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