you of litigation available against non-workers by non-employers. Any action as we have indicated against the worker or the employer is barred by the historic compromise and we will see that when I refer more specifically to section 10. That subrogation I referred to when there is a cause of accident and the worker receives compensation results or comes into existence into Canada under an automatic compulsory basis and that is it is automatic the causative accident – it is automatically subrogated to the Workers' Compensation Board upon paying of compensation and that is not the BC system. The BC system operates on an election basis where a worker must make an election and I’ll deal with that in more detail shortly.
Since we are going to be dealing with section 10 in so much detail I think it is important for us to fully understand the nature of it. I am going to be dealing primarily with subsection 1, which deals with the limitation of action which I have referred to. Subsection 2 is deals with the election that I have referred to and the nature of the subrogation in BC and in other provinces by way of comparison as to what subrogation is all about and the consequences of it.
I ask you to note that it states that the Workers' Compensation Act is in lieu of any right or rights of action – statutory or otherwise – and as I go through this I will ask you to focus your mind on how broad this terminology is . Founded on a breach of duty or care or any other causative action – whether that duty or causative action has been posed by or arising by reason of law or contract express or implied to which a worker, dependent or member of the family of the worker is or may be entitled against the employer of the worker or against any employer within the scope of this part or against any worker irrespective of any personal injury, disablement or death arising out of or in the course of employment and no action in respect of it lies therein the legislated implementation of the historic compromise that in return the compensation on a no fault basis – there are no causes of action by a worker against an employer or in BC a worker against a fellow worker.
The last sentence is an important provision that it only applies when the action or the conduct of the employer, the employer’s servant or agent or worker which caused the breach of duty arose out of and in the course of employment within the scope of this part. In other words the very fact that you might be an employer or a worker under the legislation you must be acting in that capacity when you cause the worker’s injury or death to benefit from immunity from legal action.
Now section 10.1 limitation of action brings up the following issues that I’ve outlined up there. As I indicated it is an implementation of the historic compromise recommended by Meredith that contemplates that a worker –employer bar and over my years with the Workers' Compensation Board I’ve heard discussions concerning the fairness or how good a deal the historic compromise was and indeed we may want to discuss that this afternoon. I can tell you that the worker-employer bar has been the subject matter of a constitutional challenge that went all the way to the Supreme Court of Canada. Those of us in the area when the Charter came into existence which section would be the first to invoke a challenge under the Charter and most of us rightfully predicted it would be the Section 10 – Worker – Employer Bar. The action arose out of the province of Newfoundland where a gentleman by the name of Pearcy was electrocuted in the course of his employment and his widow challenged on a constitutional basis the Worker-Employer Bar. The trial judge in Newfoundland found the worker-employer bar to be and I think I can quote it precisely "an intolerable blot on the legislative landscape of a free and democratic society." And struck it down. That obviously caught the attention of the workers' compensation community in Canada and the matter went from the Newfoundland government to – by way of a reference to the Newfoundland Court of Appeal which overturned that decision and upheld the constitutionality of the worker –employer bar. I can tell you that I think without exception that labour and employers – all of the Canadian Workers' Compensation Boards joined in support of that historic compromise and appeared in the Newfoundland Court of Appeal by tradition and at the Supreme Court of Canada where the appeal was dismissed by the Supreme Court of Canada by upholding the worker – employer bar.
The legislation also as you have seen bars actions between workers and the issue there is of course as well – it is one thing to talk about the historic compromise and the bar between workers and employers. Why does it go on between workers of the same employer and what about workers – any workers of the same employer or workers of any employer under the legislation? And of course there is that issue and the more distant you get from the employer the more distant it gets from the core of the historic compromise.
I’ve got a bullet called Application up there – arising out of and in the course of employment – I just want to bring your attention to that last section of 10.1 that all of this only applies in regard to matters arising out of and in the course of employment both in regard to the worker – that is injured or killed and the court feasor – that is the non-employer/non-worker that they the bar only applies that they are not in the course of their employment – not workers, not employers and vice versa.
In regard to section 1 – 2 issues that come up from time to time is the issue of medical malpractice section and motor vehicle accidents–in regard to medical malpractice accidents it is often stated well why does this bar stop workers from suing doctors in regard to medical malpractice? Surely this was not the intention of the legislation. Before January 1, 1994 most doctors were not covered by this scheme – you’ll recall that it was a scheme of inclusion by definition and that doctors were not included – they were not a compulsive industrial undertaken in the legislation. And therefore most doctors were exposed so to speak and were sued by workers, either in the worker’s own capacity if they elected to go that way or by the Workers' Compensation Board. The result of the January 1, 1994 Bill 63 when universal coverage came into existence in BC and we discussed that issue most doctors’ offices – that is all doctors’ offices in the province came under the scheme and therefore most doctors became employers under the workers' compensation Act and therefore immediately enjoyed the statutory bar and therefore if they were responsible for medical malpractice when they were treating a worker in the course of their employment they enjoyed the statutory bar and there has been some discussion as well was that intended – that right and usually when that is the case in society when you have people questioning things like that it ends up as a challenge in court and this issue is no exception. And recently you can see by the date of the Kovacs v. BC Workers' Compensation Board in 1996 that very issue came before the court in addition with administrative law issues and issues of whether or not medical malpractice are injuries arising out of the course of employment. I don’t want to deal with the first two; I only want to deal with third issue and that is whether or not at this level any way whether or not the statutory bar should apply to doctors.
In the Kovacs' case our court of appeal held that the statutory bar as such intends not to apply to doctors and at the risk of over simplifying the case let me read you a paragraph of the judgement to give you a flavour of the point I’m making. The judgement states, "Similarly in the case of bars it seems to me that the Board erred in its fundamental distinction between Mrs. Kovacs’ status as a worker and her status as a patient. And the distinction between doctors’ seeing status as distinguished as a worker and his status as a doctor and failing to give proper consideration to the circumstances giving rise to Mrs. Kovacs’ injuries. Nothing in the legislation on the operation of the scheme supports the view that the Act was intended to extend to the scale of professional negligence as opposed to accidents suffered by medical workers in the course of their duties." In a similar matter in the province of Saskatchewan – the province of Saskatchewan sued successfully in their capacity as regulator as opposed to their capacity as an employer. This dual capacity role which exposed that particular employer in Saskatchewan to legal action was considered by the Supreme Court of Canada in the 1997 decision and the Supreme Court of Canada struck that decision down; it did not uphold that dual capacity employer concept and overturned the Saskatchewan Court of Appeal decision.
The Kovacs case which was also at the Supreme Court of Canada is now being referred back to the BC Court of Appeal for re-consideration in keeping with the Saskatchewan case. So there is that issue in regard to the application of Section 10 and the bar as to the nature of the bar working against different groups and different status of people – in this case medical doctors. For consideration of a similar issue but involving not in the nature of a person but in the nature of a cause of action motor vehicle accidents are often discussed. The issue here of course is in regard to motor vehicle accidents when we have almost universal insurance coverage everybody has automobile insurance why should there be a statute bar? Aren’t we just enhancing the insurance companies’ – the financial position of the insurance companies by saying that workers can’t sue employers and workers can’t sue workers when their injuries arise from motor vehicle accidents and it’s indeed in some provinces motor vehicle accidents are an exception to the view of workers not suing their employer with the exception to the bar is that there is universal insurance in Canada and so what we are doing is barring insured claims to the benefit of insurance companies to the detriment of workers with no corresponding benefit to employers. And we may want to discuss that a little bit more.
All bets are off if there is a no-fault scheme in the province where motor vehicle accidents are not permitted.
Moving on to Section 10.2 – deals with The Election. We recall that in BC I told you that under the legislation the worker has a choice and as you can see from Section 10.2 it states that where the cause of the injury, disablement or death of the worker that an action lies against some person and remember it must be other than the employer or worker within the scope of this Part the worker or dependent may claim compensation and I ask you to note the following word "or" – or may bring an action. You can see that the section goes on – it retains the 3 month limitation period – I didn’t put it up there because it was not pertaining to the point that I am discussing with you now. And that is the election in BC is an or situation.
There are two systems in Canada that I am aware of that to claim compensation or sue that I’ve just pointed out to you in BC. But there also exists in Canada to claim compensation and sue. An example of that is in Saskatchewan where you can see a worker or dependents have a right of action with respect to an injury sustained through the course of their employment against a person other than the employer and are entitled to compensation benefits the worker or his dependents shall be paid compensation and may bring that action. So you can see that in Saskatchewan you can claim compensation and sue whereas in BC you can claim compensation or sue.
Now regardless of which system is in place the Workers' Compensation Board enjoys the subrogated interest and as I’ve indicated and I will deal in a little bit more detail in a few minutes operates either automatically like in the Saskatchewan system or by election under the BC system. Before we go into the matter in detail we can just quickly go through this issue of subrogation and as has been indicated subrogation is the substitution of one party in the place of another in regard to unlawful claim, demand or right and translated for our purposes of course is the subrogation or substitution of the Workers' Compensation Board in the place of the worker or the worker’s dependents in the case of a fatality to unlawful claim, demand, or right.
In Canada when a worker is hurt or killed through the fault of a third party and is paid compensation, the right of legal action against the responsible party is subrogated to the Workers' Compensation Board and either the Board maintains that action in the name of the Board or in the name of the worker – and that is the BC system or the worker or their dependents instruct legal counsel directly and the third party action is maintained in that manner.
Why Are Subrogated Actions Maintained
In my discussions on this topic I’ve come up with I think the four main ones: To make the responsible party pay for the cost of their negligence; To repay the Workers' Compensation Board and the Accident Fund and I put employers who are responsible for the payment of assessments – and fund the Accident Fund there; To provide additional compensation for workers or dependents and the nature of that additional compensation I’ll deal with in a few minutes; lastly, To enhance prevention and regulation efforts.
Although in my own personal opinion the last bullet – in regards to the last bullet – so called third party actions is a rather blunt instrument in regard to the enhancement of prevention and regulation efforts. I think there are more effective ways of doing than third party litigation and in my opinion the main reason for third party litigation pertain to the first three bullets – additional compensation for workers, and repayment of the Accident Fund.
Circumstances Giving Rise to Subrogated Actions –just so that you will get a feel for the accidents that give rise to this area of the law – primarily motor vehicle accidents of course and again as I’ve indicated there is universal insurance in this province and therefore this Board in its pursuit of a subrogated interest does a lot of motor vehicle and personal injury litigation and makes a lot of recovery against the universal or almost universal insurer in Insurance Corporation of BC. But in addition to motor vehicle accidents subrogated accidents are also maintained in the area of occupier’s liability when workers are injured for example slipping on stairways, products liability with faulty products injure workers, medical malpractice I’ve dealt with, and the likes of dog bites, and assaults/harassment.
By far as you will see the vast majority of financial recovery in this area results from motor vehicle accidents. Now, let’s deal specifically with a matter of subrogation and that is Section 10.6 –I’ve broken down Section 10.6 into three sections just to make it a little bit more digestible. The first part deals with a worker or dependent. If a worker or dependent applied to the board claiming compensation – neither the making of the application nor the payment of compensation restricts or impairs any right of action against the party liable. For every such claim the Board is subrogated to the rights of the worker or dependent and they maintain an action in the name of the worker or dependent or in the name of the Board. There is the subrogation of the cause of accident. It continues if more is recovered in the action than the amount of the compensation which the worker or dependent would be entitled under the Act the amount of the excess, less costs and administration charges and I’ll with them a little bit more shortly, must be paid to the worker or dependent. And it finishes the Board has exclusive jurisdiction to determine whether to maintain an action or compromise the right of action and its decision is final and conclusive.
Contrast that to the workers' compensation Act of Saskatchewan –The fact that payment of compensation – the Board is deemed to be a signee is subrogated to the rights of recovery of the person to or in respect of whom or for whose benefit the payment of compensation is assumed to the extent and contrast this to BC’s section where the entire cause of action is subrogated, to the extent of compensation payable and notwithstanding the fatal accident the Board may bring an action in its own name to recover the amount of compensation payable which is similar to the BC section or join with the worker with respect of whom and for who the benefit of compensation is payable to bring an action in the name of the person for recovery of damages resulting from the injury or death. So we see there a different system under the Saskatchewan system where the Board can join with the worker in the worker’s cause of action.
The nature of the subrogation I’ve been talking about is on an election basis which is the BC system. And we’ll recall that under our system there is the elect to sue or claim compensation. If you claim compensation the Board is subrogated to all causes of action. The courts have indicated that the Workers' Compensation Board is dominus litus – some of the court cases use the terminology meaning that this cause of action that the Boards and the Boards alone and you will recall that both from the last sentence – I’m sorry it flows from Section 10.1 of the Act. Now the distribution of recovery is different between this system, the election basis and the automatic compulsory basis – and I will deal with that in more detail in a few minutes.
Termination of Benefits – indicate to you the scope and consequences – the significant consequence of the elect to sue or the claim compensation system that we have in BC and it is this – that if you elect to receive compensation benefits and subrogate the cause of action to the Workers' Compensation Board of BC and the Board makes a recovery and keeps that as you recall the compensation that is being paid to you and will be paid to you on an actuarial, capitalized reserve. If for some reason those benefits are not paid to the worker because of his death for example those benefits are kept by the Board. For example if I have workers entitled as the result of a car accident to a pension for a permanent disability and the Board capitalizes the value of that pension for $100,000 saying that this pension is going to be paid out to this worker for the rest of his life and it will cost the Board $100,000 for the next 20 years should that worker die in a year or two and no where near that $100,000 is paid to him that money is not paid to the worker’s estate; it is kept by the Board. And I bring that example up to demonstrate that it is the Board’s cause of action and proceeds of the litigation belongs to the Board. It used to be – I emphasize that this is not the case any more – if you recall before the successful recent court challenge to the Act which terminated widows’ pensions upon remarriage and I again emphasize that is not the case anymore. But in those days counsel used to call the legal department and say how should I go? And we can discuss that in a little while if we wish – the best election. In the case of widows where remarriage was a possibility I felt compelled under those circumstances as well to point out that the termination of benefits would not be in the interest on remarriage – it would not be in the interests of the widow involved. That is now gone – that really glaring example is now gone because widow pensions are not terminated any more. I just wanted to point that out – the nature of the subrogation in BC.
Contrast is the automatic compulsory basis – Saskatchewan has been the example I’ve been using – where not all causes of action are subrogated to the Board. The Workers' Compensation Board is not dominus litus – the distribution of money is different as we’ll see in a minute and the termination of benefits is not an issue. The Workers' Compensation Board or the worker sues and on the whole it is the worker that takes legal counsel whereas under the BC system the it is the Workers' Compensation Board because it is their cause of action takes legal counsel and in the vast majority of cases that is the Board’s legal department.
What happens to the money that we recover. There is some variation there - there are two basic systems in Canada – under both systems the cost of litigation including legal fees and outside counsel are used are paid first and as you’ll see in the Saskatchewan it will be mainly outside legal counsel. In BC the vast majority of cases are done in house so to speak but there are a very considerable number also done externally – particularly with foreign jurisdictions. The elect or sue system is the cause of action itself and therefore the proceeds belong entirely to the Workers' Compensation Board. Under the claim and sue system while creating a subrogated interest to the Workers' Compensation Board it contemplates a sharing of the cause of action and the proceeds.
The elect or sue jurisdictions such as BC the entire amount of compensation benefits paid or payable plus administration fee – right now that administration fee is set by the Board by way of policy at 29% of Workers' Compensation Board disbursements. You will note that it is a percentage of disbursements, i.e. it is a percentage of the compensation paid or payable and not a percentage of the entire recovery. The benefits paid or payable are checked – the administration fee of 29% for disbursement is checked and if there is an excess it is then paid to the worker or dependents. The cause of action is "owned" and controlled totally by the Board and it is not material what "heads of damages" are recovered in Court – meaning that when you go to court and recovery damages for pain and suffering which of course is not contemplated by the Act in BC – those damages that a court may award for pain and suffering just go into the pot and are considered to be the recovery of the litigation and it is not – the situation in BC as you will in a minute and in other jurisdictions where the "heads of damages" recovered or important because it may be payable to the worker – all "heads of damages" – all recovery are payable to the Board.
Contrasting as I have just indicated in Saskatchewan in a claims compensation and sue jurisdiction either the Board or the worker/dependents can maintain an action and instruct legal counsel. It is usually the workers – the proceeds of the litigation are distributed as follows – there can be off the top a basic amount – for example 25% is paid to the worker regardless of what is recovered right off the top and/or there could be Specific Heads of Damages for pain and suffering paid to the worker. The basis being that the workers' compensation legislation is an income replacement scheme and does not pay what we call general damages/pain and suffering and therefore they should go to the worker. And under this situation which I emphasize is not the BC situation – in this situation there is a basic percentage usually paid to the worker – for example a 25% right off the top after legal fees and expenses and/or perhaps general damages – then the Workers' Compensation Board is paid back pursuant to its subrogated interests and then if there is any excess over and above that it is paid to the worker. Examples of this type of system can be found in Alberta, Saskatchewan , the Yukon, Nova Scotia and the Northwest Territories.
The payment of the excess under 10.1 – I’m talking now in BC and I will indicate to you when I am not talking about the BC situation. In BC any payment of excess is as a charge against future entitlement – in other words if we are successful in our litigation and after paying back the Board and expenses and the administration fee there is an excess payable to the worker or the worker’s dependents it is paid as a charge against future entitlement.
Settlement or Litigation –on occasion the people who ask about – who are you doing this for – the injured worker or the Board? Are you just grabbing the Board’s interests and run. On the whole we litigate claims as if we acted for the worker because in protecting the worker’s interests we are also obviously protecting the Board’s subrogated interests. However, there are occasions when the conflict of interests and settlement and that is why it has settlement vs. litigation up there – it could be that my ability for example the cause of action is highly and hotly contested – the Board may receive an offer of settlement that in its opinion must be accepted. It might not result in an excess payable to the worker because you will recall the Board will keep its expenses back first before any excess is payable and it may appear – although it is because of a dispute over liability that that action is severely compromised – it would appear perhaps to the worker that the Board has grabbed its interests and run. It will have occurred to you that it is not the action between workers and workers or workers as employers – it is important to determine that status and the workers' compensation Act contemplates that pursuant to Section 11 – this section gives to the Board the jurisdiction to make the determination of who is a worker, who is an employer under the legislation and to make that certification and must certify that determination to the court. And so it is a situation where the court must await the certification of the Board as to the status of the parties and that particular function is performed by the Appeal Division. Before the existence of the Appeal Division it used to be performed on behalf of the Board with the ultimate decision going to the Commissioners by counsel and the legal department and we would actually get into situations where we had counsel at the legal department acting for the plaintiff and counsel in the legal department acting on a Section 11 determination. By the way that has – that particular oddity was confirmed by the courts. That particular oddity, however, has eased to some extent but we still get the situations where the Board’s legal department is pursing its subrogated interests and it is the Appeal Division under the same Act that is making the certification as to status.
Recovery - recovery statistics – I just want to show you the funds that are recovered through third party litigation over the years – in the last couple of years we’ve had total recoveries of just over $7 million and you can see how that – for example in 1997 approximately $3.2 million of that was paid by way of excess payments to workers – the Accident Fund pursuant to the scheme that I have outlined to you was paid about $3 million - the administration fee that I referred to you was about $800,000. Quickly – the third party recovery originated from assaults, dog bites, malpractice against external doctors, product liability, occupier’s liability, motor vehicle accidents and you can see as I indicated before far and away the vast majority of recovery in regard to this section comes from motor vehicle accidents. These figures do not include the Board’s recovery from asbestos litigation that I will deal very quickly with in a few minutes.
Are there better ways so doing this? Can this procedure also get rid of the nuisance of litigation here? I’m sure it will occur to you that we have gotten faults in William and Ralph’s plan and gotten rid of the nuisance of litigation in regard to establishing entitlement to compensation but we’ve retained it in our legislation for the purposes of third party action. And since most of our recoveries in this regard come from motor vehicle accidents and Insurance Corporation of British Columbia are therefore involved – we’d be looking at recent times the possibility of getting rid of the nuisance of litigation and getting the money for the Board and workers from car crashes without litigation but as you all are aware it is an adversarial system and issues of liability are often hotly contested and after that the matter becomes even more hotly contested so be perfectly frank we have not been able to get rid of the nuisance of litigation in regard to our subrogated interests under Section 10, however, we have instituted a system with Insurance Corporation of British Columbia where if we can establish on smaller claims that liability is clear cut and that the content of damages are agreeable and the worker is agreeable that we have instituted a system of wrapping these things up fairly quickly.
Asbestos actions and the lure of foreign jurisdictions – we put that up to give you the impression of the legal department that there are foreign jurisdictions to pursue our interests and indeed that is exactly what we did – about – it’s always historically been products liability actions have always been of interest to us and from time to time more than a decade ago we sort of looked at our actions under Section 10 and wondered if we were pursuing product liability cases vigorously enough – the difficulty with them is that they are very very expensive to maintain – usually in foreign jurisdictions because of course if you were in BC the actions would be statute barred and last but not least fortunately in many cases they do not result in serious injuries and another example would be when we were going through a period there when 2 litre pop bottles were exploding and cutting people’s hands and although there was negligence probably there the injuries fortunately were not very serious. Then along came the whole issue of asbestos and we followed those actions in the United States and about a decade ago decided to that asbestos related diseases were going to cost the workers' compensation system of BC sufficient money that we should explore the possibility of maintaining these actions in the United States. We did that – to say that these actions were hotly contested by the American Manufacturers’ of Asbestos products is perhaps the grossest understatement that I can give you this afternoon, anyway a decade later we are enjoying some moderate success in regard to asbestos actions primarily out of the state of Texas and to date have recovered approximately $35 million – most of that I can tell you returns into the system with probably only about between – we made one pay out of $5million to workers but because of the vigour which these actions were defended are and the delay over the years including a anti-suiting junction in the province of BC shut us down for 4 years. We have not been as successful as we would have hoped with regard to asbestos litigation but we have enjoyed some moderate success. Going back to the issue of using these third party actions as a prevention tool – I think there has been and it was on this basis that we made a recommendation to do this about a decade ago I think – it has enlightened this Board’s knowledge of asbestos related diseases and their actions in regard to prevention activities. Much of the prevention activities and asbestos removal in this province including our own BC Ferries that you have probably followed in the newspaper results directly from this Board’s initiation of asbestos actions in the United States. We were the only Board to do this in Canada – on our coattails and directly on our coattails the Provincial Boards in Ontario, from Nova Scotia, Alberta, and Manitoba benefited to the tunes of millions of dollars on the basis of adding their actions to our actions and so as we say we have enjoyed some modest degree of success in that regard. Buoyed by that we do from time to time now look for the possibilities to sue in the United States where it has the worker’s recovery – for example in the matter of helicopter crashes if we can see that a helicopter crashes in BC if we see that the manufacturer is exposed in the United States we will maintain an action down there and have had some very striking degrees of success in a very few number of cases mind you but in regards to those workers and their families it was very very significant wherein they would enjoy recoveries in the millions in addition to their compensation recovery.
What happens when you elect to maintain your own actions and you are unsuccessful - Section 10.5 of the Act says that you can come back to the Board and the Board will pay you compensation and notwithstanding you are unsuccessful so that election that I talked about – if you elect wrong – maintain your own action and lose it is still open for you to obtain compensation.
QUESTIONS
ALAN WINTER:
Q: Just to pick up on one point that you made with respect to the historic compromise, Mr. Bates, you chatted about how the premise of historic compromise has been broadened to not only be a bar not only between a worker and their employer but the worker and other employers and the worker and other workers –I want to ask you about your thoughts about the appropriateness of the bar against a worker and other employers? If you have any thoughts on that?
A: I guess my thought on that – that unlike the discussion concerning the bar between a worker and worker the bar or the non-acceptance of a bar between a worker and another employer in the system would strike at the heart of the so-called historic compromise insomuch as that other employers like the employer of the injured worker would contribute to the system and would therefore –or perhaps could legitimately say notwithstanding that I contribute to this system and make it possible for the injured worker who is now suing me to receive compensation on a no-fault basis I am still being sued.
Q: So they see it as a collective liability principle and it is more than one employer paying into the pot and that worker may have the benefit from a variety of sources the money comes in from.
A: That’s correct.
Q: I only have a few questions – I’d like to start with one that’s not really an employer concern but I always found that it an anomaly and I’d like to bring it to the attention of the Commission and that is section 10.2 as opposed to section 55. Section 10.2 sets out the timeframe for an election and the election has to be made in one way as opposed to choose either way. I understand with the election you have 3 months when you have an election of a third party suit to choose to take compensation and if you don’t choose to take compensation in that three months I assume that means you are out of luck unless the Board agrees – which is your discretion – the Board’s discretion - for a longer period of time before you pay and I’ve always found that inconsistent with the year that a worker has in bringing their claim and I’d just like to get your thoughts on a situation where a worker who may or may not know about their right to sue and it may take 6 months to get legal advice and decide not to sue comes and files the claim within the one year time period with the potential –I’m not saying you’ve done it – the potential of the Board saying - you are out of time. I never understood that.
A: Okay, two broad issues involved with those comments – firstly when I put up on the screen Section 10.2 you recall that I advised you that I left off the end of it, unfortunately, now given Mr. Winter’s comment as he has correctly indicated the tail end of 10.2 gives the worker three months in order to make the election to sue for to claim compensation and it is important to note that – and I have found this over the years that sometimes not recognized by Board officers that the election is to sue or claim compensation and both of those choices are the election –you’ll often sometimes hear terminology within the walls of this building that the worker has not elected and what they really mean is that the worker has elected to sue and not claim compensation. It is important to keep in mind that the election and to build my own argument that I am going to make in a minute concerning Mr. Winter’s question that the election is sue or claim compensation and when you do either –you make an election or do something under section 10.2. Now in regard to that three months Mr. Winter has referred to as he says the Act states that the worker must make that election within 3 months –I can tell you that rarely is that ever enforced –the purpose of that particular provision in the legislation is to preserve the legal action. Obviously If there is a cause of action somebody wants to get on with it. It is not good stuff to leave the cause of action unattended so to speak over three months – somebody should be having a look at it, establishing liability, getting the witnesses in line, and who are the witnesses doing the investigation and so if there is a cause of action – what that is contemplating is getting on with it so you either know that the worker has elected to maintain their own action and they are looking after business or they are going to claim compensation and they are going to elect to claim compensation - it is going to be the board’s cause of action and we are going to look after business but somebody has got to look after business because time is marching on. As long as we know, and through our systems here that identify these causes of action – as long as we know that somebody is looking after the cause of action we will routinely waive the three months – in fact I can go so far as to say that it is never paid attention to because of we are making sure that cause of action is looked after. We will know that our legal department, our claims department are geared to refer those to us and so as long as the existence of that three months is looked after we are happy. Sometimes workers will say can I have six months – I’m talking to my lawyer about what I should be doing – electing to receive compensation or maintain my own action and we will routinely say yes because he/she are in the hands of a lawyer and the cause of action is looked after. Now the plot thickens. You will recall that at the end of my presentation I referred to section 10.5 and said that if the worker elects to maintain their own action and doesn’t do it well as they would have if they had elected to receive compensation benefits then they can come to the Board and the Board will make up the difference if there is a difference or will pay compensation. You will know that in the province of BC for example there are statutory limitations for motor vehicle accidents and generally speaking it is two years long. As Mr. Winter has indicated under the workers' compensation Act the first limitation paid under Section 55 which he referred to is one year so we have a situation then that – never mind the three months side of things – now we have a situation under Section 55 that says you have to claim compensation within one year and there are some provisions to that which goes to three years and on but just let me deal with the one year first level of the limitation period – so we have a one year limitation period that a worker must claim compensation in but a section ten that says you can elect to maintain your own action. As we know the limitation period in BC to maintain your action is two years and so we have a conflict there. Where you have two years to do something contemplated by the Act and one year then to claim compensation and Gerry and I have seen this in past years – I don’t know how often – I haven’t seen it recently – where people have gone – they have elected to maintain their own action – been unsuccessful – come back to the Board three years after the event – said I was unsuccessful under Section 10.5 – I would like compensation now and been told sorry you are out of time under Section 55 – that you have to apply within one year. Gerry and I, many years ago thought that that didn’t make much sense. And so what we started telling the profession and the legal community is file an application on a provisional basis. If your client is going to elect to maintain their own action get a form 6, fill it out, send it to the Board and say we hereby elect to maintain our own action but pursuant to Section 10.5 we want to maintain our right to entitlement under Section 10.5. My own personal feeling is that that was an abundance of caution – that the election to maintain your own action satisfied the limitation under Section 55 but that was not shared by all people and so the department came up with this provisional application to preserve the right.
Q: Let’s turn to Section 10.8 and I do notice that other officers of the Board are here and they may be more appropriate to help. Section 10.8 is the – it starts with the employer and employer bar where one employer can’t sue another employer under the Act arising from injury to a worker. But then what it does is it contemplates the potential of transfer of the costs between employers and there are several criteria that have to be met before that section is applicable and the employer community takes the position that those criteria are far too stringent, far too onerous and are asking the Royal Commission to basically loosen the criteria and the two of them that I want to chat about are first that there is a restriction on the ability to transfer costs to two employers that are in the same class or subclass. My understanding for that was for example if two trucking companies both covered under the Act and the employees are covered by the Act have an accident – the fault being of one and the injury being suffered by the other the costs cannot be transferred because they are in the same subclass which means the employer that had the fault gets the competitive advantage because the other employer is the one who has the worker who suffers the injury. I know that this is a legislative provision but I wonder if anybody had any comments on the appropriateness of that and their views on that restriction.
A: I would like to defer. [pause] The only comment that I would have is that would be the extension of experience rating in 1986 to include all industries that it has become more of an issue because if the costs cannot be transferred under Section 10.8 then they remain with the employer for administrative purposes.
Q: And that may well have been the intent when this came in – it may not have been experience rating then it may have made sense not to transfer it out of the subclass if it is not out of the subclass because it is the same employer and the base rate is going to be the same and in any event there is no experience rating assessment and it is just taking from one pocket to another with no real advantage but with experience rating assessment it does make a significant difference to the employer that is being found responsible for the costs and another employer that was at fault. The other aspect here that is of concern to the employer community is the section required that the injury or death is caused or substantially contributed to by a serious breach of duty of care of an employer or an independent operator to whom this part applies. And it is my understanding that that has been interpreted in the policy such that the serious breach actually has to be committed by a senior member of management – it doesn’t matter if the worker committed the breach it has to be done by management and again that appears to be far too onerous and unfair and I was wondering if anybody had any comments on that aspect?
A: I have done a judicial review over that issue and felt very uncomfortable during the course when I explained that very issue Mr. Winter that you are making. In that particular case an employee of the grain company I think had piled some pallets too close to a rail and I had to explain on the judicial review that the Board does not see vicarious liability of the worker in regard to Section 10.8 and that as you point out the breach of duty of care of an employer not a worker and because a serious breach of duty of care was with the worker that Section 10.8 did not apply so the only comment that I had was that although the judicial review was successful on the basis of the primitive clause with which you are familiar the court of appeal was not all that enthralled with the very point that I think that you are making.
Q: And I think the answer may be due to legislation and that I don’t think it is wrong but I don’t think that it is reasonable in today’s world to have this section and hopefully, again, have the Commission look at it. The example that I was going to use was an associate from my firm goes out and gets into a car accident and is at fault you can’t transfer between the trucker and the firm because it wasn’t the employer but you take sole proprietor who is incorporated and that same person goes out and does it you can transfer because that that is a controlling mind; it seems to be an arbitrary distinction. I think I just want to ask you a couple of questions with respect to Section 11. Now my understanding of the way section 11 works is that the then Governors I believe it was delegated the authority on behalf of the Board to determine Section 11 applications to the Appeal Division and so it is the Appeal Division that makes those determinations. The way that I understand the way the process works is that there really only is one adjudicative level when it is going through Section 11.
A: Yes.
Q: It goes straight from the court and the issue comes to the Appeal Division and my experience is that more often than not – most times it is done through or without an oral hearing. And it is done in written submissions but clearly the Appeals Division retains the ability to hold a hearing and people can ask for one. They make a decision that ends up being final and binding for want of a better term other than the aspect of judicial review. Would you agree that some of the issues that are dealt with under Section 11 would be very similar issues if the election was made for compensation but they would start at the adjudication level and work their way through the process i.e. three levels of adjudication
A: Yes.
Q: For example, whether the person was a worker within the meaning of this part if that was an issue the adjudicator would make the first decision. If they were ruled not a worker they would have to be brought to the Review Board and to the Appeal Division yet again. Similarly, the second point the injury, disability or the death of a worker rose out of and through the course of the worker’s employment that is an issue that would go through all three levels.
A: Yes.
Q: So this is an example where actually one level of adjudication or appeal works.
A: Yes.
Q: The reason that I asked that is that you may be aware is that the employer community is advocating that we don’t really need three levels of adjudication in our system to get competent answers in a timely manner and again Section 11 is an example of that and works now. One last point there on Section 11 based on the finality I gave you a decision early this morning and I made one extra copy for the panel; it’s not something I want to rely on. What happened in this case was the third party employer was involved in Section 11 that the worker was trying to sue wanted to have a reconsideration of the Section 11 determination. And in this case the then Chief Appeals Commissioner found that the reconsideration section, Section 96.1 of the Act which allows reconsideration on limited grounds through new evidence, basically, substantial new evidence didn’t apply to a section 11 and one of two reasons why –either this is not a – it is a delegated matter and they weren’t delegated that authority or Section 11 on its face didn’t contemplate this – what she said was that she didn’t have to decide the issue because she could deny the application regardless because there was no substantial new evidence. And then said that she was going to refer the matter – or raise the matter to the Governors’ attention so that they may be aware of this inability to bring a reconsideration on new evidence for both Section 11 and the same issue on Section 10.8. and to the question which I told you I would ask this morning; are you aware of whether that matter has been considered by the Governors or the Panel of Administrators?
A: I am advised that it has not.
JOHN STEEVES:
Q: Just some background information that might be useful – Workers' Compensation Board legal department has how many lawyers in it?
A: Including Mr. Massing and I in it nine.
Q: All right. And your functions are I think two – litigation and judicial review matters?
A: Yes those are two of the large items that we practice and we do other things but those are two.
Q: And presumably you advise the Board and are solicitors for the Board?
A: Yes.
Q: Just going through your submission – you have spent some time on the historical compromise and you have that interesting quote from Mr. Justice Meredith and the historical compromise as we know is the workers gave up the right to sue in exchange for a I think the term was fair compensation system and now in other jurisdictions – I think Nova Scotia is one and Ontario is proposing it – they have a waiting period for compensation – it is 2 days or 3 days or something like that – and those jurisdictions do – is the worker’s right to due for that waiting period – is that preserved or extinguished
A: I don’t know the answer to that I would be surprised if it was not preserved because preserved is that&ldots;
Q: Preserved yes.
A: But I don’t know.
Q: If it wasn’t preserved it would go to the heart of the historic compromise wouldn’t it?
A: Yes, yes.
Q: Just a question on Section 10.1 – it’s as is often the case in statutes – one very Iong sentence and I wondered if there wasn’t some historical reason for the second sentence because it seems to me that it changes the scope of the first sentence and I’d ask you to comment on that and my reading of it is that it narrows the scope of the first sentence which is to say that the bar to litigation is narrowed further by the breach of duty arising out of the course of employment. Is that&ldots;
A: Yes I would agree with that.
Q: Okay. And on your next slide Section 10.1 Limitation of Action – the last bullet there you’ve got workers are only workers of the same employer and I may have missed it in your presentation – was the point there that it applies to workers – all workers – including workers of the same employer? Another way to put it you weren’t saying – I think this is implicit in Mr. Winter’s decision - that workers of different employers have the right to sue.
A: No, they do not. I just pointed out that it was that broad. That it was not only workers and same employer workers but indeed all workers.
Q: Then on the Section 10.1 Limitations of Action – where you’ve got the cites for the Kovacs case and the one from Saskatchewan - the Kovacs decision – would that have been a judicial review issue primarily?
A: In Kovacs there is a court action that has been commenced between the worker and the doctor. The Board issued a Section 11 certificate the result of which would be that both of those parties were workers in the course of their employment. That decision was judicially reviewed and it is the judicial review that went to the BC Court of Appeal.
Q: So it is a judicial review of the Appeal Division decision to issue a Section 11 determination that the doctor was an employer?
A: A worker.
Q: A worker, yes?
A: Yes.
Q: Yes, and would the same standard of be patently unreasonable to apply in that case?
A: Yes, the ruling in the BC Court of Appeal in the first instance was twofold; one was that there was a jurisdictional limitation on the Board’s ability to render that decision – the court concluded that the Board didn’t have the jurisdiction to make a ruling where in essence there was a novus actus intervenus between the doctor and the patient and secondly the court ruled that the decision of the board in those matters was patently unreasonable. Substantially in reliance on the Saskatchewan Court of Appeal case in Pasniechuk which itself went to the Supreme Court of Canada and has resulted in this decision to be referred back to the Court of Appeal.
Q: All right. And you didn’t say but what is the position of the Board on that – just for the record in the Kovacs litigation?
A: The position of the Board is that the first of all the decision of the Appeal Division was not patently unreasonable; that it is a reasonable interpretation of the legislation and secondly that the dual capacity test that was relied on by the Court of Appeal was not one that is part of a workers' compensation system and that is the essence of the Pasniechiuk decision. We were involved with the judicial review – we joined in the reference to the Supreme Court of Canada which was being referred back.
Q: I know the Board is reluctant to get into the correctness of decisions – first based on some authority – was the correctness of the Appeal Division decision discussed?
A: At the Supreme Court of Canada?
Q: At the Court of Appeal?
A: The decision of the BC Board wasn’t actually considered on its merits by the Supreme Court of Canada – they essentially referred the matter back in light of their decision of Pasniuchuk or what deliberations they might have on it on that point. In the BC Court of Appeal though the court felt that on the issue of novus actus intervenus since that was a jurisdictional issue that a proper test was a correctness test.
Q: Yes, in terms of the election of workers to press with litigation or not using different language from the Act – if workers were to be given the right to sue for the difference in their earnings and the statutory maximum – you know there is a difference attached?
A: Yes
Q: Is that anything more than a drafting problem or do you think that would rupture the heart of the Act – especially that it is simply having a section 12 under Section 10?
A: I guess insomuch as there are Canadian jurisdictions that do things very similar to that – I’d have to say that it could be done by drafting. What the ramifications are in regard to the whole scheme – I guess the flow is obvious&ldots;
Q: Okay. What you say is that there are other jurisdictions doing something similar to that do you mean the Saskatchewan?
A: Yes, similar jurisdictions that allow suits for motor vehicle accidents or allow the worker to get pain and suffering.
Terry Robertson: Could I just clarify that answer so that we don’t have to return to it just so that there is no confusion. In Saskatchewan the worker and worker-employer bar is still in effect I understand.
A: Yes.
Terry: So we are only talking&ldots;
A: The worker-employer bar is still in effect.
Terry: So we are only talking about where you’ve got a non-worker and non-employer negligent party in which the worker can sue for pain and suffering.
A: Yes.
Terry: And I thought John’s question was to the issue of whether you should be able to sue over and above the minimum in the event that there was a bar of action against the employer?
Steeves: I didn’t take him to say that Saskatchewan had that provision but that the technique in Saskatchewan legislation was similar to what I was proposing – it was analogous.
Terry: But in Saskatchewan as I understand it the only difference is that here you can elect to sue for your pain and suffering and everything else if it is a non-worker defendant; in Saskatchewan the difference is that you get your compensation and you sue simultaneously but it doesn’t impact on the worker – worker – employer bar. Is that correct? To clarify.
A: That’s correct.
Alan Winter: Just to clarify – I took John’s question to be suing your own employer and I don’t know if you contemplated that – I took the question to be wide enough to say you should be able to sue your own employer to get the excess salary that you can’t get from the Workers' Compensation Board.
Steeves: To be clear my question – the intent of my question was the ability of the worker to sue tort feasor – whether it is the employer or not – even if it was the worker’s own employer.
A: That is how I took your question – the ability to sue period. And my answer was in regards to in New Brunswick for example you can sue in motor vehicle accidents – you can sue period. The tort feasor is not material.
Steeves: Yes, yes.
Q: Now you mentioned some other jurisdictions that has the Saskatchewan model and at tab 10 of our documents is the provision from the Yukon and it is section 42.3 of the Yukon legislation.
A: So my example of 25% wasn’t bad because that is exactly what they have.
Q: Yes. And to be clear I think you have covered this but the theory there is that when there are damages from a court-ordered settlement from litigation that a portion of that settlement is pain and suffering and someone along the lines said yes well the worker should be entitled to that and we’ll say 25%.
A: I take it that is the justification, yes.
Q: Yes.
JIM SAYERS:
Q: One of the themes that the Commission has heard throughout its proceedings from injured workers is that their very anxious to have increased access to the courts. They would like to sue the person responsible for their injuries and in many cases they would like the ability to sue the Board because the Board has in their view treated them unfairly or perhaps more realistically they have a further final right of appeal to the courts. So I am going to ask you some questions that go beyond what my colleagues have asked about the bar to sue and what some of the alternatives might be and what some of the implications of those alternatives might be. And I suppose that to remove the bar to sue altogether and allow a worker to sue his own employer and/or his own co-workers might as you suggested strike at the heart of the historic compromise. Would it necessarily in view strike at the heart of the historic compromise if the worker would be allowed to sue other employers and other workers? The employer’s employment family so to speak would still be protected from being dragged in to the court and having to air its dirty linen in court but if the employer – if the worker is injured by someone else – that doesn’t work for the same person and doesn’t employ them what harm would it cause to the historic compromise to allow that worker to sue the negligent party just as a third party that was not working at the time could have sued?
A: As I indicated in a response to a question from Mr. Winter I can understand the concern of an employer under this system given the historic compromise and just accepting that as at its face value and that’s what I am doing in outlining the operations of Section 10 and in responding to your question is if you accept the basis of the historic compromise and answer your questions in that regard I can understand the concerns of an employer as I indicated in response to Mr. Winter – saying I pay into this system – I help fund this system and the fact that I am not the employer of the injured worker is suing is not material -–as Mr. Winter made the point – I think a collective pool situation – the issue of worker-worker – either workers of the same employer and workers of different employers I guess becomes less clear on the historic compromise and again I emphasize accepting the historic compromise at face and just commenting on it. It is just a compromise between workers and employers so that&ldots;.
Q: Let me stop you if I could just before you leave the question of suing other employers. Other employers who might be sued by an injured worker obviously are carrying on business and unless they are nuts they must have some kind of liability insurance. I mean it may happen that the bar applies and they are protected from a lawsuit but because their courier driver runs into another person who is driving in the course of business but it could just as well have been somebody on their own personal time so they better have – their vehicle better be insured against that sort of liability and if it is a product liability issue or some other liability issue – once again they have to protect themselves against lawsuits from the general public. Why should the Workers' Compensation Act extend that protection from lawsuits to workers of other employers? Why would that threaten the historic compromise – it’s really what I am getting at.
A: I think that broadens the scope of what we are talking about here and it is exactly the same discussion involving motor vehicle accidents is that if there is compulsory universal coverage for motor vehicles then what harm is there in allowing workers to sue – it is the insurance companies who are paying. And I think what you are saying if I understand is that sophisticated employers are going to have additional liability coverage and so wherein lies the harm? As I would still go back to my response to Mr. Winter that notwithstanding how sophisticated the employer is, notwithstanding how much additional insurance that employer carries I could still understand the concern from that employer that says I, in addition to other coverages have to pay for this system and part of the deal that I thought I had was immunity from legal suit. If I understand the issue of how much – where does the employer have to insure and where they don’t have to insure and&ldots;
Q: Okay, I guess we can carry this on in April and it is probably not fair to ask you to resolve the issue but
A: I was hoping you fellas would carry it on in April.
Q: We will. I’ll just end by saying no employer who understands anything believes that they have immunity from a legal suit. I imagine Mr. Winter’s clients – some of them might like some of the U.S. concepts of tort reform to be carried out in Canada but even that doesn’t involve immunity from legal suits. It can involve some kind of capping on the amount that can be received but anybody who carries on business knows that there is a potential that they can be sued by somebody that gets harmed as a result of their activity or as the result of what their employees are doing. And they have to protect themselves from that third party liability. The section against third party liability from another person who doesn’t work for them but is working for another insured employer is really no different. It is quite a different situation from protecting the employer from being sued by the person that he/she has hired to work in their establishment who may slip and fall on the floor and say well the floor was too slippery. That kind of risk was obviously at the heart of the historic compromise but it seems to me that it is an entirely different order when we are talking about employees of other employers. I’ll just leave it at that. On the question of elections –I am quite reassured by what you have told us – that the Board doesn’t strictly enforce the 3 month limit when a worker has been unable to get the kind of advice that they need to decide to sue or claim compensation but it still strikes me as odd that workers would have less time to make that fundamental decision under the workers' compensation Act than they would have under the normal limitations Act or a worker who doesn’t have an election would have under the workers' compensation Act itself – under Section 55. Would there be any problem that you could see – I’m assuming that the Section requiring the three month election was there so that the Board would find out about a claim in a timely fashion and not say a year and eleven months later.
A: That is correct.
Q: What if the provisions simply required that the worker notified the Board of a potential claim somewhat like the Municipal Act does. Without necessarily starting an action so that the worker could let the Board know that I’ve been injured at work – the third party was responsible – I am still deciding whether to sue or not – obviously no benefits are going to be payable until the proceed to make the application but allow them the full – at least the full year that they are allowed under Section 55 to make that decision. Would there be any harm that you could see in that sort of an amendment?
A: Basically, no – that exists. That situation exists now. It is not uncommon to call for the election to claim compensation is ten months, eleven months and we therefore get the subrogated action to proceed in that timeframe. But as we’ve stated it’s there and as I’ve tried to say in my presentation it’s there to – as much for the worker’s protection as for the Board’s protection – obviously in the legislation it is there for the Board’s protection but it also protects the worker – someone should be as well you know as counsel – someone should be getting on with business if there is a cause of action to be had. The number of occasions during a year when the Board has asked to consider extending that election period are quite infrequent. It is not as far as we can see – it is not imposing a brief limitation period on the community that they are finding difficulty with. Another situation that rises also is where and as you are aware under the legislation that if a worker is injured to the extent that they cannot make the election the Act contemplates the payment of compensation and then if the election is other than to claim compensation that compensation does not have to be paid back so we do get situations where there is a cause of action but there is no election and so in concert with the family – often possibly the family’s legal counsel – and our legal department we make sure that any cause of action no matter who is going to own it in the future is preserved and safeguarded.
Q: I have a couple of questions to ask you about the administration fees that the Board collects in its subrogated capacity.
A: Yes.
Q: I understand that the fee is 29% is that&ldots;
A: 29% of Board disbursements.
Q: Sorry?
A: It is 29% of Board disbursements.
Q: What is a Board disbursement?
A: Yes, meaning 29% of the amount of compensation that is paid or to be paid in the future.
Q: So the board calculates all of the amount of money that the worker would be entitled to under the claim and then takes 29 % more?
A: That’s correct.
Q: I fail to see the equity of that. Can you help us at all or&ldots;what is the rationale for the Board taking in more than it is spending on a claim? Let alone 29% more.
A: The percentage contemplated in the so-called administration charge – it is Section 10 as dictated by the Board’s financial people who from time to time over the years have stated in their calculations what the administration aspect to run this system is.
Q: So that represents the overhead so to speak that the Board &ldots;?
A: Exactly.
Q: Just in having its operation going and the worker pays his or her share of that? Is that right?
A: Yes. And quite frankly the contemplation of this issue because it is an issue in the legal department – 29% and I will say a little bit further about that in a minute – perhaps when Mr. Faddedad is here tomorrow you might want to discuss that with him because we contemplated that very question and the actual calculations of how the 29% is arrived at you might want to explore with him – I can’t answer that it is something that the Board – if you allow that in this context – tells us to recover by way of the administration charge. Now what I wanted to say was that for many years it was capped at 22% and it’s only in the last couple of years that it has been allowed to go to 29%. You saw the slide that I put up that it is not an insignificant amount of money – that is relatively speaking that is collected by way of the administration charge.
Q: To make absolutely sure that I understand you this 29% is what the Board has paid and will pay to the worker by way of compensation. As opposed to 29% of the proceeds of the lawsuit. Is that correct?
A: yes, that is correct.
Q: So in a sense it is like a contingency fee but it is not a contingency fee.
A: That’s correct. The good news is that if Board’s legal department is doing it – there are no corresponding legal fees and that’s what we like to put up as a good thing.
Q: That is part of the 29% is what the worker would have had to pay a lawyer to do it privately.
A: Exactly. Exactly. Now that gets a little bit trickier when the Board does have to pay outside legal counsel to maintain these actions and we have waived part or all of the administration fee in contemplation of that basically on – I talked about foreign jurisdictions and we have to retain counsel on a contingency basis we have waived the administration fee on the basis that the recovery is already being discounted by for example if their by way of legal fees.
Q: I notice on the slide – or one of the slides that you put up that the 1995-97 that the amount of administration costs that the Board recovers from its third party litigation more than doubled – in fact it has roughly tripled from 1995-97. I guess what you are telling us is that the higher figure in the Board’s view is more representative of the actual cost of what the Board has done for the worker. Is that right? I’m giving you a friendly answer here.
A: I think there is the aspect of the increased percentage that is at play there in addition to the – through the increase in recovery – gross recovery.
Q: In calculating the cost of the claim I guess that is the first thing to be deducted from the proceeds of a lawsuit isn’t it – is the – say the lawsuit recovered $2 million – the first thing that would be deducted from that is the capitalized cost of that claim – estimated for the worker’s entire life – including past and future
A: That is part of the entire compensation process yes.
Q: And then 29% would be added on to that figure for the Board’s overhead and the worker would get the balance.
A: Yes. The worker would get a letter using your example - $2 million paid to the Accident Fund and that might be broken down as per medical aid, as per wage loss, and then another line as per capitalized pension paid to date – that is future payments – 29% of all of the above – read a total which would be less the $2 million and then if there is a difference between the $2 million and that sum would be enclosed there as an excess cheque.
Q: What about figures that normally the worker would not have deducted from their compensation such as expenditures to provide rehabilitation – say the Board sent the worker to a vocational school or something of that sort and paid the fees at that school or?
A: That would be deducted.
Q: All of those things would be deducted.
A: All compensation payable.
Q: Okay, now I’m following up on a question that I was asked to raise – what recourse would a worker have if they objected to some of those amounts being deducted because they thought they were excessive or even fraudulent or whatever – is the only right to appeal the amount of the deduction or is there a right of appeal?
A: Yes, I would think there would be a right of appeal. On the whole there would be deductions that would be recoverable under the litigation but if they were for some reason – if I understand your question - and we say that the Board paid for a course for example and the worker said we spent too much money for that course from what I understand&ldots;.
Q: Yes, the worker says I looked at this bill here and they say they paid for 3 months of the course and in fact they only got one month&ldots;.?
A: I guess I will have to give you a general answer – we would listen to that and would want to pursue and explore the legitimacy of the expense but if at the end of the day the Board had paid it our instructions from the Board would be to deduct it.
Q: Just to sort of bring the circle around and finish up where I started I’m going to ask whether in your extensive understanding of the history of the system whether I am misunderstanding what has happened and some of the changes. I suggest to you that the legal situation is quite different now than when the historic compromise was first reached back in roughly 1900. Among other things – I want you to stop me if you want to add anything or if you feel that I am mis-stating something but among other things at that time a worker’s own negligence was a complete bar to a lawsuit.
A: Yes.
Q: That has been changed by Part 2 of the Act among other things although the common law itself may have changed.
A: I think even by virtue of contributory negligence it would be a complete bar.
Q: Yes. That is what I meant – the worker’s contributory negligence – even if it was a small degree of negligence was a complete bar – also workers had no right to hold to sue their own employer if they were injured by a fellow worker. They were considered to have assumed the risk that might happen and taking the job. That has been changed by Part 2. No legal aid was available in 1900 so to say that a worker had the right to sue was a bit hollow unless there was some way that they could get free legal assistance and there were a lot fewer people like the three of us running around looking for clients and taking cases on. I don’t know what the practice was for contingency fees at that time – I think there were pretty strict rules about champerty and maintenance and some of those funny concepts which made it more difficult for lawyers to fund a case for an impoverished client at that time too. There was a general sympathy in the legal system and it is reflected in a lot of decisions in a lot of areas of law to meet the needs of the industrial revolution at that time wasn’t there? And the courts weren’t particularly anxious to hold entrepreneurs liable for unsafe conditions at work or even unsafe products that they might have produced and the injuries that they might cause because that would have been seen to hold back the onset the flow of industry. So, basically the world was a very different place then than it is now and I don’t think that the Commission has to deal with whether the changes have been good or not but the point is that there has been a lot of changes and a lot of those conditions have pretty much disappeared and we now have a system where if were not for the statutory bar a worker’s right to sue would be worth one hell of a lot more than it was worth in 1900. And some workers who are seriously injured at work might recover hundreds of thousands of dollars in general damages as well as loss of earnings if they had recourse to the courts. So what they have lost by way of a compromise is a lot more than what they had originally bargained to lose if you want to look at it that way in 1900. Do you disagree with anything that I’ve said?
A: If the worth or how good a deal is it now discussion is a fascinating one and one that has gone on over the years – surely the – I guess we are a more sophisticated society now in regards to litigation and the like but I think having said that I still – I think there are two aspects that I contemplate in regard to this issue – firstly I think you have to put the historic compromise in a proper context of only a very small percentage of cases are litigious. I think when – I think there is a time element involved to my thinking about the historic compromise. It goes something like this – is that if we consider everybody in this room as going to get injured in the course of their employment and if I’m allowed to set up some rules and say each and everyone of us will in a little while is going to get injured in the course of employment – only 1,2,3 of us are going to get injured through somebody’s fault and of that very small number only one or two of them are going to be injured by the fault of the employer. And in regard to absolutely everybody else there is no cause of action. Now we propose in return for taking away that cause of action for that very small number of people of setting up a system where everybody in the room is going to get compensation. To my mind and my opinion I for one would sign up with the system because I’m not going to play Russian roulette with my safety; I’m not going to gamble on the basis that I’m going to be one of the 1,2,3 people that are going to have a cause of action and indeed a cause of action against somebody else worthwhile suing. I’m going to say to myself I’m probably not going to be one of those people where there is going to be a cause of action and what I would be offered here is to give up – to give up that potential cause of action – probably I’m not going to have any way in return for a system that is going to guarantee me payment of compensation so I’ve always felt from my opinion that there is a time element here – call the shot now – I don’t’ get to wait to see if I’ve got a cause of action – I’ve got to make my decision now in this scheme and I for one would sign up with the scheme. Now, even if I don’t sign up and I happen to luck out and I’m one of the very few of us who has a cause of action – yes I will agree with you that it is a much more sophisticated society and it is a lot easier to sue people these days but it is not a walk in the park – the litigation is very very difficult – very very expensive and I’d like the point in that regard to some of the law suits that the deep pockets of the Workers' Compensation Board are allow on behalf of injured workers. And I will give you a specific example – perhaps you will recall some years ago in a tragic accident where a cruise ship pulled away from the Vancouver Port before the gang-plank was – workers were killed and seriously injured as a result of that and those workers went to sophisticated legal counsel in this city. And the conclusion was that because of the issues of liability; because of the nature of the tort feasors being possibly employees of the Vancouver Port Corporation – therefore litigation being available against them and some of the tort feasors being workers – for a whole lot of issues very competent legal advice was this cause of action – forget it – it is too expensive and those folks arrived in the door of the workers' compensation board – we looked at it and pursued legal action and it was very very expensive but we were successful. So, just the point that I am making is that yes that it is a more sophisticated society but suing is still not a walk in the park.
Q: That very observation would indicate wouldn’t it that if the bar to sue were not there not there at all it wouldn’t be that employers would faced with a floodgate of lawsuits. I mean litigation would still be difficult – it would still only be resorted to in very clear cases where liability was clear and evidence was clear and where the worker could have access to the kind of legal resources needed. For everyone else the workers' compensation system would still serve the same function as now and&ldots;.
A: I guess that’s one aspect of the other side of the coin, yes.
Q: And I guess the other – the last comment that I’ll make that I’ll ask you to respond to if you wish is that workers lose a lot of things now under the present system that I don’t know whether they lost in 1900 or not – I’m not that familiar with the details or the history but we all have heard and we know that they lose all rights to general damages, pain and suffering, loss of future enjoyment of life, even punitive damages in extreme cases that might have been claimable and really flagrant fault on the part of the employer or fellow worker . Perhaps more importantly we’ve heard a lot in the last couple of days that they lose all protection for their wages over the amount of the statutory maximum. So a worker earning $100,000 can lose 50% of their earning capacity without any recourse to any other tribunal for recovery. Just by reason of being covered by the Workers' Compensation Board. And there are other exclusions as well that we will be talking about in the next two weeks in regard to how wage rates are calculated – fringe benefits, other things that result in the worker getting a lower wage rate that a court might have assessed if it were being done in the context of personal injury – so I guess what I’d ask you to respond to if you like is – if we are going to maintain the absolute bar to lawsuits doesn’t it seem at least reasonable that workers clearly be entitled to full compensation for all that they have really lost – as a result of their injury – without the exceptions that I’ve just summarized. Wouldn’t that seem to be a quick pro quo that we might ask on the behalf of injured workers in the future.
A: I think that’s the answer – if a compromise is a quick pro quo – again you go back to my example that I made – it is a trade off – it’s a compromise – my example of everybody in this room is going to get compensation on a no-fault basis – there’s – if there’s a compromise – there’s got to be a give and take. It’s not really how good that give and take is for either side – it is a legal argument.
THE COMMISSION:
Q: I had a few questions for Mr. Bates – first of all on the question of conflict of interest on the part of the Board that is pursing subrogation action – is there any concern on the part of the Board legal department so that when you are making the decision to accept a settlement offer from an insurer that your interest is only the amount of your flat rate of 29% plus the compensation paid out –is there any concern about a conflict there of pursuing a lawsuit for the interests of the injured worker ?
A: I’ll answer that – it’s a valid concern and question. Because of that concern subject to what I said about settlements and where liability – the example I used is where liability is hotly contested – our philosophy of the department is to go to court – is to sue for all the heads of damages and act as if the interests of the worker is first and foremost – we would under any circumstances and I can tell you that in the 24 years that I’ve been there that never have we ever considered excepting the Board’s interests although it is offered many times. We pursue these legal actions – mindful that the Act contemplates the excess being paid to the worker and that that is a legitimate interest of the worker that should be pursued vigorously. We will and have on occasion risked money in a courtroom -–not only have we risked we, we have lost it – to make sure or give the worker – if I may use the expression – give the worker their day in court so that that is to say – I want to be clear that we are not foolish about this – there are professional, legal decisions to make here – when we know that there’s an issue on liability that we are not going to fare well on – we will accept a compromise settlement that will have the affect of looking like we are taking our money and running so to speak. That is never the case – I can tell you the philosophy of the department – we’d rather have – we’d rather sue and lose than do that.
Q: Is it the legal department’s practice to suggest that an injured worker when considering whether a settlement offer should be accepted to get independent legal advice?
A: Yes. Again the issue there is if I was a lawyer that that worker came to I would say to the worker press the Board to sue – to risk the money and I think that is valid advice. The offer notwithstanding the offer; notwithstanding the Board’s reasons for accepting – press the Board to risk it and litigate because only under those circumstances will you get an excess payment and I can remember a particular example where I’m on Davie Street – a gentleman got himself tragically caught between rear end accident – the rear end accident – the rear ender was going to happen whether he was there or not – but he, unfortunately, got himself caught between it. And the interesting issue was well – he was jay-walking I’m sorry – the interesting question became well is their contributory negligence because of the jay-walking and I was arguing that this accident was going to happen anyway – they should forget about the jay-walking and 50% was offered. 50% did not result in any excess to the worker so I went to court and the judge at the time suggested to me that this was 50-50 and I couldn’t agree with him because I needed 75% to get an excess. And I must confess I felt a little bit uncomfortable – the judge was telling me that I was being unreasonable and I guess in hindsight I was but I had reason for getting the 75% - the judgement came in at 50-50 and there was no excess for the worker.
Q: Is the 29% flat rate is paid whether you have to conduct a ten day trial or whether you negotiate a settlement before trial?
A: Yes.
Q: The other side of the coin is where a worker elects to sue in his own right but proceeds and recovers less than what his compensation package would have been and then comes to the Board to supplement what his judgement was –
A: Yes.
Q: What figure do you use in determining the short fall – do you use the gross amount of the judgement or the net amount of the judgement that the worker receives after the deduction of his legal fees?
A: Gross. Payment of legal fees are not taken into consideration.
Q: And what is the rationale for that –in other words the money that - part of the money you would have had to pay the worker for compensation in any event is recovered in his litigation – that he has to incur legal fees in order to recover that money which in effect is for your benefit why would you not make some allowance with respect to the legal fees?
A: You could certainly make that argument that we ought to – I guess the other rationale is that compensation is payable if you choose not to take it – then compensation monies should not be used to pay legal fees – I don’t have a really good answer for that one – I guess I can only tell you that we don’t take legal fees into consideration.
Q: The effect if you use the net amount after legal fees is that worker has a shortfall of the amount of his legal fees compared to what he would have gotten if he elected compensation to begin with.
A: That is correct. To put it another way the worker pays for making the wrong call – election-wise – if it’s and when people ask us about that – we point that out – I guess I could say that if you pay the legal fees – that you are using the system to fund actions of what’s anybody got to lose so you might as well go for the big award because the Board is going to pay the legal fees anyway.
Q: If somebody elects to sue a non-worker third party and allows the limitation period to expire simply by not consulting counsel before the limitation expires –do you still pay him the compensation to which he would otherwise be entitled?
A: Theoretically, no. Section 10.5 which is the actual section we’ve been discussing – if it goes to trial then there is no problem there – if a judge has settled the amount of damages over the resolution of the lawsuit – liability or otherwise. If the action is settled it has to be as you will recall with the written permission of the Board. If the worker went and missed the limitation period – theoretically the Board would say you made your election and then you’ve cost the Board – the system the ability to recoup its loss so to speak here and you are going to suffer the consequences. In reality – what we would do is look at it – look – consider liability – if it was questionable I think that we would say well although you have missed the limitation period you probably weren’t going very far with this legal action anyway and the liability wasn’t there or even if you have been successful you would have recovered X dollars which was still below compensation – and having said all that I can tell you I haven’t experience that – I don’t know if Gerry has or not – I haven’t experienced that particular situation.
Q: So there is a very broad discretion then vested in the Board in that regard– there are no rules or nothing statutory that would &ldots;.
A: No and as a general rule I can tell you that we as far as the legal department goes we bend over backwards to get compensation recovery for the worker. Just to add to that a little bit – if there is a judgement that determines a lawsuit then essentially the Board is saying that it is prepared to accept the results of that judgement – the results would have been the same whether it was pursued privately or pursued by the Board’s own counsel – the tougher situation is where there is an out of court settlement and the Board requires that that be approved prior to the settlement concluding in order to avoid a settlement being reached – perhaps to take advantage of the workers' compensation system.
Q: Can either of two you gentlemen give us information on the history of the barring of actions against workers in the same employment, workers in others’ employment, or employers and other employers – has there been a staged barring of those actions or was it done all in one legislative initiative?
A: My recollection from reviewing the legislation is that the original legislation in BC barred actions against all employers so there wasn’t a staging of being unable to sue your own employer and progressing to being unable to suing all employers. The statute did not preclude lawsuits between workers – either colleagues or workers of other employers – that matter was discussed before the Royal Commission conducted by Mr. Justice Tysoe – and in consequence of that particular Royal Commission it was recommended that the legislation be amended to preclude lawsuits between workers – those amendments were added to the legislation in 1974 I believe&ldots;.
Q: And that is co-workers of same employer or workers of other employers?
A: It was both. It was all workers provided they were part of the system and they were acting in the course of their employment.
Q: There’s one issue that I didn’t hear covered off –and I had a personal experience in this regard probably we should put it into the record –that there is a discretion where a worker claims to elect Workers' Compensation receives it for a period of time – then consults a lawyer and decides to sue – there is a discretion in the Board notwithstanding of having elected compensation in the same instance to then re-elect and then sue on his own behalf as long as the Board has been repaid?
A: We allow re-election – and as you point out if it is not contemplated by the Act. This, on the whole can be an administrative nightmare for us. We like for workers to proceed with litigation and do what they want to do and certainly if they step up to the wicket and say you paid me $10,000 and here’s the $10,000 back we will respect that and stand them to allow them to maintain their own action, i.e. – re-elect – there is no provision for that in the Act and on occasion it has been very very rarely – I can probably think of once or twice when it has happened – has been challenged by an insurer saying there is no right to do this – there is the Board’s cause of action – we have stood behind the re-elected worker and said well, no matter whose cause of action it is that is going to be maintained – and if it is necessary to retain this lawyer to do the cause of action then the Board will retain that lawyer but it will be maintained. The issue there is – the real issue here – Mr. Robertson is the repayment – what we usually get is – I’ve been talking to a lawyer yesterday and he says he can get me a million dollars on this action – I want him to – I want my action back – I want him to do it – and I don’t want to pay you back. But what I will do is tell him if and when we are successful we can pay the Board back then. So we get lawyers calling us and saying I will give you undertakings to do that and I am not saying that we haven’t done that – that’s why I used the word administrative nightmare – you get into situations then is that theoretically there is no payback – whose cause of action is it – is it the Board’s cause of action being pursued or is the worker’s now? Who is counsel acting for? If you get into situations that conflict should it be settled out – who is he going to – who is the lawyer going to accept instructions from and that’s just the beginning – it really gets dicey and messy when the money comes in the door and the worker telling the lawyer – don’t pay the Board back – they are a bunch of X’s – I don’t want you to pay them back any money and if you pay them back you are fired and I’ll go with somebody else – and we have gone into situations where it just – nobody – absolutely nobody wins. It’s an area that I try to avoid like the plague.
Q: How many jurisdictions in Canada have removed the bar where the cause of action is a motor vehicle accident? Does anyone know that off hand?
A: I am not aware off hand – I am only certain of one but I am not certain that that’s all there is.
Q: Is that New Brunswick?
A: Yes. There may be others.
Q: Does New Brunswick have a compulsory, universal, automobile insurance scheme or do you know off hand?
A: I don’t know.
Q: Just one question for clarification - I recall when we were on a tour of the premises in the engineering department – seeing some evidence of a case where there was a faulty jack that was the cause of an accident and I think the accident involved some young people or a young student –I am just wondering what would be the process in that case – let’s say that there were several accidents leading up and it was discovered to be this faulty piece of equipment that was imported from another – a foreign jurisdiction – in a case of that nature – would you – let’s say 3,5,6 perhaps after 10 months have gone by and your research has been done to a point where you can point to this faulty piece of equipment as having been the cause and you may have a produce liability case would that information necessarily translate into an action by your legal department? I mean would the research department immediately think of picking up the phone or pen and pencil, or whatever – even email – and notify the legal department that there is a possible action here and that this is something that the Board should consider and then you might – or might not contact the claimant and if you do it would depend on them to give you the right to proceed that case or would you then initiate on your own right?
A: The answer to the last part first – we would initiate the legal action because if I understand you correctly we would enjoy the subrogated interests of the legal action by now compensation now having been claimed and now the answer to your question is yes – but – our system is designed that we would get knowledge of your fact situation from the claims department. We would and we theoretically in – like in I could tell you it works know about that accident and probably it would be the legal department – know about it from the claims department and in all probability would be the legal department going to the Prevention Division – saying we await your assessment of why this accident happened – certainly Board officers in Prevention who would do a study on the failure of a product may or may not be working with the Claims file – one would hope that if they saw a defective product they would notify either the Claims Department but more preferably the Legal Department and that does happen. But just for a complete answer to your question it is much more probable that we would already know about the circumstances, the incident via our Claims Department. Mr. Massing reminds me of a point – that we do training in that regard – Mr. Massing does that type of work of actually going into the Division and telling them about third party possibilities and meeting with Prevention officers and telling them about the possibility of legal actions and&ldots;
Q: Do you believe that the workers should be able to –I mean setting aside what the law is now – do you believe that a worker should be able to sue their doctor for malpractice?
A: I personally do not agree with the dual capacity argument that there is any difference between a surgeon in his capacity as a surgeon and a surgeon in his capacity as an employer and a driver of a taxi in his capacity as a driver and in his capacity as a worker. I think – as I say it is a personal opinion is that I personally do not subscribe to dual capacity argument so if you again accept the premise of the historic compromise and you accept now that we have universal coverage in BC and the legislation makes doctors employers and if they contribute to the scheme and pay as any other employer and I personally do not subscribe to the fact that they have some special status as surgeons or doctors – that is my personal opinion.
Q: You mentioned the asbestos case and you said that $35 million had been collected and $5 million had been distributed to workers – is that the $35 million minus the cost of the claims plus the 29% - is that how that worked out?
A: $35 million would be roughly a gross figure Mr. Stoney and it would be paid – that would be in the door after the payment of lawyers who acted for the Board and then it would be distributed according to Section 10 like any other third party action – the difficulty with asbestos litigation is – it is interesting – asbestos litigation became a very interesting application of Section 10 for a variety of reasons – chief among them was that these actions were settled on a global basis although we insisted on individual recoveries because of Section 10 but it really got interesting because workers were exposed to different products so we had different defendants – we had workers – we had BCBC cases meaning workers that were suing in BC where they were not successful – we had workers suing in Mississippi who were moderately successful and then we had workers BC taxes where we had more recoveries. So we had different exposures in different locations and different defendants. You couldn’t prove that every worker – so we got into situations where what projects did you work on and it became a complicated system – you know I remember ten years ago saying that I recognizing that this would be perhaps a problem I hope we have the problem i.e. the problem to do with this money. That we have distributed the money but the difficulty has been in regard in getting excess money for workers is that in the US the cases that attracted the largest settlements were of course the fatal cases and the amcophetylnoma cases because of the nature of that terrible disease and I apologize for what I have to say unfortunately people with amecophetlnoma don’t live very long and therefore compensation payments are not very much – are not large – but – because they are fatal cases they attract a lot of recovery in the US and so they lend themselves to excess payments whereas workers who for example suffer from asbestosis or pluralplax attract a much lesser recovery but they cost the workers' compensation because they live a long period of time and gladly so they cost the system a lot more money and therefore there is no excess and they are fortunately in the majority – there are a lot more workers with asbestos claims of some longevity and therefore cost the system a lot of money but because they are not fatal cases we don’t recover very much on this grand structured settlement basis they have in the States now. And that is the case so that’s why unlike the usual third party chart that you saw me put up on the screen where it was about 50-50 between money brought into the door – about 50% of it going to injured workers and 50% of it being paid back to the system. In respect to asbestos litigation most of the money goes to pay back the system and it is only with regard to a few workers but not 50-50. And that has been the difficulty with asbestos.
Q: One other question - you said that the administration fee was 29% - you said it used to be capped at 22% - who sets the cap?
A: Yes, I should have explained that. Thank you. We, in the Legal Department got concerned that that capped percentage was creeping up there. It started to sound like what the counsel was alluding to – it’s starting to sound like legal fees. So we asked the Board if we could – I shouldn’t have used capping – maybe that’s a nasty word at workers' compensation – let me rephrase it – we asked at the Board at the time – I can’t remember how many years ago it was if we could keep it at 22% even though the administration was saying it should be higher and as I said it has just been recent years that our request to keep it at 22% has not been granted and we’ve been instructed to charge 29%.
Q: Is that because some court has awarded the Board 29% for administration –where do you get the guideline 29% - is that what the market will bear or ?
A: No. It is our financial people telling the Senior Management at the Board that that is what the administration percentage is for this Board. It was a sum too – there is a different system now but it was a percentage used to charge the Federal Government for the administration of the government employees compensation Act back in the days – it is not the case now but back in the days when the administration of the government employees compensation Act – the Federal Statute by this board was with the Federal Government was charged 22% and so it was linked to that. The same classification; the same criteria by the finance department.
Q: I just want to make sure I understand Section 10.6 where the worker elects to sue and gets an award that exceeds after deductions of whatever benefits he has received to date as well as the administration charge – there is an excess –now I guess you’ve got to compare that excess with what the worker is expected to receive for the balance of the claim out of the compensation system –how do you do that – is there a degree of crystal ball gazing there?
A: Sorry Judge Gill I didn’t follow.
Q: Okay. A worker injures and sues –and takes the matter to court and gets an award – and the Board I gather then would deduct its administration&ldots;.
A: I have to stop you; I understand you to say that the worker and maintains his own action? The worker does not elect to collect compensation?
Q: Yes – does not elect to collect compensation –
A: So he elects to maintain his own action and recovers – the Board is not involved right now
Q: Okay, just a minute let me rethink this. The worker elects to claim compensation – let’s say he does that
A: Okay
Q: The Board has subrogated his claim
A: Yes.
Q: He proceeds with an action against a third party
A: Yes.
Q: And an award is made.
A: Yes.
Q: And there is an excess to that award over and above what the worker has been paid to date under the compensation claim.
A: Yes.
Q: After deduction of the administration fees and all the rest.
A: Yes.
Q: Now at that point a decision has to be made whether to terminate the claim or not.
A: Yes. I understand your question I think. I apologize for not understanding it it’s perfectly clear. I think what you are asking is, well, what about future compensation – is it crystal balling?
Q: Yes.
A: It’s the work of actuaries. We know what the pension is. There may not be any future compensation payable; it just may be a – it just may be finalized. If I could step back just for a minute. Under a routine injury where there it is routine in the sense that there is no permanent aspect to it the workers' compensation system pays income loss, wage rate pursuant to the Act, and what in court is called special damages – medical aid. We go to court, we get the medical aid – special damages – that’s the wash. We get 100% of income loss where it is the compensation system is paying partial income loss so there is a difference there to the good in regard to the legal action and that’s all the compensation system pays whereas the courts go on to pay general damages – for pain and suffering. So when you get the distribution under Section 10 – under that scenario – there is of course an excess for the worker because the Workers' Compensation Board wants back medical aid which we covered from the legal action – it wants back that portion of the wage loss paid which we recovered from the legal action plus it wants its 29% but that’s payable because there is excess damages from general damages and that portion of the wage loss we got over and above what the Board paid. And so there is an excess payable to the worker. Now the plot thickens a little bit when that worker doesn’t fully recover and there is a permanent situation and addition to the monies that I just listed in that more simple case there is a pension reserve and so in addition to what’s been paid the Board is going to pay a pension of $500 a month for the rest of this worker’s life. The Board’s actuaries tell the Board what the monetary value of that pension is and it’s added to the money that’s kept back. And then and only then if there is excess is it paid to the worker and it is for that reason as I was explaining to Commissioner Stoney that in regards to asbestos claims that we get very little money in regard to long term pension cases there usually is not an excess payable to the worker.
Q: So under that scenario if at a later date say some years afterward there is a further deterioration in the worker’s condition – can that claim be reopened?
A: Yes, because it is always a compensation claim – there is nothing in that third party legal action that can adversely affect the worker’s entitlement to compensation save and except there can be – it can be affected by an excess payment that is a payment against future entitlement.
Q: So it is that excess that was paid some years prior then is taken into consideration when the claim is reopened?
A: Yes.
Q: The worker – worker bar Mr. Massing I think I took you to say that Justice Tysoe in the last commission into workers' compensation commented that originally the historic compromise did not include a worker-worker bar but that he recommended it be instated?
A: I have to look at the report to be certain but I know the issue was canvassed before Justice Tysoe and there were recommendations to the Royal Commission that the lawsuits between workers be prohibited by legislation.
Q; I might be wrong but my recollection is the opposite it was that the recommendation in the prior Royal Commission was the worker- worker bar was not supported – and as I recall the rationale being that it was not part of the historic trade off in the sense of there being any real contribution in exchange for that immunity.
A: I could be corrected on that – I recall that it was discussed before the Tysoe Commission and the legislation was amended within a few years following the Report of the Tysoe Commission. It is my clear recollection now I could be corrected on this – what the specific recommendation of the Tysoe Commission was. Yes. I could have a look Judge Gill and advise Mr. Robertson.
Q: Okay. Just following up on that - if in fact that it doesn’t flow from the Tysoe Commission as Judge Gill recalled what were the policy reasons behind implementing a worker-worker bar? Interesting to know if either of you could find that out – I would certainly understand that you would not be prepared – you don’t know that answer today but&ldots;
A: no answer
Q: The certification at the core under section 11 that is a function performed by the Appeal Division now – can you explain what the role of the court is as the body or institution to whom the application is being made – did that happen under all circumstances or only where an action is thought to be commenced by somebody or – what actually is the role of the court being the recipient of this certification?
A: I think the jurisprudence indicates that the court must await the certification of the Board – that this is a jurisdiction going by way of workers' compensation Act to the Workers' Compensation Board – I think it is the correct statement of law that it is not open to a judge to say for example I’m going to decide that issue – although they must be sorely tempted at times when counsel don’t get around asking for certificates but I think the jurisprudence confirms that that – the court must await that certification and is then bound by what is contained in the certificate. The consequences of the certificate is for the court to determine – those consequences may be obvious and they may not be obvious certainly it’s a simple matter the certification saying A was the worker, B was the worker – A is suing B – you know the next step is pretty simple that the action is statute barred but that is for the court to dismiss the action on that basis. The Workers' Compensation Board will not say that therefore the action is statute barred. The certificate will only say that A is the worker and B is the worker and I think I hope I’m answering your question that the role of the court is to accept that certificate and apply it. But it is bound by the contents of that certificate.
Q: My last question relates to an issue touched on by Mr. Sayre and that is the whole issue of the scope of compensation –what it is is there are all sorts of things that we have talked about that say that and have been describe as being as excluded as a result of the compromise for example recovery for general damages, recovery for pain and suffering – those kinds of issues but can we be clear about what it is that we are compensating for. The Act says the loss of the ability to earn income - is that as focused and refined that that definition can get or is that a grey area in and of itself in terms of what do we mean by that?
A: Basically, workers' compensation compensates for income loss.
Q: Under tort there are all sorts of headings even within that in terms of pecuniary damages – it very often limits only by the lawyer’s imagination
A: That’s correct.
Q: Loss of future opportunity, loss of potential, loss of a capital asset, a body part or the ability to do heavy work – those kinds of different aspects to pecuniary loss – how are they dealt with under this system? Are they all lumped together or are some of them excluded or are the all presumably compensated for under a functional pension or a loss of earnings pension?
A: I think that if you – I think no matter which way - it is clearly no matter which way you look at the legislation it is compensation for income loss and does not aim to compensate for all of the heads of damages contemplated in a civil court – pain and suffering being the obvious example – there are – there is an aspect of compensation for disfigurement under the Act that I guess you could argue but even that is clear under the legislation – it’s for potential loss of income. Even under Section 23.1 where there is a deemed income loss and which may or may not be provable in a court room it is still deemed income loss. I don’t think I’m in err when I say that the what you can sue for in a court of law in the way of heads of damages is more extensive as you point out Judge Gill than what is contemplated by the workers' compensation system.
Q: Maybe if I use a discrete example of a youthful worker with very little in the way of demonstrated earning capacity –injured – then at a time he’s earning relatively little income - is there capacity in the system to adjust for future –for whatever future increase in income earning potential that young person may have experienced or is that person forever stuck at that income rate that he was earning at the time of the injury?
A: From a compensation point of view you would want to undoubtedly will want to explore that with those faults in due course but in context of what we are talking about this can be if I can use the word – a harsh application of the workers' compensation system. If you have a young medical student for example with a brilliant medical career ahead of them who is very seriously disabled to the extent that they are not able to pursue that profession in a car accident caused by a fellow worker or an employer the consequences as you are suggesting quite catastrophic from a future income loss point of view who under no circumstances under workers' compensation I don’t think will ever make up that financial loss by that person – it is going to be a life time responsibility of the Board and there are a lot of good things you can say about the workers' compensation system in regard to that particular person but I think to answer the point that you are making it is in the long run going to be catastrophic to that person.
Q: Maybe we can supplement that one - is there any recognition of future earnings potential in these calculations – I’m thinking of pension purposes?
A: I think we will have a discussion about Section 33 that sort of gives the Board a lot of latitude and but to answer the judge’s question – in the context of Ed’s example of medical student if the Board was satisfied that that medical student in fact was heading in the direction of being a medical student – typically university or medical school the Board would set the rate on the claim on a class average for medical students. Now, of course it is subject to the statutory maximum. Typically doctors would make more than the maximum ultimately but you are not stuck at the MacDonald’s job you might be in while going to medical school in setting either your temporary rate or your long term rate and there might be a distinction sometimes between use of that rate for temporary benefits and also for permanent disability so perhaps the longer term rate will be used in setting the permanent disability rate.
Q: So there is potential or flexibility in the system to compensate for loss of future opportunity if it can be demonstrated to be a realistic opportunity that was forgiven?
A: Well, I probably wouldn’t agree that there was that potential but I think some potential to reflect it in the setting of the average earnings upon which both temporary benefit is taken and then ultimately in the setting of the permanent pension; now in loss of earnings the determination of the – we’ll have an opportunity to look at that but the Board policy requires that the Board should make a determination as to what kind of earnings the worker is likely to achieve in the long run – the maximizing potential in the long run – so in making a determination at that end of the scale I suppose there is some latitude for saying what is the income potential but I guess I’m struggling to find an instance in the legislation or in pensions policy where lost opportunity might be some way the compensate for – I don’t – having thought it through I don’t think there is a feature there but on the rate I wanted to make clear that there is opportunity to reflect that up front and average earnings on the compensation benefits.
Q: I’m prepared to restate my earlier question – I hope it is clear and Mr. Bates can respond to it again – I don’t think Mr. Bates and I were confused – for the record, Mr. Bates the question is whether providing in the statute the right of workers to sue tort feasors including their own employers would be a rupture of the system –for the excess in the earnings between gross income and what the Board would pay?
A: What I tried to say was that it would be difficult no matter what I personally thought to say that it would cause great harm or be impossible to do if indeed a jurisdiction like New Brunswick has something similar i.e. as in the case of car accidents – motor vehicle accidents allows just that to happen so I hope that I am not skirting the issue too much by answering in that way – but that is the way I answered it at that time.
Q: So first off even in New Brunswick you are saying your understanding on that – you understanding is only one aspect is motor vehicle accidents.
A: Car accidents.
Q: You are not allowed to sue the employer no matter what the injury is like – it’s just for that one area through any tort feasor.
A: That’s right. That’s my understanding – the special nature of cars – you know everybody’s insured and I indicated why insurance companies benefit to the expense of workers and no corresponding benefit to employers – it doesn’t make any difference looking at the situation in regard to employers being neutral or so the argument goes – the insurance company loves it and the worker suffers. So why not remedy that situation.
Q: So I understand that answer because it is another insurance system – the question is much broader than that –the question was basically any excess earnings so the person trips and falls down the stairs at work and makes $100,000 and they get $56,000 from compensation and they want to sue their employer for keeping the stairs without water on it and want to sue for $44,000. From the Workers' Compensation Board’s viewpoint I understand it won’t rupture the system but what do you think the employers’ in general reaction would be to funding the system and having the potential of always being sued if there is an excess?
A: Again, I would answer that as I answered your question earlier is that I could understand the discussion or the concern from the employers saying that we are modifying the employer compromise but notwithstanding I am paying into the system and I am now being sued for something for something that I may or may not be insured for. It’s okay to sue me for damages suffered in a car accident – everybody has car insurance but now I’m being sued for something that I am going to take out additional insurance because now there’s an exposure that I didn’t have before – I can understand that.
Q: These are your words – your words were: "litigation is very very difficult, very very expensive" – so what you are doing is you are putting employers in the situation where they have to go through the exact same expense – the exact same difficulty – albeit it is for a lesser damages than the first amount was paid by the Board – they still have to go through the same process – would you agree that the employer community would see that as a significant erosion from what the historic compromise was?
A: I could understand if they made that summation, yes.
Q: And from their viewpoint it would be a significant rupture from what our system is?
A: If I could understand their position – it would be that way, yes.
Q: Before I get to the one question I had forgotten to ask you before I just wanted to add to the comments of the last one - it seems to me that the employers’ answer should be – well then in order to protect ourselves from these costs we’ll pay assessments on all of the wages we pay to our workers and then of course they can’t sue us for anything -the trouble is now they want to have their cake and eat it too. And from an injured worker’s point of view it is highly unfair and it is no part of any compromise – it simply is injustice. The question that I wanted to ask you though – is really a clarification and it is rather technical perhaps but I think quite important in the context of some of these unusual conditions that were discussed earlier today - is it your understanding that the scope of coverage in Section 5.1 which refers to conditions arising out of and in the course of employment is precisely identical scope of the statutory bar in Section 10.1? In other words if the employers were successful and the Act was amended to say that the Board shall not pay compensation for stress claims would that take stress claims out of the scope of protection in Section 10.1 so that the worker who suffers stress as a result of the workplace could sue the employer? They would say yes but is that understanding of how the statutory bar applies?
A: Yes.
Q: Good. Are you aware that you do that now? I mean there are all sorts of labour arbitration and human rights cases – there are all sorts of cases that involve employees now who go after their employers for harassment be it sexual, be it otherwise – all sorts of things – are you aware of that possibility?
A: Yes.