Royal Commission on Workers' Compensation in BC

March 3 Full Day Session

Name(s): Rob Ingraham

Title: Director, Long Term Disability

Affiliation: WCB

Location of Meeting: WCB, Richmond

Date: March 3, 1998

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

Notetaker: Judy Stott

General Comments

Overview of the role of occupational disease services in the Compensation services division

Section 6(1)

Section 6(3)/Schedule B

Stress Claims

Will take questions on

Interjurisdictional agreement

Noise induced hearing loss

Rob Ingraham

Ron Buchhorn

Jay Rowland - Manager of Occupational Diseases

Dennis Campbell - Adjudicator in Occupational Diseases

Notetaker: Judy Stott

Presentation:

Policy - see submission

Section 6(4a) gives the Board power to amend Schedule B by adding or deleting diseases or processes for industry

These provisions have been interpreted to mean that occupational diseases recognized by the Board can be done so by inclusion in Schedule B, regulation of general application or by order dealing with a specific case

Distinction between injuries & Diseases – see submission

Primary component of this particular legislation, Section 5(1) is "arising out of and in the course of the employment" for personal injury

The majority of personal injuries are resulting from a specific incident or event, however certain injuries such as back injuries can occur gradually over time and multiple factors can come into play

Reaction to strenuous activity can vary greatly among individuals

The Board does compensate for back injuries occurring over time but again the majority of injuries adjudicated under Section 5(1) result from a specific incident or event or multiple incidents over time

The key component of Section 6(1b) is "the disease is due to the nature of any employment in which the worker was employed"

Facts of the claim must support the conclusion that the nature of the employment was of causative significance in the onset of the disease

The other key component is that no compensation other than health care benefits are payable to a worker who suffers from an occupational disease with the exception of silicosis, asbestosis and pneumoconiosis claims and also claims for hearing loss where Section 7 applies unless the worker is thereby disabled from earning full wages at the work in which he or she was employed

The key component of Section 6(1a) is the economic test, which you may have heard about

It states "is thereby disabled from earning full wages from the work at which the worker was employed"

There is no definition of disability under the Act

The phrase disabled from earning full wages from the work at which the worker was employed refers to the work at which the worker was regularly employed on the date that he or she was disabled by the occupational disease

This means that there must be some loss of earnings from such regular employment as a result of the disabling effects of the disease and not just an impairment of function

Challenges – see submission

The Ontario occupational disease task force report presented to the Ontario government in 1993 defined decisions about entitlement as follows

Simplistically decisions about entitlement for compensation are dependent upon a medical diagnosis, a scientific evaluation of whether there is a generic relationship between a particular disease and employment, an evaluation of a particular work place and work history or exposures, weighing the evidence and meeting the requirements of the legislation

The final decision has to be based on legal standards of proof – it can either be yes or no

Either the worker is entitled to benefits or is not, therefore a mix of legal, scientific and medical issues are involved and the adjudication process is the crux where they overlap

History – see submission

The main purpose of the Special Claims Unit was to centralize the administration of complex claims that were not seen very often and were difficult to adjudicate

A small centralized adjudication group was provided with training, resources and experience to deal with these types of claims

Commencing in 1973 the number of occupational diseases grew steadily and peaked in 1991 to a point of nearly 8000 occupational disease claims

The primary reason for this was the significant increase in activity related soft tissue disorder claims

The staffing of the special claims unit reached a high point in 1995 with 23 adjudicators and a total staff of 55

This number does not include the 6 medical advisors from the occupational health department that provided medical advice during this time period

The name of the special claims unit was changed to Occupational Disease Services in 1993 because the phrase special claims made claimants feel that they were being singled out for some type of special treatment

The division also had the desire to have one specialized unit dealing with occupational diseases

In 1996 after an extensive review a decision was made to transfer activity related soft tissue disorders or activity related soft tissue disorders to the service delivery locations and area offices throughout the province

Activity related soft tissue disorder claims represented about 60 – 70% of the entire workload in occupational disease services at the time

Current staff resources – see submission

This does not include adjudication of the activity related soft tissue disorder claims that is done province wide

Key challenges in terms of service delivery – see submission

Factors affecting timeliness – see submission

Issue of diagnosis in any particular claim can be complex as it is often difficult to determine causation in the adjudication process

Multiple diagnosis or injury mechanism can result in administrative delay while clarification is sought

For example, we may get a medical report that indicates questionable toxic exposure, questionable viral infection or questionable environmental sensitivity and that becomes the adjudicator's responsibility to research and determine what the causes may be

Worker delay in reporting the condition to employer and first seeking medical attention on the day of disablement is often an issue that occurs because many workers have difficulty determining whether or not their symptoms are related to work activity

We also receive some delays between when the worker seeks medical attention and the time we actually receive the medical report from the physician because initially there may not be a link between the symptoms and their work activity

Specialized medical tests may be needed to confirm a diagnosis or to determine a level of impairment and when ever an external specialist is needed it creates some delays in the process

Specialized medical opinions dealing with causation and impairment is often sought through respirologists, dermatologists, allergists and in some cases the BC Cancer agency

Medical reports often report symptoms rather than providing the diagnosis of the clinical condition

Uncertainty about the cause can lead to delays in routing the file to occupational disease services

For example, the file may be initiated in a Prince George office and without a specific diagnosis or at least specific symptoms it is difficult for the adjudicator in that office to determine whether or not that claim should be adjudicated in the occupational disease area

Obtaining employer information, reports, etc. if there has been multiple employers or multiple exposures can make things extremely difficult in the adjudication process

Workplace inspection/assessment/MSDS - helpful in determining causation

We often have to obtain Material Safety Data Sheets to determine whether or not there is a relationship between the onset of symptoms and the actual exposure to the work the worker was performing

Causation and aggravation may be complex necessitating an assembly of information from the worker, attending physician, the employer and often work site visits are included so that we can speak to the union representative – particularly when there is multi-factoral disease involved

Entitlement Challenges – see submission

Entitlement for compensation is impacted by a number of factors – see submission

Since WCB BC operates on an inquiry basis versus an adversarial basis there is no onus on the worker to describe his or her case

All that is needed is for the worker to describe his or her personal experience of the disease and the reason why they suspect the disease has an occupational basis

It is then the responsibility of the Board to research the recent scientific literature and carry out any other investigations into the origins of the worker's condition which may be necessary

There is nothing to stop the worker, representative or physician from conducting their own research and investigations as it may help Board in the adjudication process

We also appreciate information from the employer because the employer can provide critical information about where the worker may have been working and what they may have been exposed to at the time

The worker will not be prejudiced by his or her failure or their own inability to find evidence to support the claim

For this purpose the adjudicator will conduct a detailed investigation of the worker's circumstances including information about the worker, their diagnosed condition and their work place activities

The gathering and weighing of evidence is usually dealt with in Section 97 through 97(60) of the rehabilitation services and claims manual

Ongoing challenges in occupational disease compensation – see submission

Section 6(1a)

There is no definition of disability under the Act

The phrase "is thereby disabled from earning full wages from the work at which the worker was employed" refers to the work at which the worker was regularly employed on the day that he or she was disabled by occupational disease

This means that there must be some loss of earnings as a result of the disabling effects of disease and not just an impairment of function

Examples include:

An absence from work in order to recover from the disabling effects of the disease

An inability to work full hours at such employment due to the disabling effects of the disease

An absence from work due to a decision of the employer to exclude the worker in order to prevent the infection of others by the disease

The need to change jobs due to the disabling effects of the employment

Worker who must take time off from his or her usual employment for a medical appointments as a result of their injury/disease is not considered disabled by the virtue of that fact alone, however, income loss payments may be paid to such a worker and you can refer specifically to Section 83.13 of the rehabilitation services and claims manual

Section 6(1)

Current interpretation of 6(1) – see submission

An economic test must be met in Section 6(1) and it need not be met more than once for the payment of temporary disability benefits

Section 6(1) with respect to pension benefits it is an area of concern for stakeholders – though there may be a physical impairment pension benefits are not payable unless the impact of the disease requires the worker to withdraw from all employment or take a lower paying job

This issue will be discussed more on the pension area on Thursday

Challenges

Not all diseases are treated the same – e.g. there is no economic test for claims in silicosis, pneumoconiosis, asbestosis or noise induced hearing loss

Not all workers are treated same – e.g. a person with an amputated finger or personal injury may receive a pension despite being unable to continue their regular employment and a worker with a work related chronic asthma with ongoing respiratory symptoms managed with a significant use of medication may not receive a pension if a worker remains at the work in which the worker was employed

The long latency period between exposure and onset is another area of challenge in that some workers may have had long term exposure during work and worker may not see effects until after retirement yet the Board doesn't recognize that

Allergies and Sensitivities – see submission

E.g. auto body shop worker may have had to take time off temporarily because of isocyanate allergy and eventually they may get to a point where the condition becomes permanent and at that stage we would consider that individual for a permanent pension

Wage loss benefits are based on medical proof of disability and we currently interpret disability to mean acute symptoms with physical impairment

E.g. shortness of breath, wheezing and associated cough versus medical diagnosis that says chest is clear, no wheezing, no cough

Benefits in preventative rehabilitation – will be talked about tomorrow

Pensions adjudicated on basis of functional impairment – better discussed with pension issues on Thursday

ASTDs – Activity Related Soft Tissue Disorders – see submission

6 conditions now treated as occupational diseases by regulation require an analysis of risk factors to determine entitlement

When these claims became centralized it became very difficult for us to do site visits throughout BC, thus a corporate decision was made to decentralize the administration of activity related soft tissue disorder claims

Important for case manager to see job site, discuss work with employee, union representative and supervisor at the job site

Section 6(3) – see submission

Primary significance of Schedule B is with its use as a means for establishing work causation

The fundamental purpose of Schedule B is to avoid the repeated effort of producing and analyzing medical and other evidence of work relatedness for a disease where research has caused the Board to conclude that such disease is specific to a particular process, agent or condition of employment – see Section 26.01 of the rehabilitation and claims manual

Once included in Schedule B it is the presumption of individual cases that fit the disease and process industry description that the cause was work related

A claim covered by Schedule B can be accepted even though no specific evidence of work relationship is produced

A review of the available medical and scientific evidence would establish a likely relationship between the disease and the employment

The listing in the Schedule avoids the effort of producing the evidence in every case where the research does not clearly relate the disease to a particular employment the disease is not listed in Schedule B and the issue of work relatedness must be determined on a case by case basis

Section 6(3) applies whether the disease manifests itself while the worker is at work, at home or while on holidays or elsewhere

E.g. the worker has lead levels that are significantly higher than normal and so he files a claim and lays off work on the advice of an attending physician

If in the adjudication of that claim there is exposure to lead compounds at work the claim is accepted

Amending Schedule B – see submission

1997 the policy bureau will now work with the occupational disease advisory committee to reactivate this process so that the 6 outstanding issues, which the governor's did not approve in 1994 could be addressed

Once completed these recommendations will be presented to the panel of administrators for a decision

Section 6(3)

Of the more difficult areas in dealing with Schedule B is the language in Section 6(3), the phrase "at or immediately before"

The words "immediately before" in Section 6(3) are intended to deal with those situations where someone has been employed in the process or industry described in the schedule and has left that employment a very short time prior to the disease

An exception to this is where medical and scientific evidence has established that there is a long latency period between the exposure to the process, agent or condition of employment and the time the disease first becomes manifest

Individual judgment must be exercised in the circumstances of each claim to determine the meaning of immediately before, having regard for the medical and other evidence available

E.g. a respiratory irritation resulting from the inhalation of an irritant gas can be expected to occur within a short period of time following the event

In the circumstances of such a claim the presumption would normally be considered only where the condition became manifest within a short period of time following the exposure

However, in a claim filed by a worker suffering from a recent onset of cancer listed in Schedule B but who has not worked in the industry or process described opposite such cancer for a number of years

It may be appropriate to conclude that the worker was employed in such process or industry immediately before the date of disablement by virtue of the long latency period, which is known to exist with respect to such cancer - refer to Section 26.21 of the rehabilitation services and claims manual

This particular section attempted to deal with the problem of long latency periods for diseases such as cancer, however, the appeal division decision, #960727, finds part of the policy in Section 26.21 not viable and identifies a possible need for a statutory amendment

Another area in Section 6(3) that causes confusion is "unless the contrary is proved"

Inclusion of the words unless the contrary is proved means that the presumption is rebuttable

Even though the decision maker need not consider whether working in the described industry or process is likely to have played a positive role in giving rise to the disease they must still consider whether there is evidence which rebuts or refutes the presumption of work relatedness

The standard of proof to be applied in determining whether the presumption has been rebutted is proof on the balance of probabilities

This is the same basic standard of proof applicable in the Worker's Compensation system

If the evidence is more heavily weighted in favour of that conclusion - that it is something other than employment that has caused the disease - then the contrary will be considered to have been proved and the presumption will be rebutted

The gathering and weighing of evidence is generally covered under Section 97 through 97(60) of the rehabilitation services and claims manual

Psychological impairment – see submission

Section 32.10 deals specifically with psychological and emotional conditions

It provides that the Board does accept claims for personal injury where the injury consists of a psychological condition but it does not recognize any psychological or emotional conditions as occupational diseases related to employment

Section 22.33 deals with psychological problems and chronic pain problems

It provides that psychological problems resulting from physical or psychological injury are acceptable as compensable consequences of the injury but in order to qualify there must be evidence that the claim is psychologically disabling beyond unexplained subjective complaints or difficulty in psychologically or emotionally adjusting to an injury

Section 22.33 of the rehabilitation services and claims manual also provides that where a psychological problem arises without the occurrence of any physical injury reference should be made to Sections 13.20 and Sections 32.10

Section 13.20 deals with psychological impairment

It provides that personal injury includes psychological impairment as well as physical injury and that claims for traumatically induced psychological impairment could be accepted even if not accompanied by any physical injury

Item 13.20 also states that psychological impairment has not been deemed to be an occupational disease but such conditions may be accepted if they are a sequela to an accepted personal injury or occupational disease

Section 32.20 deals with emotional and physical exhaustion

This section provides that physical and mental exhaustion is not recognized by the Board as an occupational disease

Section 14.20 deals with the occurrence or non-occurrence of a specific incident

It provides that it is not a bar to compensation when an injury occurs over time rather than from a specific incident, however, to be compensated there has to be something in the employment that has causative significance in producing the injury

See graph in submission for claims arising from psychological impairment

The bottom left hand corner is 1984

What we are trying to show here is an increase in the number of claims accepted for psychological impairment claims – it has increased significantly over the last 12 years

In 1996 we accepted over 250 claims

Closing comments

1990 the adjudication staff accepted into the special claims unit or the occupational disease services area were

The senior adjudication staff with considerable years of experience

They generally have an interest in adjudicating complex claims including occupational diseases demonstrated ability to investigate and make supportable decisions on complex claims

Adjudicators assigned to the special claims unit would complete an extensive in house training program, which includes extensive training in the application of Sections 6(1), 6(3) and Schedule B

One on one training is also provided by an occupational health physician with training topics ranging from poisoning by toxic agents, skin disorders, respiratory disorders, cardiac disorders and cancers

Also provided is one on one training with an occupational hygiene officer

There is also a long mentoring program with a senior claims adjudicator, a special claims adjudication unit and occupational diseases

In 1990 less experienced adjudicators were assigned to the special claims unit and occupational diseases and the in-unit training program has remained essentially the same

The average years of service in occupational diseases at this time is approximately 11 years

The nature of the claims and occupational diseases is such that the learning process continues as new information becomes available

Questions and Answers

WINTER:

Q: I would like to start with Schedule B. Could you elaborate on the kind of training that the adjudicators and the occupational disease service area would get on adjudicating under Schedule B?

A: We haven't trained anyone for the last year and a half. What we do is there is a long mentoring process that occurs after they go over the technical parts of the law and policy. And then there is a practical experience with the claims. This mentoring period goes on for quite a while. They work in a pod system where they have case conferencing on difficult claims so that there is ongoing support and review of cases within the session.

Q: Let's look at Schedule B. My view is that the wording in Schedule B is inconsistent and difficult to understand. In the description of process and industry there are different words used about the nature of either exposure or contact. The two words I want to start with are prolonged, which is use on 8 different occasions. It is used 7 times with the word exposure and once with the word control. Excessive is used 6 different times. For example, if you look at 4F, which is cancer on the 3rd page, page 73, at the bottom. It says that where there is prolonged exposure to benzene or to ionizing radiation. We flip to the last page under radiation injury or disease and here the 3rd description of industry or process says where there is excessive exposure to infrared, microwave or laser radiation. What is your understanding of the difference between prolonged exposure and excessive exposure?

A: It is difficult to quantify with significant precision the difference between excessive and prolonged. I am not sure if the available research is that precise in that particular area.

Q: Do you train on it?

A: We discuss it in our training process.

Q: You and I are discussing it but do you train people on trying to determine what the difference is between prolonged and excessive?

A: Prolonged typically refers to over time whereas excessive would typically refer to a dose.

Q: That is my understanding but that can lead into problems. I have a lot of experience in dealing with this with respect to fire fighter and cancer claims. I have one example of a fire fighter with 22 years of experience but the exposure was intermittent. Evidence showed that the fire fighter would fight approximately 2 to 3 fires a month and the issue was raised is that prolonged? The Review board said it wasn't prolonged because it was intermittent. Are you aware of the Review board's thoughts on that?

A: On a case by case basis I am aware of their thoughts.

Q: Again, do you train the adjudicators on the type of discussion that the adjudicative bodies have on the word prolong?

A: In terms of specific training I think that it has already been covered. That is an issue that is described and discussed with adjudicators.

When we get particular Review board decisions of interest we would go over them in our staff meetings or in our adjudicative meetings.

Q: The appeal division, on the other hand, when it got the same cases determined that 22 years is used as a surrogate for exposure and therefore met the definition of prolonged just on the fact of years versus the amount of exposure that would be dealt with there. Are you aware of that distinction, that the Review board and the appeal division don't see eye to eye on the definition of prolonged ?

A: Yes

Q: Would you agree that there is a difference between a fire fighter exposed to asbestos over 20 years through intermittent fire fighting versus a worker who works with asbestos day in and day out?

A: I would agree that there is a difference.

Q: Would you agree that it would be significant?

A: Yes I would agree with that.

Q: And the word prolonged would you agree should focus on that kind of difference?

A: Sometimes you have to consider the agent that you are speaking about. With asbestos if you get a high dose of asbestos on one occasion that can begin to trigger the chronic inflammation that follows. The fact that there may be intermittent exposure over the years there after may be less important given the nature of the dust.

Q: Very true and when you look at asbestos throughout Item 4 they don't have an adjective. It just says where there is exposure to air borne asbestos dust again acknowledging the point that you just raised Mr. Campbell. If we go back to leukemia where it says prolonged exposure it is the same issue. You may have a fire fighter that has worked for 20 years that has exposure one to three times a month to a fire - every fire has benzene - versus someone working day in and day out who exposed to benzene through PAHs. Would you agree that that is a fact that has to be looked at with respect to prolonged?

A: This particular issue is one of the 6 items that was left over by the Occupational Disease Standing Committee and this is an issue that is in public consultation with the employers and labour community and that is a fact that is being looked at.

Q: Sorry could you go over that again. My understanding is that the 6 items left over from the committee were actually 6 specific items that are on the schedule. I am not aware of any dealing with the word prolonged and what that means being carried over. For example, fire fighter heart is one of the 6 items and this doesn't have an issue of prolonged in it. Would you like to retract?

A: I would agree with that.

Some of the items that has been identified have that language in them. Item 8, for example, has the word excessive in it. That terminology may be consulted on.

Q: One of the arguments that employers raise with these fire fighter cases is that prolonged should have an element of sufficiency. When we got to benzene again, for example, you would agree that under the Board's own regulations they set out permissible limits for a variety of substances. Is that correct?

A: Yes

Q: You are aware of that and one of them is benzene.

A: Yes

Q: That has a permissible level of .5 parts per million over an 8 hour exposure limit. Is that correct?

Q: Prolonged has been interpreted by the Appeal Division as it doesn't matter if you have prolonged exposure in length of time to very low levels of benzene or any other elements under Schedule B and it doesn't matter because prolonged deals only with length of time not with sufficiency of exposure. Do you agree with that?

A: I agree that that is the Appeal Division's interpretation.

Q: For example, we are all exposed to benzene on a day to day basis. Did you know that?

A: Gasoline

Q: We breathe it. So if there wasn't a level of sufficiency that had to be recognized we could all have leukemia potentially. Is that correct?

A: I don't know if I can answer that.

Q: If we work and live in an environment that has low levels of benzene Schedule B says it has to be accepted because we have prolonged exposure to benzene. Is that correct?

A: Unless the contrary is proved.

Q: We are going to get to how do I prove the contrary in a minute. I couldn't on sufficiency because I was told the word was prolonged. I want to go through some of the other words here because that is only 2. Look at Item 7 – "extrinsic allergic alveolitus where there is repeated exposure." Now what does repeated exposure mean?

A: More than once

Q: What is the difference between that and excessive or prolonged?

A: Prolong would imply that there are a series of exposures over a long period of time. Repeated exposure suggests to me that the exposures are occurring in a much shorter time frame.

Q: So it is a subset of prolonged?

A: In a sense.

Q: How about #2b and 2d? Under 2b and 2d you see the words "employment where close and frequent contact. What does that mean?

A: Close would mean you are directly dealing with sources of the infection - hands on dealing with patients - and that work would have to be relatively frequent as opposed to intermittent.

Q: Again we are somewhere in the prolonged subset?

A: Part of the continuum yes.

Q: Go to Item 2a. Here we've got established contact. How does that work?

A: Proven contact and that only takes one exposure to that agent to develop that viral disease.

Q: Isn't that interesting because doesn't mesothelioma take only one exposure?

A: It may.

Q: When you look at 4b under mesothelioma it doesn't say where there is established exposure. Is there a reason for the difference?

A: It's probably simply a recognition that the exposure could be a single exposure or exposures over time.

Q: Let's go to number 10, fleurosis. Here we switch. Instead of having n adjective we say where there is exposure to high concentrations. Now we are getting back into the excessive world I take it. How do you interpret high concentrations as opposed to excessive?

A: I believe that language is used because fleurosis is a disease that comes on with fairly acute and in a dramatic fashion. If you have someone with fleurosis one would expect that you have had a fairly good whiff of that stuff. That is probably why the language is that way.

Q: Would excessive not do it?

A: It probably would have the same effect.

Q: Item 11 has "where there is prolonged exposure to excessive." My point is that Schedule B begs for redefinition of the terminology. Do you agree?

A: We had the same debate many times around the table where the governors were sitting on the Occupational Disease Standing Committee. There were opposing views on that. At the end of the day a decision was made that except for the 6 items identified we would keep the language.

Q: As a lay person wouldn't you agree that this is awfully confusing?

A: There is always room for greater precision yes.

Q: What I am also looking at is the training that you have to give to adjudicators. They have to deal with these on a day to day basis. Don't you think it's prone to getting inconsistent different decisions because there is so many different words left that are prone to interpretation?

A: One of the benefits of being a centralized unit is that when you run across those language difficulties and you have some uncertainty you can discuss that with your peers. When you are learning in this area you can learn from you mentor.

Q: There are stakeholders who also need to know how this works. Do you agree with that?

A: Yes

Q: One of the disadvantages of the current Board is when changes are needed the Board is slow to do it. This is another example, where the language is all over the place but no change. You say it was debated and decided not to deal with those words. What was the nature of the debate against looking at those different words there and trying to get a little more consistency in definition?

A: Those debates took place 3 or 4 years ago so it is difficult to remember exactly.

Q: You remember that the terminology like prolonged and excessive was debated but you don't remember what the cons were of making the changes?

A: In terms of wanting to change the language I think the worker community was wishing to have greater certainty in the language, some of the descriptive phrases. The discussion centred around the actual use of those scheduled items, how much difficulty the language seemed to be producing, what levels of controversy seemed to be out there in the communities and those are the kinds of things that were considered.

Q: Was it considered that there was controversy between the review board and the appeal division themselves about how the word, for example, prolonged should be interpreted?

A: I don't recall that.

Q: Would that have been your responsibility to make sure that that was brought forward to the governors or the panel of the administrators?

A: If there were particular cases?

Q: Well there were particular cases.

A: Yes cases came up that were on point. These would be put before the committee.

Q: It is your view that the differing opinions by the 2 levels of adjudication was put before the committee

A: I can't remember if there were materials on that specific issue and that's simply a function of time. It's been a long time since I've thought about those things.

Q: Let's move to a different issue under Schedule B. Would you agree that there are several activity related soft tissue disorders on Schedule B ?

A: Yes

Q: Bursitis which is Item 12, tenosynovitis and tendonitis?

A: That is correct.

Q: My understanding is also number 16, vascular disturbances of the extremities.

A: That is not really an activity related soft tissue disorders.

Q: I didn't think so either but it is in the chapter of activity related soft tissue disorders. Let's just talk about 12 and 13. Those are clearly what would be considered activity related soft tissue disorders, correct?

A: Yes

Q: Would you agree that those are anomalies and that there are a variety of other activity related soft tissue disorders that aren't listed on the schedule that are dealt with under Section 6.1?

A: I wouldn't describe that as an anomaly. They are diseases that have certain similar characteristics to some of the diseases that have not been included in the schedule.

Q: I will call it an anomaly. Prior to chapter 4 being revised you would agree that epicondilytis and carpal tunnel syndrome, for example, were treated in the manual as personal injuries?

A: Yes

Q: I believe it was the governors who actually considered and designated epicondilytis and carpal tunnel and several others that Mr. Ingraham went over, were recognized as occupational diseases.

A: Correct

Q: Did they consider putting them under Schedule B?

A: Yes there was that discussion yes. Maybe the labour community was but the employers/governors were not prepared to add those items.

Q: The employer community was also uncomfortable with having them on Schedule B because is perceived that these are conditions that are common both maybe through work but also through non-work issues. Do you agree that it is a common non-work issue also?

A: Yes and that's why those are 2 of the 6 items that have been identified for review.

Q: I understand that but again the employer community has a lot of difficulties keeping accepting from the Board on a variety of different issues, it is not just compensation services that we are going to get to it in due course. This was identified in 1994 as something that had to be looked at. Now I recognize that the Governors were disbanded in 95 but the fact of the matter is the system is still moving forward and cases are still being adjudicated. Is that correct?

A: Yes

Q: Since 1994 at least bursitis, tenosynovitis and tendonitis are still treated as Schedule B presumption cases. Is that correct?

A: Correct

Q: Whereas epicondilytis and carpal tunnel are treated under Section 6(1) and the chapter sets out fully the way to adjudicate an activity related soft tissue disorders.

A: Yes

Q: I call that an anomaly but you don't agree?

A: I don't agree.

Q: But it is a difference?

A: It is a difference.

Q: I want to spend a little time on Number 5, fire fighters and heart injury. When I asked questions of classification and assessments I used the example of Roger's Sugar and the difficulties it had in taking a meritorious issue and getting change. I think compensation services under Schedule B, fire fighters and heart disease is going to be my example. I need to spend a little time setting this up. You are aware that there has been a controversy particularly from the employer community, the municipalities with the inclusion of heart injury and disease on Schedule B. Is that correct?

A: I am aware of that controversy.

Q: How long have you been aware of that controversy?

A: Probably when I joined in 87.

Q: It has been a long standing controversy?

A: Yes

Q: Is it still on the Schedule?

A: Yes

Q: The concern raised by the employer community is that the scientific and medical evidence just doesn't justify leaving Schedule B to include heart injury and the occupation of fire fighting. Is that basically the arguement?

A: Correct

Q: The beauty of Schedule B and the deletion after the 1966 Royal Commission of Schedule B is that the Board is now given the power on its own to revise Schedule B. That was supposed to be a good thing, is that correct?

A: Yes you don't have to go to Cabinet.

Q: Here is an example of something that has stayed on since at least 1987 when you were aware of a controversy. That's kind of contraindicative to the intent of having the Board able to deal, in a timely manner, with changes in scientific evidence. Is that correct?

A: Simply because a controversy exists doesn't mean that you snap your fingers and solve the problem.

Q: Be a little honest here Mr. Campbell. You are aware that the scientific evidence shows that fire fighters and heart should not be on Schedule B. Is that correct?

Steeves: This evidence is very controversial and I object to one side being put to this witness. If we want to get into the scientific merit of a specific item in Schedule B let's get into but I think that you need to decide whether you want to get into all items in Schedule B.

GG: You can certainly discussion controversial issues with respect to occupational diseases. It is not our role here to determine specifically determine whether a given condition belongs or does not belong on Schedule B. Keeping that in mind please frame your questions accordingly.

Winter: My purpose here is not to seek the Commission making a change to Schedule B but it is to point out some of the problems we have with the WCB making change when change appears on the face of it to be demanded. That is the point that we will be asking the Commission during arguement to consider. How do we ensure that Schedule B is looked at and dealt with on a consistent basis.

WINTER:

Q: Mr. Campbell, fire fighter and heart were one of the 6 items that the committee indicated should go ahead for further assessment. Is that correct?

A: Correct

Q: That was accepted by the governors, correct?

A: Yes

Q: The Board actually did go out and retain the services of an independent consultant, an expert in the field, to look at that issue. Is that correct?

A: The governors resolved with respect to each of the 6 items to start a process of ongoing review by requesting an independent medical, scientific assessment of what the literature tells us about those 6 items. We did that with respect to Item 5 as well.

Q: The opinion that you got back from the experts said that there was no scientific medical basis to include heart and fire fighter on the Schedule. Is that correct?

A: don't want to put words in the mouth of the reviewer but his views were such that he felt the evidence tying heart disease and fire fighter together was quite weak.

Steeves: Mr. Chairman are we getting into the issue of whether Item 5 should be in the schedule at all?

GG: Is that the issue Mr. Winter or is it how the Board is dealing with it?

Winter: It is the non-dealing of the issue by the Board.

Steeves: What issue is that Mr. Chairman? The non-dealing of what issue? If the issue is that the Board has not dealt with whether Item 5 or the other 5 items should be in the schedule or should be changed then as a process question I think that is very much before you. If we are getting into the individual items and it looks like to me that we are then if you are going to accept that document then the onus is on me to rebut that with an equivalent document. I have to put in a whole bunch of evidence about why that presumption should stay. I am suggesting that we don't want to get into that. If the employers' point is that it is taking too long then the employers should ask why did the government structure fall apart in 1994 and why has it taken so long for there to be a review.

GG: The issue is not what or what not this Commission should have put before it. It's the purpose to which we can put the information to use. We can only raise some of these issues within the context of specific situations and within that framework I am going to allow those questions.

Steeves: Does that mean that I can put in evidence about brain cancer and ask this panel why brain cancer and fire fighters is not on the schedule?

GG: No but you can use that as an example to demonstrate that it is not being adequately dealt with as an issue not with respect to that specific disease but with how the Board deals with the issue generally. There has to be a contextual relationship to how this information is put to the Commission.

Steeves: You have now evidence before you that I will need to rebut. I am going to need more time.

GG: We will take that under reservation.

Q: Mr. Campbell you said that you didn't want to put the words of the expert so let's use his exact words. I've given copies of documents and it is the bottom document there, there were three attached to the packet. The first one was a letter dated February 6, 89, the second is an excerpt of a court in Saskatchewan and third is the one that I want to talk to you about. It is a November 15, 94 letter. Who is Doctor Hilliard?

A: Doctor Hilliard was the director of the occupational health department at that time and from time to time she would sit in on meetings with the Occupational Diseases Standing Committee. She was instrumental in helping us to find appropriate individuals to carry out not only the original assessments but subsequent peer reviews as well.

Q: So if we look at Doctor Misgala's first page it is a letter. He says in the first paragraph that he has reviewed all of the literature he could find pertaining to the relationship between fire fighter and heart disease and in the third paragraph "I reviewed this data from a purely medical, scientific perspective and have formulated my final judgment based on rules of evidence which are currently kept and used by the medical and scientific community. If I understand it this is what you rely on - medical, scientific perspective, rules of evidence used by the medical and scientific community - to determine what goes on or off Schedule B. Is that correct?

A: I think he is making a reference there to rules dealing with epidemiology.

Q: Yes the Hill criteria but that is what would be looked at with respect to Schedule B?

A: Yes

Q: If you turn the page and I just put in the conclusions the last paragraph says "Using Hill's criteria applied to the data review we can only conclude that the balance of evidence suggests that at this time there is no medically, scientifically valid evidence to support he hypothesis that fire fighters, by virtue of their occupation, are subject to increased risk of developing circulatory diseases generally and heart disease specifically. Indeed the weight of the available evidence rather suggests the contrary." Those were Dr. Migala's words. Is that correct?

A: Correct

Q: Nevertheless the Board is still accepting heart disease and fire fighter cases under Schedule B because it is still in the schedule. Is that correct?

A: That's right. The debate surrounding that scheduled item has yet to be completed.

Q: I don't deny that there is another side to the debate. The point being here we are and this opinion was given in 1994 and cases are still being accepted under Schedule B 3.5 years later.

A: Right

Q: The other documents there, which I won't go over now because I think that you have already identified it – the February 89 letter from Dr. White to the City of Vancouver basically sets up that there is a controversy and refers to the report prepared for the Saskatchewan Board. I've only given the conclusion and it was the same sort of conclusion that the studies don't show an increased incidence of fire fighters and heart disease. Were you aware of the Saskatchewan report.

A: No

Q: Is this the first time that you have seen it?

A: Yes it is.

Q: Do you know how many fire fighter heart cases have been adjudicated since 1990?

A: I don't know I would have to look through my statistics but last year there were 4 accepted under Schedule B.

Q: How many were rejected?

A: There were 31 cases but I can't tell which of those were fire fighters.

Q: Is there a way to find out since 1990 how many fire fighter heart cases were brought to the Board and how many were accepted and rejected?

A: We can track those that were accepted. Our central statistics don't track cases that were disallowed.

Q: Are you aware of any rejections of fire fighter heart cases?

A: I have personally rejected one.

Q: Was it appealed?

A: I have heard nothing about an appeal. I am sure that it will be appealed.

Q: I want to talk a little bit about Section 6(3). This is a statutory provision that gets us into Schedule B. There are two phrases that Mr. Ingraham raised under Section 6(3) that, if I understand it, provide some of the difficulties of adjudication. The first one is the words "at or immediately before", correct?

A: Correct

Q: You identified, if I recall, an exception to the at or immediately before and that is latency periods in cancer cases. Is that correct?

A: Correct

Q: You also identified that the Appeal division questioned the validity of that interpretation. Is that correct?

A: Correct

Q: How is that being applied now by adjudicators? Are they still considering long latency periods as being at or immediately before in cancer cases?

A: We haven't changed our practice since the appeal division if that is the question.

I haven't personally had a claim that dealt with that yet but if I did have one I would have to very seriously consider the language of the appeal division.

Q: Let's talk about the words "unless the contrary is proved." These are the words that set up the rebuttable presumption, correct

A: Correct

Q: Just reading the excerpt from the claims manual Mr. Ingraham identified as Section 26(21), and I haven't made a copy, I wanted to know if this is your understanding of how it is dealt with. Standard of proof to be applied in determining whether the presumption has been rebutted is proof on a balance of probabilities. This is the same basic standard of proof that is applicable in the worker's compensation system. If the evidence is more heavily weighted in favour of a conclusion that was something other than the employment that caused the disease then the contrary would be considered to have been proved and the presumption would is rebutted. Is that your basic understanding of how Schedule B cases are communicated?

A: Yes

Q: This paragraph that I just read doesn't require the contrary to be proved for an alternate cause to be established does it?

A: No it does not.

Q: If it could be established that on the evidence the indicated cause was not the factor that resulted in the disease and the actual cause was unknown then my understanding of that paragraph is that presumption would be rebutted. Is that correct?

A: I don't agree with that.

Q: What is your understanding?

A: If you use a simple example like lead poisoning and let's assume that the person went to the doctor and had high blood levels and in fact was diagnosed with lead poisoning. In the adjudication of the claim it was evident that the worker, at the place of employment had exposure to lead. Perhaps he worked in a radiator shop. If the only evidence that one had to rebut the presumption was a medical opinion that says that I don't think that exposure to lead in that kind of work environment is going to give someone lead poisoning, if that is all the evidence that there was then that would not, in my view, rebut the presumption.

Q: Let me give you an example with the case of no other cause being established. I want to deal with cancer, number 4G – primary cancer of the skin. Primary cancer of the skin is a wide description of several types of skin cancer. Is that correct?

A: That is correct.

Q: My understanding is that there are a variety of them and the three main ones would be malignant melanoma, squamous cell and basal cell. Is that correct?

A: Sounds reasonable to me.

Q: It goes onto the description and it is two pronged. It says prolonged contact with coal tar products, arsenic or cutting oil, that is one aspect, or prolonged exposure to solar ultraviolet light. Correct?

A: Yes

Steeves: If Mr. Winter is going where I think that he is going he lost this in a court of appeal a year and a half ago. It goes to whether the relationship in Schedule B should be there again. If that is where he is going then I object again.

GG: Is it your intention to question a specific causal relationship Mr. Winter or is it to get at some other issue?

Winter: The issue here is that Schedule B should not be interpreted in a way that one has to go and show another cause. If the evidence can show that the cause identified here on a balance of probabilities was not the causal factor but an unknown cause was. We will be asking the Commission to state that Schedule B should be interpreted wider than just having to show an alternative cause. Again I am not asking you to decide any particular case but the case is the example of the issue that came up.

GG: It is an illustrated example that will shed some light on what should be the test in terms of how causation is established in Schedule B claims?

Steeves: He is going to say that malignant melanoma is a primary cancer of the skin but it is not known to be caused by the substances in the second column of Schedule B. That is the point he lost at the court of appeals and at the appeal division. So that, in my submission, goes to an issue under Section 6(4). That is, if an employer objects to that they should make an application under 6(4) about the specific relationship in item 4G.

GG: I am not particularly interested in whether the items across from 4G contribute to that condition or not for the purposes of this inquiry today. As long as we understand Mr. Winter that you are not going to ask questions that would argue in favour of having that specific causal connection be linked.

Winter: I am not seeking the panel, at all, to revise Schedule B. What I am seeking when we get to arguement is for the panel to consider the nature of the rebuttable presumption and how one meets that rebuttable presumption. Part of that has to be does one have to show an alternate cause or is it enough if it shows that it's an unknown cause that the evidence on a balance of probabilities finds that it wasn't on the schedule.

GG: Any questions that go to those issues I think are fine.

WINTER:

Q: Again Mr. Campbell I am just going to put the position of the employer to you and I am not asking you to agree or disagree. The employer came to the review board on this case and called expert evidence - epidemiological and toxicological - that melanoma is known to be caused by solar ultra violet light, the second prong, but not coal tar products, arsenic or cutting oils, the first prong. Obviously labour, the fire fighters' union and families took the opposite approach. The review board accepted that evidence and found that on the evidence of front of it melanoma could not be caused by coal tar products, arsenic or cutting oils. There was not dispute between the parties that there was no prolonged exposure to solar ultra violet light so they denied the appeal on the balance of probabilities. Are you aware of that case?

A: Yes

Q: Are you aware of the history of that case?

A: It's been a long time since I have seen it but yes I am aware of that case.

Q: The appeal division reversed that because basically the employer could not establish what the alternate cause was for melanoma. Are you aware of that?

A: I am aware that they accepted the claim.

Q: The matter went to supreme court on judicial review by the employer arguing that the test being set by the appeal division was one of certainty as opposed to a balance of probabilities. That arguement was accepted by the supreme court. Are you aware of that?

A: I haven't read that decision.

Q: What the supreme court said was that the onus wasn't to prove another cause on the balance of probabilities they just have to prove that it wasn't that cause. That was taken to the court of appeals. The court of appeals deferred back to the appeal division and the appeal division stood. Is that correct?

A: Yes

Q: I provided a case from the review board back in 93. That was a case of a fire fighter with heart disease and he had all other potential heart injury causing factors in life but the case was accepted under Schedule B. I think that I will just deal with that in arguement.

Q: In your presentation, Mr. Ingraham, you referred to Section 6(1) as having the economic test.

A: That is correct

Q: That is based on the wording "thereby disabled from earning full wages at the work."

A: That is correct.

Q: If I understood it you left the impression that for personal injuries under Section 5 there is no such economic test. Is that your view?

A: That was outlining the differences between Section 5(1) and Section 6(1) a and b. I didn't address Section 5(2).

Q: Why don't you address that now?

A: Is there a specific question?

Q: Does that set an economic test?

A: For the payment wage loss benefits.

Q: And it uses the same words, "where an injury disables a worker from earning full wage at the work for which the worker was employed."

A: That is correct

Q: I think that you gave an example of an employee who loses the tip of a finger or a finger. They will still get a pension under Section 23.1 for a permanent disability. Is that correct?

A: That is correct

Q: You also said that that person may not have any actual loss or economic loss because they are continuing on with their job and not disabled from the viewpoint of doing their work. Is that correct?

A: I don't think that I went into that level of detail in my overhead.

Q: Do you agree with what I said?

A: I think that the understanding of pensions is that when an individual has been awarded a pension for a functional loss there is a loss over the time of the life of that injured worker's employment career.

Q: My understanding of Section 23.1 - the loss of function pension - is that it is an average for the average worker. It is trying to build in consistency through the evaluation chart that every worker that loses the tip of a finger will be treated the exact same way because over the working lifetime of an injured worker the Board expects that it may have an impact on their earning capacity. Is that correct?

A: That is correct.

Q: But there are individual differences that Section 23.3 allows the Board to get involved in loss of earnings pensions then?

A: That is correct.

Q: Now the Board has prepared a briefing paper called Medical and Legal Issues Related to the Recognition of Occupational Disease dated January 23, 1997. Are you aware of that?

A: Yes

Q: On page 13 they talk about Section 6(1) and they describe another anomaly. It talks about a retired worker and let's use fire fighter again. The fire fighter has a heart attack and because they are retired, under Section 6(1) they are not entitled to anything but health care benefits.

A: That is correct

Q: The reason for that is they had no loss of earnings. Is that correct?

A: Correct

Q: But on the other hand it points out that if that same fire fighter passes away because of a heart attack, injury or disease the dependents, the spouse does have entitlement to receive a pension. Is that correct?

A: Yes

Q: Would you agree that the primary purpose of our act on the compensation side is to provide insurance or protection from loss of earnings resulting from a work related injury or occupational disease?

A: Yes

Q: Would you agree that in case of the death of the retired fire fighter the widow has not suffered loss of earnings because the fire fighter was retired?

A: I think that we are dealing with a different section of the act. We are dealing with widow's benefit entitlement. I think that the language would entitle that benefit to that widow in that situation.

Q: You would agree that there is no loss of earnings in that family?

A: I would agree that the fire fighter had no loss of earnings.

Q: Therefore on his death his widow would not have a loss of income because he didn't have any earnings.

A: They wouldn't have an income loss but they would have a loss due to decreased pension.

Q: That is because it is under a different section of the act?

A: Yes

Q: I understand what you are saying. Now we will deal with this on pension day but I didn't understand what you said and it was dealing with Section 6(1). You had on your slide at the bottom pension benefits and I thought that you said something to the effect that if it is just loss of function but not disablement there is no pension on an occupational disease. Is that correct?

A: I don't recall saying that specifically.

Q: Could you say in own words what you intended to say on your slide dealing with Section 6(1) pension benefits. It is about 10 or 12 pages in.

A: Though there may be physical impairment pension benefits are not payable unless the impact of the disease requires the worker to withdraw from all employment or take a lower paying job.

Q: So your understanding is that if a worker is not required to withdraw from all employment or take a lower paying job then they are not entitled to a pension?

A: That is my interpretation.

Q: My interpretation in working with bladder cancer cases at Alcan is that those workers who have bladder cancer but don't have to lose their bladder continue to work and still get assessed for a pension. Were you not aware of that?

A: Yes I am. I think I said that some diseases are treated differently but the majority are treated as mentioned.

Q: Chronic stress – how are these cases adjudicated, what kind of training is given to adjudicators with respect psychological impairment, chronic stress cases in this area?

A: The same kind of training. We discuss the various sections in the manual that deal specifically with chronic stress. We have examples of previous decisions, we work with a mentoring system with a senior adjudicator who may have dealt with a number of these cases over the years and provide some interpretation to the adjudication staff.

Plus a review of relevant policies – decision 7, 102 and the other relevant sections out of the manual and specific examples in their training.

Q: Think you are aware that then chief appeal commissioner, Connie Munroe, prepared a discussion paper entitled Psychological Disabilities and Work Place Stress. Is that correct?

A: Yes that is correct.

Q: It was dated November 25, 1993 and I have copies. It is a 10WCR257. Ms. Munroe went through all the policies, Mr. Ingraham, that you reviewed today on psychological impairment. She then expressed an opinion on what she thought was the most common reading of the governor's policies as regard to claims involving mental aspects of the work environment as follows and she sets out 4 points. I am going to read them and see if you agree that this was the common reading of the governors' policies with respect to this type of case. This is on page 266. One, the Board does not recognize any form of psychological impairment as an industrial disease - now I know that would be called an occupational disease.

A: That is correct.

Q: Two, to be compensable the psychological impairment must come within the meaning of the word personal injury or alternatively be the consequence of a compensable physical injury or industrial disease.

A: That is correct.

Q: Three, 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: I believe that is a correct statement but there are certain instances where we will consider the facts of the case.

Q: Four, 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. It is not compensable as an injury because it is not traumatically induced. It is not compensable as an industrial disease because the Board does not recognize any psychological or emotional condition as an industrial disease.

A: That is correct.

Q: Is that still your understanding of the basic practice, policy that the Board uses in adjudicating chronic stress cases?

A That is correct. We disallowed 276 cases and accepted 2 under occupational disease last year.

Q: I am handing out an excerpt from the Board's briefing paper on chronic stress that was completed last week. Look at Appendix A, which is reviewing other jurisdictions – Canada and some reference to the United States. The reason I wanted to go over that is that I just read to you and you generally agreed with the common practice following the governor's policies. My review of Appendix A is that would be a similar practice in all Canadian jurisdictions with the exception of Saskatchewan with respect to chronic stress. I am just wondering if you agreed with that. Starting on page 18 of Appendix A it says that there are 5 jurisdictions in Canada, which have actually legislated the issue saying that stress would be excluded except as an acute reaction to a traumatic event - Nova Scotia, Manitoba, Prince Edward Island, New Brunswick and Ontario. Is that correct?

A: Yes it is true Manitoba, Ontario, Nova Scotia, PEI and New Brunswick exclude stress except as a traumatic event. The Yukon includes post traumatic stress. It is unclear what they would do in a chronic stress situation.

Q: Just on the Yukon, they actually had a case that you referred to that they denied a case as not falling under the legislation for a mental injury caused by ongoing harassment.

A: The only caveat I'd issue there is that it was a prior version of the legislation.

And Saskatchewan by policy allows for chronic stress.

Q: That is on page 19 at the bottom. It sets out the factors or criteria that have to be established under policy to be successful in chronic stress. The work stressors have to be excessive and unusual and the work stressors are the predominant cause of the injury.

A: Yes

Q: You were going to refer to other jurisdictions then?

A: Alberta allows by policy for stress where it is the result of a trauma. I am not sure about New Foundland, whether it is by policy or just a Board decision. Quebec doesn't allow for chronic stress or for trauma but the appeal division in Quebec has allowed cases for chronic stress and the North West Territory by policy does allow for post traumatic stress.

Q: As I understand it all other jurisdictions in Canada except Saskatchewan do not allow chronic stress without a traumatic incident and some have moved to legislate that.

A: As I said I don't know what the Yukon would do in these cases.

Q: This policy paper also shows one of the areas where we get into almost an exclusion of stress when you are going to consider it and that's with labour relations issues. Is that your understanding?

A: Well there are two provinces that specifically speak to labour relations issues. That would be Manitoba and Ontario in their statute. There are other jurisdictions that have excluded labour relations, situations including BC.

Q: It appears to be an indication that there are stressful activities that happen at work and they look at personnel decisions, layoff, discipline but those are part of the normal work relationship and are excluded from being compensable under those jurisdictions. Is that correct?

A: The reason for their exclusion is that they are not considered to arise in or out of the course of employment. I don't specifically have cases on hand but there are provinces that do exclude personnel, labour relations because it is not considered that the proper forum is Worker's Compensation as a remedy for those actions.

Q: It is another example of where policy has been used to set up what they will not consider to be compensable. Is that correct?

A: Well policy or statute and that entails Ontario specifically.

Q: That is a policy here also isn't it? A labour relations matter such as a termination resulting in stress would not be compensable?

A: I can't say that unequivocally because these are multi-factoral types of situations. I think that the appeal division has denied a number of cases where it was a labour relations issue. They are so facts specific and multi-factoral that I wouldn't rule it out altogether. Again you would have to meet the test of arising out of and in the course of employment. I think generally you can probably say that that is true.

Q: Mr. Ingraham you put up a chart called claims arising from psychological impairment – 2nd to last page of your presentation. You showed a significant increase in claims through to 1996. You said that those are accepted claims. Is that what you meant?

A: Yes it is my understanding that those are accepted claims.

Q: Those are not just claims filed?

A: No

Q: Do you have codes when a claim is submitted to show that it is a psychological impairment case?

A: We have coding once the claim has been accepted.

Q: So there is no way of determining how many claims have been filed?

A: I am not sure I would have to check that for you.

Q: I believe that Mr. Rowland talked about 276 disallowed claims and 2 that were accepted.

A: Those were 1997 claims in occupational disease services and they were not the traumatic, psychological injuries that would happen as a consequence of critical incidence or as a consequence of other injuries.

Q: So it is a non-traumatic psychological case?

A: The 276 were non-traumatic.

Q: When did the Board start keeping track of the number of cases of that nature that are applied for?

A: Within occupational disease services we have kept them since 1996.

Q: Can we get a chart from you of 96 numbers?

A: I think that we can go back to the summer of 93, which is when the special unit became occupational disease services because we started capturing data manually.

Q: I would like to see that a similar chart of the actual claims filed as opposed to claims accepted be provided from 1993 on.

A: Okay

SAYRE:

Q: I would like to continue with stress claims. You do know for 1997 then that 276 out of 278 chronic stress claims were disallowed. The Board doesn't usually track this information but you did?

A: Yes and I have additional figures for 1994 if you are interested. There were 322 claims filed and 290 were disallowed, 2 were accepted and the remainder were suspended or had other outcomes.

Q: Can you tell us what types of stress claims other that those arising out of a traumatic incident might be accepted or have been accepted in the past?

A: If you have a physical injury to begin with, say an amputation, and you develop a psychological impairment because of that...

Q: I understand that and that has always been accepted as a compensable condition. I am asking about the so-called mental-mental claims, the claims where a person suffers a psychological disability not arising out of a physical incident.

A: You might look at a series of events where you have 3 construction workers working on a scaffolding and the scaffolding fails. Two of the workers fall to their death and the remaining individual on that scaffolding may suffer from a post traumatic stress disorder.

Q: I wouldn't consider that as a mental-mental claim. It strikes me that where one witnesses a terrible event, whether it be a police officer, a fire fighter or the example that you just gave those would be considered to have arisen out of a physical trauma even though it may not be the person's own trauma. What about cases of repeated confrontation at work. How about 911 dispatchers or people who are employed dealing with suicide hotlines? Does the Board not recognize that work factors such as those could cause a person to become psychologically impaired?

A: I think that the Board recognizes that there are certain cases that have to be considered on their own merits and that the evidence that is presented in that particular case would be considered.

Q: From the numbers of claims that are disallowed it sounds like you are rejecting them?

A: I think that you are making an assumption that claims fall into that category.

Q: I am not making an assumption. I am asking if when you get claims like that, assuming that you do, do you reject them. Are they part of the 276?

A: The ones that come to mind as being accepted were by appeal and they are the ones where people were overworked during a period of time, during EXPO for example, and felt that that was an extraordinary situation over several months.

Q: The numbers that you gave us - 2 claims out of 276 – were those 2 claims accepted initially or through appeal?

A: I am not sure.

Q: So you are really not sure if the Board, in 97, has ever accepted a mental-mental claim on its own?

A: I believe that we had one railroad worker who was accepted as a result of a number of stressful situations that occurred over several months.

Q: Mr. Pinto I see that you have joined the panel.

A: I am hoping that my colleagues will agree with me on this. There are two types of mental-mental claims. I explained in the first week that there is a continuum and there is the gradual burnout at one end of the continuum and at the other end is the post traumatic stress.

Q: I would like to stop you there. Is it fair to say that the Board would be more likely to accept the post traumatic stress side?

A: Why I came up here is that the people in occupational disease services don't deal with those claims at that end of the continuum. Those are obvious personal injuries and that has been the Board's practice. The numbers that Rob put up on the board are the accepted claims and are primarily of that category. Those are statistics by our statistics department that show, under the code post traumatic stress acceptance, that would fit in that category, now not exclusively of the magnitude of event that I described but anything that is accepted under the definition of what Jay Roland has been referring to, the statistics kept by the occupational disease services group in their own data base.

Q: So the chart that Rob showed us is not occupational disease services claims but rather claims that are handled as injury claims.

A: Correct that is right. Closer to the other end of the spectrum, the injury over time or the stress claim that arises over time and there is a gray area somewhere that they don't necessarily all make to occupational disease services. Somewhere there is a gray area between what is a gradual burnout and what's a horrific mental trauma not proceeded by a physical trauma. Some of those claims may get handled in occupational disease services an some may get handled in the regular operating units. So Jay's figures are more clearly the stress over time – fractious relationships in the workplace such as being warn down by an angry boss and there is a very low percentage of acceptance. What we can't track for you is what proportion of the post-traumatic stress claims are presented to the Board but we do have a mechanism for tracking those post traumatic stress claims that are accepted. I just didn't want you to lose sight of the fact that we have 2 groups of people dealing with this.

Q: Take the 911 operator as an example. You have a claim by a 911 operator that is diagnosed as an anxiety syndrome based on repeated stressful incidents over the course of employment and no evidence of anything outside of employment that might have caused it. One of the incidents was somebody over the phone saying I am going to commit suicide, hearing a gun shot and finding out that they did. Would that fall in the second category and be regarded as a personal injury?

A: I think it would yes. That would be considered a critical incident.

Q: Suppose that another operator came in and was repeatedly in fear that if they said the wrong thing the person might commit suicide and they just couldn't cope with that. That would be regarded as an occupational disease services claim I gather?

A: I think that would fall under Decision 102 in the chronic nature and it would likely be disallowed. It would be considered normal for that type of occupation although not considered normal for everybody.

Q: I am glad you said that because that is exactly the point I wanted to focus on. When we are dealing with many types of physical injuries, people that do heavy physical labour and it may be normal for them to lift heavy weights but if they hurt their back by lifting a weight the Board doesn't turn them down by saying that is a normal part of your job. It seems to me that the Board is applying a different set of standards when people come in with psychological conditions that are clearly arising out of work.

A: I suppose in a way that you could argue that the Board is and also that it isn't. The test of unusualness is appropriate in the situation of the 911 operator. It is something where the average human might say I would be emotionally devastated and the Board would accept that.

Q: This is the second example where the person is living 8 hours a day with the fear that someone is going to commit suicide.

A: Those get into the gray area because it is not as simple as that. It is not a claim where the person has lived with that stress for 20 years. It may be within the last year that a very significant event occurred over the telephone and the Board, in its trauma areas, may have accepted some of those. In fact I know that they have accepted some of those. At the other end of the spectrum if you said to the Board that it was just constant tension and that there was no one event then we are moving towards the other end of the spectrum. There's that gray area and the series of events that comes with each claim so that you are neither here nor here.

The cause is very multi-factoral. Unless there is a critical incident then it is very difficult to determine and there are other factors in people's lives that give rise to that stress.

I think the increase in the number of accepted claims is a result of our psychology department proactively working with our service delivery locations with respect to, particularly, post traumatic stress. We have now located psychologists within each unit so the psychologist is really part of the entitlement decision for these kinds of claims in the service delivery location. I am talking about post traumatic stress.

Q: You are talking about the first example in the continuum?

A: Right and the other claims are intended to be referred to occupational diseases for adjudication.

Q: It doesn't sound like they have a snowball's chance in hell of being accepted.

A: I think that the response was that existing policy, be it what it may, does not for the most part indicate that we should be accepting those claims. Presumably that is a policy issue for the Royal Commission to consider.

Q: Would you disagree with me that people suffering from psychological impairments resulting from work are not treated equally with people that suffer from physical impairments arising out of work?

A: I think that there is a huge difference between a specific injury that has a very specific cause and the kinds of "injuries" or disease that you are looking at with respect to stress. I think that is a very simplistic comparison but it may not be one that is very useful.

Q: We have heard something today about activity related soft tissue disorders, for example. There are some conditions like cancer where determining causation may be difficult. In the case of activity related soft tissue disorders there are certainly going to be activity that is related to work and some to non-work. I gather it will be up to the occupational disease services to determine whether the work factors are of enough significance to view them as arising out of employment. Isn't that basically the way that you approach those cases?

A: That is correct but that specifically was as a result of the amendment to the chapter in 1995 where we adopted a different set of tests with respect to the entitlement of those decisions.

Q: That is exactly what I am getting at, is that policy doesn't treat psychological impairments the same as it treats borderline physical impairments. The policy all but excludes it.

A: That is correct.

Q: What about claims involving harassment. Is there any exception made where the person shows a pattern of being actively harassed either by an employer or a coworker?

A: We have a sensitive claims area that is housed in the disability awards department where we look at claims for sexual assault, sexual harassment. On the basis of harassment I think that there was a claim recently that I considered where a social worker was being stalked and harassed. We are looking at a series of events that you could hang your hat on in that situation.

Q: A couple of the Board's employees might find themselves in that position from time to time.

A: That is correct.

Q: Have there been any claims where claims for sexual harassment has been accepted barring sexual assault?

A: Yes

Q: The commission may be interested in hearing about situations where assuming that such a case was accepted as leading to a psychological disability arising out of employment what would the consequences be for compensation? What sort of benefits would a person in that type of situation be entitled to just generally speaking?

A: If the person was physically disabled from working and there was medical evidence that showed that there was medical proof of disability then the person would be entitled to short term wage loss benefits during the recovery phase of their injury.

Q: Would it pose the same type of problem as a person with an allergy sensitivity where as soon as you take the person out of the work place then the disability is likely to disappear and then the benefits end?

A: Not necessarily the effects of a stressful situation will have different reactions by different people. They can have debilitating effects to different individuals and the recovery periods aren't necessarily linked to instant removal from the offending agent as in allergies and sensitivities.

Q: It would be a similar process though wouldn't it with respect to deciding when the acute symptoms had ended and the worker was capable of working provided that they weren't re-exposed to the harassment.

A: Again you are looking at the medical facts of disability and the medical facts of that individual's case. If the treating physician felt that the person was fit to return then the short term disability benefits would stop.

We have our own psychology department that would be helping us monitor those reports because they are usually outside treating psychologists that assist in the treatment.

Q: I think that my concern for injured workers who might be in that position is sort of two fold in this case. Certainly I think that the Board is not treating people with psychological impairments generally the same as they are treating other people. I think that may raise issues regarding the charter of rights particularly if it were suggested that the act should be amended to expressly exclude it. I don't think that any of the other provinces have been challenged under the charter and it wouldn't surprise me at all if it is and that challenge might well be successful. On the other hand, particularly in harassment cases unless there is some amendment to Section 10 and 11 it seems to me that one untoward consequence of accepting such claims could be that the person is barred from suing in court the harasser.

A: Unless that person had taken themselves out of the course of their employment by their actions and then they are third party so there is an action available.

Q: Plus the harasser's conduct was considered to be beyond the bounds of their employment role.

A: Exactly

I think also in a situation like that because there is a third party involved we would also have the worker sign a third party election to claim through the compensation system. If they elected not to do that they could sue privately and not pursue the claim through compensation.

Q: I imagine that in many of these claims the harasser is a coworker-worker or the employer.

A: That is correct.

Q: When Mr. Winter was canvassing some of the issues arising out of the meaning of prolonged and excessive he was questioning you about whether the occupational disease services had taken into account the difference of opinion between the review board and the appeal division. Is it fair to say that what the occupational disease services is doing is essentially following the appeal division's interpretation of policy?

A: I don't think that we follow any one in particular. We follow the policy as we understand it. There may be some very compelling language that would come out of an appeal division decision that when we analyze it we would tend to agree with the arguement. There are others where we would probably would not follow their logic.

Q: He appeared to be inviting you to agree with either the review board or the appeal division's interpretation. Mr. Buchhorn told us last week that the way that the panel has viewed the written policy of the Board, Board officers essentially don't follow the appeal tribunal's interpretation. They essentially continue to apply the written policy until and unless it is changed. Is that correct?

A: What I said was that a policy change would not necessarily be made but I think that every adjudicator should be reviewing decisions of the review board and of the appeal division and looking at whether there is an application to a specific claim that they might be weighing.

Q: Within the confines of the policy?

A: Right

Q: My next question has to do with the interpretation of the words "at or immediately before" in Section 6(3). I understand that the appeal division, to some extent, agreed with the employers' position that the Board was being too generous in its interpretation of that language. There seemed to be some disagreement on the panel over whether they would follow the appeal division's more restrictive interpretation or continue to follow the generous interpretation if I can put it that way - generous to workers - of the written policy. Could you clarify that for us?

A: You have a body like the appeal division that does a detailed analysis and finds that a particular part of the policy simply is not viable, is really in essence contrary to the express language of the act. If on reviewing that analysis the adjudicator concludes that yes that is a good analysis and it is probably accurate I think that there would be a tendency to ignore the written policy or at least extract the part that is not viable.

Q: I think that Mr. Buchhorn might want to disagree with you because he gave us a rather different approach last week when we were talking about pensions past the age of 65 and benefits for workers who are imprisoned. I understood you to say that under the directions the panel has given you have to follow the policy.

A: I was pointing out the difference between my understanding of how the governor's viewed decisions of the appeal division where the appeal division had made a sweeping comment like your policy is unlawful. The sense that the governors had that that should then compel the organization to follow that particular appeal division decision because a decision of the appeal division is a decision of the Board. More recently the panel has taken the position that when a decision of that nature comes down it should go out for broad public consultation and the policy should be revised to reflect the outcome of that public consultation. In any given case, which is what I did not speak to last week, the adjudicator has the discretion to consider board policy, decisions of the appeal division, etc. with respect to how they weigh a particular case and we leave that to the adjudicator's discretion. At times where there are clear inconsistencies, where that would be a disadvantage to the adjudication of a broad body of claims then we have to step in and say that we are going to follow the published policy or we will move to the appeal division policy. On an individual basis I don't think that the adjudicator is fettered by any particular decision of the appeal division.

Q: I am still confused. In the case of the 6(3) interpretation you could decide not to follow the published policy, you could agree with the appeal division's reasoning and in effect deny some of these claims because of the 6(3) factors.

A: You might simply conclude that in the particular facts of that case the immediately before test is not met.

Q: Even though the published policy would seem to allow you to find that the presumption was met. Are you saying that there has been a specific ruling in connection with these other cases, the age 65 pension case for example?

A: I think that what we are saying is that when an appeal division or review board decision comes into place that challenges the existing policy of the Board we shouldn't be directing our staff to change the way they interpret the policy until we receive that direction from the panel of administrators.

Q: Your colleague isn't saying that he was directing other staff to do something generally he was saying that he would take that into account in making his own decisions.

A: Yes he would take it into consideration.

The ultimate authority is the act and if you as an adjudicator read the act and look at some policy and feel that the policy really doesn't comply with the act you are going to fall back on the act.

Q: I totally agree and tried to make that point last week but understood that was not the way. I am pleased to hear that you are saying adjudicators have this discretion. I hope that adjudicators dealing with loss of earnings pension issues can exercise the same kind of individual discretion in their cases. I know that is not the subject for this morning but can you tell us if that's the case?

A: No one has ever said that the individual adjudicator doesn't have the discretion to make those kinds of decisions. I think that it's useful when those kinds of anomalies are identified to be providing our staff with some general policy guidelines with respect to how to resolve an issue of that nature. All I am saying is that when a generic group of claims are affected by an appeal division decision then we should resolve for our adjudication staff some clear, concise policy changes to reflect either the appeal division point of view or to reiterate the policy of the Board as it currently stands. But every adjudicator in the organization has the discretion to apply to an individual case.

Q: Can you provide a copy of the panel's decision that considered that issue you explained last week?

A: Which issue are you referring to?

Q: The issue of how an interpretation by the appeal division that board policy was contrary to the act, how that interpretation would affect future cases. You said that the panel had generally directed that in cases like that the policy will stand until the governor's have had a chance to do proper consultation and so on.

A: I think that you heard that said on the opening day of these hearings. All I was representing to you is that when I was responsible for the policy bureau back in the days of the governors and when I sat as the Minister's representative on the board of governors there was a different point of view on that. I recall lively debates within the policy shop with general council there, with members of the policy shop there about how we would resolve this issue of the appeal division having made a ruling that board policy was unlawful. The point of view expressed by the governors, in particular, the chair and counsel was that a decision of the appeal division in that nature is a decision of the Board and the Board should follow that until such time as the Board receives instructions to set aside that.

Q: Are you telling me that that is not the view of the panel? Has the panel expressed different views?

A: The panel has said that existing policy will stay in place until such time as there is broad public consultation with the stakeholders at which time the policy changes will be made. They could be different from existing policy or they could confirm policy.

Q: Can you tell us when the panel said that?

A: I thought that is what I heard Mr. Cott and Mr. McGinn saying on the opening day of the hearings. That is the impression that I have been under given that many of these decisions impact my division. I have been told that we go out and identify these issues, we put them out for consultation to the stakeholders and until there has been a decision we don't change existing policy.

Q: Who told you this?

A: You can be assured that I have learned from some of my experiences of pushing practice into policy. I have been in the hot seat at the panel with respect to what the panel expects relative to consultation around policy change.

Q: And you are saying that the panel told you that until they change the policy that it should be followed?

A: We should refer an issue of that nature to the policy bureau and the policy bureau, on behalf of the organization, will do a public consultation process. Once the public consultation process is completed a decision will go to the panel. Until then the existing policy stands.

Q: This is subject to this residual discretion that adjudicators still have on an individual case?

A: Correct

Q: I had some interjurisdictional questions. Just to give you a bit of background I happened to inherit a case 10 years ago involving a miner that worked in a number of Canadian jurisdictions and in Alaska. He was exposed to dusty conditions at work and conditions underground, which ultimately were found by a medical review panel to be a contributing cause to his having chronic obstructive pulmonary disease. So he had an industrial disease resulting from exposure in a number of different jurisdictions. What is your understanding of how the Board would pay benefits in a case like that?

A: As of January 1, 1998 an amendment to the interjurisdictional agreement dealing with occupational diseases was signed by all jurisdictions except the province of Ontario with Quebec waiting for government signing. For those workers who might fall between the cracks because they did not have enough exposure in any one jurisdiction to have a claim accepted but would have enough Canadian exposure to have a claim accepted can be adjudicated, benefits paid by the adjudicating board. There is a hierarchy of adjudication.

Q: So outside of Canada they wouldn't be considered?

A: No it would not be considered.

Q: I think that we are talking now about the initial question about whether the condition arose out of employment, the causation issue. Assuming that the claim is accepted on the basis of Canadian exposure is there an apportionment of benefits based on the fact that part of the causative exposure arose out of Canada?

A: That brings to mind several questions if you use the term apportionment. In BC, for example, most of our disease are not apportioned in cost and if there is enough exposure in our jurisdiction to accept the disease on its whole we accept the disease and pay the total cost of that disease.

Q: That is if the BC exposure is sufficient to have caused the condition. Let's say that BC exposure wasn't enough but if you added up BC, Ontario, the North West Territories and Alaska then the exposure would be enough.

A: If a worker was exposed in 5 jurisdictions with equal exposure in each and the claim was adjudicated and accepted in BC then all jurisdictions would be collected from. The worker would receive total compensation for that claim.

Q: Does it matter whether the other jurisdictions are all parties to the interjurisdictional agreement or whether some of them like Ontario have refused to sign?

A: Certainly it would matter to the employer community but it wouldn't matter in the adjudication of the claim.

Q: Would the worker lose his Ontario portion of the benefits because Ontario won't sign this thing?

A: Not if it was adjudicated in this province. Had he gone to Ontario then the answer to the question is likely yes.

Q: It did in the case that I am talking about but I should tell you that it was handled on a very ad hoc, unique basis by the old commissioners before 1991. There were decisions made that were unique and they were not appealed because of choices made by the worker. It doesn't help us understand what the law is because we never had a chance to determine it in the tribunal properly. It always seemed to me that there could be 1000s of claims like that out there. For example, industries like mining traditionally travel around to where the work is. If they are exposed to causative industrial disease then it is likely that it would have been in more than one jurisdiction.

A: That is true and today the January 1, 1998 signing and implementation doesn't necessarily change the claims that we have dealt with in the past where the worker has been deemed to have sufficient exposure in BC and the claim accepted presuming that it has arisen out of and in the course of employment. And in the future it wouldn't necessarily result in a claim being denied if a worker had exposure in a number of different jurisdictions and that claim was adjudicated and a decision made.

Q: Are claims treated differently if the exposure in BC is enough by itself?

A: I am not sure I understand.

Q: Take the example of a worker who worked ½ their life in BC and ½ their life elsewhere. Would that be handled outside of the interjurisdictional agreement as opposed to a worker who had mined in all other jurisdictions all over North America, all over the world and then came to BC worked for 6 months and became disabled by a long term disease?

A: No if I understand your question correctly I think that the only difference in those two scenarios is how we would handle the latter scenario as of January 1, 98.

Q: In both cases the worker would get full benefits then?

A: Yes

Q: Another situation that arises involves a choice between causation arising out of the employment and smoking. How do you handle cases where smoking is a risk factor but work also creates risk factors?

A: It is one of the risk factors considered in the adjudication of disease claims and it may or may not be considered to be the most prominent factor.

Q: That sounds like you are flipping a coin, how do you decide that?

A: On the balance of all evidence. We make the decision based on whether or not smoking is considered the greater factor in the causation of the disease rather than the work process.

Q: The medical review panel in the case that I mentioned decided that smoking was of equal causative significance to the work exposure. The Board reacted to that by saying that we will give you 1/2 the benefits we would normally give you. That didn't impact causation because the commissioners felt in that case that they were required by the medical review panel to accept the case as a valid claim so it was an issue of determining benefits. Suppose that you had the same conclusion. Suppose that your adjudicators in occupational disease services came to same conclusion based on medical evidence. What if the person was a heavy smoker but they were also exposed to chemicals from a smelter or another institution that could have caused the same condition. How do you weigh that?

A: The test under the legislation as I understand it and it seems to be fairly well accepted that this is the legal standard is that for a claim to be accepted we have to conclude that on a balance of probabilities something in that work place or work environment played a significant causative role in producing that disease. It is not the predominant cause or the only cause so in the scenario that you gave if it was a 1/2 and 1/2 and work played ½ a role then that claim would be acceptable.

Q: So if your medical advice was in my opinion this condition arose 1/2 because of smoking and 1/2 because of the particles in the work place then that would be sufficient enough for the claim to be allowed?

A: Yes

Q: Let's take it one step farther. That particular condition is an accumulative condition – it gets worse depending on the severity of exposure - so it was medically and scientifically appropriate to say that both the smoking and the work place exposure contributed to the impairment of the lung capacity. Suppose that you are dealing with lung cancer? As I understand it lung cancer is considered to arise out of one cause but we don't know which one. Would that affect the outcome?

A: If the claim meets the causative significant test then the claim is accepted.

Q: How do you decide that it meets the causative significant test?

A: What I hear you saying is that the possibilities are 50/50 and when causes are evenly balanced then the favour goes towards the worker according to Section 99.

Q: How would you weigh the medical evidence? What sort of medical evidence are we talking about here? This leads into rebutting the presumption in Schedule B and what do you have to prove in order to escape from that presumption?

A: You are dealing with two issues there. First you are dealing with the issue of causative significance quite aside from the schedule. As I said before the test is what you are looking for from a medical perspective. Was there something in the work place that was significant in causing injury or disease to that worker and if the answer is yes then the claim is accepted.

Q: So if a worker comes to the Board with an opinion from his family doctor, a Form 8, saying that in my opinion the condition arose out of the work place exposure so that is evidence isn't it?

A: Entitlement for compensation is dependent on a number of factors. There is a medical diagnosis itself, there is a scientific evaluation as to whether there is a generic relationship between a particular disease and the employment, an evaluation of the work place and the work place history and the weighing of the evidence and meeting the requirements of the legislation. That is really what the adjudication process has to look at. If we don't feel that we have enough information we will go out and try to get more. Your example of a worker bringing an opinion from their family doctor may not be sufficient evidence and we may need to get additional information. We also use occupational health physicians for opinions and advice on medical issues in the adjudication process prior to making the decision as well.

The hygiene officers would go out and do tests at the work place to determine if there are specific carcinogens or whatnot that could be causing the condition.

Q: The claim is starting off with what amounts to uncontradicted evidence. Let's take a Schedule B situation and the worker is suffering from a condition that is listed in the schedule for that industry and he comes in with a report from his doctor saying this condition is caused by work. Right now there is no evidence to contradict that. Does the Board accept the claim or do you go out and try and find evidence to justify denying it to put it bluntly?

A: In most cases the claim is accepted at that point unless there is some evidence that has been presented to us in our investigation of the claim or in evidence that may come from the employer or the worker.

Q: If the worker comes in the door with an opinion and that is all the evidence that you have does the Board go to the employer and ask them if they want to rebut or does the Board go out and try to look for evidence to rebut the presumption?

A: The Board looks at it as tri-partite approach. We are looking for medical information, we are looking for information from the worker and we are looking for information from the employer prior to making a decision on an adjudicative issue. The fact that a worker shows up with a medical report that says this condition may have resulted from work I think it is incumbent upon the adjudicator to take a history from that worker, obtain the necessary information from the employer and make sure they have all the medical facts to make the decision. So even though it is a scheduled item you still have to make sure that there is a history taking process to ensure that you have all of the relevant evidence to make sure the presumption applies.

Q: Let's take the cases that don't fall within Schedule B so they are going to be adjudicated on their individual merits. I know that you said in your presentation that the worker isn't required to prove causation, the worker comes in with the diagnosis and the belief that it was caused by work and the adjudicator is supposed to go out and gather the necessary evidence. Is that correct

A: That is correct yes.

Q: What I am trying to get at is what hat is the adjudicator wearing? Are they looking for evidence to support work causation?

A: They are trying to determine work causation. I think that the adjudicator's role and responsibility is to go out and gather evidence that supports work causation. That is the approach that they should be taking.

Q: How do they do that?

A: When you are investigating a claim and getting what you consider to be all of the relevant evidence you may know that this disease, whether it is scheduled or unscheduled, may be multi-factoral and you are going to gather evidence dealing with all of those factors. At the end of the day when you have to make a decision you weigh all of those risk factors and may come to the conclusion that it was something other than the employment that caused the development of that disease.

Q: On a practical level what would the adjudicator do?

A: Get on the phone and introduce yourself and the process to the worker and then you get information on their background, size, weight, shape, age, whether or not they have any chronic conditions, you work them through a history so that you have a working history of their symptoms and obtain as much information as you can about the work place, work exposures, duration, the doses, anything that you can find out.

Where indicated a site visit may be appropriate and can sometimes be critical since what you hear over phone can be totally different from what you see.

Q: In the case of conditions, which involve chemicals or particulates in the air a visit from an adjudicator doesn't sound like a very scientific way of determining the risk factors. Is it the adjudicator that visits or is it the Board's health and safety inspector?

A: In certain circumstances depending on the nature of the condition that you are dealing with the adjudicator has the responsibility of making a decision about what kind of assistance they might need at that particular job site. They may choose to take an occupational hygiene officer with them, they may go with a medical advisor, an occupational safety officer, it is a judgment decision by the adjudication staff depending on the claim they are dealing with.

Q: In a case where the issue is the significance of the exposure at work to certain chemicals or gases would the Board follow the practice of occupational health and safety and not let the employer know that you are coming.

A: Generally we don't surprise them.

Q: Would that not raise the fear that if there was excessive exposure in that environment then the employer may try to clean it up or cover it up.

A: That is possible.

Q: Aren't employers, especially large employers, resistant to these sorts of claims in occupational disease services?

A: I can't necessarily agree with that statement. I did work as an adjudicator in occupational disease and my experience was the opposite. There may be some situations where you find that.

Q: Isn't their first reaction that I didn't do anything wrong?

A: I think that is everyone's first reaction. Certainly the don't prevent us from going to the job site and investigating the issues. In most cases they are fairly cooperative in the process.

Q: What if any significance is there about the specific level of allowed exposure in the regulations to the determination of an individual claim? Does the worker have to prove that the regulations were violated in order to have their claim accepted?

A: It is not the worker's responsibility to prove or disprove, they give facts and investigation is the adjudicator's responsibility.

Q: What I was getting at here is what information needs to be found or determined? Is it necessary for you to conclude that the level of formaldehyde in a lab is higher than what it should be according to the regulations in order to allow a claim by a worker who said he was disabled by that kind of exposure?

A: We would like to know their level of exposure and consider the level of exposure for that worker because all workers are different.

Q: You can accept the claim even though the employer has not violated any of the regulations or any of the limits?

A: That is correct.

Q: I think that in your presentation you generally addressed the value of having a schedule and one of the positive aspects that you referred to was that it allowed for consistency and speed of adjudication. Can you give us an idea of how long it takes to make an initial decision on the average? Let's divide them up into Schedule B cases and non-Schedule B cases if we can.

A: For 1997 on the cases that we did accept the average was 56.5 days. We did pay claims within 17 days of disablement in 14% of the cases over the course of the year.

Q: These are not cases where you are able to meet that 17 day target?

A: No some were longer than 56 days but the average is 56 days.

Q: Are you talking about all cases in occupational disease services now?

A: Yes

Q: Can you tell us how much of an advantage it is if you can deal with it under Schedule B?

A: It is likely to be quicker but we didn't break it down in that way.

I think that in my presentation I covered a number of issues that have significant impact on the timeliness of the adjudication process in occupational disease services. Clearly in a scheduled item if you have the necessary medical documentation, you've contacted the employer, obtained information, taken a work history from the worker and the factors indicate that it is a scheduled item you would accept the claim. The ones that seem to take the most significant impact within occupational disease services are where we require the services of areas outside the organization - specialist tests, lung function tests and a variety of other issues that come into play that delay the overall adjudication process.

Q: What is the long end of how long it might take to make an initial decision in cases where you have to do all of these tests?

A: It could be 4 to 6 months.

Q: Are you saying that a case over 6 months is rare?

A: I think so yes.

Q: It strikes me that, and I appreciate the good faith in which your staff tries to determine causation, it still seems to be a lottery. If the evidence is equal you say that you apply Section 99 and give the benefit to the worker. Are there cases though where there is substantial evidence of work place factors but the evidence isn't equal so you end up having to turn those claims down?

A: I don't see why we would turn it down. If you have evidence that the work place had something to do with causing the condition then it is an acceptable claim.

Q: The evidence is that there were factors at work that could have caused it but something in the way that the evidence was written makes it seem that it was more likely to be caused by smoking. Would that not result in rejection of the claim altogether?

A: If there is more weight on it being something other than work exposure then yes we would turn that down.

Q: Are there cases where if the person were a non-smoker you would accept the claim because there is evidence of work place factors that would have led to the condition yet if the person was a heavy smoker you would say that it is probably caused by smoking so we are going to reject it? Has that ever happened?

A: I have never had that experience.

Q: Are you saying that smoking doesn't lead the Board to turn down cases that would otherwise be approved? That is not my understanding of how these things frequently play out.

A: It is difficult to discuss this topic in the hypothetical. When you are looking at the actually fact pattern on a case it is much easier to have this kind of a discussion. You need to see the medical information and exposure information to comment on how you would adjudicate a claim.

Q: You don't want to try to answer that?

A: No

Q: Has the Board given consideration to partial entitlement? It seems that we have situations that are black and some that are white and in your area, particularly, there are a lot of situations that are gray. Is it the problem that you are trying to give black and white answers to a gray problem?

A: Certainly that is one of the issues that I described in my presentation. We are really trying to get to a yes or no answer in the adjudication process and it is often a difficult circumstance with difficult information presented. That creates a fairly significant challenge in the area.

Many of these diseases are diseases that are naturally occurring in people who aren't working in a particular occupation so that also makes it difficult.

Q: There is no definition of disability in the act?

A: No

Q: You told us that the Board doesn't consider a worker disabled if they were exposed to red cedar dust although if they were exposed to it again they would become disabled. I could say that worker is disabled from going to a sawmill and working on red cedar. The Board doesn't see it that way. Is that a problem of policy or is it that a problem that would require an amendment to the act in your view?

A: I think it is a fundamental philosophical issue that probably would require some statutory guidance and a proper definition of disability.

Q: In your view the word disability, undefined in the act, simply doesn't allow you to take that kind of a situation as a situation leading to pension entitlement?

A: Correct

Q: I wanted a clarification on the requirement that a worker has a loss of earnings. How does the Board deal with a job change situation? Suppose the miner changes to office work and then after a latency period comes down with an occupational disease resulting from a mining exposure but he can still do office work. Is it the Board's view that in that situation you could not pay any benefits?

A: In that hypothetical situation it would be the view that that worker based on their current job and their current employment, which they elected to pursue would not have a loss of earnings.

Q: So you wouldn't pay anything other than medical aid?

A: Correct

LUNCH BREAK

JOHN STEEVES:

Q: Good afternoon; I thought I'd start with some – try and engage you in a discussion about causation and my friends have covered most the areas that I wanted to cover but there is one specific point I wanted to address and they were covered in my friends' points and also in your presentation – and first of all the difference in causation in occupational disease and personal injury – someone falls off their ladder and breaks their leg causation is not even an issue in that situation correct?

A: That's correct.

Q: And the difference with occupational disease as you indicated we are dealing with latency periods, we are dealing with sometimes multiple factors, we are dealing with diagnosis problems so in the big issue if I could put it that way in occupational diseases is often causation?

A: That's correct.

Q: Now, in a – making a decision on causation – there's a number – there's a few things that go into it – medical evidence – one is factual evidence and the other is the Act and the policy. Do you agree with me with that?

A: Yes.

Q: And are you also aware that looking at the medical evidence and the scientific or – sorry medical evidence and legal policy evidence there are different standards of proof which is to say that the medical standard of proof is something as close to certainly as the scientists can get whereas the legal standard of proof is under Section 99 – and as you say it balances the possibilities with – where there is a doubt the doubt goes to the worker?

A: Right.

Q: So it's – the standards of proof are different and probably the policy standard is a lower standard of proof.

A: Less stringent.

Q: Less stringent, yes - Now I wonder in that context if you could talk briefly about the role of medical advisors at the Board in questions of causation with respect to occupational diseases that is what do they do and what's the significance of their opinions and what do the adjudicators do with those opinions?

A: Well, I'll take it first stab at that particular question and then turn it over to Dennis to put his perspective on it. Primarily we are utilizing occupational health medical advisors to – assist us in determining the medical issues surrounding a claim – often a lot of the medical issues are extremely complicated – adjudication staff are not medical doctors so they seek clarification and information from occupational health medical advisors to try to put some of those issues into layperson terms so they understand the significance of the medical factors on a given claim.

Q: Mr. Campbell did you want to add to that?

A: I'm just making a note here to myself that we often go and talk to a doctor really early on in the claim. Maybe even before we begin to our investigation to find out really what is relevant; what do we really need to know. After we have the information and we will be asking them about biological possibility – you know with that kind of exposure is that kind of result. Something that's likely to happen. At the end of the day if it's a claim we are not prepared without a medical opinion we may be asking for their views on the likelihood that the work activities played a causative role in producing the disease and it becomes one more piece of evidence on the claim file.

Q: Yes, and is it –I think this is well established but is it – it is your view that it is the adjudicators'' decision to make and not the Board medical advisors'.

A: Absolutely.

Q: So that means the Board medical advisor could make a decision on a claim – sorry the adjudicator could make a decision on a claim contrary to whatever a Board Medical Advisor said?

A: Yes, they could.

Q: And they could make a decision excepting a claim pursuant to Schedule "B" without any medical evidence?

A: That is correct. Excuse me – you said without any medical evidence – I was assuming you were speaking from the Medical Advisor – medical input from the medical advisor?

Q: Yes.

A: Okay.

Q: Yes. And well let's be clear –I am suggesting to you that an adjudicator can make any decision without any medical evidence either from a medical advisor or from a doctor?

A: On Schedule "B"?

Q: On a Schedule "B" matter.

A: No, they still have to consider the medical evidence submitted on a claim file. In other words, so for example with lead we would have to know whether or not the worker had elevated levels of lead in their blood. Without knowing that medical evidence you couldn't make a relationship to Schedule "B".

Q: Yes, so you would need to know about medical information about diagnosis and things like that.

A: Yes, correct.

Q: Okay – now the other thing with respect to adjudicators and in particular the difference with doctors is that adjudicators and tribunal members and courts as well use inferential or circumstantial evidence is that your view as well?

A: Do you want to ask that again, please.

Q: The Review Board for example can use hearsay - can use circumstantial evidence in its deliberations whereas we would be concerned if doctors and scientists were using that kind of evidence. Do you agree with that?

A: Yes.

Q: And now these cases as you may have noticed this morning Mr. Winter and I have been talking about these cases for a few years now and the kind of medical evidence that he and I have been involved in has been substantial –and I assume at least one of you on the panel knows the kind of cases I'm talking about - the telephone book submissions and things like – taking a long period of time and can we take it as given that it has cost Mr. Winter and my clients a significant amount of money and a significant amount of time – is that a fair statement?

A: I think it would be a fair statement.

Q: And that cost is borne by my clients – workers and their unions and Mr. Winter's –employers – and there's alternatives to that approach – and I am going to suggest one to you – and that is that in Ontario there is for the time being at least the Occupational Disease Panel which has the mandate of taking situations where there might be a prima facie case with an occupational disease and doing a kind of ground work research and setting out the recommendations about kinds of things that about the epidemiology – about the presumptions – about adjudicative guidelines – that is an alternative to the one that we have in BC is it not?

A: Yes, it is an alternative. It is a very very expensive one and I guess a knock against the panel is that the areas that they did do research in were in very narrow bands of the spectrum rather than tackling maybe some of the bigger issues. Their work is certainly valuable.

Q: Yes yes – we are going to come to some of that in a minute – I wonder if I can talk about cancers – I've raised this with Dr. Ma and she should probably join you at the panel –Dr. Ma could you turn to tab 23 of the binder we were talking about half way through our binder Mr. Chairman. Now Mr. Chairman this has to do with cancers –there's a document entitled "Occupational Medicine" – BCFLT23 at the top right – now Dr. Ma I'm going to take you through some questions here – where we are trying to get at is the incidence of occupational cancer in BC and the degree to which those cases of cancers have been recognized by the Board – so at tab 23 is an excerpt from an article of Occupational Medicine Text. Are you aware of that text? It's a standard text in the field?

A: Yes.

Q: I guess we should introduce you – you are an occupational medicine - you should do this yourself.

A: I am an occupational physician in the Prevention Division.

Q: Thank you. So there are two pages from a chapter in that book –occupational neoplasia and neoplasia is a synonym for cancer is it not or a rough synonym?

A: Yes.

Q: And if I could take you to the second page –page 821 under conclusion – you'll see at the end of the 4th line –"A careful analysis of available evidence led to Dayle and Peddo to attribute 4% of all cancers in the US to occupational causes – a much higher estimate was provided in the report commissioned by the US occupational safety and health act which suggested the occupational related cancers accounted for 23-38% of total cancer mortality. This estimate has been severely criticized on several grounds and a consensus seems to have been reached at under 10% being somewhat realistic." So we are talking about a range of 4-38% depending on where you come down. And this particular author comes down at 10%. Now the next document –you actually have two of them –is a table estimated population of new cases and deaths for all cancers by sex, Canada – provinces – territories for 1994. And third from the bottom is BC. And you see the fourth column over that there were 16,800 cases of all cancers in BC in 1994?

A: That's correct.

Q: And the equivalent on the next page – 1995 is 16,400 –and the last two pages in that document is information that Mr. Rolland has actually provided us in a previous movie - if you could turn to the second page you'll see that there's cancers recognized by the Board in 1995– and to save you from adding them up there's 15 of them; in 1994 there's 11 of them and so in very gross numbers – this is a very complicated this is a subject of a complicated study but we are comparing acceptance of 15 cancers in 1995 with over 16,000 cancers reported in BC –correct?

A: Yes.

Q: And I worked out the math – that is less than .1% - well out of the range of even the 4% - the most conservative figure.

A: I think that is an under-recognition of occupational diseases in general.

Q: Yes and if we could - those last three pages – most of the diseases – the cancers related to the Board are related to asbestos.

A: That is correct.

Q: I have two other questions that you may be involved with if I could just leave them for now –actually no tab 25 – and before we leave that issue of the degree to which cancers are recognized in BC does anybody else on the panel want to comment on that – is the Board doing anything about that? Plan to do anything about that?

A: A large function of the appearance under compensation for cancer is a function of the fact that there is an underreporting of cancers to the Board. We are not getting a lot of claims.

Q: And is the Board advertising the fact that it is open for business on cancers?

A: It's in the Schedule and you know that's one of the values of the Schedule is that it's out there – it's public knowledge.

Q: Is the Board – the Board does advertising – as part of its advertising that there may be cancers out there that are work related?

A: No, it's not.

Q: Dr. Ma at tab 25 is a – some documents –first is memo 3 –and this has to do with a brain cancer –end of the third line there "recurrence of a glaucoma – that is a type of brain cancer is it not?

A: Yes.

Q: And if we could jump to the third paragraph – the reviewing of and this is the Board's medical advisor –this is what we call the medical memo on the cancer and third paragraph "the mortality figures of firemen in this province – the worker was a firefighter – covering the years 1950 – 1984 do not suggest a significantly increased cancer among firefighters. The proportion of mortality rate – PMR – is listed at 20" And that is the study the BC Cancer Agency did that's headed by Dr. Gallagher is it not?

A: Yes it is.

Q: And then the next paragraph "in fact these findings are borne out by the mortality studies done by Millen for Washington State – the Washington State figures also fail to establish a statistically significant relationship" and the next paragraph – " Though the Washington studies show a non-significant elevation in the PMR for brain cancer they are quick to point out that this finding was confirmed by the National US mortality figures nor the British mortality figures." And at the end of that you'll see the medical advisor said the evidence was insufficient. Now this case was appealed to the Review Board – Mr. Winter and his clients did not take a position on this case and just so you know and it was predicted by some and we lost at the Review Board and won at the Appeal Division and in fact we won all of the brain cancer cases but we've had to go to two levels of appeal. And I just want to explore this medical memo and the kind of information and if I may say so the expertise here. The next document there is – we are talking about OD and SP in Ontario – and this is the report to the Workers' Compensation Board on cardiovascular disease and cancers among firefighters dated September, 1994. Now Dr. Ma that is a chart out of that report. And the handwriting is my writing and so it lists as of 1994 all of the brain cancer studies that the Ontario organization could find and so the medical memo we just looked at was 1990. So you see I put an asterisk at the end of the bars for all the ones that were available in 1990. Okay?

A: Yes.

Q: Now the solid bars are the standard mortality ratio- SMR – and the next – the blank ones are PMR for proportionate mortality ratio. That's a different way of measuring relative risk is it not?

A: Yes it is.

Q: And they are both useful in determining the possibility of risk. But if we had a choice you as a doctor you'd – if you had a choice you would prefer to look at Standard Mortality Ratio studies than Proportionate Mortality Ratio?

A: Yes, they are actually based on rates so yes they are considered to be better.

Q: Because some of the assumptions in Proportionate Mortality Ratio are not as reliable as Standard Mortality Ratio's.

A: Yes, there can be difficulties just by using events rather than rate information.

Q: Okay, now we don't need to look at the other three ratios – relative risk ratio, incidence density rate ratio, now at the bottom there are some numbers from 0-400. And that is the risk ratio is it not?

A: That's the Standard Mortality Ratio.

Q: Standard Mortality Ratio

A: Or Proportionate Mortality Ratio.

Q: Or Proportionate Mortality Ratio or odds ratio or whatever the measure is.

A: Right.

Q: And when we are looking at these things from a legal point of view there's some debate about it but there's some and the Board's own protocol on this says that an Standard Mortality Ratio or a Proportionate Mortality Ratio of 200 is roughly equivalent to the standard of proof in the Act.

A: Right, because that would indicate a double wing sort of the risk – which would equate to a sort of 50% probability.

Q: Right. 100 is due to chance.

A: 100 is sort of the standard – no difference – no elevated risk – not at greater risk or less risk.

Q: Right, okay. Now on this slide looking at the studies that were available when this case of brain cancer was adjudicated there are one – the Musk study from 1978 – the Vena/Fiedler study from 1987 – the Lewis study from 1982 – the Lewis study from 1982 – it's the same study but different ages – and the Millen studies 1983. Do you see those?

A: Yes.

Q: Now first of all we have Standard Mortality Ratio studies available at the time this claim was adjudicated. Isn't that what that slide indicates?

A: Yes.

Q: And two of those studies – Lewis in 1982 and Vena/Fiedler in 1987 – has Standard Mortality Ratio's over 200. Correct?

A: If you look at the Lewis one for obviously firefighter under the age of 60 – yes.

Q: Yes.

A: Subdivided the group.

Q: Yes, that's what over 60 and under 60 means. We should say that under 1982 Lewis 20.9 Standard Mortality Ratio – n=1 – that's the number &ldots;.

A: Based on one case.

Q; Based on one case, yes. So the medical memo on this file missed those cases. Correct. Those studies?

A: Well, not necessarily. It didn't specifically refer to those studies in the memo. I can't comment on whether or not the physician looking at the file had actually seen those studies or not.

Q: All right but when you look at that – you look at the Vena and Fiedler study and the Lewis under 60's study – with those Standard Mortality Ratio's up in the 200 range would that not lead you to look at some other things on the file because that is a clue to you that there is something going on here to demonstrate the relationship between the injury – the disease and the occupation?

A: Yes, there could be indicative of an association but there would obviously be other things you'd want to look at. For one thing the statistical significance – the 95% confidence intervals are not provided on there so that may have been a reason why they weren't considered or at least referred to in the memo and obviously, I, personally would want to actually look at the studies to see how they were done. To see if there were other reasons – confounders that weren't accounted for in the study that may have influenced the results.

Q: Yes. My point is simply that if they were all a Standard Mortality Ratio – the Lewis over 60 – that is a Standard Mortality Ratio over 50 – you wouldn't go any further at all?

A: I'm sorry I didn't&ldots;.

Q: If all the studies were – either the Lewis 1982 over 60 – the Standard Mortality Ratio below 50?

A: No, well I personally would do a complete search of the literature on a case and look at all the data but I can't comment on what was done in this particular case because it's not directly itemized in the memo.

Q: Yes. There is no reference to the Standard Mortality Ratio studies?

A: right.

Q: Now the other point I want to make about this is the 1983 – Millen – CNS – that is central nervous system? Correct?

A: Yes.

Q: And Millen – brain – now the Standard Mortality Ratio's there are 177 and 180 –

A: Proportionate Mortality Ratio's.

Q: Right Proportionate Mortality Ratio's – sorry. The – well although that's not 200 – that is still statistically significant isn't it?

A: Not necessarily – again - you'd actually have to look at the paper to know whether or not that was considered to be statistically significant. The 95% confidence internals aren't given.

Q: Yes, all right. But it's seen in the Sama study – 1990 – an OR of what?

A: Occupational.

Q: An Occupational of say 75 – that's no where near the level of proof we need for establishing a claim. But if you had an OR or a Proportionate Mortality Ratio or a Standard Mortality Ratio of 75 even if the confidence intervals were appropriate it wouldn't meet the standard of proof.

A: Right, generally as we say if you take a relative risk of 2 or a Standard Mortality Ratio of 200 assuming that those were statistically significant.

Q: Okay. The – now this as I say this case resulted in an Appeal Division decision allowing the case as it has for about 4 other brain cancer findings. And my question to the other members of the panel is whether those decisions, which have all been successful have resulted in any change in the level of training, of adjudication within Occupational Disease Services?

A: To the extent that my involvement in that cancer – my involvement with the Cancer Committee I've been apprising the adjudicators of some of the outcomes in the studies that we've found so that we have been raising those issues.

Q: Okay, and to be clear I – Mr. Winter and I approached the Board some time ago and proposed the Board be involved in a way to with the union and the employer and the Board to do a better way of doing these cases. Correct?

A: Yes.

Q: Yes. I wanted spend a few minutes just in the context of cancers here dealing with something that Mr. Winter raised –and this was – he was raising issues about how you measure exposure –and he was concerned about a firefighter that worked at 2 fires a year or 3 fires a year or 2 a month – I forget the exact total. He was concerned about the degree of exposure and he lost that. He won it at the Review Board – he lost it at the Appeal Division – that decision is reported – but what the Appeal Division said is that they would use as Mr. Winter properly said – length of service as a surrogate for exposure – and the reason the Appeal Division did that is because that is what epidemiologists themselves use. Is the panel aware of that?

A: I am.

Q: All right. And this that the measure of exposure that adjudicators in Occupational Disease Services use? There's probably two parts to that – has that been communicated to your adjudicators and is that what they use?

A: I don't think we've discussed that issue; I don't think we've had any claims for those cancers since this committee started.

Q: All right. You've had no cancers?

A: No firefighter cancers.

Q: But the same issue would apply to all cancers wouldn't it – indeed all occupational diseases? The other part of those questions was the – referred to as a dispute between the Review Board and the Appeal Division –that sort of implies or connotes that the Review Board and the Appeal Division are structurally equal in the appeal system. What is really going on there is a superior appeal body has overruled the appeal body below them; isn't that what happened?

A: That's correct.

Q: And the Appeal Division also talked about how do you measure exposure? And what they said was that it's unreasonable for a matter of standard of proof for workers to prove the exact exposure that they've received. And the employers went further – they not only wanted to know the exact exposure – they wanted to know how the carcinogen attacked what tissue and track it through all the four stages and so on and Appeal Division said that that was too onerous – that it's not necessary – under the standard of proof was not necessary – is that – is that - are you aware that discussion in the Appeal Division decisions?

A: I'm aware of it.

Q: Let me turn to Schedule "B" – I think as it was explained Schedule "B" sets up a presumption and it's deemed –so the first column and second column are matched and if they do match the work relationship is deemed unless the contrary is proven – I think Mr. Ingraham you described that?

A: That's correct.

Q: You also referred to Section 6.4 of the Act – and that's the provision for adding, deleting from or amending Schedule "B" – is that correct?

A: Correct.

Q: And I think this is part of your discussion –that when something is added to the Schedule it reflects medical knowledge at the time of the application and so it then goes on the Schedule. Correct?

A: I'm not sure that is the exact way to describe it but it is similar.

Q: Yes, thank you –and so that if someone wanted to change the relationship on the Schedule or eliminate it the way to do that is through an application under Section 6.4?

A: That is correct.

Q: And the - that the relationship in the schedule is Board policy if you like - pursuant to Section 6.4 – you okay with that?

A: yes.

Q: And it is not for adjudicators or Board doctors or appeal bodies in fact to change the relationship under the presumption – their job is to follow it?

A: I think that yes – to first answer the question is yes – but I think appeal bodies can highlight issues that they feel are a concern for them.

Q: Yes indeed – an adjudicator could do that – if an adjudicator thought there was a problem in the relationship – a relationship in Schedule "B" – they could say to Mr. Rowan I don't think this bears up any more with what we know about it – a board doctor could say that.

A: That's correct.

Q: But that separate from the claim - in the mean time they are going to follow the Schedule?

A: That's correct.

Q: All right – could you turn to tab 18 of our binder there –

A: Our tab 18 is empty. Thank you.

 Q: Now as Mr. Winter pointed to you - pointed out to you –item 5 of Schedule "B" says that where there's heart injury or disease and some other qualifications of that and where the worker is employed as a firefighter the heart diseased is deemed to be work related unless the contrary is proven, correct?

A: That's correct.

Q: That is section 6.3?

A: That's correct.

Q: Now what you have there – this is the third document in Tab 18 Mr. Chairman – is a medical memo from a Board internal medical consultant - it talks about a number of things –but if I could take you to the fifth paragraph –this doctor says "In respect to the question of employment causation there is no good evidence that any occupation predisposes to coronary arthorsclerosis – that is contrary to Schedule "B" isn't it?

A: Well, it doesn't rebut the presumption – that comment in itself.

Q: No, it attempts to overturn the relationship in item 5.

A: It's a medical statement and I'm sure that the physician that made that medical statement believes it but the legal effect is what we are interested in. That kind of an opinion on a claim file does not in itself rebut the presumption.

Q: No and quite right – in this particular case the adjudicator followed it but I have your point – in other cases same doctor same opinion the adjudicator has overruled it – we talked about that previously – an adjudicator can overrule a medical advisor –what I'm saying is if this doctor doesn't agree with the presumption in Schedule "B" and apparently he doesn't

A: Yes.

Q: Then his remedy is make a report to his manager or to something else – and not to raise that as part of adjudication of the claim?

A: That is correct.

Q: All right – could you turn to tab 19 of that same – I hope it has something in it – now the second paragraph –there is a medical memo from a different case –and it is the same doctor and the second paragraph is a bit verbose and substantively – the same issue – I'm not going to –I'll just say it is repeated there again – I raise a different point here though and that is at the beginning of this medical memo it says "It is my medical conclusion that since this primary incident or event that caused the chest pain occurred while this man was temporarily, geographically and physically removed from his normal work activities as a firefighter and since the clinical impression is that a coronary artery spasm which has never been documented in the literature or in clinical experience to be related to the specific physical activity of the type normally performed by firefighters." A long and not a particularly good sentence – but what he is saying there is that it happened – the heart attack occurred away from the work. Correct?

A: That's correct.

Q: And you've taken us through the policy on that and that's contrary to existing Board policy, correct?

A: That is correct.

Q: And this had to be fixed by an Appeal Division decision – an excerpt of which is attached – it is the second two pages – now again my question is – what's happened to these decisions that my client and employers have been struggling with in the appeal system and which are as we see contrary to Board policy – has this made any difference to the adjudication of claims in Occupational Disease Services and to the training and direction given to medical advisors? And consultants?

A: I can't comment on the training and direction of medical advisors – but Jay can probably comment on the training for adjudication staff. I've had quite a few discussions with claims adjudicators with these particular cases to ensure that we are complying and to see if there is evidence that it does sufficiently rebut the presumption following the correct legal test.

Q: And has the Board internal medical consultant been?

A: I have not included him in those discussions.

Q: Wouldn't that be a good idea?

A: He may continue to express those same opinions. I mean he is just giving opinion; he is not adjudicating a claim – if that is his opinion and he wants to put it in there – he'll keep putting it in there.

Q: I'm sorry - are you saying there is nothing wrong with Board medical advisors to making statements on files that is contrary to Board policy?

A: Well it depends on what the question was – asked of him. If an adjudicator in a prior question asked him what does the medical literature tell us about this then he is bound to answer. We can't tell from these materials what is the memo he is answering.

Q: So does that mean that if an adjudicator asked the question about ignoring Schedule "B" and the relationship in there – the Board medical advisor or medical consultant has to slavishly follow it and say no I know about Board policy – the relationship is established by the Schedule and I have to follow the schedule – isn't that what he should say?

A: And he often does. I think it is reasonable to say that if a claims adjudicator brings to the attention of their manager, medical advisor that may be leaning toward the adjudication of claims that are offering medical opinions that seem to contradict policy there is a mechanism for an adjudicator to bring that to the attention of their manager; there is mechanism to take that to the senior medical advisor to talk to that particular physician. So there are mechanisms in place to deal with it. Whether it occurred in this particular case I can't honestly say whether it did or didn't.

Q: Okay.

A: And just to follow through on that Mr. Steeves, if this came to my attention I would refer it to Dr. Blair and have Dr. Blair discuss this issue in his medical rounds with medical advisors and put a stop to it if it is inappropriate. And I don't think we've got as these gentlemen have indicated enough of the background here as to what question was put to the medical advisor. But certainly it is my view that medical advisors must abide by Board policies.

Q: Thank you Mr. Buchhorn. Just- still talking about Schedule "B" the – Mr. Winter talked about different words –prolonged, excessive, frequent and so on - I wonder if the Board has ever thought of having different kinds of schedules –and by that in which a schedule in which there's no issue at about immediately at or before employment so for example the misenpediaomas and silicosis could be in there – and then another schedule where there might be an issue of that. Has that ever been considered?

A: I'm not aware of whether it's been considered or not; I'm not sure if anyone else on the panel is aware of it. I don't recall any active discussions about a Schedule 4. I know there is some discussion in the Ontario Task Force Report around that subject and they've basically concluded that it probably wasn't necessary.

Q: All right and we currently in BC only have – the Board now only has the ability now to only make rebutable presumptions – not rebutable – make application under section 6.11 of the Act, correct?

A: Yes.

Q: I wonder if we could talk about - Mr. Winter's and my favourite topic – the heart presumption in Schedule "B" and the –and he put Dr. Misgawa's opinion on the strength of the association of fire fighting and heart attack – the Ontario Occupational Disease Panel has – I'm reading from their Executive Summary said that there is a probably connection between cardiovascular disease and working as a firefighter – are you aware of that?

A: I've read the report yes.

Q: And the report of Dr. Misgawa –I wasn't – didn't know we were going to get into this today –but his report was made after the Occupational Disease Panel – ITSP Report. He doesn't refer to the Occupational Disease Panel report although he said he considered all the evidence.

[Mr. Winter interrupts]: I am sorry Mr. Chairman – this is a most unfair question – what the report actually says is that it defines what probable cause is and it specifically says that except for one heart type of disease it should not be on any schedule in the Ontario court. In fact it confirms with what Dr. Misgawa says.

Steeves: I didn't start this Mr. Chair.

Royal Commission Chair: Just a minute. Gentlemen why are we debating which report is right?

Steeves: Quite.

Royal Commission Chair: Just a minute. Just a minute. There will be no more questions with respect to either one of those reports.

Q: Now with respect to the review of Schedule "B" there's been sometime ago six items in Schedule "B" were identified for review– could we just have those for the record Mr. Campbell?

A: The first is item 3.a – bilateral fibrosis, item 5 – heart injury or disease, item 8 – respiratory irritation, item 12 – bursitis, item 13 – tendonitis, chemsinovitis, item 16 – vascular disturbances of the extremities.

Q: And would hand/arm vibration syndrome – would that fit in there?

A: That's the last one.

Q: That's the last one – that is the same thing, eh?

A: Same thing.

Q: And those six items have been identified as priorities since when?

A: I would say approximately October, 1994 is when they were first identified by the Occupational Disease Services.

Q: And they are currently before – what is the name of the committee that is considering them now?

A: The Occupational Disease Advisory Committee.

Q: And you sit on that or you have an advisory role or something?

A: I will be assisting in that process.

Q: You have been assigned to that committee now or is that in the works?

A: I have been seconded approximately half time to contribute.

Q: Now – as I understand it – there has been some discussion within the committee – some of those items are more ready than others, correct?

A: You have to go back a bit; when we originally decided to look at these six items we resolved to request independent, medical, scientific assessments of those items based on the current literature.

Q: Right.

A: At the same time we also resolved when those came back we also wished to have those peer reviewed so that we made sure that we had a good independent view of the situation. And once we had both the original assessment and the peer review that we could then go on and start talking about them and perhaps in alternate language, etc. And we are at different stages of completion and obtaining those assessments and peer reviews.

Q: And the hand-arm vibration syndrome that went for an expert report did it not?

A: With Dr. Henry Litherland.

Q: And it went for a peer review?

A: With Dr. Palmeer in Ontario.

Q: And the peer review reached a very different result than the first report?

A: It was critical in some respects, yes.

Q: Yes, and now – the - on that committee are what - 3 employer representatives and 3 worker representatives?

A: Yes, really two and an alternate. Two and two each having an alternate.

Q: And the –at - recently have the employers not proposed that they could live with excepting 4 of the 6 if the repetitive stress injury/tendonitis and the heart presumption was dropped?

A: That's news to me. I've never heard that.

Q: Okay - with respect to allergies sensitivities –if you could turn to tab 13 –I just want to give an example of the kind of thing we are talking about here – do have that – it is a radiograph for asthma –just in the first column describes the 39 year old male, radiographer complained of headaches and ulcers which worsened over four days and resolved after five days of work – strong odor of x-ray chemicals had been noticed in a hole in the vent to the x-ray processor had been repaired –and the last paragraph – three months later during maintenance work on the chemical residue tanks patient developed chest tightness, itchy eyes, acute sinusitis, ear ache, conjunctivitis which resolved five days off work. Soon after he noticed chronic diphnia – that's air hunger – during work, which improved in the evenings and on weekends. And if you can turn to the next page where it says "Discussion" – the paragraph above that – occupational asthma was diagnosed and the patient commenced treatment within enhaled corticol steroids. Although not working with the x-ray processor he continued to experience symptoms when anywhere near the processing room despite minimal chemical emissions. Unable to continue as a radiographer and has retrained for an alternative career. That's the kind of situation we are talking about with respect to allergies and sensitivities, is it not?

A: Similar yes.

Q: And in that situation – he is fine as long as he stays away from the substances he was exposed to at work? Correct?

A: Correct.

Q: And that is because he has a sensitivity that he developed from work and that's a permanent sensitivity is it not?

A: It would appear based on what you've read so far.

Q: But the current state of the Board policy –he would receive no pension.

A: If there was no loss of earnings he would not receive a pension.

Q: He would be entitled to some retraining possibly?

A: Possibly retrained; possibly paying for the medical expenses or health care benefits for the medication he's on.

Q: Yes, and the - would that be true even if he had some functional impairment as measured by the medical examiner guidelines?

A: Respiratory impairment?

Q: Yes. From preliminary tests.

A: I think we would be assessing the level of functional impairment for a functional pension if he's been left with a permanent impairment as a result of the compensable condition.

Q: So if he's away from the job site and he blows in the test results and the numbers pump out and you correlate them with American Medical Association guidelines he would end up with a permanent – a functional pension?

A: Depending on the facts of the case and decided if it was relevant, yes.

Q: Yes, now you mentioned red cedar dust Western red cedar dust asthma –I'm advised that that represents 4% per year of people working in the saw mill industry. Is that – do you have any information on that?

A: I've got some statistics from our main statistics area on how many cases we've had in the last 10 years and they came up with 25 claims total.

Q: In the last?

A: Ten years.

Q: And that would be through Occupational Disease Services? Would they all come through Occupational Disease Services?

A: Yes.

Q: All right.

A: I'll just check the other statistics.

Q: If there is any different than that we can come back to that Mr. Rolland. I'd like to talk a little bit about stress and first of all we need to define what we are talking about here. Stress is a pretty loose word; we're – Mr. Winter and I were stressed this morning that doesn't mean we have a disability necessarily – it is an occupational hazard - so some stress is part of life and indeed I've heard doctors say without stress we'd probably die – I mean it's what keeps us going even in a physiological sense but there are some stresses that would cause disability.

A: Correct.

Q: And you mentioned the easy one in terms of stress – PTSD – post traumatic stress disorder – someone witnesses a traumatic event – that's a relatively easy one. But carrying on with the definition approach – isn't it useful to look at stress that causes disability compared with stress that does not cause disability? That is if there is a stress that causes a time loss – short term or long term and the medical evidence is that there is a relationship between the time loss and the stressful event – making it really easy for you - leaving aside decision 102 – isn't that what we are talking about? With the important part of stress claims – I'm leaving aside the – I'm looking at the definition of stress here?

A: I'm not sure I completely understand the question. The key part of stress claims is the causative significance factor in whether or not work out a relationship to the onset of the condition.

Q: Well, if wasn't for decision 102 – wouldn't you just be looking at whether there is disability or not?

A: If it wasn't for decision 102 we'd be looking at the individual facts on each case and looking for causative significance in the work relationship.

Q: Right –yes and if there was disability you would pay on the claim.

A: If there was temporary disability we'd pay short term benefits; if there was something permanent involved we'd consider a pension entitlement.

Q: Okay. And I was concerned about something that was said earlier about there needs to be something more – maybe Mr. Pinto – something more than the normal work activities – and that strikes me –are you familiar with what used to be called the assumption of risk rule in –that is it was before Workers' Compensation Board – workers were deemed by the courts to accept the risks of their work?

A: I've heard of it before yes.

Q: Isn't saying that stress that causes disability is a normal part of the work – isn't that the same as the assumption of risk rule?

A: I couldn't honestly say it is the same.

Q: All right. Could you turn to tab 9 of our documents – You have an Appeal Division decision there?

A: Yes.

Q: Okay – this is a case of a worker who is subject to sexual and other harassment and had a diagnosed depression and the Appeal Division considered the case – it was I think denied at the Board, allowed at the Review Board and – I wanted to take you to page 20 -

A: Okay

Q: And you see in the middle there – there's a paragraph with the term "trauma" - do you see that –

A: Yes.

Q: The term "trauma" is often associated with singular, sudden, and unexpected and therefore clearly identifiable distinctive bent. Psychological impairment resulting from a fright, a shock, or some stimulus is therefore typically characterized as traumatically induced –the term "trauma" does not only denote a singular event – Black's Law Dictionary defines "trauma" as a physical injury should be caused by a blow or fall or psychologically damaging emotional experience – are you familiar that definition of trauma?

A: I'm not familiar with that specific definition but -

Q: All right – at page 23 is really the heart of the case – and under the findings the panel puts out a 3 part test and they say – first of all they looked at whether there was a psychological impairment –second of all look at whether or to what extent personal factors may have contributed to her impairment – and three whether and to what extent her impairment could be traumatically induced in some objective sense by her employment. Are you familiar with the decision first of all? This approach?

A: This is the first time I've actually had a look at the decision.

Q: All right so does that mean you've heard about it?

A: Well, I've heard about it as recently as yesterday.

Q: When I told you about it?

A: Yes, exactly.

Q: Yes. And so that means that the Policy Bureau hasn't picked this up and referred the matter over to Occupational Disease Services to have it look at it, or consider or feed back on or?

A: I've read through this yesterday too and it seemed to me that they accepted this case on the basis that this incident in the storage/meeting room was therefore causing the claim to be accepted – it was traumatically induced from a single, sudden incident – it isn't the sort of typical case that Occupational Disease Services adjudicates – we don't deal with the single, sudden, unexpected incident – we have the stress over time so it seems to me they accepted it – this case under a different section of the Act – it would appear to be under Section 5.1 -

Q: The facts are complicated and very private and they are not so it would come to Occupational Disease Services – in any case I leave that. Could you turn to tab 11 – this is another chapter from that Occupational Medicine Text –and it's an assessment of mental stress factors –and under mental stress factors and monitoring the work place it talks about in the first paragraph the problem of objective factors – in the second paragraph "mental stress factors refer to the observable factors in the environment which are independent of worker' perceptions – they are connected to the content and the organization of work – adverse effects of these factors cannot be predicted on the individual level but on the group level. Have you applied any of that kind of definition to stress factors - mental stress factors?

A: I think honestly what we - how we would apply and deal with stress claims are based on the policies that are written in the manual and under the Act.

Q: And are you aware of other studies that show that high psychological demands combined with low decision making power and workers having little control over their work or how they use their skills also contributes to work related injuries?

A: I think that topic was touched on in the discussion paper.

Q: Yes – and do you have any information about in the terms of the numbers of non-traumatic as you define them Mr. Rolland cases – the gender split on those or race split on those – is it possible to separate out?

A: It might be from a gender point of view; I don't believe we keep statistics on race.

Q: Okay and do you have any opinion about whether men or women are more subject to stress – non-traumatic stress claims than men?

A: Do I know – I don't have an opinion about it.

Q: Could you talk about activity related soft tissue disorder and repetitive stress injury. First of all we have already referred to the item in Schedule "B" which says that if there's tendonitis and tendon sinusitis and there's repetitive and unaccustomed work the disease is deemed to be work related. That – I forget the number of that – is it 12?

A: Right.

Q: Are you aware that in 1980 the Board's claim department recommended that it should be repetitive or unaccustomed?

A: I'm personally not aware of that no. I wasn't here in 1980.

Q: All right - is anybody on the panel aware of that?

A: I found out when I wrote the article with Jim Dorsey that that's the history of it.

Q: Yes, thank you Mr. Campbell. That history is at tab 24. I'm not going to take the time to read it. Just a question about activity related soft tissue disorder's and case management – do all activity related soft tissue disorders go through case management?

A: In the new model yes and in the current practice they are triaged from the call centre into the adjudication area.

Q: And yesterday we heard that activity related soft tissue disorder 's do not go into a continuum of care – I think the way it was put was there will be a separate continuum of care – is that correct?

A: Yes, I think it's well documented that activation is not the right treatment for an activity related soft tissue disorder and therefore we are working on a protocol for the treatment of activity related soft tissue disorder's and in particular when chronicity sets in.

Q: All right - could you turn to tab 26 – this is a medical memo on a case of carpal tunnel syndrome – the first line – diagnosis was bilateral carpal tunnel syndrome which is extremely rare with respect to workplace causation – does that coincide with your view of the chapter 4 – that carpal tunnel syndrome is extremely rare? In a work situation?

A: I would agree that the comment would seem inconsistent with the policy.

Q: The – and there is a discussion about the work – paragraph from the bottom - second from the bottom – the other associated risk factors unfortunately are being female and in her 40's –and well documented within the medical literature with respect to carpal tunnel syndrome. Now chapter 4.2732 talks about hysterectomy and some other matters related to women's health –doesn't it overstate the case that being a woman is a risk factor? Are you saying Yes Mr. Campbell?

A: Yes. Yes. Pregnancy has a significant effect on someone that may have carpal tunnel syndrome just simply being a woman is quite irrelevant.

Q: Now this is from a Service Delivery Location out in the interior and I raised this with Mr. Buchhorn the first week of – this is the kind of thing we are concerned about transferring the activity related soft tissue disorder's out to the geographic Service Delivery Location's – that we saw this when Occupational Disease Services started doing repetitive stress injuries in a lot of numbers and now we are seeing the same sort of thing – that is we've lost the history that we've had in Occupational Disease Services – having to repeat it again out at the geographical units.

A: In response to that comment we have done another sweep of training throughout all of the offices. Dr. Barry Carruthers, one of our physicians has been the lead relative to looking at issues like this and trying to ensure that it does not happen. I can refer you to a recent female submission that Dr. Bill Neufeldt, senior medical advisor, sent to all medical advisors again reiterating their role in the process, which is primarily not a role of adjudicating a claim; it is a role in providing diagnosis and treatment to the worker. I can make that available to you – clearly this again without having more information this would not be aligned with where we want to be with respect to activity related soft tissue disorder adjudication.

Q: Apropos of your comment on medical advisors I would –last time we had – it seems we had that memo and the charts looking at all the Service Delivery Location's and the different disallow rates –there is another memo I think that Mr. Rolland produced analyzing that and there's a study and I was concerned about something in there – that says that medical advisors are to refrain from statements of causation in activity related soft tissue disorder's and that the adjudicators are to apply the risk factors – what that seemed to me to mean was that a diminished role for medical advisors on activity related soft tissue disorder claims. Have I got that right?

A: Yes.

Q: So – is that because of nurse advisors taking their place – or is it more responsibility on the adjudicator?

A: It places more responsibility on the adjudicator and only where the adjudicator requires a medical opinion on causation should the medical advisor become involved and we don't see that as being the preponderance of claims particularly the Scheduled ones.

Q: Yes, there are no problems with the Schedule "B" ones –but the claims under 6.1 we would have adjudicators for example making decisions about whether a history of hysterectomy in a woman was a risk factor – is that where that goes?

A: Are you talking again now about carpal tunnel syndrome? Or&ldots;

Q: Sure.

A: The role of the physician is to clarify the diagnosis; to clarify what muscle groups are involved with a particular work activity; if there are some other factors that from a medical point of view has to be clarified and then that's what the doctor's role is – it is not to say – doctor do you think that this what's caused it – that's the adjudicator's job with a full analysis of all of those factors.

Q: Also on the activity related soft tissue disorders –I wonder if we could talk about ACES – first of all what does that acronym stand for?

A: ACES is simply a database of information that is collected in the workplace and allows us to evaluate the intervention that should be taken with respect to a particular worker or a particular claim.

Q: Okay –

A: So it assesses risk relative to the worker's exposure, labour relations issues – any kind of issues that would indicate to us that we should be doing a more in-depth intervention with a particular claim or with a particular client.

Q: All right - as I understand the concept –there's a profile and you look at different factors and you – it's done by an outside provider –an occupational therapist will attend at the work site?

A: Initially with the adjudicator until the adjudicator has a sense of the work place and is comfortable with the information coming back so it's not unlike other evaluative tools that allow you to triage you most difficult or complex claims to an interdisciplinary team right from the onset of the claim. And you know we're funding the study that Dr. Schulz is conducting with respect to multivariate predictors of disability – the same process is being used the world over to try and come up with a predicted tool that will allow you to invest in certain claims at a very early stage because of the predictability in those claims.

Q: All right –does that mean that every case of activity related soft tissue disorder will have the arrival of an occupational therapist and possibly an adjudicator?

A: No we have left it to the discretion of the adjudicator – based on their confidence and their own skills, their time availability, their sense of whether they have visited a particular work site before, so it is up to the discretion of the adjudicator as to whether they use this resource or not. Some of our adjudicator are not skilled doing ergonomic assessments of the workplace and in that case we would encourage them to use trained occupational therapists. Other adjudicators may have a particularly high case load at a particular time and rather than not go to the work site to evaluate the risk factors we would prefer that someone trained went to the work place.

Q: All right and I think the concept is that the occupational therapist or the adjudicator looks at a number of factors and develops a profile for that job – is that not – have I got that right?

A: Yes, well there are two tasks that are to take place; one is an evaluation – an ergonomic assessment of the work place and the work site to determine the risk factors for adjudication purposes; the second purpose is to look at the other data which might be a predictor in the kind of intervention that we may want to take with a particular client, a particular employer or a particular claim.

Q: And so that will tell you the risk of that particular job causing an activity related soft tissue disorder – is that right?

A: No, well it may you tell that but it may also tell you the risk of having someone off on a prolonged lay off..

Q: Right.

A: Due to psychosocial factors, such as a labour relations issue; I've got a dispute with my boss, I don't want to go back to work, I don't like my job – I'd rather be retrained – those kinds of issues. If we identify those issues up front it allows us to do a better job of applying the appropriate resources early rather than to allow the claim to lapse into chronicity in which case we are really dealing with later intervention like chronic pain and those kinds of interventions.

Q: So this will tell you the risk of that job doing – causing an activity related soft tissue disorder and also as you say the loss of a worker from that job?

A: It will assist us with evaluating all of the risks associated with a particular claim.

Q: Right.

A: And try to predict the likelihood of protracted disability as a result of a claim right at the outset.

Q: Now the part that seems to me to be missing is whether medically – assuming you get a risk profile that says there is risk of an activity related soft tissue disorder – whether – isn't it a medical question where the worker suffered an injury from that particular risk situation?

A: If the adjudicator requires that kind of medical evidence then he or she would request that of the medical advisor. Not of the nurse advisor despite the evidence of one claim that you've presented to me where the nurse advisor was involved in that particular decision.

Q: Yes Yes Yes – Now we just got the materials in –just a couple of questions - the – I don't know page numbers but it is under section 1.3 –the number of external variables rate the industry that has contributed to the growth of CTD's –one is the Americans with Disabilities Act – how would that be relevant to the situation in BC?

A: Without looking at that particular section you are using this process was a process that we discovered in the state of Rhode Island, and there may be some references there to some American jurisdiction with respect to some of the literature.

Q: Yes, another one is occupational safety and health act, and that would be &ldots;.

A: Similar to the American, yes.

Q: Yes, they also refer to modifiers that would influence the direction and outcome of a case – a secondary modifier is representation by what they call an attorney here, would you accept that – that that's going to affect the outcome of a case?

A: Not in our particular jurisdiction, no.

Q: All right.

A: However, the presence of an appeal – the presence of an appeal or a worker's advisor may be an appropriate&ldots;

Q: Yes, in the same way that an 8-week review – it interrupts the situation.

A: Correct.

Q: And can we take it that the – that the – that the fact of union representation wouldn't apply in BC as a secondary modifier too.

A: Correct.

Q: Just a final one – they identify cigarette smoking as a modifier – is that something that you – does that seem like a reasonable modifier –it says "smoking has been culminated into a high risk of neck and low back pain and to a longer level of convalescence for some post-surgical patients." Is that consistent with your understanding of the literature and&ldots;?

A: I would have to defer to one of our occupational health physicians on that matter.

Q: A couple of small areas – reproductive hazards –I raised this with some of your staff yesterday and – referring to tab 21 – Dr. Ma tab 21 is a report from another Royal Commission – as it turns out a federal one –the Royal Commission on Reproductive Technologies and a couple of points in here – at the bottom of page 272 – just at the bottom – "there is an urgent need to mount a comprehensive research program with funding and long term training strategy to develop new researchers to address our lack of understanding about occupational and environmental reproductive health effects." And then at page 287 – it's what appears to be a recommendation 38 – which asks the provinces and territories to consider how their occupational health and safety legislation could be amended to provide more equal participation by employers and workers with a view to reducing the effect of work place hazards – this could include vesting health and safety committees with the same decision making powers guaranteed by Quebec's health and safety legislation requiring that employers obtain the approval of the work place health and safety committees for significant work place changes and identifying and employing external resource persons with health and safety expertise for non-union or non-unionized workplaces to provide information on health and safety." – Can you advise us as to how much attention this report has been given by the Board –or not you anybody in the panel? And in particular whether that recommendation has been followed bearing in mind that this is a very complex matter medically and legally?

A: This is a complex matter; I'm not aware that we've done anything with this particular report. We are introducing new health and safety legislation in April, however, and there are some sections that are pertinent to reproductive hazards in the new launch for health and safety regulation.

Q: Yes the regulations yes – a question about noise levels –and Schedule "D" of the Act has a – sets a threshold currently of 28 Dba before a worker gets a pension -you can go to it if you want. My question is primarily an historical one –the threshold used to be 25Dba - are you aware of that?

A: Not since I've been here in 1975.

Q: All right, okay, that's my question – just a couple of final questions on your slides Mr. Ingraham–I'm looking at slide about benefits –86.30 of the memo about preventative rehabilitation.

A: Yes.

Q: And to provide assistance to workers who have been returned to old jobs –where there's permanent disability due to vulnerability or increased permanent disability - are you aware of it generally?

A: Yes, I'm aware of that generally.

Q: That's a relatively new policy is it not – like in the last what 2-3 years?

A: It came in with the new chapter 11 which would be sometime before – probably early 1994, later 1993.

Q: And it was brought in because of a number of referrals that were going to rehabilitation and it was a primary response to that. Do you know that?

A: This really isn't our area but&ldots;

Q: Yes.

A: I'm sure that Julie Wakelin can address that tomorrow.

THE COMMISSION:

Q: I had a question for any of you gentlemen on the panel – regarding the chronic stress area – the briefing paper that the Board prepared on chronic stress discusses the comparisons with the American jurisdictions and in particular talks about reforms in California and Oregon which were designed to deal with what they called the flood of claims. For example in Oregon restrictions on chronic stress claims that were introduced apparently reduced the number of stress claims by 38% but the amount of compensation paid went from $10.6 million in 1987 to $600,000 in 1990. So there seems to be experience out there that opening the door to these kinds of chronic stress claims can be very expensive and difficult to adjudicate without any guidelines. Do those with adjudicator experience on the panel feel that if the policy were changed that adjudicating the work-related elements and compensability of chronic stress claims present any insurmountable obstacles to adjudicators – trying to separate out the non-workplace factors, the personal factors, the relationship to the workplace, whether it's inherent in the work situation or whether it's extraordinary?

A: Counsel I would add that they are not insurmountable but they are extremely difficult. I would say more difficult than any other area currently operating at the Board because of the multi-factorial nature of those disorders.

Q: In the Oregon – the reforms in Oregon provided that there were 4 criteria – that the employment stressors must exist in a real and objective sense; that the stressful conditions must be other than conditions generally inherent in every situation; the injury must be a disorder generally recognized in the medical community; and the worker must prove work relatedness by clear and convincing evidence. Those were the criteria that apparently cut down the volumes of those claims substantially. I take it the clear and convincing test and that burden of proof on the worker is quite different than the current regime of burden of proof that you have in our system? Where do you see the areas of difficulty in determining its relationship to the workplace as opposed to other stressors in daily life?

A: One of the things is that you have to inquire very carefully into factors in their personal life that could be perceived as invasion of privacy; all sorts of things about marital relationships, familial relationships – it becomes a very difficult area to inquire into or get independent confirmation of problems in that area. I could add that in some discussions with people from the California Board when I attended a conference they told me that when they allowed stress or any portion of a person's stress being related would be compensable the costs relating to stress claims went from, in a few years, to be 40% of the their total costs. So it became huge so they became like Oregon and had to cut it back so the preponderance or they could establish that the majority of problems were due to stress.

Q: I note that the briefing paper indicates that the California that contain the reforms that contain the flood as they called it indicated that such claims were compensable if the worker has had the job for at least 6 months and the work stressors are the predominant cause of the injury – is that the factor you are referring to?

A: Right; that's when they had to cut it back; they had to change the language to preponderance.

Q: So I take it that while those of you that are knowledgeable about this area recognize that there can be legitimate stress claims accumulating in the workplace. It is the difficulty of adjudication that really interferes with these kinds of claims and their adjudication. That they exist but they are difficult to adjudicate. Does anyone doubt their existence, that there can be situations in the regular routine of the workplace such as Mr. Sayre outlined that could cumulatively cause a medically diagnosed stress condition?

A: I don't think in general that we would object to that. I think the very difficult issues that one confronts is the whole issue of performance and the employer's management of performance and the impact that has on a particular individual and then how you would adjudicate whether that was the predominant factor. I mean it's just fraught with issues that are I think are very difficult. The other thing that I think one should note that in the US jurisdictions the level of benefits are considerably lower – in fact most of them are a percentage of average weekly wages which is significantly lower than the kinds of compensation that would be paid in Canadian jurisdictions. So when these issues are discussed there is a tacit understanding that given the benefit levels in Canada that there would be some attractiveness to this particular area from a secondary gain perspective. Now that's not to say that that's the reason we shouldn't get into this whole area but I think it needs to be identified as a risk and the US experience would indicate that that the costs of a poorly designed adjudication model are prohibitive.

Q: I had a question about in the occupational disease area what current research facilities or activities the Board is engaged in to monitor up to date literature and research and papers with respect to occupational disease exposure levels and that sort of thing?

A: I guess I'm not sure -

Q: In other words is there – are there research people, scientists, employed by the Board that are either doing independent research or monitoring developments in the literature?

A: Well, I'd have to say that we aren't actually currently doing any research on our own but we do have the Grants Awards Program and through which we fund research and the Grants Awards Program has been restructured in the last few years so that we can actually seek out proposals in areas of interest to the Board whereas you know it was people who were interested in submitting proposals to the Board – they submitted it and we decided whether or not it should get funded or not without any real focus. What we are trying to do know is actually seek out people to submit proposals on issues that are relevant to the Board.

Q: Has the Board actually presented any topics for grants in the last year?

A: I believe so; I don't have all of the exact data but dealing from memory it is something in the order of 35-37 different projects that are under way as well as a five year grant to the Cancer Agency of about $1.25 million to look at cancer issues.

Q: Okay, cancer issues in the workplace, exclusively?

A: Yes.

Q: And I have one final question – with respect to work exposure limits – I don't know if that would be your bailiwick or not Mr. McGinn, probably not. The exposure limits are reckoned in, am I correct in 8-hour exposure periods? That is the limits to which you can be exposed are based on 8 hours?

A: There are permissible concentrations that are based on 8 hours and there are some other ones as well – 15 minutes exposure limits – and ceiling limits as well.

Q: Ceiling limits being the amount of concentration in the environment that they&ldots;?

A: A ceiling above which you shouldn't be exposed above that so there are – there are sort of three different types, if you will, of permissible concentrations.

Q: And does the advent of different shifts, longer periods of exposure – say 12 hour shifts impact in terms of those 8 hour exposure periods?

A: Yes, there is in the new regulation there is a formula for weighting to take into account shifts that are not to the standard 8 hours.

Q: Maybe we have this information I didn't hear it today –but the question is this – how many occupational disease claims under section 6 generally are made? Say in a one-year period?

A: I've got them; I'm just looking for them. They're broken down; there's disease types and individual like, say exposure type claims. I've got these consolidated somewhere; if you want to maybe ask the next question I'll just see if I can dig them out.

Q: Okay – is there any information with respect to what percent of occupational disease claims generally are allowed as opposed to rejected at the initial adjudication level?

A: All right; for like total claims in a particular year or ones that were allowed under the presumption or which?

Q: If you have a breakdown with respect to Schedule "B" and non-Schedule "B" perhaps that might be appropriate.

A: That's what I was looking for actually.

Q; Okay, I'll go to the third question – I guess where I was going to go from there was to Mr. Steeves and his questioning pointed out that the - there was a greater estimate of occupational disease occurring in the general population than is recognized in the claims that are allowed – or at least the claims that are made – 15 out of 16,000 was the number that he pointed out in the course of his questions –which worked out to something like .1% as opposed to what is apparently one of the more conservative estimates that pegged that figure at 4%?

A: I think that was specifically related to occupational cancer.

Q; Cancers, yes.

A: And Mr. Campbell's response to that is it in direct relationship to the actual applications for compensation for occupational cancer that we get on a yearly basis and &ldots;

Q: Right, so I guess just pursuing that a bit –short of the discussion that was held then about whether the Board is or should be advertising that fact to encourage more claims – is the Board pursing any other means to get before it the claims that should be before it with respect to occupational disease, generally?

A: I think the Board produces literature that is available to employers and workers throughout the province but as far as specific information targeted at occupational diseases I don't think there is any.

Q: From a prevention point of view is the Board engaged in any activities that would assist it in targeting its energies to those workplaces that would most benefit from measures or incidents to deal with limited or contained occupational disease claims?

A: I think I'll let Ralph answer that prevention question. Well we have 60 occupational hygiene officers which is probably the greatest concentration in North America of this specialty. They do target their work efforts on exposures in the workplace. They are looking at the permissible concentrations in the regulations primarily but also looking at any other chemical or potential disease stressors I guess in the workplace. So they do look at such things as latex allergies in health care. We produce documents from a preventative nature but also of an informative nature on key issues like that and distribute them widely within the sectors where that is an issue. We will do outreach campaigns based on specific issues like that so I think in a – in a reasonable way we are trying to put the information out there to the workers and the employers in the workplace about what the risks are about and what the potential outcomes are from different types of exposures and where they might make the link and file a claim – I'm not sure how effective we are in that regard. The work cancers which I think is the most concern for the Prevention Division and to the Board generally in trying to look into that area and try to determine whether the high levels of cancers that are general in the population while we are not seeing more of those that are come through the system as being work related. And so that's the area I think that's of primary concern in the future.

Q: Is claims data with respect to occupational diseases incorporated in prevention strategies?

A: Yes.

Q: In what way?

A: I beg your pardon?

Q: In what way?

A: Each – we have our worksafe strategy – which is our business plan for each year and the occupational hygiene group selects a number of their constituents from – or a number of representatives from around the province get together and put together their strategy with respect to occupational hygiene issues in the business plan each year and so they will be looking at claims data, emerging issues on research they are doing on the internet and in discussion with occupational health physicians and be targeting industry sectors and key specific chemicals or issues in the workplace that are related to occupational disease. We have – for example we have had a very strong asbestos and a very strong enforcement program with respect to asbestos for probably predates me – in the order of 15 years now and at some point in time we should see the number of occupational diseases related to asbestos exposure or cancer deaths related to asbestos exposure rolling over and coming down. The same as the noise related claims coming down that started perhaps 20 years ago when high prevention activity so&ldots;the issue for us in prevention is to try to get out in advance of some of these emerging issues and prevent us waiting until we see a spike in claims and a clear linkage to occupational diseases and deaths in the workplace and then try to bring in measures that will try to – 20 years in the future start to combat that and so you know – as aggressive as we would like to be there's certain limits as to the efforts that you can put in.

Q: I think that is what I was getting at generally because the extent that any prevention activities are primarily reactive in nature in approach as opposed to proactive – it would appear that in the realm of occupational disease that they would be even less effective and timely than in terms of preventing traumatic type injuries where the cause-effect relationship becomes apparent much sooner as opposed to a latency period of maybe 15 to 20 years –in a nutshell that is my question - what is the Board doing today to identify the claims that are going to be made 15-20 years from now as opposed to reacting to those claims 20 years from now?

A: In the last three years the reorganization of the Grants and Awards Program and the funding of that program has targeted specific, potential, emerging issues in the occupational disease area so as opposed to being reactive to whatever researchers wanted to look into in the scientific community we're now putting out to them the topics that we want them to look into and looking at so in our request for proposal basis looking at who is the best researcher or a combination of researchers to look into specific issues that we consider might be causing claims or could cause claims in to the future. In addition to that the senior executive at the Board put forward – put together a proposal to put together a research foundation you might call it and set aside $30 million from the Accident Fund and the interest on it which would provide funding on an annual basis to provide research into the future. That has been to the Panel of Administrators - they've – because there is some controversy attached to that kind of a proposal they've asked the Policy and Regulation Development Bureau to prepare a paper in conjunction with the administration and take that out for employer and worker consultation on how that agency – whether it should be external to the Board or internal to the Board – what the funding level should be – the mechanics of the operation of such a foundation should be so we are I would say being quite progressive in trying to set something up which would perhaps be comparable to what they are doing at the Institute for Work and Health in Ontario and the IRSST in Quebec. Another area that information is made available to workers is through the Manufacturers of Hazardous Materials and the requirement that they produce a Materials Safety Data Sheet – it's available to workers prior to using the material and I believe the Prevention Officers ensure that employers have the Materials Safety Data Sheets on the job site and that they be made available to the labour force which is using hazardous materials. And the risk factors are identified on that Materials Safety Data Sheet with the protective equipment that must be worn. What he is referring to is the Workplace Hazardous Materials Information Sheet Program which is federally – federal program that operates in each province of Canada – it's really an identification and labeling program and information program so certain hazardous substances that are on a prescribed list require to be labeled as to their hazard that a Materials Safety Data Sheet which describes the potential health effects, the preventative effects, and the first aid techniques around exposure to these chemicals that certainly the preventative means that should be used when handling or in proximity to the chemicals be made available on the workplace and there is a requirement that any workers who are using any of these materials on the prescribed list would have training which would identify to them the correct – the preventative equipment that they should use and procedures that they should use when handling those chemicals.

Q: I really want to get to the bottom of this because I am really having a hard time understanding what exactly is being done at the Board about prevention –and you talked about hygienists participating in the plan and putting together some programs to identify issues, claims, industrial, occupational diseases into the future – would you be able to put your hands on an actual plan – a strategic plan a document that talks about the implementation and the results you expect and the timeframe you expect these results to have some indication of the impact of your efforts – is there something that is concrete?

A: Well there is certainly the business plan which outlines the strategies for the coming year and looks forward into the future beyond the existing business year and then the activities that are carried out by the hygienists are monitored so that we are aware of the initiatives that they are taking to relate that back then to how many claims that are being prevented from the activity would probably be a difficult issue I mean if your prevention activity is successful then you – you have a difficulty in trying to monitor how successful it was. I think you know we end up in a reactive mode if you see claims coming through the system in a particular area.

Q: All right - well let's take an area that I – we talked about – we spent a little time on – the area of stress – chronic stress and I think Mr. Buchhorn mentioned that much of what happens on the – there are issues around stress that concern –that relate to management performance which I think was a term used which I think is valid – understanding how big a potential issue this is for the entire community - both stakeholder communities in terms of cost to the system and to the Board which is managing claims around stress – what has the Board done to alert the employer community or to take a proactive role in educating around the management of performance and the impact it has on workplace wellness because as an employer I've not been aware of such initiatives and it is as you must admit a very large looming issue out there?

A: I would say very little has been done in the area of prevention of stress in the workplace at this point in time.

Q: The other question I had related to the chart on claims arising from psychological impairment – would you be able to describe what you feel accounts for the dramatic rise in the number of claims around psychological impairment? Could someone give me a brief summary what is causing that trend?

A: I thought I had spoken to that earlier if it's the graph that shows the increasing numbers of accepted claims; it really goes to an education process within the adjudication units led by the psychology department to ensure that adjudicators understand Post Traumatic Stress Disorder; understand how to screen for it and indeed the physical movement of psychologists into the Trauma Units so that they can be at the front end of the process rather than at the late intervention stage I think has given rise to increased identification and early treatment because the – again the protocol for Post Traumatic Stress Disorder is the sooner it's identified, the sooner it's treated, the less treatments you require and the quicker people are able to return to safe and productive employment – the later you wait the opposite.

Q: All right – sorry I didn't catch that I'm sorry.

Q: If a worker gets exposure to cedar dust and they develop an allergy and they are disabled and can't work –and they go back – they recuperate and they go back and try it again and get disabled again because of the allergy is activated - and it is – if the option is to then retrain the individual to in some rehabilitation the – if the rehabilitation led into employment that pays less – are they entitled to a pension?

A: Yes in that situation there is a loss of earnings for that particular individual and if they have been left with a functional impairment of some sort as the result of their particular asthmatic condition – if there is a measurable impairment then we would look at that claim because we are looking at a financial loss plus looking at a measurable impairment on the individual.

Q: The pension question was – my original question was what happens is that they end up getting employment at MacDonald's at $10/hr and they are used to making $40/hr. –is there a pension that carries on because they are disabled from that employment?

A: If there is no functional impairment of that worker – measurable functional impairment – no. If there is then we would consider a loss of earnings pension. But there has to be a measurable functional impairment of that worker. In other words if they removed themselves from the environment and they were symptom free and they made a decision that they don't want to continue to expose themselves to that environment because every time they do they have an increase in symptoms and they make a decision to go to another line of employment – but they are symptom-free when they do that we would not be paying them pension.

Q: Well I mean if that is all they know and that is all they do in the area and that's all that's available to them in the in their line and they keep going back to work – at some point you are going to make a determination – I'm making an assumption here – that they should probably be trained into something else.

A: That's correct.

Q: Because they are becoming more and more

A: We would re-look at the preventative rehabilitation issues in that particular case. In the rules that guide that particular policy and preventative rehabilitation that the risks of a permanent condition – that would likely be a case where we would get involved – again this topic may be touched on further tomorrow with the rehabilitation staff.

Q: I guess my question is that if you make a determination that the Board makes a determination that this individual should seek alternate employment – is that a kind of a triggering mechanism for compensation between – for loss of earnings?

A: No it's not. If that worker is at undue risk of developing a permanent respiratory impairment by keeping going back – where if he already has a permanent respiratory impairment and by going back it is just going to get worse we consider him to be at undue risk. And he automatically is entitled for preventative rehabilitation. And hopefully through working with the rehabilitation using transferable skills they will hopefully be able to find a job that is better than $10/hr at MacDonald's.

Q: This is about the situation where you talked about the 50-50 situation where an individual –50% of the disability is accepted from the workplace and 50% from the non-workplace – if a worker's disease – I'm thinking about your answer Mr. Campbell – if a worker's disease or disability – if it can be identified that if they just lived their normal life outside of their workplace and it could be reasonably expected that they could not have acquired the disability with the culminating factor of the workplace exposure – which triggered – being the disability – be it cancer or whatever it might be is that enough to provide wage loss?

A: Cedar dust asthma is an interesting one because if we find a worker and we have in fact established that red cedar dust&ldots;..

Q: It doesn't have to be cedar dust - this can be anything –an aluminum smelter

A: So any sensitivity?

Q: Yes yes.

A: Some sensitivities are such that when you remove the worker from exposure to that agent with a relatively short period of time they will be literally symptom free – as healthy as you or I – but they have that limitation that they cannot work with that particular agent – that differs from some types of sensitizations which tend to become worse and worse the more you are exposed to the sensitizing agent. So in the first scenario where you've got a guy with no permanent functional impairment – he just has a limitation in where he can work. The other person has re-sensitized himself many times probably has gone on to develop a permanent respiratory impairment because of the ongoing exposure and they may in fact have gone so far down that road that they are reacting to all kinds of different agents now and they are seriously impaired.

Q: I guess my question is –we had this discussion with a large employer that we visited and we're talking about people being exposed to 60% and 40% and who should accept responsibility for how much of the occupational disability that they have acquired and my direct question is even though I'm – my personal life has brought me 60% of the responsibility – if I had just lived that life – I would never had encountered - under reasonable probabilities – I wouldn't have encountered any disability during my working life but because I was at work –that added in – that other factor which put it over the edge and now I've got this disability – is that enough to qualify?

A: That comes back to the basic test of what amounts to causative significance. And the scenario that you've described, what you are saying is that a one factor that you have come across in your lifetime has played a significant role in your developing that disease. That renders it compensable; you've met the test.

Q: I was thinking about your answer earlier and that's what you said earlier.

Q: You just touched on – based on a couple of questions - the definition of disability – doesn't exist in the Act now – should there be one?

A: If it's properly drafted it could solve a lot of problems; solve a lot of inconsistencies and&ldots;.

Q: Is occupational disease the most difficult area – the most complicated area - for adjudicators to deal with today?

A: It depends on whether you are talking with an adjudicator that deals with those claims or an adjudicator that doesn't. I think – I think the reality is – I've worked in both areas and most of the adjudication staff that works out of the occupational disease area have worked in both areas and the majority of them will say that the entitlement decision with respect to occupational disease is far more complicated and complex than other adjudication, however, the return to work and the case management issues may be more complex than other types of claims so they are both complex in their both areas – but that's the primary impact in occupational disease. The weight of the decision making is at the front end of the decision making or entitlement end of it of the business whereas the complexity of say for a Section 5.1 personal injury claim is that the case manager in getting that individual back to work. And not necessarily in the entitlement area.

Q: So if I asked you the same question and I said repetitive strain injuries – you – would I get the same answer?

A: Well, I think so in that a repetitive strain injury again you are looking at up front is actually more so in those particular claims because you get the problem at both ends. You get the problem with taking initial history and making an entitlement decision but also they are also very complex claims in returning the individual back to work so you kind of get both areas of the scale in those particular types of claims.

Q: Would you estimate being an official in this area that adjudicating stress would be more complicated than those two areas?

A: Under the current policy and legislation, yes. Many many more factors. Some work-related; some not work-related. Predisposition; all kinds of problems. BCTV last night had an article on stress and they have another one on tonight – it is a multimillion dollar business. It's a big business; and it affects everyone throughout their lives, not just in their work environments but in all of their environments. So to sort all of that out and try to figure out what specific elements of that are due to the employment is a major task.

Q: Your answer was that it had to do with the legislation. Are you saying that if&ldots;

A: I'm saying that they are complicated claims. But even with today's policies, the way that they are written, they are still complicated claims to adjudicate and to make decisions on them in cases but if we were to move away from the current policy of decisions that we referred to – the Reporter decisions – and opened that up it would become even more complicated than it is today depending on how it was opened up.

Q: Just one more question – it has to do with the - how decisions get made – I think after the discussion that ran out earlier today about whether you should follow the published policy or whether you should follow the latest appeal decision or whether – the words that I heard someone say was – the Act – is that fair to&ldots;?

A: Yes, the Act is what you always fall back on where you have inconsistencies.

Q: Is that what the adjudicators are told and I'm thinking about the example of the adjudicator and letting do what they think and see how it goes and their best judgement even if they face a medical decision –you know - medical advisors?

A: I think it was pounded pretty strongly home to me when I first started training here 11 years ago. Everything flows from the Act. That's exactly – the first day of training starts with the Act and everything flows from that.

Q: And the final decision would come from where?

A: The final decision on what?

Q; On whether the adjudication was correct – be it the final level of appeal – I guess&ldots;? A: I guess if you looked at the appeal system the adjudicators making the decision that is appealable to three levels and the final decision that is binding on the Board is at the Appeal Division level if the decision of the adjudicator is overturned or upheld.

Q: I have a question which pertains to chronic pain – how clear is the instruction to the adjudicator on assessing chronic pain – is there something that – do you have a set of clear guidelines by which the adjudicator can follow through and that could assist in making the decision?

A: Are you referring to the entitlement decisions, initially up front or at the pension end of business.

Q: Pension end; if you want to we can leave this then to&ldots;

A: I'll probably be touching on this a little more on Thursday but we are currently – we've looked at different ways of approaching assessing subjective complaints of pain in our process. We didn't really have any specific structure in place to prior to us looking at the – you'll hear us refer to as the ARCON pilot project that we are dealing with right now. The National Disability Evaluating Professionals in the US have a list of criteria they use for establishing and assessing pain levels and we are currently using that in our pilot project and the ARCON pilot project to assess it and if it's a useful tool then it would be something we would recommend.

Q: So there is a beginning and an end to this pilot project? When is it&ldots;.?

A: Yes, it is scheduled to end in April and then we would make recommendations to the executive committee to the Panel of Administrators . Our psychology department does do the assessment of chronic pain and those are part of their referral. Mr. Chairman I do have those figures on 6.3.

Q: Yes, if you would, thank you.

A: These are from the Occupational Disease Services data base –the main statistical gathering for the Board doesn't keep track of what section of the Act the claims are accepted under but we track that in our database. In 1997 there were 260 claims out of a total of 1138 that were accepted - were accepted under Schedule "B" .

Q: So – I'm sorry - 1138 claims in total were accepted under Section 6 in 1997 out of which 260 of those were under Schedule "B".

A: 1138 were accepted under Sections like 6.1 including 6.3 and 260 of those were under Schedule "B".

Q: Do you have a denominator for that in terms of the overall number of &ldots;

A: section 6 – total claims were 2171 of this category the disease claims. 2171.

Q: Do you have those broken down as well under Schedule "B" and non-Schedule "B" or not?

A: Yes, 170 were under Section 5.1 and 341 under 6.1 but just health care benefits only; section 6.1 – 364 and the remainder disallowed, rejected, or suspended.

Q: I'm wanting to make sure I've got this - 2171 claims

A: I could provide this

Q: I think that might be easier because I've lost a number here somewhere. It doesn't seem to add up.

A: I can make a copy for you.

Q: You catalogue that as suspended– what does that mean?

A: The claim didn't proceed; that the person withdrew or didn't provide any additional information – it was recorded for informational purposes only – no decision was made.

Q: So it started and then just never&ldots;?

A: The claim prior to the decision; we didn't reach the decision point on the claim and all activity stopped. In certain situations people file claims just to record them with the Board to record them on record that they were exposed to things of that nature – certain exposures that they want to have on record but it didn't reach – there is no evidence of disease or injury and there is nothing to adjudicate.

Q: These wouldn't include occupational disease claims that resulted in fatalities?

A: No.

Q: Do you data on those?

A: The fatal statistics would be held by our main statistical department.