Royal Commission on Workers' Compensation in BC
March 4 Full Day Session
Name: Julie Wakelin
Title: Director, Vocational Rehabilitation
Affiliation: Workers' Compensation Board
Staff Present: TR, GG, OE, GS, SN, PL
Notetaker: Steven Noble
Date: Wednesday, March 4, 1998
GENERAL COMMENTS
- MAIN TOPIC: VOCATIONAL REHABILITATION
- Subtopics: Extent of Services
- Worker Role in Plan
- Employer/Physician Roles
- Return to work arrangements
- Use of third parties
- Statutory right to rehabilitation
- Statutory Right to Re-employment
- Vocational Rehabilitation in case management
- PRESENT RESOURCE PEOPLE: Ron Buchhorn, Vice President, Rehabilitation & Compensation Services Divisions; Chris Hartmann, Senior Manager, Vocational Rehabilitation; Louise Logan, Assistant Director General, Policy & Regulation Development Bureau; Tom Kemsley, Policy Director
PRESENTATION
The Vocational Rehabilitation Services Department of the Workers' Compensation Board is pleased that vocational rehabilitation issues are considered by the Royal Commission to be of sufficient importance that the topic warrants this full day of presentation and discussion. We are ready to outline to you our current initiatives and challenges and to share with you our vision for the delivery of effective, quality vocational rehabilitation services that will serve the needs and meet the needs of all our partners and stakeholders now and in the future.
[introduced resource people; please see general comments section above]
First of all let me refer you to the overhead to the topic areas that you have identified for discussion today. We will be covering these topics in the time allocated to us for presentation this morning.
The vocational rehabilitation services in all public and private sector jurisdictions have come under intense scrutiny over the last few years. The reasons are self-evident. In an environment increasingly focused on quality of service, outcomes, client satisfaction and the bottom line vocational rehabilitation services have been presented with an evaluation challenge.
Vocational rehabilitation has a complex mission and it can be difficult to evaluate services, which we believe them to be of value may not lend themselves easily to measurement. Are vocational rehabilitation services cost effective? Are they provided at the right time and to the right people? Are services consistently delivered? Are they of high quality?
We maintain that both qualitative and quantitative measures are often used to measure vocational rehabilitation services effectiveness. We believe that an organization must weight the effectiveness of its operations and plan for future improvement. We also believe that professionals are, as much obliged to know about the effectiveness of the services of its department or agency, as they are to assess the services of outside resources. We therefore welcome this scrutiny and have in fact imposed much of the scrutiny upon ourselves in our desire to improve the effectiveness of vocational rehabilitation processes and the quality of our outcomes.
The Workers' Compensation Board provides vocational rehabilitation services to injured workers and workers’ dependents. The authority to provide these services is found in Section 16 of the Workers' Compensation Act. The provision of vocational rehabilitation under Section 16 is discretionary and is covered by published policies found in Chapter 11 of Rehabilitation Services and Claims Manual. Chapter 11 was rewritten in 1992 to include a definition of quality rehabilitation and the listing of 7 tenets or guiding principles of quality vocational rehabilitation. The rewrite did not change policy but it did bring focus to the underlying values and expectations, which professionalize vocational rehabilitation for both the provider and the recipient.
What is rehabilitation? The classical definition of rehabilitation adopted internationally comes from the National Council on Rehabilitation in the United States. It defines rehabilitation as the restoration of the disabled to the fullest physical, mental, social, vocational and economic usefulness they are capable. Within that broad definition vocational rehabilitation is defined as the continuance and coordinated process of rehabilitation which involves the provision of those vocational services designed to enable a disabled person to secure and retain suitable employment. Underlying both the broad-based definition to total rehabilitation and the specialty of vocational rehabilitation are the principles of independency and productivity. Principles which are deeply ingrained in vocational rehabilitation practice and which when integrated into vocational rehabilitation services provide the best overall results for clients.
Vocational rehabilitation then is more than an outcome or series of outcomes. It is a process. A process through which disabled persons are enabled to mobilize their own resources, decide their life direction, and achieve goals through their own efforts. The vocational rehabilitation professional is a catalyst, coordinator, and guide within that process.
The vocational rehabilitation services department is part of the Compensation Services Division. As director I report to the Vice President, Ron Buchhorn. The department is organized in a decentralized, clinical supervision model. The 85 vocational rehabilitation consultants are administratively connected to their respective Service Delivery Location or area office. For technical vocational rehabilitation support and professional guidance they report to a first line clinical supervisor, who in turn reports to a Senior Vocational Rehabilitation Manager. This clinical supervision model commits a high level of technical supervision, ongoing training, and quality assurance. The ratio of vocational rehabilitation consultants to managers has been reduced in order to optimize clinical oversight which is critical to the provision of quality vocational rehabilitation services. I would also point out that in recognition of the importance of program development, evaluation, research, training, and professional development we have a research and development section comprised of two senior vocational rehabilitation consultants and support staff. Inadequate and insufficient data availability, collection, and analysis to enable an appropriate level of reporting on key performance indicators has been an ongoing source of frustration within the department. Until 1989 almost all of our data collection systems were manually based and were only minimally improved in 1989 and 1996. In 1996 we introduced our current statistical tracking system. The Rehabilitation Performance Management System. As a consequence much of the data that you are about to see represents only very recent activity. Information from our mainframe system was available from previous years and wherever possible has been incorporated into this presentation. Requests for vocational rehabilitation services comes from a variety of sources including claim adjudicators, medical practitioners, union representatives, advocates, and from injured workers themselves. Upon referral the vocational rehabilitation consultant determines the eligibility for services and then determines the nature and extent of the services to be provided. In 1997 the department received 6,731 new referrals. Referrals have continued to show a downward trend since 1994. There are several reasons for the decrease in referrals to the department. Overall, claims volumes are down and we would expect to see a corresponding decrease in vocational rehabilitation referrals. Another factor impacting referrals is the introduction of earlier and more effective clinical treatments with the continuum of care. This has diminished the number of soft tissue, chronic pain clients who would have become vocational rehabilitation cases. And lastly the department introduced a formalized referral system internally based on established referral guidelines. And while this initiative has not completely eliminated all inappropriate referrals it has had an impact on referral numbers.
One of the measures of vocational rehabilitation service effectiveness is return to work outcomes achieved. Although referrals are down service effectiveness is improving in the area of return to work which is the primary service goal of the department. 2,451 injured workers will return to employment with vocational rehabilitation intervention in 1997. There is a steady upward trend in return to work outcomes which perhaps indicates that with fewer referrals we have reached a stage where the inventory of work or case load size for each vocational rehabilitation consultant allows them to provide more timely and comprehensive services which translates into better and more durable placements for injured workers.
With return to work as a stated corporate and departmental goal vocational rehabilitation consultants turn their attention to trying to achieve the best placement for each worker. The very best placement of course is with the accident employer. The vocational rehabilitation consultants offer their expertise on job accommodation, and modified or transitional employment in an effort to help the injured worker maintain their attachment to their employer. We know that this connection is a vital one but once interrupted can result in injured workers drifting into a disability pattern that is almost impossible to break. Empirical evidence tells us that after only 6 months of work related disability the chances of an individual returning to employment are only 50%. After one year this decreases to 25% and after two years it is close to 0. This graph indicates that the more successful placements are occurring at the accident employer’s workplace and that fewer returns to work come as a result of formal training or self-employment. In 1997 they’re 6,731 referrals to the department and 6,857 cases were closed reflecting the mixture of closures of new referrals and old inventory. Not all of the cases referred to the vocational rehabilitation consultant are referred with return to work as an expected outcome. Other services are provided by the department and these will be discussed a little later in the presentation. We are able to statistically track the percentage of new referrals which are referred with return to work as a stated outcome. In 1997 almost 50% of the closures involved cases where return to work was not the stated goal or outcome expected. Of the 3,473 cases closed in 1997 where return to work was an expected outcome – 70.6% were successful. Of the remaining 1,022 cases where return to work was not achieved 567 clients were not looking for employment and had become voluntarily inactive for reasons such as retirement, or noncompensable injury or disease. The remaining 455 clients can perhaps be categorized as rehabilitation failures. And we need to do some more analysis to determine the reasons for a non-return to work outcome in these cases. In 1997 the vocational rehabilitation consultants closed 3,384 cases where return to work was not an expected outcome. This group of closures include 1,202 files which were either transferred out or came in as inappropriate referrals. Another 2182 of these files involved vocational rehabilitation assistance or interventions such as injury adjustment or crisis counselling, home care services, assessment for personal care and/or independence and home maintenance support, commutation investigations and employability assessment. By capturing this data along with return to work outcomes we are able to credit the vocational rehabilitation consultants for their full scope of practice and for their important services which they provide under our current model at the Board. We anticipate that some of our initiatives such as case management will result in a redistribution of some of these activities to other members of the case management team. There has been some consternation within the community with respect to the pattern of vocational rehabilitation expenditures over the last 6 or 7 years. Expenditure patterns since 1986 show a period of modest growth from 1986 to 1990. Followed by a period of great acceleration in expenditures in 1991 through 1994. In 1994 the Board spent $68.6 million on vocational rehabilitation services. This figure represented an alarming annual rate of increase from 1991 when $20.4 million was spent. And this increase came during the period when new referrals decreased from 11,700 in 1991 to 8,700 in 1994 and where corresponding increases of successful outcomes could not be shown. In 1995 with the reconstitution of the Vocational Rehabilitation Services Department which had been dissolved in 1993 the expenditures started to decline. In 1996 vocational rehabilitation expenditures totaled $43.4 million and in 1997 expenditures came in at $42.3 million. This decline has been categorized by some as a cost continuum exercise initiated at the expense of injured workers. We reject that argument.
The clinical supervision model which was put in place since 1995 has resulted in more timely, consistent and effective vocational rehabilitation interventions and has eliminated much of the unproductive or down time where injured workers were stuck in the disability continuum making little or no progress toward either return to work or non return to work goals. You may also be interested to know that we spent more per referral in 1997 $6,289 than we did in 1993 - $5,338. However we would maintain that a measurement of dollars spent per referral or client may not the best measure of service effectiveness. And that quality rehabilitation is not directly correlated with expenditure. Client outcome measures must be factored into overall vocational rehabilitation program evaluation to assess services. We want to know if our vocational rehabilitation clients are satisfied with the help given to them through the Vocational Rehabilitation Services Department and we want to know which services have been the most effective and the least effective for our clients.
In late 1996 the Angus Reid Group conducted a client service survey specific to vocational rehabilitation services at the Board. The survey was initiated in response to criticism from the community and was designed to examine both service and program issues. Both injured workers and employers were surveyed. In an earlier presentation – a couple of weeks ago – we saw some of the division’s client satisfaction results which had improved from a benchmark of 7.2 to the most recent results of 8.3. The vocational rehabilitation survey used the same measurement scale and the results I’m sorry to report were only 4.5 at the time of our survey. Some of the concerns which were identified in the survey were communication based. These surveys stated that the vocational rehabilitation consultants needed to be more accessible, provide more emotional support, show more sensitivity, care and concern, provide workers with more information, and spend more time in the workplace instead of in the office. The results of the survey were discussed with every manager and every vocational rehabilitation consultant when one of the senior managers and I visited each office in the province during 1997. Surveying of our clients including employers will be an ongoing process through our program evaluation and research unit. The quality of increasing employment for individuals with disabilities is first and foremost a perception in the consumers’ eyes. Increased levels of consumer satisfaction with Vocational Rehabilitation Services best represents one measure of the implementation of both the spirit and letter of our important mandate. Many of you will be familiar with the administrative inventory process that has taken place at the Board and which has resulted in a number of comprehensive reviews of all Board’s services. In the middle of 1997 the Board received an administrative inventory update report from the Upjohn Institute for Employment Research. Entitled "Vocational Rehabilitation – the Policy and Practice at the Workers' Compensation Board of BC" the report was a follow up study to the full administrative inventory which had been conducted in 1995. The 1995 inventory found some very serious problems with vocational rehabilitation service delivery. In terms of inconsistency of practice, lack of appropriate management controls, and virtually no staff development activities. Because the vocational rehabilitation services department had only been reconstituted in June of 1995 – the 1995 administrative inventory could only report retrospectively. But it did acknowledge that the dissolution of the department in 1993 contributed greatly to the general loss of focus and morale, a significant and sustained increase in spending patterns, and an overall decline in the quality and accountability of vocational rehabilitation services. The update report of July 1997 – indicates that the review and analysis conducted led the researchers to the conclusion that the reorganization of the vocational rehabilitation services department at the Workers' Compensation Board in 1995 had been successful. In an open feedback session in June of last year Dr. Alan Hunt, one of the principal authors rated Vocational Rehabilitation Services at the BC – Workers' Compensation Board as an 8 out of 10 compared with other jurisdictions across North America and elsewhere in the world. However, he also stated that while much has been accomplished between June of 1995 and June of 1997 it is only a beginning step in establishing more consistent and effective vocational rehabilitation services. We agree that much more needs to be done in order to consolidate and optimize our services and that a number of challenges will need to be addressed. We need to restore community and client confidence in vocational rehabilitation practice and services. The challenge in restoring confidence is to ensure that our underlying philosophy which is client centred and collaborative in nature is embedded in day to day practice and communication. We need to built on the significant changes in key operational areas which have been made to date such as the development of clear guidelines, expectations, standards of practice, redesigning and upgrading the statistical reporting systems, and in-service professional development and training. We must improve our program evaluation to assess ongoing; the delivery impacts and costs associated with the provision of vocational rehabilitation services. In order to provide the highest quality of vocational rehabilitation interventions our staff must be equipped with the necessary tools of the trade and efforts must be focused on technology support. We must also increase our efforts to enhance community-based service capacity through the development of external provider networks and partnerships with key agencies and groups. And we must identify and initiate and support research efforts that will contribute to vocational rehabilitation policy and practice in the Canadian context. In order to address these challenges and to improve service effectiveness we need to develop a process of community consultation and review to foster respected and productive working relationships to help us meet our mutual goals. We are committed to successfully meeting all of these challenges and in so doing achieve operational excellence in vocational rehabilitation at the Workers' Compensation Board of BC.
In order to meet its objectives the Vocational Rehabilitation Services Department provides a wide range of services to injured workers and in cases involving fatal injury to dependents. These services include counselling, vocational assessment and planning, job readiness and skill development, placement assistance and residual employability assessment. Rehabilitation assistance may be provided in cases where it appears to the vocational rehabilitation consultant that such assistance may be of value and where a decision has been made that the injury, occupational disease, or death is compensable. The vocational rehabilitation consultant determines the worker’s eligibility for assistance in reference to Section 16 of the Act and by referring to the guidelines developed by the department and published in the department’s procedure handbook. Although there are no hard and fast rules to which the vocational rehabilitation consultant can refer there are accepted practices which guide the discretionary entitlement determination. The procedure handbook lists 7 scenarios which outline some of circumstances which would warrant vocational rehabilitation assistance. In making an eligibility determination the vocational rehabilitation consultant considers the departmental service objectives as outlined in policy. These objectives are: to assist workers in their efforts to return to their pre-injury employment; or to an occupation category comparable in terms of earnings capacity to the pre-injury occupation; to to provide the assistance considered reasonably necessary to overcome the immediate and long term vocational impact of the compensable injury, occupational disease, or fatality; to provide reassurance, encouragement, and counselling to help the worker maintain a positive outlook and remain motivated toward future, economic and social capability. It is not the mandate nor is it the responsibility of the Board’s Vocational Rehabilitation Service Department to assist workers to change occupations simply because they want to or because they have a poor relationship with their employer. Nor is it appropriate to support a new vocational rehabilitation goal that may far exceed what is reasonably required to offset the effects of injury. Assistance is provided to the overcome handicaps resulting from workplace injury or disease. Eligibility determination as a critical function of the practitioner requires considerable professional competency. The vocational rehabilitation consultant must look at many factors in coming to an eligibility decision and ultimately must determine the worker’s injury has in some way placed a barrier or barriers in the way of re-employment or social reintegration. In all instances of eligibility or ineligibility the client must be notified officially and the decision recorded. Good professional practice also requires that the practitioner to convey important information of this nature to the client in a personal communication. For ease of discussion the types of vocational rehabilitation assistance available to injured workers can be divided into two categories: benefit payments and rehabilitation services. Benefit payments are either in the form of wage replacement or in some cases wage top up or other financial expenditures which support a particular rehabilitation plan. In order to properly administer and track benefit payments they are coded in the automated wage loss system. The vocational rehabilitation consultant enters a budget on to the system as part of the rehabilitation plan using the appropriate code. There are currently 6 codes which are wage loss equivalency and 7 codes for the balance of financial expenditures. There are also several codes which are used exclusively by health care benefits, for house and vehicle modifications for seriously disabled clients but since 1994 these have not been reported as vocational rehabilitation expenditures. The wage loss equivalency codes are as you see them on the overhead – Code E.- job search allowance is used when clients are actively seeking work; Code G – for formal training when clients are in a retraining program; Code H – for work assessment; normally when clients are trying out a job to make sure it is physically suitable; Code R – or income continuity which is used as a bridging benefit to pension; Code U- rehabilitation assistance which is a relatively new code used for planning purposes; and Code Y – which is training on the job and in this case it may be a partial wage loss or a top up as employers normally cost share training on the job arrangements with us.
The non-wage loss equivalency codes are Code F – for subsistence and that may be paid while the client is away from their home for training or job search purposes; Code J – which covers course fees, books and supplies; Code K – for travel either for training or job search purposes; Code M – miscellaneous, for example a computer purchase to enhance or support a rehabilitation plan; Code N – for homemaker and we’ve heard a little bit about this the other day – for child care, child minding services; Code S – self-employment through business start up and which is a relatively new code and; Code T – for third party contract, normally for individualized assistance for clients.
As earlier noted total expenditures involve 13 codes; for 1997 was $42.3 million including approximately $1.2 for business start-ups, $8.7 million in job search allowances and $13.3 million in rehabilitation planning. Code R – income continuity expenditures – have decreased significantly since 1995. And we do understand that this issue along with a departmental practice change is generating considerable debate. Perhaps this is an appropriate time to speak to the Code R issue which will no doubt be raised for further questions during the question period. In order to understand the practice change in Code R it is necessary to understand a little of the historical context. Code R, or income continuity benefits, have been paid to injured workers since the implementation of the Reporter decision 320 in 1980. These benefits were implemented in order to bridge the gap between determination of wage loss benefits under Section 29 or Section 30 of the Act and the commencement of the worker’s permanent partial disability pension. The rationale was the delays in assessing the pension which "is almost due to the fact that it is difficult to make a quick estimate on the permanent impact on the worker’s employability." The Decision 320 became policy under number 89.11 in the Rehabilitation Services and Claims Manual with responsibility for the issuance of these payments given to the vocational rehabilitation consultants. The proper administration of Code R benefits has been a contentious matter for many years. And was raised as an issue of major concern in a Code R audit completed in 1992.
One of the points made by the internal auditor was as follows, " it does not appear equitable that claimants in receipt of Code R are generally better compensated for periods of time following the termination of wage loss benefits and claimants’ pensions are quickly established. As such the Compensation Services management should consider if it would be more equitable to base Code R rates on the estimate of future benefits rather than on the claimant’s wage loss rate. The discretion to vary or adjust rates is included in policy." In addition to internal audit concerns management was also concerned about the indiscriminate use of Code R benefits by the vocational rehabilitation consultants. Much of the Code R expenditure was not applied to service but rather it was applied to waiting periods – waiting for job search, waiting for training, and mostly waiting for the client and the rehabilitation consultant to put a plan together. Code R was often the code of choice to cover these waiting periods. It had administrative convenience because the code was time based and does not show up on a vocational rehabilitation budget. Instead of providing a timely intervention or undertaking the needed assessment the vocational rehabilitation consultant was tempted to park clients on Code R where they could sit for extended periods of time.
Employability assessments and pension implementation were therefore delayed beyond what could be considered reasonable timeframes. Management knew of the problems with Code R – problems which were confirmed when the department undertook a special employability assessment project to clear up this huge backlog. That project revealed a consistently inappropriate use of Code R and the resulting vocational rehabilitation failures and lack of timely intervention. In 1995 management set out to try to address both their own and internal audit concerns about Code R. And in September 1996, the department initiated a practice change. This practice change was written into the procedure handbook and it instructs the vocational rehabilitation consultant to complete an employability assessment prior to implementing Code R benefits and to pay benefits at a wage which reflects the conclusions of the employability assessment. What this means is that many clients who would not in past practice have had timely vocational rehabilitation intervention now would. And only those clients who met the criteria for Code R payments would be placed on this bridging benefit. I must emphasize that clients are not being abandoned at the time of medical when their Section 29 or Section 30 benefits have concluded. In cases where vocational rehabilitation mandate has been established planning is usually the first step, and clients are placed rehabilitation benefits under Code U. Once planning is established other wage loss equivalency codes will apply. Code R applies when the worker becomes ineligible for any other code. The matter has become a pension issue at that point and vocational rehabilitation interventions have in essence ended. Perhaps an example would help to illustrate the application of Code R benefits. It is a rather busy slide but what you see in front of you are two out of what could be many examples of clients who go though the vocational rehabilitation process. In this case a worker is a 55-year-old mill worker following recovery, medically plateaued when Section 29 benefits conclude. The worker’s knee injury has left him with a permanent disability which prevents him from returning to his pre-injury employment. There is no alternate work available with the injury employer. The worker has been referred to vocational rehabilitation services for planning and ultimately for employability assessment. At the point of referral the vocational rehabilitation consultant places the worker on Code e benefits while conducting an initial assessment and commencing planning for a return to work. The worker initiates a desire to return to employment and both he and the vocational rehabilitation consultant identify a number of occupations that would be both physically suitable for the worker and would also be reasonably available to him. The job search commences and the worker is switched to code e benefits. While job searching the worker learns that his application for Canada Pension Plan disability benefits has been accepted. And he also learns that he is eligible for an early pension from his employer. He tells the vocational rehabilitation consultant that he has decided to take his early retirement and to end his job search. The vocational rehabilitation consultant must now complete the employability assessment which concludes and although the worker will suffer a long-term loss of earnings based on his profile he is capable of employment at a wage rate below his pre-injury earnings. The consultant places the worker on code R once the employability assessment is completed and sends a copy to the worker who has 30 days in which to submit a response if desired to the claims adjudicator in the disability awards department.
The pension will not be implemented until that 30 day waiting period has expired. In accordance with current practice the consultant changes the worker’s benefit rate upon conclusion of the employability assessment. We are now asking for a policy change to defer this adjustment in benefit level until the 30-day waiting period has elapsed. This and two other changes are currently before the Panel of Administrators. We have identified the total number of individuals affected by the Code R practice change during the 12 month period September 1996 to August 1997. Of the 450 clients who received a code R payment during this time period we estimate that only 10-15% had their benefit levels adjusted in accordance with the practice change. But the only way to get a completely accurate accounting of what happened and why is to do a manual file audit. And we are in the process of auditing all 450 files to prepare accurate data as the Panel of Administrators will be reviewing the information again in April. One other factor impacting on the reduction in Code R payments relates to recoveries. Pensions rebates to the Vocational Rehabilitation Services Department - dollars spent on Code R up to the pension level prior to pension implementation. Although statistics will show a negative net expenditure level in Code R we are still paying out Code R benefits. And in 1997 we paid out $3.2 million. With Code R payments now brought under control we believe expenditures will approximate a break-even basis for the indefinite future which is where they should be from a cost accounting point of view. Benefit payments and other expenditures are made as part of the vocational rehabilitation planning process are to support and facilitate the successful completion of a rehabilitation plan.
A wide range of assistance is offered to injured workers in the rehabilitation process – assistance available includes supportive counselling, job search/career redirection/job clubs, graduated return to work, work assessment, modified employment, worksite modifications (tools, equipment, ergonomic changes), training on the job, formal training, and self employment and business start ups. The vocational rehabilitation consultant assesses the worker’s employment barriers and develops the appropriate interventions that will lead to the optimum result. In order for this process to be effective it must be a collaborative one in which all of the rehabilitation team participates in facilitating the client’s choices. Assessments which are properly done are comprehensive, cost-efficient, and effective. The vocational rehabilitation consultant is constantly confronted with the heavy burdens that can be thrust upon an individual’s life. Facing a multitude of problems wrought by disability in the life of a client demands that the vocational rehabilitation practitioner have a true understanding of both their role and responsibilities and also be able to communicate to their client the client’s role and responsibilities in the vocational rehabilitation process. I spoke earlier of two principles underlying the profession and the practice of vocational rehabilitation – those of independency and productivity.
Vocational Rehabilitation Consultants through their interventions and counselling support attempt to assist injured workers to adjust to their injuries and disabilities and to regain productive lives. Sometimes we are criticized for urging workers to move through the adjustment period too quickly. And sometimes we are criticized when we tell workers that they are employable or able to enter and retain employment consistent with their capacities and abilities. When adults become disabled by a work accident and injury they are separated from their work routine and as patients they may lose their productive orientation in an environment that leads them to accept assistance. Prolonged disablement without a planned work program may render individuals unable to fulfill a work role.
One of the roles of the vocational rehabilitation consultant is to assist the worker to maintain a work focus through the injury adjustment period. That is the counselling role. The vocational rehabilitation consultant also has a coordinating role and in this role the consultant creates a link between the often-isolated world of the disabled client and their community - between their capabilities and their opportunities. They help clients accept and minimize their disabilities – to acknowledge their assets and limitations and to prepare them for the fullest lives they can lead. Vocational rehabilitation uses all of the relevant resources both within the disabled individual and within the community. Disabled individuals usually cannot utilized these resources themselves and sometimes do not know that they even exist. It is the vocational rehabilitation consultant who helps clients to identify, select, and obtain needed services and to develop a plan of action with realistic goals. The role of the worker in the vocational rehabilitation process is critical. The seven principles of vocational rehabilitation outlined in policy speak to the need of the workers to take an active interest and initiative in their own rehabilitation. The highly complicated nature of motivation is recognized. Clients sometimes fail to work towards goals because they are apprehensive or anxious about taking a chance or there may be external forces dominating a client’s life. Regardless of the reasons for lack of involvement and motivation the vocational rehabilitation consultant must analyze and appraise the dynamics of the client’s motivation in an effort to strengthen positive influences and decrease negative ones. Other key players in the rehabilitation process include the employer, physician, and where applicable, unions. Quite simply the process is not going to be effective without the active participation of all players. One of the major frustrations vocational rehabilitation consultants face is trying to work with a client when some of these other key players may be providing input which is counter productive to the process or at the very worst may have a sabotaging effect upon the vocational rehabilitation planning – an ultimate goal. Physicians need to understand that the worst thing for many of their patients is to be inactive. They need to work as part of the return to work and rehabilitation team as do employers and union representatives. With the full cooperation and support of all of those individuals successful vocational rehabilitation outcomes will result. A vocational self-concept is but one aspect of the full self-concept. People work to earn a living, to maintain effective human relations and for satisfaction that work itself brings. The loss of the worker role through injury and disability can lead to psychosocial dysfunction. It is therefore imperative that return to work be seen as a desirable outcome in almost every case of workplace injury or disease. Achieving a successful return to work outcome requires the involvement of not only the worker and vocational rehabilitation consultant but most importantly the employer and the employer community. Wherever possible the vocational rehabilitation consultant is going to seek a return to work with the pre-injury employer. Unfortunately most employers in this province do not have an established return to work system in place. This in essence means that some employers take their injured workers back some of the time. Some employers take their injured workers back most of the time but some never take their injured workers back at all. And only a handful do it correctly. We advocate for and encourage employers to develop and implement disability management programs that have strong prevention, return to work, and case management components.
What is disability management? Simply put - it involves the use of services, people and materials to minimize the impact and cost of disability to employers, and their employees. And encourages a return to work for employees with disabilities. It is an active and proactive process that enables labour and management to assume joint responsibility for safe return to work programs in order to successfully manages the consequences of illness, injury and disease. Disability management programs are typically designed to protect the employability of workers with the added feature of saving costs. There are many different models that produce good results. The most effective disability management programs are those which are tailor made for a specific work site. Terms such as graduated return to work, light duties, modified duties and transitional employment are familiar to those involved in return to work negotiations. Each of these programs has a different goal, methods, administrative challenges and problems. The goal of any return to work program should be to transition workers back into the situation where they can perform their old jobs with or without a reasonable accommodation. Where program goals as in traditional light duty programs are open ended and sometimes not attainable success is unlikely.
The vocational rehabilitation consultant in collaboration with the client, physician, employer and where applicable the union must determine the best course of Acton. One that will result in a successful and durable return to work. There are also major demographic and labour market forces which greatly impact on the return to work process. In a climate of shifting and declining industries and with an aging population achieving successful returns to work are becoming increasingly challenging. These changes in the job market are making it more difficult to locate suitable employment for injured workers. This fact alone makes it more critical to optimize the worker’s opportunities with the injury employer. With respect to aging workers who may present other challenges such limited education and limited transferable skills further disincentives for early return to work and positive employment outcomes are present. So we must double and redouble our efforts with employers to both save the initial attachment with the accident employer and to develop job opportunities with other employers in all communities across the province. At this time I would like to turn over the podium to Chris Hartmann – Senior Vocational Rehabilitation Manager – who will speak to you on the other remaining topics.
CHRISS HARTMANN
Vocational Rehabilitation Consultants being a wealth of knowledge, skills and experience to their positions. There are, however, where specialized resources and services are required that a consultant is not able to provide directly. This may be the result of a lack of expertise in a certain area or the inability to spend extensive time with an individual client. While some of these services may be secured within the Board for example both functional evaluations and vocational testing others may require us to use resources from within the community. Each referral to a service provider is made via a vocational rehabilitation consultant and is based on the individual needs of the worker. Most referrals to external providers require a preapproval from a manager. When purchasing services from a provider a contract is drawn up outlining the service expectations and the fees that will be paid. Progress and summary reports are submitted to the vocational rehabilitation consultant for review and continued management. In the Vocational Rehabilitation Services Department all costs associated with external service providers are monitored. In 1997 we contracted with 147 different service providers at a total cost of $1.3 million. These services are broken down into the following major categories: functional capacity evaluations - $610,000 – this figure also includes the Board’s internal functional evaluation unit; 1 on 1 placement services - $373,000; vocational testing in the community - $109,000; job search and job finding clubs $104,000; training/tutoring – this would be not the formal tuition type but perhaps life skills training or tutoring to add skills to an individual - $63,000; and we spent $62,000 on business feasibility studies for self employment. These numbers are approximate as often providers offer services in multiple categories at the same time. It should be noted that some services in the community are available at no cost to the Board or to the worker. As of today the department has established a network of external preferred providers for job finding clubs throughout the province and currently we have 13 agencies approved to provide this service. All preferred providers deliver a model currently accepted as the standard in the vocational rehabilitation profession. The providers will be submitting data on a regular basis summarizing outcomes. The most important being durable return to work which is measured as suitable work sustained for three months following the conclusion of the program. Client satisfaction will be polled for each program. The department has also begun the process of establishing a network of preferred service providers for other vocational rehabilitation services such as one to one placement and business feasibility studies and we expect this process to be completed in the very near future. This will guide the vocational rehabilitation consultants as they choose providers for assessments and interventions and will ensure that our clients are receiving the highest quality of service available within an environment of outcome measurement and accountability. Under Section 16 of the Act the provision of vocational rehabilitation services is discretionary and workers’ entitlement to services is determined by the vocational rehabilitation consultant. The discretionary provision of vocational rehabilitation services is a norm across almost all jurisdictions in Canada. In Saskatchewan the Act sets out the obligation on the employee to accept vocational rehabilitation and to "take all reasonable action to mitigate the loss of earnings resultant from an injury." The question of whether or not vocational rehabilitation services should be a statutory right versus a discretionary decision is not ours to answer. What we can say however is that we attempt to offer services to all workers who are disadvantaged or handicapped as a result of their workplace injury. And for those who may approach us where we do not believe there is a mandate for our services we tend to direct them to other service providers such as the provincial government’s ERS program or other community agencies who may have the appropriate mandate. With respect to the issue of legislative re-employment there are currently five jurisdictions in Canada – Ontario, Quebec, Nova Scotia, New Brunswick, and Prince Edward Island who have legislated re-employment within their workers' compensation law. The rest of the jurisdictions do not. All jurisdictions do, of course, have a legislated duty for employers to accommodate workers with disabilities within Human Rights law. We have found that most workers and employers their rights and obligations with respect to the duty to accommodate. And one of the roles of the vocational rehabilitation consultant is to share information in a collaborative and educational manner with the parties involved in the return to work process. These issues are complicated ones and we will continue to provide training for our vocational rehabilitation consultants so that they are better equipped to answer the many questions their contacts have in these matters. The bottom line is, however, that our services are discretionary and there is no legal requirement other than through human rights legislation for an employer to re-employ injured workers instead we must turn to arguments of moral obligation and cost benefit in our effort to assist workers to return to work with their accident employers. As you know the Board is developing and piloting a new case management model of service delivery in order to improve effectiveness and outcomes and address some of the operational concerns raised by clients and other stakeholders with respect to the handling of their claims. The Vocational Rehabilitation Services Department has been involved in the development, prototyping, and piloting of case management and can say with great confidence that the move into this type of service delivery model is going to result in improved vocational rehabilitation services. The primary benefit is that case management model will promote earlier involvement and intervention by the vocational rehabilitation consultants. Where vocational rehabilitation consultants in the past tended to become involved in the claim at the time of physical plateau they will now be involved in the initial case discussions and return to work planning which occurs within a few weeks of the date of injury. The vocational rehabilitation consultants will provide expertise and support to the new case management team in developing and implementing return to work plans with the pre-injury employer.
Especially where alternate employment or worksite accommodations are being considered. Should the team fail to facilitate a return to work with the pre-injury employer the vocational rehabilitation consultant will, where appropriate continue to work with the client to establish and implement alternate vocational plans. The vocational rehabilitation consultant becomes a critical member of the case management team. They complement the other members of the team by providing expertise in: Vocational Assessment and Evaluation; Career counselling and planning; Disability adjustment counselling; Job task analysis; Work site accommodation; Employment Development; Job placement and; Disability Management.
The case management model will change the accountability for rehabilitation consultants from the historical linear management structure to accountability, first to the case management team. This will we believe result in more timely service, higher return to work rates, and a higher level of client satisfaction.
In closing off this part of today’s proceedings I would like to say that the Compensation Services Division and the Vocational Rehabilitation Services Department recognize the challenges that we face in consolidating the role and championing the mission of vocational rehabilitation services at the Board. We strongly believe that the vocational rehabilitation of our injured workers is a vital component of a successful Workers' Compensation system. Through our departmental business plans we will address the critical areas which have been identified through our own experience and analysis and through internal and external reviews and audits. We know that we can and must improve service levels and outcomes and in so doing raise the confidence level of our clients and key stakeholders.
QUESTIONS
JOHN STEEVES
Q: We might as well start off with Code R – and I – the change that you referred to and we talked about 2 weeks ago was one that took place in 1996 – I’m just looking for a sort of line to draw between the old way and the new way.
A: Yes, that’s correct.
Q: You are comfortable with roughly 1996 –so as I understand it before 1996 Code R was a payment to workers equivalent to wage loss and that was I think the term you used was for bridging to pension so at the day of plateau and there is some criteria in the manual and I think it requires things such as the – it looked like there was going to be extensive loss of earnings component to the pension and so on – the rehabilitation consultant had discretion to give the worker Code R benefits, correct?
A: That’s correct.
Q: And as I say that was equivalent to wage loss so there was no loss now the – what happened in 1996 was that there was a change to the rehabilitation procedures – thank you – manual and the change was and could you turn to tab 6 of the documents in the binder with the blue cover on it? And there’s a decision there made May 22 but if you could turn to the second page and you weren’t with us two weeks ago Ms Wakelin but this is a document that I got from Mr. Watson and it’s down at the bottom you see it says March 1996 – and this is the – that’s I think is Mr. Watson’s writing up at the top – forward and for proper formatting - and something and the next handbook revision and so and there’s a number of small changes here but the – if you could look under "Purpose" - the second paragraph it says "income continuity benefits may be paid to assist workers whose disability has plateaued and whose employability assessment has been completed." Now the change there was that prior to this change Code R could be paid before the employability assessment. Correct?
A: That’s correct.
Q; And just under "Eligibility" –there’s – or "Processes" there’s – it’s got – one, two, three, four - the fourth bullet there –it says "VRC – the vocational rehabilitation consultant will determine if there is likely to be a long term loss of earnings. No income continuity is payable until this determination is made and this will almost always require the completion of an employability assessment or some other situation." So that was the change that was proposed – that is a procedural change in 1996?
A: Correct.
Q: Now there was a big – we don’t need to get into the details of that – but there was a bit of a fuss over that.
A: Well I believe the fuss as you refer to it also was with respect to a change around the rate level that would be paid.
Q: I think that’s right – there were two parts of the conflicts at the time – one is that Code R wasn’t going to be paid until the employability assessment was done and the second complaint was that even those people who were on – employed – on Code R would have the rate change to the job that was considered suitable as a result of the employability assessment.
A: In those cases where 100% loss of earnings was not being recommended.
Q: Yes, yes, yes, so now – the – I’d like to take us up to date and we tried this last – two weeks ago and there wasn’t time to develop it further but there’s some concern about what actual recommendation was made by the Bureau to the Panel of Administrators about – about the change and I think the concern of the Panel of Administrators is that even if there was a change of procedure and it is controversial it should come to them and we don’t need to get into that – I just want to get into the details of what the change was – as I understand it the change that the Bureau has recommended to the Panel of Administrators is that you can have code R before the employability assessment is done but and you can change the rate on Code R but you have to give 30 days’ notice to the worker – have I got that right?
A: Not quite; there’s actually three components to the changes that have been requested through the Panel of Administrators - two are what I would categorize as sort of smaller changes – one is with respect to the language around the workers having to be unemployed to receive income continuity benefits – we are asking to change that to recognize workers who may have returned to work paying less than their original wage loss rate so we are asking for a change to the language there. We are also&ldots;.
Q: So that would make Code R a kind of top up provision?
A: Yes.
Q: All right.
A: The second change is with respect to individuals who may come back for a pension reassessment and currently the language of the policy states that where there is a pension on the claim income continuity benefits cannot be paid. So we are asking for a change there.
Q: That is a longstanding problem isn’t it?
A: Yes it is.
Q: Yes.
A: And the third change is with respect to the change of rate for income continuity benefits once the employability assessment is completed and requests that a wait period be put in place before that reduction or change in rate would come into effect.
Q: Okay; and but the – statements in this if I could call it this draft change – March 1996 – that the – there could be no Code R until the employability assessment had been done – that’s not part of the recommendation to the Bureau?
A: No.
Q: Okay; now the – in 1996 – before 1996 and now – there’s a significant backlog in disability awards is there not?
A: I really couldn’t speak to the backlog in disability awards but &ldots;.
Q; There are delays - you can speak to that?
A: There are usually delays in disability awards with respect to pension assessments, yes.
Q: Yes. And Mr. Buchhorn were you going to&ldots;?
A: I think you’ll see the numbers tomorrow but the backlog has been reduced from about 2500 claims to about 1200 claims I believe is what you’ll be seeing tomorrow.
Q: Okay, I was more interested in the time and the
A: The timeliness has been reduced but we are still looking at between 8 months and a year for the establishment of a loss of earnings pension. On average.
Q: Right and yes and certainly in 1996 when this change came in it was somewhere around a year.
A: 14 months I believe.
Q; Yes, yes. And I guess what workers see is they see the change to Code R related to the delays in disability awards – and I’ve explained that to you a bit – that is if a pension decision could be made within say 2 or 3 months of the date of plateau we wouldn’t be even getting into this so called problem with Code R. That is your expenditures on Code R would be down compared to what they are. Another way of putting that is the reason for Code R expenditures were so extensive was because of the delay in disability awards because people were on Code R waiting in line in the queue in disability awards. Would either of you like to comment on that?
A: Yes, I’ll comment on that. The delay, as you refer to it, with disability awards I wouldn’t want anybody to think that it’s only an administrative delay in that department. Part of the whole process of conducting an employability assessment which is an integral part of a loss of earnings assessment is the completion of that employability assessment – for some the delays could have come as a result of vocational rehabilitation delays, some of the delays could as well come because of other medical information that needed to be gathered as part of the process.
Q: Yes, you’re right - I did make that too simple –it’s a complicated explanation of why there’s a delay - my point though is that if there was no delay there would no issue on the Code R – expenditures on Code R would be down and I am suggesting to you that we wouldn’t have this need fo the change in 1996 and we wouldn’t have had this conflict that we are still kind of working our ways through. Is that a fair comment?
A: Certainly.
Q: All right – now I’m interested in what you referred to as Code U – and I think you referred to that as a relatively new?
A: Yes it is a relatively new code.
Q: How new ?
A: I believe it was introduced either in late 1995 or 1996.
Q: So roughly the same time as these changes to Code R had taken place?
A: Right.
Q: And isn’t the difference between Code R and Code U that Code R is within the authority of the VRC –the vocational rehabilitation consultant - and Code U requires a budget to be approved by a manager?
A: They are both within the authority of the vocational rehabilitation consultant up to certain financial limits in the case of Code U at which point it has to go to a manager for approval. You are correct in that the Code U shows up on a actual budget and Code R does not show up on a budget.
Q: Yes, and the - just to add a bit more detail to that - the consultant on a Code R can say this man – pursuant to the policy assuming that the worker complies with the policy - is entitled to Code R and that kicks in Code R and they get equivalent to wage loss and that continues until their – currently –it continues until they get their pension whereas with Code U they have to make an appl – put a budget together and present it to their manager to be approved?
A: That’s correct.
Q: And can we take it that that would mean that certainly there would be more control by management over the expenditure of funds for Code U than there would be for Code R?
A: Well, Code R used to be – I’d have to check with Mr. Hartmann on this – a time based code that still required a manager’s approval at certain points in the process. Chris could you confirm the timeframes for me? There was with Code R the rehabilitation consultant could approve up to the initial 12 weeks and any extension beyond the 12 weeks must go to a manager for approval. So there’s no change to that – it’s been like that for quite some time. I might add Mr. Steeves that these changes were made in keeping with the recommendations by Hunt and Lahey in their 1995 evaluation in that there was a sense that there needed to be more accountability, more outcome measurement in terms of the various vocational rehabilitation expenditures and interventions. So the former director of rehabilitation, Dr. Harder, put in place these particular codes that more accurately reflected the expenditures and outcomes of the vocational rehabilitation department. So that departed from as Ms Wakelin said the practice of using Code R to park everyone while they were waiting for a vocational rehabilitation intervention.
Q: Right – what is this term "park"?
A: Well, it’s if you have a high case load and you perhaps are looking for ways to deal with your clients on that caseload you want to maintain income continuity for those clients so you might what we call "park" someone on income continuity. I think we’ll hear from Mr. Winter later some concerns about the outcomes of those particular cases relative to I think some very embarrassing situations.
Q: All right - I was looking at your slide – the - Ms Wakelin or – actually Mr. Hartmann – the one that has the medical recovery then you go to the – the busy ones –
A: That is Julie’s.
Q: Ms Wakelin – Do you have that Ms Wakelin?
A: I’m just going to get a larger copy of that one.
Q: Okay - now this is what is going on now is it?
A: These are two out of what could be numerous situations.
Q: Yes but – two of numerous situations – I notice though that just taking the one up at the top that the – you have code U at the beginning and - but code R doesn’t start until after the employability assessment is complete?
A: Correct.
Q: Why wouldn’t you have Code R from the beginning? Given that the – that’s what the – the policies and procedures says?
A: In this case this is meant to reflect the example that I gave you earlier in my presentation. A worker who initially indicated his desire to work with a vocational rehabilitation consultant was started a job search – for – while they were planning on the outcome Code U would be the appropriate code – as is it is with probably the majority of our clients they have completed Section 29 or Section 30 benefits.
Q: Are your consultants paying Code R now prior to an employability assessments?
A: They are not supposed to be.
Q: I am sorry; I thought that they were permitted to that under the current policy and practice? And procedure?
A: Sorry – pay Code R prior to an employability assessment completed? No. The current practice asks them to complete the employability assessment prior to initiating Code R benefits.
Q: Is that in writing some place?
A: Yes, it is.
Q: And where would that be?
A: It’s in the section that you referred to although I’m looking at this I’m not sure you have the most current but it is Rehabilitation Procedure Handbook 090010.
Q: Ms Wakelin, in preparation for this hearing about 3 weeks ago I ordered a copy of the Rehabilitation Procedures Manual and that is the section of the manual – it is dated at the bottom – is it April 1995?
A: Yes, that’s correct.
Q: And that’s 090010?
A: Yes that’s correct.
Q: And can you – the panel doesn’t have it at this time but – is there anything there that says the Code R will not be paid until after the employability assessment?
A: It is implicit in one section where it says use – actually – quite frankly I don’t think this is the most current one because – it may be – we haven’t incorporated Code U into this section yet, that will be coming – it is implicit when we say to use Code e versus R for vocational rehabilitation planning purposes.
Q: So other than an implicit statement in that document there’s nothing there that says Code R will be paid only after the employability assessment?
A: I can’t see it in this one, no. I just wanted to make one point – with reference to the statement that the policy of the Board has always been to pay Code R and this has given rise to some of the issues that arose since 1996 – has never explicitly stated that -
Q: All right; stated what?
A: The statement that Code R will be used – there’s no reference – you made a statement John – Mr. Steeves – that Code R is in policy. There is no reference to Code R in the policy. It’s always been a procedure that the department it goes to – it’s the department’s interpretation of words like "will generally be paid the rate of compensation or the department’s interpretation of things like "in payments and the amount at which they will be paid may be continued at the discretion of the vocational rehabilitation consultant." But I just wanted to be clear that that the explicit references to Code R or any other code for that matter and the amounts have never actually been in the policy and that is what I think created the furor is that the department changed its long standing practice.
Q: I was going to deal with this in April but Mr. Pinto the problem is that we had the April 1995 procedure in place in which consultants were paying Code R before the employability assessments and now we are told that they are not paying Code R until after the employability assessments and the procedure hasn’t been changed.
A: That’s a separate issue. I believe the procedure has been changed what Ms Wakelin is indicating is that the copy you got for whatever reason does not have the updated procedure – my point was related to the change – I just wanted to correct something that – I think you said a couple of times – that the department had changed the policy – I think we all agree in retrospect that the de facto effect of workers’ benefits and clearly it’s been made clear to the division that that should have gone – that those kinds of changes should go to the Panel of Administrators in the future.
Q: Yes.
A: The policy was not explicit.
Q: Ms Wakelin could you canvas a few of your consultants and have them look in their procedure manuals and see whether they have that April 1995 procedure or a later one?
A: Yes I certainly will.
Q: And if they have a later one could you – or someone at the Board explain to me why when I order a procedural manual three weeks ago I get – I don’t get a current one?
A; And I do apologize for that – that’s certainly not appropriate.
Q: A couple of things on Code R –the graph you had – Code R expenditures – it’s a couple before - two before the one we just looked at – and it is a pretty dramatic graph – it shows a series of expenditures up to 1995 and then a very significant drop in 1996 and 1997 and you – when you were talking earlier – you talked about Code R expenditures under control - are you satisfied with that dramatic reduction in Code R expenditures or would you –it strikes me as a rapid decline – indeed a dropping off on – is it net figures or yes?
A: Yes.
Q: A minus figure on net – and so in the process of two years we go from 7.5 down to minus 1.7 net and that just looking at the graphs strikes me as a dramatic and are you not concerned as a manager at that significant drop?
A: I don’t know if concerned would be how I would categorize it; I think you really have to refer back to what was happening in 1992, 1993 and 1994 with respect to the misuse of income continuity benefits and then with the dissolution of the department in 1993 there really wasn’t any good management control in place as we spoke about a little earlier. It’s very hard to quantify what should be an appropriate level of expenditure in any vocational rehabilitation code. If you asked me to target how much should we be spending in job search allowance or how much should we be spending in planning I couldn’t give you an answer because so much is dependent upon the client base at that time and the number of referrals and many other factors. I would agree with you that this appears to be an alarming drop and I know that it has caused a lot of concern within the community. I do believe however that with the change in practice and the change in focus with the clinical oversight that certainly in place that we are intervening much much earlier with workers, we’re providing the kinds of interventions that will keep them focused on goals and some of the Code R drop was picked up in other codes. Now it doesn’t match – it doesn’t’ come up to the level of earlier nor would I have expected it to considering the drop of referrals. But we are watching it and monitoring it very very closely. I would like to add Mr. Steeves that there’s also an alarming rise – to use your terminology – that precedes the alarming drop and to characterize the 1995 expenditures in the Hunt and Lahey Report they were out of control. And there was a very strong recommendation that we take control by clinical supervision, by ensuring that we were achieving better return to work outcomes. Does anybody care about the outcomes of the expenditures or are we just in the game of spending money? Because that was the point that was made – you are spending $70 million a year and you are getting less return to work outcomes than you were in 1993. That was the point that Hunt and Lahey made.
Q: We’ll come to that in a minute Mr. Buchhorn but I guess from a management point of view I’m interested to know whether the 1997 figures –gross and net – 3.2 and minus 1.7 respectively - is that where you want them to be over the long term or do you have an idea of that?
A: Well, again, it’s very difficult to quantify where we should be because I can’t predict how many very seriously injured workers could be referred next year and it may result in a significant increase again in income continuity for those individuals who meet the criteria.
Q: Well surely you have some idea –you do some planning based on the number of workers over the next year or next two years, don’t you?
A: We make some projections, yes.
Q: And are you projecting your preferred costs on Code R over the next couple of years?
A: No, we haven’t projected preferred costs on Code R in any detail. What I would also want to point out to you though is that it’s always preferable to have vocational rehabilitation intervention and planning happening and plans in place for workers. So as I pointed out earlier in my presentation many workers who in past practice would have landed on this Code R benefits are now be in receipt of other benefits while they are fully engaged in vocational rehabilitation planning. Mr. Steeves what I’ve said to our vocational rehabilitation consultants and what I’ve said to our outside community on numerous occasions is that the aggregate numbers should be less of a target than doing quality vocational rehabilitation for each individual who is referred to the department and when you add up all 3000 or 5000 interventions that’s the right amount of money if we are doing a quality job. We don’t have targets with respect to the money we expect to expend – we have individual plans with each individual worker who is referred. When you add them all up that’s the right amount of money to spend on this particular intervention.
Q: One last question on Code R that sort of spins off from it –Ms Wakelin you’re talking about – again going back to that complicated slide – we don’t need to do it but – about a person deciding to retire in which case they wouldn’t be entitled to a loss of earnings pension and so on only the functional – correct?
A: Yes, based on the vocational rehabilitation consultant’s assessment. That individual couldn’t return to work that would match their pre-injury earnings.
Q: Yes and I - what we hear from workers is that – retirement is not always a happy occasion for them –it’s not what they thought they were going to have to do at that particular age and at that particular income level and that reason they retire is because they can’t do their job anymore and there’s no alternate work because they are old, because of education, skill levels and things like that –my point is that retirement is sometimes a controversial issue in itself in determining employability assessments.
A: Yes I would agree with you.
Q: And the term in the manual is retirement is a matter of personal choice, correct?
A: Correct.
Q: And personal choice is not defined there –there is much detail in it but there are probably two situations that we hear of - one is where someone generally - as a matter of personal choice - decides to retire –which is to say if they didn’t have the work disability they would retire anyways and then the second possibility – the second possible definition is that because of a disability they are obliged to retire because they can’t work anymore and they can’t get other work – can you say if personal choice as it is used in the manual refers to both of those definitions or to one?
A: It’s a very broad concept and I would say that it referred to both.
Q: All right - and in a situation where it is a personal choice in a sense that they don’t have any – it is kind of a misnomer – they don’t have any choice –that is they would retire except for the disability is that considered as part of the – as a loss of earnings factor?
A: Is personal choice considered &ldots;..
Q: Personal choice in the sense that they wouldn’t have retired except for the work injury or disease?
A: Well, that’s a very broad sort of question – I’ll try to answer it the best I can – when the vocational rehabilitation consultant is doing or completing an employability assessment many many factors have to be taken into consideration – and talking about retirement or withdrawing from the workforce – results in generally a lot of discussion between the vocational rehabilitation consultant and the worker – where you talk about a worker through personal choice related to the disability exercising a retirement option I would – gleaning from your comments that you may be talking about somebody who after some attempt at looking for sort of alternate employment has not been able to find it – and if in fact the rehabilitation consultant is in agreement that it is unlikely that this individual given their residual profile is going to find suitable and available employment then that would result in a loss of earnings recommendation that may be what we would call a 100% loss of earnings. It is very difficult to answer each specific circumstance.
Q: No, thank you.
[Terry Robertson interjects for a break]
Q: Ms Wakelin, during the break you have given me a copy of the document –I think you had a third version of 090010 dated September 1996?
A; Yes.
Q: Where did you get this?
A: One of my staff brought it for me and you also asked if we could canvas the vocational rehabilitation consultants?
Q: Yes.
A: We’ve done a little bit of canvassing and it would appear that those people that we spoke to have got the latest version, September 1996 version.
Q: Okay –Now I explained the problem I had in ordering the manual from publications and it didn’t have this in it – apart from my situation there’s a more serious consequence of that I think that if this were not a Royal Commission and I went to the Review Board appealing a decision and I took the manual that I obtained from Publications as I said – this is what the manual says – this is what they did if not in the manual I would probably win the appeal.
A: I recognize your discomfort with&ldots;.
Q: It is not my discomfort – it is a system problem I am talking about – I’m not here for my personal comfort. I’m here to try and make the system better.
A: I do apologize for that. We will ensure that we will follow up with films and posters right away to make sure that doesn’t happen again and that everybody who needs to can get a copy of the most updated manual.
Q: Now we’ve already gone through the recommendations from the Bureau to the Panel of Administrators right
A: Yes.
Q: And it is different than the September 1996 of this Code R procedure, correct?
A: Well, different in that it says requests for a change in the policy rather than in the procedure. It’s through policy changes.
Q: Yes and the recommendation from the Bureau is that it it –this is the point Mr. Pinto was making - is the recommendation that is a change in policy that Code R be paid after – or that Code R be paid before or after the employability assessment?
A: That is not part of the policy change that we are seeking. That is an administrative method of administering Code R benefits and as I indicated earlier normally what would happen is the individual would receive another form of wage replacement; either Code U or Code e rather than Code R which would be payable only upon completion of the employability assessment.
Q: I’m sorry the recommendation from the Bureau to the Panel is that Code R can be paid before the employability assessment &ldots;..
A: To the best of my knowledge I do not believe that that is – forms part of the recommendation.
Q: I’m sorry –I thought that is what we talked about the first thing in the morning – there are three things that’s gone to the Bureau and the third thing was that Code R can be paid before the employability assessment.
A: No, the Code R – it is a change in benefit level that is the third component of the policy changes.
Q: Yes.
A: The first two I referred to was with respect to unemployed as an issues; the second is with respect to a reassessment for pension
Q: Yes.
A: And the fact that currently where pensions are in place it is not &ldots;
Q: It can’t be Code R – yes
A: Right. And the third is with respect to payment of the adjustment of a rate in the income continuity level following completion – I would assume the employability assessment – but after the 30 days has elapsed. Under a policy in our policy manual a client is entitled to receive a copy of the employability assessment once it has been completed by a vocational rehabilitation consultant.
Q: Yes.
A: And that is a 30 day window during which the client has the opportunity if they so desire to provide input to the claims adjudicator in disability awards prior to the final pension decision being made.
Q: That’s always been true – that has nothing to do with Code R.
A: Well, you know that has not always been true; it is a relatively new section of the policy manual has been added fairly recently – I don’t know the exact date.
Q: No but – whether the worker has an opportunity to spend 30 days to comment on the employability assessment is a separate issue about whether Code R can be paid prior to the employability assessment&ldots;
A: Yes, that’s correct but what we were trying to do and what we are trying to do with the policy changes is to bring practice with respect to the timing in line with the policy change we are recommending.
Q: And the practice with respect to payment of Code R?
A: Practice with respect to the time frame during which the benefit level might be adjusted.
Q: And the recommendation from the Bureau to the Panel of Administrators is what on that issue?
A: That it be 30 days.
Q: 30 days
A: From completion of the employability assessment.
Q: Right. And implicit in that is not that Code R can be paid prior to the employability assessment?
A: No. Perhaps Joe would like to make a comment. I perhaps want to – what the policy currently says is that the payment is generally based initially on the same rate as wage loss benefits and is expected – and it is paid on the expectation that the worker as far as is capable actively participates –so the important part was the first part of that sentence.
Q: Is this 89.11?
A: Yes.
Q: Yes.
A: Initially it is paid on the same rate as wage loss benefits now as I was explaining earlier the codes are a matter of practice. What – the policy then goes on to say payments and the amounts in which they are paid may be continued at the discretion of the vocational rehabilitation consultant. What this policy change recommendation in effect does is starts with the notion that payments will initially be on a wage loss equivalent. It retains that that aspect of the policy. What the practice change the department introduced was that at some point in the process the benefit will reflect the outcome of the employability assessment. Okay? So what the policy recommendation is that – that – that practice be adopted – that it not – that – that reflection on the employability assessment not occur for 30 days until the worker has had an opportunity under a separate policy as you point out to comment and offer any criticism because it is implicit in that if the worker makes a valid point about – I don’t agree with this -
Q: Right, we’re not talking about that.
A: Yes. But what I – what the Bureau appears to have recommended and it is necessary to speak to that benefits will remain initially at the wage loss equivalent with the department but by practice we’ll be doing by continuing it – that wage loss equivalent under one of the alternate codes that Julie referred to. Once the employability assessment is done and 30 days have elapsed and the department has not changed its opinion then the estimated rate or the rate that emanates from the employability assessment will be the rate on which is paid. So there will be no references as far as I understand the Bureau is recommendation to Codes even in the new proposed policy – I don’t think they proposed getting into the Code R issue. That is what I was pointing out earlier that this policy doesn’t make reference to Codes.
Q: Mr. Chairman I don’t want to take any more time on this and there’s appropriate privacy issues as to what the Policy Bureau recommends to the Panel of Administrators and I was hoping to avoid getting into that –I don’t think I can any more and so I’m going to ask – I guess I’m formally asking Mr. Bates, who is counsel for the Board, that if we could have a copy of what the Bureau said to the Panel and if there’s problems with that we can check that out later but if I could just put that on the record.
[Judge Gill]: All right, is there any problem with that Mr. Bates? Could we have a copy of any written record of the actual recommendation by the Bureau to the Panel of Administrators with respect to this issue?
A: While Mr. Bates is thinking of his response I might point out that and the Bureau is here to speak for themselves on the issue but I think that their general position is that the recommendations that they make to the Panel are the recommendations they make and they are not circulated. They circulate the proposed issues to the stakeholder groups but the recommendations to the Panel of Administrators are as a matter of course not circulated and are not privileged recommendations. They may feel in this case because the discussion as arisen in this forum that it’s appropriate but I’ll leave that to respond.
Q: My point Mr. Chair is that we have spent I think too much time on this already and we just need to get to the heart of it and if one document might help us do it I suggest that we try to facilitate that – the document isn’t privileged by the way but as I indicate I respect the privacy issue between the Bureau and the Panel of Administrators but I think one document can help sort this out and I suggest that we talk to Mr. Bates later about it.
[Judge Gill]: Well what about Mr. Bates; do you have any instructions Mr. Bates?
[Mr. Bates]: Not now Judge Gill but perhaps I would anticipate I’ll be able to advise you after the noon break after discussion with Mr. Steeves and with the Policy Bureau and with the Chair.
[Judge Gill]: Very well, the request is on the record and we will deal with your request Mr. Steeves.
Q: Thank you Mr. Chairman. Mr. Buchhorn you invited us to get into the number of referrals and what is really going on here so I suggest we turn to that – now – we turn to the slide - vocational rehabilitation; new referrals – I guess it is closer to the top than the bottom – now as the slide indicates from 1993 to 1997 – slight rise in 1994 then a drop off to 1997– and I’d like to explore some reasons for that drop off and Ms Wakelin you indicated 3 in your comments –one was that there was less claims; the second was earlier treatments; and third was – you referred to it as a formalized referral system –is that what is called an "rpm"? is that what you mean by that? Rehabilitation Performance Management?
A: No, the formalized referral system that I was referring to is simply a referral form that the claim adjudicator must now fill in prior to sending a file over to vocational rehabilitation services for an assessment with respect to service level and eligibility.
Q: Okay and that would reduce the numbers by adding some administrative controls over to referrals?
A: Correct.
Q: So - it is not a reduction in the actual number of referrals it is a reduction in the kind of referrals that are made?
A: Well I would think it would probably be both – we do have articulated referral guidelines as well that we would the claims adjudicators to follow but sometimes in the past they weren’t following those guidelines.
Q: Yes yes – and I want to explore that a bit - the articulated guidelines – what is the date of those?
A: They been there as long as I’ve been at the Board since September.
Q: Okay and one of the other changes that has taken place since roughly the mid 1990’s is what we know as the five phases of rehabilitation in the manual?
A: Yes.
Q: And one of the changes that took place in 1994/95 is that phase one and phase two of that process was taken away from rehabilitation and given to the adjudicators?
A: Yes, that’s correct.
Q: So those numbers would be taken out of the total?
A: Right. That is a good assumption to make, yes.
Q: And do we have any sense of what those numbers are?
A: No, I’m sorry we haven’t tracked them.
Q: Okay – and then another change that took place in 1994/95 was 80.30 of the manual which was preventative rehabilitation – correct?
A: Yes.
Q: And prior to that there were a number of referrals to rehabilitation which were considered to be inappropriate and 80.30 was a response to that and as a result of that there’s been fewer referrals than there were before?
A: I’m not sure if 80.30 was a response to the nature of the referrals – preventative rehabilitation has been one of the services that we provide for a considerable length of time.
Q: Yes, but it’s defined specifically in 80.30 isn’t it?
A: Yes.
Q: And it was not specifically defined prior to that?
A: I’m sorry I don’t know.
Q: Okay – and the - there is a further change with respect to suggested pain referrals – those no longer go to vocational rehabilitation?
A: That’s correct.
Q: Okay –
A: Mr. Buchhorn would like to make a comment. I think what we’ve said is there are fewer of them not that they are not referred but that the earlier intervention through the clinical intervention phase has resulted in fewer of them not that they are still not appropriate to go there if at the end of the clinical rehabilitation there is still no return to work.
Q: Yes, but my point is if it wasn’t for those changes we just talked about it that the number of 67.31 and 97 would be higher?
A: I suspect it would be, yes.
Q: Now could we jump two pages to the slide "The RETURN TO WORK as a percentage of New Referrals" – and perhaps you keep your finger on the one we just left – now and it shows a dip in 1994 and an increase in – up to 1997 and the 36% in 1997 as a percentage of the 67.31 in 1997 is it not?
A: No, what the second slide shows is – sorry yes it is – it is new referrals.
Q: So – the 33% in 1996 is –is 33% of 67.32 in 1996 and so on?
A: Could you just give me a moment – I’d like to speak to Mr. Hartmann about this. Yes, that ‘s correct.
Q: Yes. So – the – going back to 1997 – it’s 30% - 36% of a smaller number than the previous years, correct?
A: Yes, that’s correct.
Q: So that would be an explanation for why there’s an increase in the percentage in return to work as a percentage of new referrals?
A: Yes.
Q: Moving on to another area –I just want to speak briefly to you about relocation in the context of loss of earnings -and I’m looking at section 40.11 of the manual –and it says reasonable – this is number 6 of the sort of criteria which is a reasonable job - reasonably available job is one that is in a reasonable commuting distance of the worker's home – do you recall roughly where that is?
A: Yes.
Q: And where there is no available job within that commuting distance – the worker could be reasonably be expected to undertake – the worker might be expected to relocate depending on age, the availability of a suitable job elsewhere and other factors –but relocation will not normally be expected unless the worker is offered the expenses of relocation either by Unemployment Insurance Commission, CO, by the Board or something else, do you recall that?
A: That’s correct.
Q: And from time to time we’ve had concerns about – workers have had concerns about the pressure on workers to relocate in order to obtain other work as part of the loss of earnings – employability assessments basically–and I just want to – every case is different and I just want to give you two extremes to kind of set the boundaries here –and one extreme would be a young single worker who has moved around in his short career and who as a result of his injury who can’t work in that career anymore and has to change and it would be reasonable to ask that person to maybe relocate to a different place all things being equal – that is one extreme –now the other extreme would be an older person married, the spouse has a job in the town, his kids in school and there’s other family and can we take it that is another extreme where it would be unreasonable for the Board to expect that person to move?
A: I certainly recognize that there are extremes with this very difficult issue and the examples that you have given would probably be accurately portray this – the spectrum.
Q: Thank you – and in truth most of the other ones are somewhere in the middle.
A: Yes.
Q: Mr. Hartmann talked about the statutory right of rehabilitation – I want to spend a few minutes on Mr. Hartmann if I could - and you reviewed the situation and as you put it you - the Board down to the lowest level has a moral obligation only in terms of rehabilitation and the Board’s briefing paper on this issue – page 13 talks about this issue and they describe a trend towards a statutory right or actually to be more precise statutory requirement that employers accommodate the employment of injured workers – are you familiar with that &ldots;.
A: Yes, right&ldots;familiar with the trend.
Q; All right and that coincides with the graph you had in your slides – and what that does is what the paper goes on to talk about is it codifies – codify – that’s my word – about the duty to accommodate that should exist there in any case –is that your understanding? So for example in Ontario where a worker has worked at least one year and an employer has at least 20 workers, the Board will notify the employer about the level of the fitness of the worker and the worker –and then there is a requirement to accommodate that worker – that is an example of how that would work?
A: Yes, that is our understanding.
Q: And one of the problems with a discretionary system is that as a result of experience rating assessment the claim goes beyond two years then there is no economic incentive on an employer to get someone back to work is there?
A: Yes, that’s correct.
Q: And you - that is an issue in your department?
A: Yes, when we face in varying degrees depending on the knowledge of the employer.
Q: Yes yes.
A: And it can be up to 30 months. Not just the two years. Depends on the exact date of injury when that happened in the year.
Q: A couple of other areas – one was case management – now I wasn’t sure –I’m still not sure where the vocational rehabilitation consultants fit into case management –as I understand currently at least not many of them are attached to the case management model – have I got that right?
A: Right, the – to this point the pilot for case management has just started up in North Vancouver office – or will be starting I guess next week on Monday. Prince George has been developing the prototype for case management and they have also now moved to a pilot phase. So those are the only – really Prince George is the only office that has had experience with working in that model and in a developmental way not in a final version.
Q: All right and in Prince George for example are the vocational rehabilitation consultants part of the case management team?
A: Yes they are.
Q: So there would be the case manager, a – just run us by the team.
A: It’s a case manager – actually it’s a – I think the model up there that they were using there were 3 case managers on a team, two vocational rehabilitation consultants, a physician, one of the Board’s medical advisors, and an occupational health nurse, and there will be a team assistant or several team assistants involved as well. A psychologist will be there as well.
Q: And is the concept to have ultimately all vocational rehabilitation consultant as part of the case management team? Case management concept?
A: Certainly the ones working in the Service Delivery Locations – there would be some exceptions for vocational rehabilitation consultants that work in specialized locations such as the rehabilitation centre. Which their teams would vary depend on the needs of the individual program.
Q: And will the consultants’ duties stay the same within the case management model?
A: Certainly the duties – I guess the tasks – the day to day tasks would stay the same in relation to the last three phases of vocational rehabilitation but they will also be providing expertise and advice – input into the planning – the return to work planning that’s held quite a bit earlier on at the four week or 6 week point following the date of injury.
Q: Okay and some of your consultant have expertise in certain areas –I understand – I’ve seen expertise in western red cedar dust asthma for example – getting people back to work on that and are those developed expertise – is that going to be protected or enhanced or what is happening with that?
A: Well I think right now those rehabilitation consultants that have those expertise are working in individual Service Delivery Locations and so that will continue.
Q: Okay – but does it mean that and I don’t know how many of your consultants would have that expertise – let’s say 3 – and if those are attached to specific case management teams does that mean their expertise will not be available to –other case management teams that have western red cedar dust asthma cases?
A: Not readily available, however, they are recognized as having a specific expertise that they would still be – the other teams would still have the ability to be in touch with them – contact them for information – for advice. Perhaps I can respond to that as well. As you are no doubt aware the vocational rehabilitation consultants had been part of the occupational diseases section were moved out I believe it was last year into the Service Delivery Locations in recognition of some of that very specific expertise. We are in the process of providing training all across the province. Last fall we provided training on the asthmas – the things we talked about yesterday. Dr. Ma and Dr. Whitehead came in and did a presentation for all of the consultants in November. We intend on carrying on the training because we do recognize that it’s an area of considerable concern and we want to make sure the consultants are well trained right across the province on all of those issues.
Q: Yes I and our concern in response to that –is that is no longer developing expertise that’s taking on a general level – I’m a lawyer I know something about criminal law but you wouldn’t want to hire me as your criminal lawyer and I wouldn’t take the case so – I – I - it strikes as kind of diluting the of the expertise developed at the Board.
A: That would be one perspective and I don’t happen to share that perspective. The vocational rehabilitation consultant’s job is a very broad and complex one. Part of their area of expertise has to be – or has to do with medical aspects of disabling conditions. And we are just not talking the medical aspects of an orthopedic injury or the medical aspects associated of some other injury. They must develop and have that expertise in all disabling conditions. So it is an expectation that they do have a level of training that will allow them to perform their job function properly.
Q: All right – so it is a moving – it’s making consultants into more generalists than they have in the past.
A: Well, the vocational rehabilitation consultants have always been a very generalist job; it is within the profession, within the practice.
Q: But currently there are certain consultants who are known in the system who have expertise in red cedar dust asthma and they would get those claims now whereas under the case management model they wouldn’t be involved in the case unless they were in – worked in that particular case management team or unless someone had the sense to phone them up.
A: Well, in actual fact we are in that decentralized model already. We no longer have vocational consultants assigned to the occupational diseases area dealing with specifically or solely with issues like red cedar.
Q: I’m going to talk about employability assessments if I could for a while –and the term in the manual that – it’s the term we use is a job has to be reasonably suitable and available correct? That is the language we use when we talk about this and I was concerned about –last night I read in the Hunt Report –he was concerned about the – this is the 1995 report –the reduced time the consultants spend in the community and indeed I think you indicated that that 4% satisfaction was one of the factors in there?
A: 4.5 and yes it was.
Q: 4.5 and indeed what we’ve seen – used to see vocational rehabilitation consultants- their first contact with the worker was to go to the worker’s home – and we don’t see that very often so it is just anecdotal – you know I see it from my point of view too – it’s always struck me –it was surprising to the worker – the worker would phone up and say why are they coming to my home? And we had to deal with that. But it always struck me as a good thing to do –it’s not happening as often any more – that seems true objectively – is there any concern about that to try and address that?
A: Well, yes there is. It’s not so much visiting workers in the home because we trying to discourage that for safety reasons wherever possible now. We have to be aware of our vocational rehabilitation consultants’ personal safety. So we generally say our first contact with the worker should ideally take place in the workplace with the injury employer and the union representative and whoever else that needs to be a part of the process there. There certainly are still cases especially in serious injury where a home visit would be most appropriate and necessary in cases where we are providing some home care or in-home assistance so it is a bit of a balancing act. My preference used to be always see workers in their homes until I was dissuaded of that. And now because of the safety issue we do ask our consultants to be very careful when they choose to make home visits.
Q: The safety issue is perhaps we could put it this way angry workers – is that what you are talking about?
A: Well, personal safety in general. It’s an issue that has been driven by compliance with our own regulations where in discussions with our own union we have tried to comply with our health and safety around personal safety. People working alone and as a result unfortunately from my perspective we aren’t doing that as often and it is a frustration I think to certainly the people at this people that we are not providing more individualized service. There is a major push to get all of the decision makers into the workplace and certainly where there are significant disabilities we continue to want people to visit workers in hospital, visit workers at home or visit workers wherever it is appropriate.
Q: I just want to talk a bit more about this safety issue – what percentage of visits – potential visits by consultants that involve a safety issue?
A: I would say from my personal experience very very few but we can’t take the risk – it’s just not appropriate to put our people in a situation where their personal safety might be endangered. And it is not just by an angry client – we deal with a broad population and I think we all have to be aware that there are people in the community who may not have the same regard for personal safety that we would – we would hope that they would. So I certainly wouldn’t categorize the majority of workers as being a danger or a threat – far from it. But we need to be aware of the possibility.
Q: But I was told some time ago that safety was always an issue even when consultants used to go out routinely and that if safety was an issue they wouldn’t go out –so I don’t hear you saying anything different than what was the practice in the past and but what I do hear you saying is that because of problems with a very few workers a good service introduction – or a good introduction to the service of rehabilitation is not being done any more?
A: Well I would suggest that that good service could be provided just as acceptably at the work site as it could at somebody’s home. It may not feel quite as personal but I believe the consultants possess the skills, the communication skills and the interpersonal skills to make it feel like a personal intervention at the work site. And it is not just as Ms Wakelin said the issue of the client. It’s the issue of people working alone without any ability to protect them from a whole variety of things which happened to people regularly – sexual assault, those kinds of things.
Q: Yes, we have already established that it is a very small number Mr. Buchhorn.
A: Yes, however, in compliance with their own regulations we were required to do a risk assessment, work with their own trade union in determining guidelines that are deemed to be appropriate to protect the health and safety of our own people and while that has had an impact as we said on home visitations we are trying to make alternate arrangements to ensure that people will still get the same level of service, the same personalized contact but wherever possible we prefer that to be in the workplace.
Q: And just comparing the workplace with the home – when a consultant -a professional consultant visits the home the advantage of a visit in the home is you get an understanding of the family dynamics –you sit around, you have a up of tea, the kids are around and you see how people live –that’s that can be significant in getting people back to work – correct?
A: Yes, absolutely.
Q: Let me take us into another area that’s deeming –and first of all can we assist the Royal Commission and maybe ourselves in understanding what deeming is –and just to give you my view –deeming is a decision by the Board in legal terms that a worker is capable of working at working in a certain position in the context of the worker refusing to work cooperate in the – that decision – it’s not using much language from the policy manual but that’s my understanding of it.
A: I first of all let me say that the issue of employability assessments, pensions, and deeming is going to come up tomorrow during pensions so I’m not sure if you want to spend some time today – that’s quite fine with us if you would like to.
Q: I’m please to deal with it tomorrow; I’m just not wanting them tomorrow to say that I should have raised it today.
A: No, and I’ll be at the table tomorrow as well.
Q: Okay, okay, good. Just let me take you –it’s that binder of documents that should be there unless someone scooped it again – it’s tab 27 – you may want to defer this to tomorrow too but I just want to be clear –this is a decision letter on an employability assessment issue and the heart of the matter –the Board decided the worker could work as an insurance representative – and just at the top of page 2 – at the end of second line – "It is clear that you are currently suffering and that seems to be in italics – the actual loss of earnings in excess of the functional component of your worth however I am compelled to arrive at conclusions about suitable occupations that a worker could be expected to undertake in the long term future. The temporary loss of earnings pension cannot be granted." Now our concern there – the worker’s concern is there – the Board makes a decision that a job is suitable and available and to start off according to the Board – they have a loss of earnings but the Board says that loss of earnings is something they have to put up with. And the other way that we see this is that in the next 3 to 5 years there might be a loss of earnings but over the long term it won’t be. Shall I talk to this panel about that or wait until tomorrow?
A: I think it would be better if it is okay with you to wait until tomorrow in the context of pensions.
Q: With respect to employability assessments themselves and this is in your department and if not we can deal with it tomorrow – can you say that a parking lot attendant is still a viable job for workers to do anymore?
A: I don’t have any specific data on job availability but and I know the issues around the use of that particular occupation especially in deemed employability assessments. But rather than just focus on whether it is a parking lot attendant or Walmart Greeter or something of the other jobs that seem to be fairly – used fairly widely in employability assessments – I’d say we’d have to look at the individual worker – we have to look at the geographic area and we have to look at the availability information that is given to us at the time of the completion of the employability assessment. So if it is still viable? I’d say that probably in some circumstances yes.
Q: Well it used to be used as sort of if I may say so the bottom line –there wasn’t’ – the worker wasn’t unemployable but can in a parking lot attendant – it used to be that Labour Canada tracked that information and they don’t anymore because they have criteria for tracking availability of positions and it has to be so many vacancies in a period of time – they don’t track it anymore –if you start phoning around and indeed I think Mr. Gogg in your department produced a report on this –and that most parking lots are now automated and some of them have long seniorities and some of them are unionized so I – what you saying is that it is just one job the – your staff will look at?
A: Yes.
Q: All right – can you talk about the source of information for the calculation for rates of jobs that are used in employability assessments?
A: There are a number of different sources; perhaps I could get Mr. Hartmann to make some comments in this area? There are several sources including Statistics Canada Information that we can use, we also have the Board’s statistical information that we collect – when we are talking about employability assessments especially deemed we also expect that there be real employers contacted with real wage information given. When there’s a range – a wide range that’s between unionized and non-unionized environment we determine both ranges and be making the argument whether or not this person would fit the profile or of the availability of union versus non-unionized would be more appropriate. So in almost all cases we are looking at some form of real data that phoning around a random set of employers.
Q: And do you use – you use information from your statistical department?
A: Yes, our statistics keeps tracks and I’m not exactly sure how they extract or at what point but we do have statistics that we do have statistics that we use for a range. Usually when we are looking at more global statistics like that or things that are collected en masse we are looking for a range and then we canvas some real employers if they are fitting within that range and we can feel comfortable that we’re close.
Q: All right - on service providers and Mr. Hartmann I think this is your topic – you had a a list of costs – I – it was 1997 costs, correct?
A: Yes.
Q: And can you give us an idea of the costs say from 1994-97? – I gather they are going up?
A: With – it’s difficult to track because we have only recently separated out third party contract fees or funds expenditure to third parties under our Code T. Before Code T was implemented it formed part of our miscellaneous code which had anything that didn’t fit the sort of mainstream codes that we were using at the time; so it was really difficult to break that out, break it apart.
Q: Am I right that the amount of money spent on third party service providers is increasing?
A: Anecdotally I don’t know that I would agree with that. I think certainly in the years 1993/94/95 when case loads were much higher the time that individual rehabilitation consultants had spent on an individual case – there was more pressure there so I’m only making an hypothesis that it could be – that we used more at that time. But we don’t have the statistics broken down to be able to tell.
Q: You wouldn’t know if you were spending more, the same, or less then in previous years on third party, outside providers?
A: We don’t have exact figures to say that this the difference, no. That was one of the areas Mr. Steeves that I think that was identified again in the administrative inventory was the lack of accountability around the contracting out of vocational rehabilitation services in an effort to deal with that issue we added I believe it was 25 rehabilitation consultants to the department in early 1995 and we put very stringent approval mechanisms in place for the contracting out of services and we expect our own consultants to do most of the work themselves and only in the situations that Mr. Hartmann has outlined would they go to their managers for approval to contract out for services. We put written contracts in place now and when we put a provider network together we also measure outcomes from those particular third party contractors.
Q: Two issues on I guess issues relating to the contracts – one is privacy – what protection is there of the worker’s privacy with respect information passed on to third party service providers from the Board?
A: We must adhere of course to the Freedom of Information and Protection of Privacy Provisions. We try very hard to guard any privacy issues. The clients would be very much part of the process because we work collaboratively with them so we would always ask them to give us a release for the information that we are going to share.
Q: All right and is there a- sorry Mr. Hartmann.
A: I would just like to add to that that when we are using the third party providers we’re asking for specific services – the goals are usually outlined – the file doesn’t go – in very rare cases would the service provider be seeing the file or that kind of information – they would be seeing the information that is specific to the request. In some cases where such as vocational testing they may not have any of the information – we are asking for a set of standard tests that we then bring back and use them and continue to manage them.
Q: But some of your information – some of your providers have access to private information and indeed some of them generate private information –and is there a clause in the contract to require them to – about confidentiality?
A: I believe there is a clause in the contract which is consistent with our Freedom of Information and Protection of Privacy. I can only speak to the existing practice – which I implemented which was that Mr. Hurst is involved as Executive Director of Healthcare Services is involved in the negotiation and formalization of all contracts and he has – I think he indicated the other day – puts in every contract the requirement to respect the Freedom of Information – Privacy Legislation.
Q: The other issue about service providers is the question of about worker’s choice –as we know is section 21 in the statute – how do we accommodate the Board’s retention of outside providers and – that is the Board’s decision about who should be providing a service with the worker’s statutory right to choose their own treatment?
A: I think at this point we – the individual rehabilitation consultant is working with the client and in most cases the clients that we are working with wouldn’t have sufficient knowledge to identify appropriate service providers, however, in cases where we feel or they would like to have a choice there – I know there are examples where – we’ve even had the client meet with two or three or four of the providers to make a decision on who they would like to work with. That is done in some cases. There might appear to be a break down in the relationship with the provider we would certainly entertain having somebody else coming in in their place. Yes, those are all good answers and I think they address your concern but I don’t think the Board has ever – just to be clear – has ever interpreted that section 21 applies to – that there’s any choice of providers in the vocational rehabilitation area – I don’t think that is a correct interpretation.
Q: Yes, I think that’s right – it has to do with doctors.
A: Yes, yes.
Q: But some of your outside providers are doctors or are they retained doctors?
A: In the clinical arena, yes. You are right, there are doctors retained. But I think the reason I leaned over and suggested that Mr. Pinto clarify it is we have not taken the view that that particular section applies to choice of provider, however, when we have done everything we can to accommodate the interests of a worker with respect to a provider. It doesn’t make much sense for us to force a relationship between a worker and a provider where the worker clearly will not be focused on the goal of return to work.
JIM SAYRE
Q: What I have distributed here is an addition to the binder that we put together – I don’t’ know whether you can find the binder itself or not – it’s a black binder that was last used last Thursday at the hotel. In any event I am only going to be referring to tab M –which is what I’ve just distributed – so if you can’t find the binder it won’t interfere with the rest of it. What these documents consist of are that they are a series of documents concerning the issue of the maximum wage rate and the training on the job situation – whether the maximum wage rate established under the Act applies to the limit – the total amount of compensation which the worker can receive from both the employer and the Board or whether it only applies to the limit the Board is able to pay – now are you familiar with the issues in these documents?
A: Yes I am.
Q: And the second - the first document is a decision of the Appeal Division concerning that question and the second document is a draft – memo 2 from the policy branch to the Panel of Administrators asking whether a change in policy should be initiated to reverse the result of the Appeal Division’s decision –the third document is the admission of the advocacy group which I represent arguing against such a change –and I introduction this for a couple of reasons – one of them is the whole question of maximum – the statutory maximum of wage rate has come up in a couple of contexts before the Royal Commission – it’s going to be one of the subjects of the one of the major issues of the submissions in April and this of course has a bearing on that - and the second is the fact that the sequence of events describing the Appeal Division decision covers most of the elements of vocational rehabilitation and I think it serves as a kind of a useful template in questioning how the process takes place from a worker’s perspective to have this in front of us – and I am going to be using it in both contexts - just to help people by laying the groundwork here –what the decision concerned was a worker who had been employed as a journey man clatter –that was a new term to me until I read this decision – evidently that is a construction worker who is involved in the construction of high rise buildings and it’s part of the sheet metal trade but the clatter like iron workers and other people involved in that type of construction has to go up on the new floors as they are being built and walk around on beams and that sort of thing – this person fell and suffered a permanent injury to his leg I believe it was and it would have been quite dangerous for him to return to the job as a clatter – after a vocational rehabilitation assessment that took place only about 8 or 9 months after the injury – quite a good promptness in this case – it was decided that with his full agreement that he could work as an apprentice sheet metal worker and obtain his credentials as a sheet metal worker and the difference being that the sheet metal worker can work on the ground so he wouldn’t be subject to the same dangers if he returned to work as a clatter. So I’d like to turn now to some of the elements that took – that are reflected in this decision and concerning the wage of vocational rehabilitation work and I quite deliberately chose the case which not only reflected a particular legal dispute but which also illustrates overall the way it should work. I mean this was a case of successful rehabilitation in my view and one in which the Board can take some credit for having found an appropriate destination for this injured worker. First of all the timing –as I mentioned the vocational rehabilitation in this situation which I think occurred in 1992 took place about 8 months after the date of injury. Can you tell us whether that - how does that compares with the average time that it is taking now to perform a rehabilitation?
A: I can tell you how it compares to the service expectations we have of our vocational rehabilitation consultants and that is upon referral that there be a contact made in 2 weeks. Now we don’t know in this case when that referral might have come into the vocational rehabilitation consultant. I’m assuming given the timeframe –1992 – that it may have been a case that was not referred to the vocational rehabilitation services department until several months into the injury and at which point it might have been apparent that the worker was going to have some return to work difficulties.
Q: So you are saying that the goal under the present policy would be to have the assessment take place even earlier than it did in this case?
A: Yes. And if I might add in the case management environment where an injury of this nature it probably would become apparent almost immediately that return to work with the same employer, same job would not be appropriate. Those discussions would start within weeks of the injury.
Q: I think in this case the assessment was concluded 8 months afterward –is that – certainly you were able to meet your target at starting the process a month or so after the injury – how long would it take to conclude it? Or how long is it taking on the average to conclude it?
A: Are you referring specifically to an initial vocational assessment or to the entire vocational planning process?
Q: Well this was a concluded assessment –so I guess we should compare apples and apples first of all - how long would it take you to complete a concluded assessment such as this one which resulted in a contract and a training on the job allowance and so on?
A: It would really vary depending on the client, the stage of the recovery, the motivation, the employment barriers that might be identified – ideally&ldots;.
Q: Any averages?
A: Ideally we would like to see three months. That is also a service expectation – the planning.
Q: That is a goal – I’m asking how is it going – how is it going - what is your average at?
A: We don’t have the capability at this time to measure that interval but once our electronic file statistical reporting is in place we may very well have the ability to measure the interval between referral time and the planning cycle.
Q: So you don’t track that statistic now?
A: No, the only way we have of tracking it now is with managers taking on an individual basis with the consultants to ensure that they are meeting the articulated expectations around timeframes.
Q: Okay - turn to second page of the decision and then - it refers to a letter of – a statement of understanding being concluded between the Director who approved the expenditure – with respect to the worker – and on the 6th page the Appeal Commissioner, Mr. Morten makes some comments about the – that process – is that part of the process – he says "with respect to the manner in which the on the job training allowance was presented to the worker – who will approve – part of the process – with respect to the – lessons to be learned is evidence that some lessons can be learned from the problems which were encountered – the program was presented to the worker as being similar to a contract approved at the Directors’ level and strung up for a signature by the worker and the rehabilitation consultant - now I just want to stop there so we don’t get too confused –is that the way that something like this would be concluded at the present time, under present policy?
A: Yes, there is an expectation – what we actually call it a letter of understanding – they are drawn up and the – it’s more a in aid to draw out the parameters of the specifics of the vocational rehabilitation plan so that everybody has a clear understanding of the nature and the extent of the assistance.
Q: So that practice hasn’t changed since 1992?
A: No it hasn’t.
Q: It goes on – " the purpose evidently was to ensure that the worker has a sense of commitment to the program; this was appropriate and desirable, however the process created certain legitimate expectations in the mind of the worker that the Board would honour its side of the understanding. When the consultant subsequently altered the terms of the agreement in a significant way the worker was upset. It –" Are you able to comment on that aspect of the process; is it that the Board still views these letters as a kind of contract subject to some qualifications that we will get to in the next couple of paragraphs about the residual power to change any decision?
A: Yes, we do – I mean the contract of course is more of a legal term and we don’t have the right to do that in our present system but we believe very strongly that having something in writing that articulates the timing, the expenditures, is a commitment on both the parts of the Board and of the client of that particular plan subject, of course, to change.
Q: Is that represented in this case; when you say subject to change there was one change the worker obviously didn’t object – the Board realized that it hadn’t included some money that was needed to compensate him for vacation pay so they added that in to the budget – obviously that was a matter of equity to the worker and he wasn’t going to object but then later on the Board decided later on – we made a mistake we should have capped the total compensation by the amount of the maximum established by the Act and we are going to do that – and I believe they tried to do it retroactively and that was the legal issue that this decision ended up giving with – are you saying now that the Board would not regard itself as being entitled to change in a a negative way an understanding that is drawn up like this with a worker?
A: I would hope there wouldn’t be an occasion when we would have to make a negative change; the change I was referring to will be more along the lines of extensions to programs when someone is struggling with their study and we want to make sure that that’s also documented by way of a letter.
Q: Okay I believe the fourth paragraph of that page – "is this statement of understanding was not a contract as such – the Board couldn’t legally fetter it’s discretion to reconsider the terms if new evidence to light or an error was discovered." So I gather that is what you are saying in there?
A: Yes.
Q: Would you agree with me that given that something close to a contractual nature of a contractual nature of a document like this that it would be desirable if not necessary that a worker have advice from somebody skilled in workers' compensation so that they know what rights and obligations they are undertaking when they sign this document? Does that seem like a reasonable thing to say given the nature of injured workers?
A: I think many workers would probably serve themselves well by having advice from independent people whether that’s their spouse or a friend or an advocate – yes I think that’s certainly part of the process – however, worker’s advisors&ldots;.
Q: Now wait a minute now – when we are talking about spouses and friends – don’t you think that it would be advisable before a worker undertakes something that the Board regards as being close to a contract that they have advice from someone that knows Workers' Compensation law – not necessary a lawyer but a trained advocate or a trained counsellor of some sort?
A: I think it depends on the individual – and our system you know allows for individuals to seek advice – Mr. Pinto has a comment. Yes, I just wanted to emphasize I think the point that Ms Wakelin made in the first place that nothing that the Board works out with the worker binds the worker’s entitlement to any future benefits, etc. now clearly there’s an expectation that there will be a commitment to the plan that the worker isn’t signing away the rights in that instance. I guess the other issue is that the – it’s expected of any Board officer that is engaged – and this would come up in planning as well – that this should be a collaborative process – now leaving aside your point I mean it is certainly up to workers to go and seek additional advice if they would want it but I guess as a general proposition is that we are going to move much more into case planning in the future we do not expect and do not think it’s necessary to have sort of legal representation if that is your thesis in the signing and the development of every one of these plans. I don’t know Ron if you have anything further to add to that. No, I would agree with that; I think there may be a complex situation in which may warrant the independent advice of the worker’s advisor’s office or some other independent source, however, in the main what we are attempting to do is put together a plan that the worker and the Board are committed to and again you know I think this is unfortunate in terms of the case that you’ve presented here that presumably that something that was unlawful or outside of policy was committed to and then had to be corrected.
Q: I think you are in a bit of a disadvantage as to what happened there – we’ll get to what happened in a moment but I am interested and intrigued by your comment because as I understood your presentation in previous days those of you who were here case management is now seen as the perhaps the golden solution to many of the problems that have existed in the past at the Board and it seems to me that the crux of case management involved the worker being substantially involved in the whole process and I don’t understand how a worker can do that if they don’t know what their rights and obligations are under the Act?
A: I think I agreed with you that under case management that we would be working much more collaboratively with the worker, the worker representative and the employer in developing a plan that the worker had some commitment to would ultimately result in a safe and durable return to work. I’m not sure that for the majority of cases that this is going to be complex enough that you would need independent advice; it is really about your entry into your pre-injury employer’s workplace and ensuring that we are doing that in a safe and effective way and that we’re being supported by the employer and the trade union.
Q: Well, it depends on what the circumstances –in this case it was the choice of what that worker was going to do for the rest of his life –now the – it most likely given the circumstances described in this case I would guess that this would probably be quite satisfactory to the worker who knew the old trade and what the new trade involved because he was working very closely in the same industry so he wasn’t going into something with a blindfold on –but there are a lot of cases in vocational rehabilitation where the new job and I think we’re all familiar with those cases and certainly the Royal Commission has heard many people talk about them where the worker is trained in some new field that – parking lot attendants was one that was used for deeming purposes but some of the common fields that seem to be – has at various times of the vocational rehabilitation department that I’ve heard about involve goldsmithing and truck driving and things of that sort –for people that were not involved in that industry before. So wouldn’t you agree with me that a worker who is in effect saw what they were going to do with the rest of their life given the fact that they have a disability that prevents them from going back to their previous occupation ought to have full legal understanding of the range of options open to them before they make that commitment? Wouldn’t that be better for the Board in fact so the worker doesn’t come back to you two months later and say I didn’t understand what I was getting into there I want to change this plan.
A: Mr. Sayre, it’s very difficult to answer that question but what I can do is share something with you. I was a vocational rehabilitation practitioner here at the Board for 7 years and so I dealt with probably upwards of thousands of workers and in virtually no – I shouldn’t say virtually no there may have been one or two cases where the worker expressed a desire to have some expertise from an outside advocate whether it was a lawyer or some other expert advocate. In virtually all of the cases that I dealt with the worker felt comfortable enough to the kind of process and collaboration and relationship that we’d established that they didn’t necessarily feel that that was required and that they felt sufficiently informed with respect to their obligations and rights that they were comfortable with the process.
Q: The fact that they were doing with you.
A: Personal experience, yes.
Q: Okay – well I think we have your views on that – turning to the next issue that is reflected in this case –that is on page four – the third paragraph from the top –it says " in 1995 - this would have been 2 ½ years or so after the initial assessment – the four page of the Appeal Division’s decision – the pages aren’t numbered so I’m going to have to ask you to count them – we don’t go past page 6 I don’t think so it won’t cause too much confusion – it says the paragraph reads " in a summary dated March 9, 1995 addressed to the Director the consultant noted that the policy advisors states that section of the Act – 33.7 – makes the initial plan illegal and that no readjudication of the original plan ever seems to have been considered. The worker went on to protest it – he was never told that the plan could be changed - before I get into that – what is the procedure now for changing the vocational rehabilitation plan? One of the issues in this case is that change that was imposed by the consultant had not been authorized by the Director and Mr. Morten felt that that was required by policy – am I right about that ?
A: It would depend on the expenditure level with respect to who the vocational rehabilitation consultant had conferred with the plan but the best practice in vocational rehabilitation would indicate that any time there’s a plan or a change to a plan it should be documented so the consultants have their own discretion to work with a client or to alter plans in accordance with circumstances sometimes things happen – other accidents, personal things happen that requires a change.
Q: It makes a difference doesn’t it whether the change is being done with the worker’s consent or whether it is being done with the worker’s opposition doesn’t it? In this case it was against the worker’s opposition and said it was unfair to change – to drop my wage rate and it was done on their own.
A: Yes it does. And my guess – or in consultation with management I would presume.
Q: Well I think as I read this decision one of the issues here was that there may have been consultation but there was no approval by the Director as Mr. Morten felt was required by policy so we – would you agree that that is required by policy – if that situation were to arise again?
A: Yes. Not necessarily by policy but certainly by good practice.
Q: The Appeal Division makes a further comment about the difference in the attention paid by the vocational rehabilitation consultant to the situation before and after the plan was initiated on page –I should apologize for not numbering these pages when I photocopied them last night - on the fifth page of the decision –the next page from the one we were looking at – the long paragraph that begins with the words "It would appear from skimpy evidence that the decision was rendered solely on the basis that the worker was earning in the excess of the statutory maximum. And it goes on to say that there was no attempt to investigate the circumstances nor did the worker’s attempts to explain the situation receive adequate consideration." I’m just trying to find the sentence that I was referring to here – but the point that the Appeal Division was making is that they felt that there was a very good effort by the vocational rehabilitation consultant at the time that the plan was prepared to find something that was appropriate and to get the plan under way and to make the necessary adjustment when something had been omitted – but that when this issue arose there wasn’t – there hadn’t been much attention into the ongoing supervision of the plan. Can you comment on the extent to which consultants not only get involved in creating a plan but also are involved in an ongoing basis in making sure that it goes on successfully?
A: Yes, certainly. There is a requirement that vocational rehabilitation consultants monitor at least on a monthly basis rehabilitation plans. Sometimes managers will request more frequent monitoring if there is anything that would appear to be a risk factor with respect to the successful conclusion of that plan. I would also like to point out that
Q: Sorry, what kind of monitoring do you mean? What would he do? She do?
A: They would normally have a personal contact with the worker on at least a monthly basis – sometimes more frequently – or if somebody is in a formal training program and they are making good progress that monitoring responsibility might be delegated to the team assistant or to a vocational coordinator to make contact and if there are problems that appear evident upon that context then the vocational rehabilitation consultant would get involved again personally.
Q: If nothing else at least a telephone call to the worker saying how’s it going are there any problems?
A: Yes. Yes.
Q: And you’ll agree that’s – would you agree that is the way it should be done? To make sure that if problems do arise that you can catch them early on when you still have time to do something about it?
A: Yes. Yes. I think Mr. Sayre in addition to the comments that you’ve made that this particular period was the very period that the vocational rehabilitation department was for all intents and purposes had been disbanded and I suspect that this why some of this confusion may have arisen; there probably wasn’t a Director of Vocational Rehabilitation at the time and it was – it had been integrated into the main stream of the service delivery; that is the very reason we re-instituted the department in 1995.
Q: That may be – the next issue that comes up in this case is that the specific triggering of the re-adjudication of the worker’s benefits was that he was unemployed for I gather for an economic reason – for lack of work reason for a brief period of time and rather than being unemployed the worker went out and managed to find a job pre-injury employment as a clatter which happened to allow him to work on the ground –now it was found by the Appeal Division that this wasn’t a long term employment possibility –most clatters have to do the kind of work that he did before he was hurt but he happened to be industrious enough to find something that didn’t require that and in doing so was able to earn as much as he did before the injury and the Board said –that means you don’t need the vocational rehabilitation any more; we are going to terminate your apprenticeship benefits now would you agree with me that is inappropriate given the careful long term planning that is supposed to go into a vocational rehabilitation plan to in effect take advantage of a worker’s good fortune in finding some kind of work at the pre-injury earnings and say now we are going to terminate the process?
A: Yes, I would agree that that was inappropriate.
Q: The Appeal Division felt so – I mean you wouldn’t disagree with that?
A: No not at all.
Q: Now the next stage in the decision concerns some legal issues –and I’ll just kind of summarize them for you – the Appeal Commissioner decided first of all that as a matter of law and policy rehabilitation benefits are not the same thing as compensation. And I don’t know that that is particularly fruitful to discuss that distinction in terminology at this point because the outcome of the case, however, was that after carefully reviewing the relevant sections of the manual the Appeal Commissioner felt that the general requirement that rehabilitation allowances themselves can’t exceed the statutory maximum does not extend to the principle that the total paid by the employer and the Board can exceed the statutory maximum. And that’s the issue the Policy Bureau has presented back in 1996 through the Panel of Administrators for their consideration. First of all can you tell us what the outcome of that was –has the Panel of Administrators considered that and if so what did they decide?
A: Yes, actually the Panel of Administrators has considered that and it was a resolution of the Panel of Administrators dated October 14, 1997 regarding the application of the statutory maximum wage rate to returning on the job rehabilitation benefits. We were grateful to see this clarification because this particular area of policy has been very problematic for vocational rehabilitation consultants so I have it here and if you would care for me to read it I would be happy to.
Q: Yes I would like that.
A: I’ll just read you the changes. "Policy item 88.42 – is amended as follows:
Part one of the item is replaced with the following wording: Training on the job allowances will be calculated in a manner similar to the calculation for permanent disability benefits. In general, the sum of the wages from the training employer and the gross payments from the Board to the worker will be equal to the worker’s pre-injury wage rate. Where the worker’s pre-injury wage rate exceeds the maximum wage rate as set out under Section 33.10 the Board’s contribution will be calculated by substituting the maximum wage rate for the pre-injury wage rate. The wages from the training employer and the gross payments from the Board to the worker will be equal to the maximum wage rate. There is also an additional amendment. The following is added as part four – nothing in this item should be interpreted to prohibit the Board from negotiating a wage with the training employer which exceeds either the maximum wage rate or the worker’s pre-injury wage. The Board will seek to maximize the wages paid to the worker by the training employer while recognizing that it is necessary and desirable to provide some incentive to employers to choose injured workers for training on the job position."
Q: Okay, well I am grateful to you for enlightening me about what happened on that – the last document that indicates our group made a submission to the Policy Bureau – I don’t believe that we were ever informed of the outcome. That strikes me as an issue of governance and the way that the policy process works. I’m disappointed that the Panel didn’t accept our submissions and I’m going to go through them – a couple of elements in them with you in a moment –and I would ask that you give us a copy of what you just read so that I can take a look at it. Just so that I understand it – it sounds to me as if the Panel has decided to go back to the previous practice which was that the total of the monies from the Board and the employer are capped by the statutory maximum – except for what was the single exception if I understood the last part of it – that if the employer can be convinced to pay more than the statutory maximum themselves or itself then that’s fine the Board will try and do that but I assume in that case the Board wouldn’t contribute anything? Is what the new policy means?
A: With respect to contribution the Board would always try to contribute to training on the job otherwise it would be out of the process and it would have nothing to do with us. We’re having a little bit of an interpretation difficulty with that part four because some of the consultants are asking whether it is possible now to pay a training incentive – not a wage but a training fee to an employer in order to secure a training on the job agreement so there’s a little bit of confusion about the wording about that particular section. But yes you are correct that it appears to have gone back to a statutory maximum paid to the worker – capped.
Q: Before we leave that subject then there is a view among some consultants that they can give some kind of money to an employer to persuade them to enter into this process is that what you are saying?
A: A training fee where the employer might actually &ldots;
Q: I suppose the quid pro quo of that would be that the employer would say well we’re going to pay Mr. So and So $5,000 a month gross which is more than the statutory maximum and the Board will give as $1000 as a training fee– is that the idea that some vocational rehabilitation consultants have that that might still be possible?
A: I think that that’s the interpretation. I think that’s the interpretation. Chris is there anything you’d like to say. Chris has got more practical day to day experience with this issue recently. I think an example like that where the employer is willing to offer employment that exceeds either the maximum wage rate or the wage rate established in that particular claim that we can still contribute directly to the employer part of that training on the job up to the maximum of what we could give the worker so if their wage rate was $10/hr we could reimburse the employer for up to that amount, however, that doesn’t mean the employer was restricted to only paying that worker $10/hr. if they wanted to pay that individual $16/hr they could do that. But our contribution to that could only be up to the level of the wage rate – does that sound – that is how I read it.
Q: That was the result of the Appeal Division decision which the Policy Bureau had changed – did I - I may have gotten lost in your explanation?
A: I think the question when the resolution came up – the question was what does that last? Paragraph me. I think what was the interpretation – we understood it to have the interpretation that you accorded to it – which is that beyond the statutory maximum – that the Board will try to negotiate a better deal than the statutory maximum for the worker or if the worker and the employer negotiate we don’t want that there’s the fact of a statutory maximum and the workers' compensation Act to be reason for employers who would normally pay someone $77,000/year to say I’m only going to pay you $50,000 - $54,000 a year. But we understand the resolution to reaffirm in a sense the previous practice that the Board’s contribution combined with the employer’s cannot go above.
Q: It seems to me that that is a contradiction – let me just go ahead here to the final document that I’ve given you because I think it focuses on the problems that we saw with the previous practice –it is a letter dated November 18 to Catherine Lawrence of the Policy Bureau - the last paragraph on the first page there –"we argue that it would be – that the worker who is getting on the job benefits is performing the same work as other employees who were not involved with workers' compensation and that it would be discriminatory for the Board to in effect allow the employer to pay – allow that worker to get inferior compensation for doing the same work. It’s basically equal pay for equal work issue. And that for that reason if the job itself pays more than the maximum then that is what the worker ought to get – whether it is a training on the job arrangement or regular employment. And while we didn’t argue with the principle that the Board should not have to pay more more than the statutory maximum itself as a contribution to the wages – we certainly argued that as the Appeal Division had found that it would be reasonably to allow the total to be more if that is what the job was worth. Would you agree with the observations we made that it seems somehow unfair that a person on training on the job should do the same work for perhaps far less wages than the people they are working next to?
A: I think Mr. Buchhorn wants to make a comment. Given that this is the policy that we’ve been given Mr. Sayre I don’t think I can agree with you. I think the concept is that we will top up to the maximum and if an arrangement exists where a worker receives more than the statutory maximum from the employer there is no reason for us to top up. I think that’s the intent here.
Q: Okay, but really what the policy seems to say now –the point I’m getting at is doesn’t it seem unfair that because somebody’s been injured and is being helped back into employment by this training on the job process that they have to do the same work for less money than the people they are working next to.
A: If the outcome of this particular policy is that it results in a lesser rate being paid to a worker on a training on the job then to someone else doing similar work in similar circumstances then that may have been an unintended consequence. I think the whole issue of a training on the job is to provide an incentive for the worker and the employer to try out a new job. And I think sometimes we lose sight of the purpose of the provision by looking at all of the possible exceptions. I think it’s a valid initiative and I think it’s been clarified that we only top up to the maximum and if that results in a discriminatory practice that our rehabilitation consultants observe in their day to day work then we would follow the same approach; we would refer that back to the Policy Bureau and say the second piece of that doesn’t seem to be working for us – could you go out and do some consultation, come back with a revision to policy.
Q: Okay, well I don’t want to spend too much longer on this but it strikes me that that is exactly the kind of issue the Policy Bureau just decided so - or the Panel of Administrators has just decided so I don’t’ know what&ldots;
A: Well my comment was &ldots;
Q: The point is that it should be referred back&ldots;
A: There there is an unintended consequence that is detrimental to the training on the job program then we should go back and request a revision. And we will make sure you do get copies of that amendment during the break.
AFTERNOON SESSION
Royal Commission on Workers Compensation in BC
Name(s): Julie Wakelin
Affiliation: Vocational Rehabilitation Services
Location of Meeting: WCB, Richmond
Date: March 4, 1998
Commissioner staff: GG, GS, OE, TR, D , JS
Notetaker: Judy Stott
QUESTIONS AND ANSWERS
GG: There was a request for Mr. Steeves for a copy of the recommendations made by the policy bureau to the panel regarding amendments to the Code R practice. Is that correct Mr. Steeves?
A: Yes
GG: The commission will request that that document be provided to the commission for release to council.
A: The request will be honoured but it is a work in progress. It should be finished this month and as soon as it is finished it will be provided.
GG: For the discussions that centred around that document today, is there a document that has gone to panel?
A: Yes and the panel sent it back for further work so it is that further work that is being done now. It is due to go back to panel in April.
GG: I think that the initial recommendation was requested. Can we get the original?
A: Yes
SAYRE
Q: I have distributed a new document and it is an old case that I hope would not happen today. This is a case where the gentleman on the first page of the May 4, 1994 letter to the Worker’s Advisor was described as having limited literacy skills and so on. He was referred to adult basic education and ultimately referred to a third party vocational service to arrange training on the job. The first page is the letter from that training on the job from the prospective employer for the training on the job. What it says essentially is that Mr. So and So spent 3 part time days in our service department attempting some small device repairs. The background indicated to me, the employer, that he should have little trouble doing this but it was not forthcoming. We can’t pinpoint the cause of nonperformance but perhaps it was his disability, maybe the business was not interesting and so on. It then goes on to say that this is a small employer and a delicate position and we can’t afford to spend time, resources and money training non-interested personnel. We must make decisions quickly so we are going to terminate our relationship with him. It appears to me from the letter to the Worker’s Advisor that the Board generously, as the letter describes it, gave the worker an additional month of job search benefits. It doesn’t appear that they arranged for any further training on the job evaluation for the worker. They then concluded that the worker wasn’t working hard enough and cut him off. I would hope and expect that you are going to tell me that under case management there would be much more of a hands on attention to this situation then appears to have occurred in this case in 93 and 94. Could you comment on what kind of attention is paid when these kinds of situations are set up?
A: We wouldn’t want you to believe that we are waiting for case management to unfold before we are actively monitoring and getting involved with vocational rehabilitation plans and especially training on the job. We often talk about training on the job as being the preferred mode of training for workers because it is a direct placement and largely they can build on existing skills and development of skills in a real setting rather than having somebody away from the work force for a long period of time. In this particular case not knowing the background I will just try to comment on what you have provided here. I do not know what the worker’s level of motivation might have been or what some of the other factors might have been but surely we would have an expectation that the vocational rehabilitation consultants, if the training on the job had fallen apart, would have arranged to be there immediately to try and see what the circumstances were around that. They would either try and remedy the situation to save it or, in fact, get details of the situation so that they could use that for further reference. If the training on the job had been offered to a worker in a rehabilitation plan then it would be my expectation that the training on the job would continue to be available for that worker as long as there was a continued level of motivation and not any other factors that, maybe mitigating ones in that circumstance.
Q: The Board ordinarily arranges training on the job situations doesn’t it? It doesn’t normally expect a worker, with literacy skills or not, to go out and make their arrangements.
A: No the vocational rehabilitation consultant would arrange the details but workers are often, in their job search, approaching employers on their own.
Q: In the case of where the first arrangement fell apart very quickly, whoever might have been to blame in that course, shouldn’t the Board go out and try arrange something else? Unless they had a really good basis for saying that this person just really isn’t interested.
A: Yes unless we had a really good basis. Not knowing the details of the motivational factors or other factors I can’t comment.
Q: After three full time days taking the employer’s word for it, you wouldn’t do that today would you - assuming that a worker wasn’t interested based on a letter like that?
A: No
Q: What training and qualifications does the Board require when hiring vocational rehabilitation consultants?
A: Currently our hiring requires that vocational rehabilitation consultants be eligible for what we call and accredited rehabilitation professional designation or ARP and that was instituted less than 2 years ago as a hiring requirement. Our vocational consultants come from a very diverse, eclectic background and set of experiences. This is primarily because there is no graduate level training in the province and very few across Canada that are focused on rehabilitation.
Q: Is there an undergraduate program?
A: No there is not. The undergraduate programs that would be compatible with this particular job are in the area of counseling psychology, there are some masters degrees in counseling psychology but nothing specific to vocational rehabilitation.
Q: What does the accredited rehabilitation professional designation require then?
A: It requires a combination of education and experience, which then goes before an accreditation committee, which is part of the national organization of the Canadian Association of Rehabilitation Professionals for acceptance into the accreditation.
Q: Can you give me a little more specific description of what might meet minimum requirements for the accredited rehabilitation professional designation?
A: Somebody with a degree and I am not sure of the number of practice years of experience that are required.
Q: What type of experience counts for that?
A: It must be in the field of vocational rehabilitation.
Q: The Board’s practice now is to hire consultants who have worked previously in the field?
A: Yes
Q: It sounds to me like the people with the Board would automatically meet those requirements because of being at the Board. Is that correct?
A: Yes
Q: I wanted to ask you about the reporting and supervision of the consultants, particularly as you move into the case management model around the province. The consultant will be part of the team. Is that correct?
A: Yes
Q: Will the consultant ever be the manager of the area office or the team?
A: No not unless they were promoted into that position.
Q: How does the hierarchy work? Suppose the consultant feels that the worker should have some type of rehabilitation and others don’t agree so the consultant wants to spend more on rehabilitation than the others want to spend. Under the Prince George model who will have the final say?
A: We expect that cases like that will be few and far between. It will be a collective approach in cases where there is a dispute about the actual rehabilitation plan it would be elevated to the respective manager for input and resolution.
Q: Is there anywhere at the Board where the consultant can go if he/she doesn’t feel that the manager is making the right decision?
A: We certainly practice an open door policy. The current hierarchy would be to go to the first line manager and then to the senior manager so that would be the route for the consultant.
Q: Let’s say that in area office X we have this border line case where the team members simply disagree on how to approach the case. The rehabilitation consultant thinks that the specific plan the worker has in mind is a good idea and is the most effective way of getting the worker back into the work force. The rehabilitation consultant isn’t happy with the fact that the manager says no because we would be spending too much money. Is there going to be any repercussions if the consultant tries to go over the manager’s head and ask for a review of that decision?
A: No absolutely not. This is a very imprecise profession and we don’t always have the answers. That is why we encourage case conferencing, input and there would certainly would be no repercussions.
Q: If the consultant succeeded in getting the person they appealed to to agree that the plan made sense then that would overrule the manager and the money would be authorized?
A: That is the hierarchy that we currently have in place and will have in place in the future with the case management model.
In Prince George there are 2 managers one of whom is a compensation services manager with claims experience, one of whom is a vocational rehabilitation manager with vocational rehabilitation experience and he happens to be the client services manager as well for the Prince George office. If I could use North Vancouver as an example, Janice Woodland is a very experienced claims manager and she will be a manager in that site. Mike Carlton, who is a very experienced vocational rehabilitation consultant, will be the vocational rehabilitation manager in that site. Should an issue arise from a vocational rehabilitation consultant the vocational rehabilitation expertise would refer to the vocational manager, Mr. Carlton, or to a senior manager absent Mr. Carlton so the functional department will remain intact and the clinical supervision model would remain intact to ensure that we have consistency and quality of vocational rehabilitation.
Q: So will there be a vocational manager in each area office?
A: In the smaller offices like Terrace, Cranbrook or Nelson there would not necessarily be a vocational rehabilitation manager but they would have a senior manager who would have the responsibility of overseeing of vocational rehabilitation in those particular offices. They would visit those offices on a regular basis.
Q: They would have the authority of a vocational rehabilitation manager?
A: They would have the authority to deal with those issues.
The managers who are providing clinical oversight in the smaller offices have not all come from a vocational rehabilitation background but we are working with them closely to help enhance and increase their knowledge in this area.
Q: You had a chart that showed vocational rehabilitation return to work as a percentage of new referrals. That is the one that shows the ascending bars. Mr. Steeves asked you about that chart in relation to the number of claims in each of those years. I think that the answer is short of shown on the previous page where the number of returns to work is roughly level and the percentages are going up because the total number of referrals are going down. Is that right?
A: Correct
Q: What I am interested in from that chart is what about the 64%, just to take the most recent year, that were not returned to work? What can you tell us about that fairly large number that are still not coming back to work?
A: It is a little bit difficult to understand the nature of our referral enclosure process and in a time constricted form like this. Many of the referrals that come to vocational rehabilitation do not come with return to work as the expected outcome. One of the roles of the consultant is to provide supportive counseling, to investigate commutation requests, to provide investigations into home care, independence and home maintenance and conduct employability assessments. Those would be pieces of work that a consultant would do that would not necessarily result in a return to work.
Q: Those are all included when you say the number of new referrals? Can you give us a breakdown of how many referrals for each year are specifically for return to work purposes?
A: If you move ahead in the presentation 2 or 3 slides you will see the pie chart of vocational rehabilitation intervention closures and 70% of the return to work referrals were returns to work.
Q: Is that the 1997 year to date closures?
A: Yes and that is up from 1995 yet very similar to 1996.
When cases come in as referrals they are not coded at that point. They get coded at the closure point.
Q: According to the pie chart, the return to work category. There seems to be 3 non-return to work categories. Does that mean that none of the people in those 3 pieces of the pie that say non-return to work were referred for the purposes of getting them back to work? They were all for these other purposes that you described?
A: That’s right.
Q: So there were 2451 people referred for return to work purposes in 1997?
A: Yes that is correct.
Q: To go back about 3 slides 2451 people returned to work. That is quite amazing. Are you sure that those numbers are correct?
A: I think I can clarify that. On that pie chart the number of referrals that were referred in 1997 for non-return to work interventions are shown as the 3384 and it is fairly consistent at 50%. The others were referrals with return to work interventions. The 2 non-return to work (unemployed), 455, could be classified as rehabilitation failures. The non-return to work would be those clients, without looking, who had voluntarily withdrawn such as for retirement.
Q: So the 3 groups on the right hand side of the pie are all people who were referred for return to work purposes.
A: That is correct.
Q: The bigger group was successful and the two smaller groups were not.
A: That is correct.
Q: I have some questions about the eligibility guidelines and you listed 7 of them. I gather that the meaning of that slide is that if any one of those categories is satisfied then the person is eligible for rehabilitation services?
A: Yes and that list is not necessarily exhaustive. There might be other reasons to provide rehabilitation. They are just meant as guidelines.
Q: Who decides whether those conditions have been met? Is that usually the rehabilitation consultant?
A: Yes that is correct.
Q: I gather it usually gets to the rehabilitation consultant by way of a referral from the claims adjudicator does it not?
A: The majority of referrals do come from the claims adjudicators.
Q: Can a worker self-refer himself or herself or can an advocate refer a client?
A: Yes
Q: If a worker meets one of those 7 eligibility requirements does that automatically mean that a worker qualifies for vocational rehabilitation or are there situations where they would not be considered eligible for some other reason?
A: It would depend on a variety of circumstances. Every case is so different. The consultants must conduct an initial vocational assessment to determine eligibility for vocational rehabilitation so one of these factors may be present but there may be other mitigating factors that might result in a denial at that point for assistance. They might get picked up later on if circumstances change.
Q: Can you give us an example of what you mean by that?
A: Take category number 1 – the worker may not be able to return to work at the pre-injury job due to a permanent compensable injury. Sometimes somebody will have a non-compensable illness, a serious case of a heart attack or a surgery that was non-compensable. For the time that they are unavailable to participate in recuperating from non-compensable illness or surgery we would defer any vocational rehabilitation benefits or interventions.
Q: Let’s look at the preventative rehabilitation issue. It may be of heightened importance because of people who can’t return to pre-injury employment because of what the Board considers preventative reasons are not eligible so the rehabilitation may be the only recourse that some workers. That is number 4 I gather?
A: Yes
Q: Are there reasons why a person who can’t return to the pre-injury employment because they are medically deemed to be at undue risk of disability due to vulnerability and so on would still be denied rehabilitation assistance? For example, suppose the wage rate was really low as calculated by the Board. Would that be something that would cut somebody out of rehabilitation?
A: Normally what we would say is that extensive vocational rehabilitation would normally be driven by the wage rate and obviously we are going to provide more assistance to those who are earning more because we want to offset any potential loss of earnings.
Q: And you measure that in terms of the wage rate as calculated by the file don’t you?
A: Yes that is correct. But in cases where a worker may be a minimum wage earner, for instance, that wouldn’t necessarily preclude that person from being eligible for assistance. If there was a serious injury we would take that into consideration or we may provide a shortened period of assistance for a job search for someone who is a minimum wage earner.
Q: I think that all of us have frequently seen files in which their decision letter says that your wage rate on the file was such and such so it is considered that you could easily mesh that wage rate at a number of different occupations therefore there will be no loss of earnings. Would that same reasoning be used to say therefore there will be no rehabilitation?
A: It will depend on the situation and the factors that that client has in their particular lives. We do not council consultants to deny service on the basis of a low wage rate. What we say is you need to do a proper vocational assessment, you need to look at the other barriers that may be in the way of the worker achieving a return to work. You weigh all of those factors and determine what is a reasonable course of action.
Q: An example that might raise some problems is high school students who are expected to get work experience. That work might be quite dangerous. For example, a person wants to go to medical school and they were working in a minimum wage job and got injured. What would the approach of vocational rehabilitation be in a case like that where the person was injured and couldn’t go back to the short term job that they were engaged in when they were hurt?
A: The vocational rehabilitation consultant in most cases will take their cue from the wage rate that is set on the claim by the adjudication process. We really have no influence on how the earnings are established on a claim. Unfortunately in a case like that depending on the decision that was made around wage rate that would be the wage rate we would address for the rehabilitation process. Somebody’s aspirations, unless taken into the wage rate determination, are not something that we can address.
Q: If a high school student is hurt at a job where they are being paid minimum wage and their injuries are not so bad that they are unemployable - there are some minimum wage jobs out there that they could perform - what I seem to be hearing you saying is that they are not going to be eligible for vocational rehabilitation.
A: They may not be eligible for very much vocational rehabilitation. Again we need to look at all the factors and if it appears that there are some other barriers that that worker may have then we would be prepared to look at providing assistance in a job search, job finding club, career direction program, or something of that nature. Again the decision is up to the vocational rehabilitation consultant based on the merits of the individual case.
Q: Has the department turned its mind to the relatively recent situation of these very young workers particularly high school students who are there for the experience as opposed to the money?
A: The government buys coverage for those students so what the expectation will be is that if the young worker is injured the adjudicator will often use their class average in the determination. Among the factors that would have to be considered are what the student’s intentions were, letters from principals and family, etc. So the rate can be quite high but also conceivably quite low if the student wasn’t planning to go to university and was going to work at McDonald’s. That then drives the extent of vocational rehabilitation that is provided.
Q: I guess you were saying that the wage rate for pension purposes might be relatively high compared to what that student was being paid when they were hurt. Is that right?
A: If you remember the discussion on average earnings there was a provision in average earnings. Section 33 requires the Board to consider an alternative method when the person hasn’t been at work very long.
Q: I am certainly very interested in hearing tomorrow how often the Board does that - what figures have been set when cases of work experience students have been hurt if you are able to come up with that information.
A: Okay
Q: I have some Code R questions. There are 3 items on the agenda that are in front of the panel for policy review. As I understand it those items don’t address the question of the function of the eligibility assessment that leads to the reduced rate. There were documents referred to at an earlier day that are in our binder. In those documents former President Parker agreed with me in a letter that I had written to him that the proper approach in deeming earning ability for Code R purposes was the approach taken for Section 30, which is short term temporary benefits, temporary partial benefits. And the difference between that approach and the normal earnings assessment that is done for a pension is that the Section 30 approach looks at jobs that are immediately available whereas the long term assessment looks at jobs that are available in the long run. Will the Board even under the proposed policy changes still be using that long term assessment in determining Code R amounts?
A: I am not familiar with your correspondence with Mr. Parker. Once an employability assessment is done and Code R benefits become applicable we are really into looking at the long term earnings. I guess the answer to your question is that we don’t take the Section 30 approach with income continuity. It is the long term approach but we do adjust the rate to reflect the conclusions of the employability assessment.
Q: You agree with the present practice?
A: Yes
Q: You described the differences in attitude among employers in terms of getting workers back to work when they have some residual disability and some accommodation may be required. I think that what you said was that some of them do some of the time, some of them do it most of the time, some of them hardly ever do it and very few of them do it correctly. It sounds to me as if the attitude of an employer toward that situation is pretty critical in terms of the Board’s primary goal of rehabilitation, which is to get somebody back to work - if possible with the pre-injury employer. Is that something that you would agree with?
A: Attitude is very important but those comments don’t always reflect the employer attitudes. Sometimes business processes are in place that don’t have any attitudinal aspect to them they are just there or not there.
Q: What do you mean by processes?
A: Return to work programs, disability management programs are something that I would categorize as business processes. It may be a lack of understanding or lack of knowledge around return to work purposes versus a good or a poor attitude.
Q: Of course there are some employers that can’t accommodate people with serious disabilities because the type of work just doesn’t provide for that kind of work.
A: That is correct.
Q: Would it be helpful to the process of vocational rehabilitation, in your view, if there was some sort of a statutory standard that employers had to meet be it towards their own workers or more broadly towards injured workers generally?
A: I gather that you are referring to duty to accommodate. Duty to accommodate is implicit in our current human rights legislation so it’s there. We do understand that many employers don’t understand their obligations or rights nor do employees understand how duty to accommodate works in the human rights framework. Would it be helpful for us? It is very difficult for me to say. I know that we did speak earlier about the fact that part of the role of vocational rehabilitation consultants is to try to encourage and educate as much as they can employers and workers around return to work including duty to accommodate issues.
Q: It sounds to me from your initial comment that only a handful do it correctly and some of them hardly ever do it that that education process could be difficult in some cases.
A: I would say extremely difficult in some cases.
Q: Would it be helpful if we could say to the employer that the act says that an employer is required to provide reasonable accommodation up to the point of undue hardship for an injured worker and the Board has certain powers to require you to do that if necessary?
A I am not sure if that is the role of the rehabilitation consultant. It certainly isn’t the role with the current legislation we have. That is there through human rights legislation. There is nothing preventing a consultant from saying to an employer if you don’t understand your obligations under human rights legislation you may find yourself in a difficult situation.
Q: Do you instruct consultants to bring up human rights as a kind of a threat to employers?
A: We would never instruct consultants to threaten in any way. What we need to do is to try and provide as much information as we can to try to encourage return to work to happen within the work place. It is more of a consultative and educational role.
I think it would be very difficult to force a fit between an employer and a worker if there was acrimony or it wasn’t going to work. What I hear from consultants that would be equally helpful would be to ensure that the 30 month window does not apply to these kinds of claims so that the full cost of rehabilitation and loss of earnings pensions or functional pensions are attributed to the employer who is being recalcitrant about returning their workers to their work place. That would add the financial disincentive for that kind of behaviour.
Q: There has been a lot of talk of negative sanctions such as fines or anything of that sort being used as a way of getting employers to be more cooperative. It seems that the Board’s general approach over the years has been more of a carrot then a stick. Is that fair?
A: I would say yes it is.
Q: It is also consistent with what Mr. Buchhorn just said he thinks would be most effective.
A: It is also consistent with vocational rehabilitation professional practice.
Q: You mentioned disability management programs. Does the employer generally institute that?
A: It is work place based and yes it is the employer’s program.
Q: It is generally something that can only be done in a fairly large work place is that right?
A: No I don’t believe that. I think that disability programs could be equally effective in medium and small size places of business. Perhaps it would not be quite the same magnitude with respect to transitional employment opportunities but I believe that good disability management can be practiced by all employers.
Q: If an employer wanted to institute a disability management program does the Board have any way of helping them?
A: Yes they do.
Q: What do you do?
A: Currently we’ve trained our vocational rehabilitation consultants in the general practices and principles of disability management. We intend to continue that training. We have 2 senior managers who are very knowledgeable with respect to disability management. The tack that we normally take is upon request. If we uncover during contact with an employer that they could benefit we will do a presentation for them. We will try to facilitate the various parties coming together for discussion. We always insist that the employer and the union, if there are unions at the work place, take an active role in developing it because if it is not done by the work place then it is not going to be a success.
Q: Does the Board initiate such programs or discussion about such programs?
A: Yes in many cases. That is an ongoing process.
Q: Has there been any consideration to offering a systemic incentive to employers who cooperate more on a regular basis with returning injured workers to work perhaps through either reduced assessment or some sort of a grant?
A: I just want to add something to what Julie said about providing support to employers. About 2 years ago a group of individuals in the department put together some information into a booklet about some of the disability management initiatives and what some of the companies are doing in BC. We make that available to anybody who is interested.
On the issue of incentives it is certainly something that has been discussed. To my knowledge nothing has formally gone forward to recommend any particular way of doing that. I don’t believe anything formal has been proposed.
I have discussed that concept with Mr. Fattedad as part of the employer services initiative and we have discussed it with Richard Pementall who is a North American expert on disability management. There are other jurisdictions that have gone quite a way in this regard with respect to providing a discount on the employer assessments based on the institution’s good training and disability management programs. That is something that I will be advocating for within our executive group.
Q: There will be some consideration of that during the review of the assessment process?
A: There will be. The ultimate decision obviously is with the panel of administrators but certainly Mr. Fattedad and I have discussed that concept.
Q: I wanted to discuss liability assessments and specifically the use of deeming. Mr. Steeves asked you a couple of questions on some of the more notorious aspects of deeming - parking lot attendants, Walmart greeters, etc. How does the Board determine whether it is appropriate to deem a person who has been working in one type or one level occupation into something entirely different? Suppose you have a skilled millwright who has been working in that profession for 30 years but he just can’t do it anymore. Is there any thought about the impact or the realism of telling that person that you want them to go sit in a kiosk in a parking lot and if you don’t do it we are going to deduct what we think that you could earn from your pension?
A: The whole concept of rehabilitation intervention is certainly to look at maximizing someone’s potential and just because somebody has been in a single industry for most or all of their working life does not necessarily mean to say that they have skills only related to that employment or that they might not have transferable skills. Yes we realize that probably for somebody that was a millwright or in construction for 20 or 30 years it may be difficult for them to accept that they may have residual skills in other areas. It is a process that requires a lot of tact and ongoing consultation of the worker as well as any other party that may be involved in the process. At the end of the day we are responsible for trying to assess somebody’s maximum capabilities. Whether somebody has a personal preference which outweighs where we might want to go so we have to take everything into consideration.
Q: You have focused on one aspect of the example that I gave and that is that the worker has limited experience in other areas. There may be a problem of resistance or the fact that a person feels uncomfortable in other jobs. I am thinking more of the aspect of this person’s sense of self-image, self worth and self dignity. Would you say to a vocational rehabilitation colleague who has been very severely hurt in a car accident and who is not going to be able to work at the Board anymore that we are going to deduct what you could have earned if you had sat at the entrance way to Walmart and said hello to people. Would you view that as an appropriate decision for the Board to make?
A: I would suggest that it may be appropriate after a certain process has been undergone.
Q: Why not recognize that that person is 100% unemployable?
A: In some cases they might be unemployable but in many other cases they may not be 100% unemployable. I think that there is meaningful work in all these kinds of job.
Q: I am not saying that there is no meaning or value in the job but is it realistic to say that the person who has been doing another type of work paying several times that much involving education and experience that they worked their lives to obtain will feel anything other than humiliated being simply forced to do that job or getting a cheque which basically says you are lazy so we are taking this money off your cheque every month? Isn’t that just a denial of human nature to deem in a case like that?
A: No I don’t think so. It is a complex process and there may be a certain percentage of workers who are going to feel some personal loss of self esteem or humiliation because of that process but I would say that that is a very rare occasion. We cannot deem workers unemployable if they residual capacity there.
Q: No matter how residual?
A: It is a matter of degree isn’t it?
I would also like to add something. Every other disabled group within society struggles for access to work and into the work place. Your point of view seems to be that because that worker is a disabled worker that should not apply and that these people should not be allowed to add value in perhaps some other form of work. I think that you are making the assumption that people do not want to go back to work and they just want to maximize their pension. In Alan Hunt and Mike Leighy’s review they went on at length to say that there is a necessary evil to a dual award system and that is deeming. In other jurisdictions they don’t have that issue because they don’t have a dual awards system.
I would also add that, not knowing the details of every specific case, if the worker felt that the particular job was below their personal dignity we offer vocational rehabilitation services to enhance skills. So if that person was of an age and physical ability to utilize vocational rehabilitation then we would try to provide them with that to try and offset the loss of earnings as best as we could.
Q: I think that I am going to leave further questioning on this for tomorrow.
A: On Code R, Mr. Sayre, I offered to have you provide examples to me of the negative side of the Code R issue and you’ve provided other examples of workers that have been, perhaps, disadvantaged. I would still like to offer you that opportunity because it is frustrating for me to have sat through a year and a half of criticism about the impact of Code R and yet have no real live case that you can refer me to on this particular issue.
Q: I think that any time when a long term employability assessment is used to reduce Code R then clearly you are measuring the short term loss by a long term assessment. What I was hearing you say was that you felt that was appropriate because at that point you are moving into the long term view of things. That struck me as the Board’s answer.
A: That’s right.
WINTER
Q: On the employer side I think that the Code R concern is the front end as what Mr. Buchhorn has described as parking workers in Code R. If I understand correctly the front end of code R is now called Code U?
A: It could be called Code U or Code E depending on the circumstances. Generally speaking Code U is the title initially for planning purposes.
Q: You have always had a Code E. That didn’t change in 95-96. You had a job search code, Code E?
A: That’s correct.
Q: I take it that you are still using that for a similar purpose to what you did before?
A: That is correct.
Q: You never had a Code U if I understand it before 1996?
A: No Code E was used for planning purposes.
Q: I thought it was Code R?
A: No
Q: I see the letters and I don’t always see the codes in them. My experience in almost every case is that a worker who is plateaued or stabilized goes on some kind of income continuity. I just found that as the general practice and I didn’t know if that was Code E or Code R but they go on something. Is that basically right?
A: Once a worker reaches a medical plateau and Section 29 or 30 benefits end preferably the rehabilitation consultants would have received a referral prior to that. If they had then they would be able to take a first look and determine whether or not there was a mandate and some eligibility. Then we would have to decide which code is applicable. If a file should come, unfortunately, at the time of plateau when there isn’t much time there the rehabilitation consultant has to make a very quick determination about eligibility and decide which code would apply.
Q: My experience is that when it is found to stabilize and plateau so that the wage loss is terminated the letter always says, in those cases because they haven’t returned to work yet, that the file will be sent to disability for assessment on pension. Then there is almost always a phrase in there trying to reassure the employee that you are going to hear from the rehabilitation consultant and it is likely that you are going to get income continuity benefits. It seems to me that in almost every case where someone is going to go on any pension they almost always get an income continuity. Do you think that is fairly accurate for a vast majority?
A: Yes
Q: The concern employers have is that we are really using these income continuities, whether it is Code R or Code E as an extension of wage loss when the policy says wage loss stops because you have stabilized. Something that we will talk about in April that may have to be corrected is how long it takes to get the pension assessed and that we are using the rehabilitation income continuities for an improper purpose. It is not being used for active participation in rehabilitation it is being used because we understand that there is another problem in the system. Pensions are not responding fast enough to accommodate the bridge between cut off from wage loss and pension. The worker should not be put in the position where they have no income coming to them but the concern is rehabilitation is being used for the wrong purposes. Do you have a comment on that?
A: That was part of our concern through the audits and the file reviews that have been done from 90 to 94. I would also suggest that where there is a rehabilitation mandate the worker should not suffer. There needs to be an eligibility decision made and there needs to be benefits supplied in those cases.
Q: The employer community has no problem where someone is going to go into active rehabilitation then as the policy requires they should be getting income continuity. It is the cases that are being parked that present a problem. That is where I get back to Code U. It seems like you are acknowledging that there is a problem in the use of Code R and the way it was used before and that you are trying to get around that. I don’t see how you did that with Code U. Would you agree that Code U is using as much if not more money than what was spent on Code R?
A: No I don’t think so.
Q: Let’s look at your chart. You have a chart here called vocational rehabilitation expenditure by code year to date December 95, 96, 97. It is about 4 pages after the 7 guidelines. Just to put it in context the administrative inventory, the follow up one of 95-96 set out a schedule showing the various code expenditures for each year from 86 - 94. Are you aware of that generally?
A: Yes
Q: It says that for Code R in the last year they had 94 there was and $68.6 million spent by rehabilitation altogether. That was the high point or the most spent in 1994 if I understand that correctly. Of that amount $8.5 million was Code R and that was before there was a Code U. Now look at your chart and if I understand in 1996, the first tall bar, that is $13 million and change isn’t it?
A: It appears to be yes.
Q: That is $5 million more than the 94 Code R. Is that correct?
A: Based on those figures yes.
Q: And 97 is even a little bit more.
A: Yes
Q: So more money is being paid on Code U than Code R. Would you agree with that now?
A: In those particular circumstances, in those years yes.
Q: And it is a greater proportion of the rehabilitation budget because the budget is now down to about $45 million if I understand whereas in the 1994 year it was $68 million. So now even a greater percentage of your budget is going to Code U. Is that correct?
A: I haven’t done the math on that but I will take your word for it.
Q: I know it is correct so we will just leave it then. When you look at 95 on your chart you have Code R and it is at about $6 million and change. We start having some Code U at about $3 or 4 million I guess for a total between the Code R and Code U of about $9 to 10 million.
A: Yes
Q: Which again is more than the 1994 Code R by itself of $8.5 million. So the employer concern is still there. We are spending a lot of money at the front end to what appears to be parking someone. Let me give you my examples again of the cases that I have seen when I read the files. The policy 89.11 says that to be able to get this income continuity there has to be two prongs. One is that there has to be a significant loss of function pension or a determination that there is going to be a loss of earnings pension. Is that correct?
A: Those are the 2 categories yes.
Q: No there is another category, the worker has to be actively participating in rehabilitation.
A: Cooperating to the best of their ability.
Q: A lot of these files, what I am seeing, is that every 2 or 3 months there is meeting for an hour or so that involves the vocational rehabilitation, the worker and the employer and they all agree that the worker can’t come back to work yet and the worker stays on Code R now Code U. Is that accurate does it happen a lot?
A: No I would say that that is not accurate. Code U is meant as a planning code and it is meant for active vocational rehabilitation planning.
Q: Do you have any time limits then on how long Code U would last?
A: We generally say that we want Code U planning process to be 13 weeks. There is always exceptions of course.
Q: I guess I always read the exceptions. I have seen people on Code R for 2 or 3 years, is that accurate?
A: Yes I have seen that as well.
Q: So there could be people on Code U planning for 2 or 3 years?
A: It is possible but it is becoming less frequent.
Q: That would go against, wouldn’t you agree that that long is against active participation in rehabilitation?
A: It depends on the circumstances of the case.
Q: Again I think that the circumstances of the case, which we all have sympathy for, is that the person is stabilized so that they are cut off wage loss and they haven’t gotten their pension yet. They are sitting there for 2 or 3 years and getting income continuity, which in effect is wage loss.
A: That would be a very exceptional case if somebody was on Code U benefits for that length of time. The managers monitor the printouts from the case loads regularly and where they see generally somebody that has been on Code U for anywhere from 13 weeks to 6 months they have that file pulled and reviewed to look at the individual circumstances.
Q: What is happening then in these 13 weeks to 6 months. What entails planning, what is a vocational rehabilitation consultant doing with that worker and employer and whatever else on that particular file?
A: Normally they are making a contact with the employer.
Q: How long on average does that take. Half an hour or an hour a day?
A: It depends we are trying to encourage work site visits where ever possible.
Q: So on average 1/2 a day?
A: That is fair but it could be less. The first job that a vocational rehabilitation consultant has to do when they get a new claim is to do a vocational assessment. That requires an in person visit with the client and a detailed analysis of their work history, their residual strengths and abilities, their transferable skills. It is a fairly intense process and we like to see it done thoroughly and done well.
Q: About when is that done?
A: It should be done within the first 2 weeks.
Q: How long does that take to do?
A: Probably about ½ a day.
Q: My understanding is that Code U, then Code R, is paid from the first day of that 2 week period.
A: Yes
Q: So we’ve got a 2 week period so far, Code R, Code U with about a 1/2 a day of activities.
A: There may be more activities. The file review may have to take place and it could take a long time if it is a large file or if there is complex medical information. The consultant might decide that he or she has to talk to other specialized resource people on that particular file so that there will be some activity there. A work site visit might form part of that initial assessment period.
Q: What happens next after this initial assessment period is done?
A: It depends on the circumstances. The consultant will let the client know that the planning process has begun and will explain roles and responsibilities as I outlined for you earlier today. The consultant will also try to engage the client in setting realistic goals based on some realistic time frames to try and get a rehabilitation plan developed, agreed to, budgeted and approved.
Q: This is all within the 13 weeks?
A: That is the service expectation but we recognize that in some cases it could take longer for a variety of reasons.
Q: Three pages later in your presentation is this busy chart entitled Vocational Rehabilitation Assistance.
A: Yes
Q: When you look at the top line that you gave us this is the person who is in vocational rehabilitation planning, the rehabilitation planning job search, the Code U until the unemployment assessibility, etc. Underneath you have a little box that says the worker refuses to cooperate. I think that you said this morning that if a worker says he or she is not interested in return to work and that they don’t want to do anything I think that you said the vocational rehabilitation consultant still has to do an employability assessment. Is that correct?
A: Yes
Q: I think that you said pending the employability assessment Code U payments are still going to be made. How can you possibly tell me that under a policy that says the client has to be actively participating in rehabilitation when they specifically say I am not interested, leave me alone that you can pay Code U?
A: This is certainly where the gray area of vocational rehabilitation comes in. There are levels and degrees of cooperation, non-cooperation, withdrawal, other circumstances that come to bare on a worker’s case. In this particular situation I think you recall I said earlier that this is just 2 of many scenarios we could deal with individual workers. In the case of the worker that I spoke of when they had decided to withdraw because their pensions were going to be in place and they had decided to exercise an early retirement option it would seem - this is a hypothetical case - that it would be reasonably easy for a rehabilitation consultant to complete an employability assessment within a fairly tight time frame. They could exercise some discretion as to whether Code U is paid or not. Quite honestly, in practice it varies. Some rehabilitation consultants would not continue to pay that Code U pending the employability assessment and others would. In the case that I spoke to that is a really gray area of withdrawal and non-cooperation. If it were me I would pay those Code U benefits until the employability assessment was completed, which in my view should be 2 to 3 weeks.
Q: And then another 30 days because if you get a policy decision that you are seeking even though they told you that they didn’t care you still have to give them another 30 days of Code R and then you could bring the Code R down to what the pension should be.
A: Correct
Q: The difficulty that I have here is these gray areas. I understand gray areas but it seems that yours is the extreme even. It seems very difficult to get someone cut off Code R even when there is no rehabilitation going on. I guess the focus that the employers have been hearing for 8 days now, for example, with ERA we hear how there are disincentives built into the ERA that employers can do certain things. Or we have heard that after the 30 month window what is the incentive to get the employer back to looking at return to work and Mr. Buchhorn would like to see that window changed so that there is an incentive. Can you possibly explain to me what the purpose of getting a worker to participate in whatever that means in a good return to work program when they know that they are going to get paid full wage loss for a significant period of time even when they come and say to you that they are not interested? I don’t understand what that incentive is.
A: I wouldn’t portray myself as an expert on worker motivation or incentives but I believe that in that particular case that we are looking at some administrative delays and coming to a conclusion about that workers employability. In my professional opinion it wouldn’t be fair or correct to conclude benefits until we had gone through that process.
I would like to add that a lot of these workers are in this predicament because their pre-injury employer won’t accommodate them back to their original work place. While that may not be possible for some workers the fact that they are in this predicament of having to use transferable skills to find other employment is within the control of the pre-injury employer That’s why I think there should be a financial disincentive to putting people out on the street and put the onus on the individual to find a job in another industry, which is very difficult.
Q: Where is the financial disadvantage on the worker who says that they aren’t interested but they know that you are going to pay them?
A: As Julie said we have to assume that people are motivated to return to the work force. Where they aren’t that is why this practice change was implemented. Where people are not interested in returning to the work place we are going to use the estimated loss that they would receive from their pension and implement it as quickly as possible. The original practice change was to implement it immediately upon the employability assessment being concluded and then we moved it to 30 days so that the worker would have an opportunity to comment on that.
Q: Section 16(1) says this "to aid in getting injured workers back to work or to assist in lessening or removing a resulting handicap." How can Section 16 kick in and give anything if the person says they aren’t interested in doing anything.
A: As we mentioned earlier virtually 50% of the work that vocational rehabilitation consultants do has nothing to do with return to work. There are other aspects of the job that come to bear.
Q: We are talking about Code R or Code U. I am not talking about home assistance or any of those others.
A: We are talking about employability assessments, which is part of that 50% that is non-return to work.
I think that you are recognizing the origins of this policy though when you use... the Board thinks it has a lot of discretion under Section 16 and it is using it in its broadest sense. The implicit recognition behind this policy is that it is something to bridge between the 29 and 30 temporary and permanent provisions of the act. I hear the opposite argument but this is the time frame in which a life time decision is being made on loss of earnings. In trying to find the balance between paying the full benefit through this transition period and paying the "deemed" benefit too quickly and where a worker says that I don’t want to go back to work then we say really think about it. Are you saying that you don’t want our help in going back to work then put it in writing. We will then allowing, even for purpose of ultimate fairness, we will actually maintain the full rate before we "write you off or write you off at a lower rate." If you accept that employability assessment or you don’t offer some good reason why you are not then it will affect your ultimate pension. The chart makes it look an awful lot longer than it is. That process could occur within 3 or 4 weeks with possibly 30 days beyond that. Once it goes to appeal it will seem like a much fairer process at that point.
Q: I am getting to the point where the worker has already told you that I am not interested. You are going through for your own reasons, for your employability assessment, which you have to do. Yet the Board is still paying the worker when they are saying that they aren’t interested. I have the compassion that there is a bridging there but you are taking problem on the pension side and using rehabilitation improperly to fill that problem.
A: Tomorrow you will hear about the initiative that will speed up the pension process, which is the whole issue of the speed of the functional impairment, sorry the PFI exam and some of the other initiatives we are taking. That should shrink the time that it takes to establish the pension.
Q: You mentioned duty to accommodate. I take it you are aware, due to your labour background, about the duty to accommodate under human rights. Would you agree that the worker has duty to accommodate as well?
A: Yes
Q: A lot of the files that I have seen when physicians are put forward by the employer it is the worker that says I can’t do that. The worker has the set position that the worker wants and that is the only one they want. Do you think that that is an accurate depiction of some situations too?
A: I think it is and that is why I think that Mr. Hartman read the description of the Saskatchewan model to show us another model that puts a duty on the worker to mitigate against loss.
Q: I am getting at the incentives or disincentives on the employer to want to have a duty to accommodate and what about worker’s incentive? The only incentive I can see if they aren’t motivated to go back to work is the negative incentive that you are going to be cut off rehabilitation if you don’t participate. If the worker is not prepared to accommodate is that a fair reason to stop Code R or Code U payment?
A: Well certainly and that speaks to the point of having the vocational rehabilitation consultant active in the work site so they can see the kinds of dynamics that are ongoing. Although we don’t specifically talk about mitigation of circumstances I think that it is an underpinning of all of our vocational rehabilitation policy. We talk about worker involvement, commitment, taking their own initiative and certainly that comes down to the whole issue of accommodation. If there is something that is considered physically suitable for that worker and they refuse to take that particular position then that is a just reason to terminate benefits.
Q: Are there any statistics on how many workers were cut off Code R in the old days and Code U now before the pension would kick in?
A: No
Q: Let’s look again at the expenditure graph. I want to talk about Code M. Code M is the miscellaneous code is that correct?
A: Yes
Q: Prior to changes in 95-96 it was used for moving costs, alterations to a work site, business start up costs, computer supplies, special equipment tools, etc. Is that correct?
A: Yes
Q: One of the major concerns raised by the administrative inventory follow-up was the Code M increase to $13 million. Is that correct?
A: Yes
Q: What you created was two new codes that have been in Code M before and they are called Code S and Code T. If you were doing a comparison then you would have to look at Code S and T to compare with the previous Code M from 96 and 97?
A: Yes
When we are talking about Code U and Code R those are not the only 2 codes that have existed historically to pay benefits during vocational planning. Code E was also used. Code R was the exception. It wasn’t the chosen code to put a person on for planning that was Code E. When you are talking about the balance between Code U and Code R you also have to take Code E into consideration. There you see a dramatic drop, which definitely shows that there are less people in that waiting pattern as a result.
Q: Reason I did Code U is because I think it replaces R. I certainly accept that the Board has managed to get the cost down from $68 to $45 million. It looks like Code E is a significant aspect of where that cost came. I didn’t see where you moved those numbers so I appreciate the significant decrease that has been seen in Code E.
A: I don’t agree that Code U replaced Code R. Code U came out of the Code E recognizing that Code R was being used for the same purpose as Code E. I would suggest that Code U came out of Code E firstly not Code R.
Q: You were talking about the total cost of rehabilitation and that it has been fairly stable over the last 2 years– about $40 or 45 million. I think that you said that was a target break even point and so that’s good. What did you mean about the break even point?
A: I was referring to Code R. What I said was that the costs in Code R appear to be under control. It looks like we are coming to some kind of break even point with respect to the pension refunds and the expenditures.
Q: You were also asked how the case management plan will fit in with making decisions and the consultant . My understanding of the case management system is that it is supposed to be a centralized decision maker to case management and all the other resources are working with the case manager throughout the claim so that it is not linear it is a group effort. I was left with impression that all decisions are going to be made by the case manager. Then when you were asked if there was conflict between the vocational rehabilitation consultant and the other members of the case management team are a little hesitant who makes that decision. I got the impression that all of a sudden there was another client service manager, maybe a senior manager, maybe a vocational rehabilitation manager that is going to get involved. I thought that either you or Mr. Buchhorn could explain again how the case management system works when its in place everywhere. Who has financial authority on vocational rehabilitation?
A: The case management model is built around a primary source of contact and accountability for the delivery of services. The delivery of services includes psychological services delivered through the psychologists, medical services delivered through the role of the medical advisor and the attending physician, clinical rehabilitation, etc. Each of those areas will continue to have a functional department for professional matters and for accountability for professional work so that it would not be appropriate to view the medical advisor in the case management model as subordinate to the case manager or the psychologist as subordinate to or the vocational rehabilitation consultant as subordinate to. Each of them have a clinical role to perform in accordance with quality expectations and timeliness of service. The case manager is the coordinator for the delivery of those services. Where the team is in conflict about a decision the way to resolve that is to elevate the discussion to their managers.
Q: I thought that when you talked about it from a medical view point that the medical was there just to provide medical input and that it was always, I am pretty sure that was said, now the claims adjudicator and then the case manager that will make the actual decision. I don’t understand how you get into a dispute then if there is one person that makes that decision.
A: The case manager is accountable for the coordination and delivery of services. Where there is a medical plan placed before the team by the physician everybody will understand what the medical plan is. When the vocational rehabilitation consultant discusses the return to work plan everyone will understand what that is. The case manager will continue to have the adjudicative responsibility for making entitlement decisions and those kinds of decisions that the adjudicator makes today, to coordinate the delivery of services and be accountable to the client for the professional delivery of services.
Q: Let’s say the vocational rehabilitation consultant makes a decision and the case manager disagrees and they have to make the decision for loss of earnings and which position is better for loss of earnings purposes. That would be the case manager that would make that decision based on the information provided to him or her.
A: In the future when the disability awards piece is integrated with case management - that is under development - the adjudicator would make the decisions with respect to implementation of the recommendation from the vocational rehabilitation consultant with respect to the deeming issue.
Q: So it is just implementation then? The vocational rehabilitation consultant still makes the final decision then that this is the job for deeming purposes. The case manager has to live with that decision.
A: Or elevates it.
The reason for the prototyping and piloting is to work on defining the roles and responsibilities in a little finer detail. The vocational rehabilitation interface is almost the last interface that we have worked on in the case management model with the exception of disability awards. When the Vancouver Centre North pilot is in place we expect to get a lot of the answers with respect to specific responsibilities.
The benefit from that model is that we can be delivering services concurrently whereas in our traditional model we were delivering them in a linear fashion, which was extending the life of the claim.
Q: Mr. Buchhorn this morning you made a statement about what is the right number to spend. You gave some sort of answer about how the target shouldn’t be on the expenditure the target should be on the outcome on the individual workers. When you add up all the money spent on the individual number of plans that is the right amount of money. Now wrong decisions can be made when you are spending the money on an individual work plan. I am going to give you some examples of rehabilitation plans particularly on purchasing businesses or retraining, which on the face seem strange. The purpose of it is to ask one or two questions. Do you agree it’s strange on the facts that I am giving on the face and if the answer is no then tell me no. If the answer is yes then I will be exploring what are the processes that you put in place to try and avoid those types of situations again in the future. The claim numbers are all 92 – 94 era and I will give the claim numbers. My rationale is to see how the Board is trying to deal with extremes and how will they deal with them in future?
In 91-92 a person worked as glazier and developed isocyanate sensitivity. He decided he wanted to change careers and he was the main initiator of the direction that he wanted to go in. He wanted to become a golf course administrator and the Board agreed for the worker and his wife to be funded to go to San Diego to take the course for 2 years. It ended up being about $188,000 in rehabilitation, wage loss, training and living expenses. The strange part the employer community finds is funding them to go to San Diego.
A: It looks like we spent a little less than $100,000 on this case. I agree that it is quite odd to send a person out of the country for training. If this were to happen again the possibility would be given a good deal of scrutiny if we were looking at training outside of the country. Aside from the perception there are some obvious difficulties with respect to monitoring. At the time when this decision was made there was no vocational rehabilitation department , there was no real good clinical oversight. The individuals involved in making the final decisions on this case may not have had any vocational and rehabilitation background or experience. It appears as if it may have been a logical conclusion to identify the particular occupation for this individual because it appears as if the process –vocational rehabilitation process – was well thought through. I further understand that this person is currently unemployed.
Q: It sounds like there is more training, scrutinizing and monitoring. There was a person who wanted to be funded to start painting business in Hawaii though. Are you aware of that example?
A: That came about a year ago and it came about after many years of vocational rehabilitation activity and some appeal activity. We did approve it but only after a tremendous amount of scrutiny. We had an independent business study done initially and we had a further study done very recently to look at the labour market, we debated it considerably through the vocational rehabilitation committee and our divisional controller looked in great detail at the financial with respect to the possible success of that plan.
Q: The approval I take it was with some funding to get to Hawaii and start a business in Hawaii?
A: I am not sure if we provided travel. Normally when looking at a self-employed business start up sometimes there is a relocation involved.
The person had lived in Hawaii before and operated a business there before so I don’t think that there was travel involved.
Q: A different type of example is a worker who was funded by the Board to get a truck for their business and then they sold the truck to get the money. Is that a situation that you are aware of where you fund somebody for a business or something and then they sell it and keep the money?
A: In cases where we buy equipment we put a lean on that piece of equipment, usually for 2 years. The worker would have to get lean discharges in order to sell the asset and in some cases we have even extended it to 5 years.
Q: What about funding someone to start up a business and they want to sell the business? Do you have a control like a lean in that situation too?
A: On capital assets yes.
Q: The last 2 examples are similar. I will just give one. It is a 92 claim and this is one that went to the review board. The worker was employed as a plumber and he claimed that cutting and cleaning tubing resulted in lateral epicondylitis. The plumber wanted to become self-employed as a plumber because he figured he could pace himself. The review board said that he should go back to his pre-injury employer and they could work on his modifications that way and it was overturned. You agree that also sounds strange?
A: On the surface that does sound odd.
Q: What are the systems that you have in place now to make sure that those kinds of expenditures and decisions are reviewed or not made before hand?
A: There are various levels of expenditure authority in place. The vocational rehabilitation consultants can spend up to $10,000 under their own discretion without any management approval although some consultants will decide to discuss a plan with a manager or a colleague in case conferencing. The next level of authority financially is to the first line manager and that brings the budget up to $40,000 so there is a tremendous amount of scrutiny there. The next level is the director level, which I have delegated to my senior management and that brings expenditures to $75,000. Any expenditure over $75,000 or any business start up, regardless of cost, must come before the rehabilitation committee, which is comprised of myself, Julie Wakelin as director of vocational rehabilitation, the divisional controller Roger Piper, the regional manager of claims Steve Barnett and currently both Chris Hartman and Greg Weaver alternate as the senior managers sitting on that committee. Any business start up goes first to the divisional controller or to Mr. Barnett who is a chartered accountant to look at the financials. We require very good feasibility studies that speak to market and also do some cost projections. Mr. Piper and I have been liaising with BCIT and their venture program to see whether there is any partnership that we develop with that institution who have 10 – 15 years of positive experience in assisting people who wish to go into business start up. We are concerned and have been as concerned about expenditures for self-employment through business start up. Given the statistics for any business start up in the province the failure rate is very high. It is a form of rehabilitation intervention that we want to make sure is being only delivered in the most prudent way possible. So there are lots of checks and balances in place. We mandate the managers to have case conferencing sessions on a weekly basis with the consultants so that any case that may appear to be a little odd as some of the ones you’ve mentioned can be discussed at that level and perhaps steered back on course if it looks like it is veering off course. Quite a few cases will come to the rehabilitation committee for approval in principle prior to any commitments being made.
Q: When you were into these business start ups we are into stage 5 of vocational rehabilitation. We have gone through the 5 phases of – the pre-injury employer, same industry, other industries and now we are into the last phase. Is the employer involved in advance. I know that he gets a decision letter after the fact charging the costs to us but are we involved in these odd cases beforehand?
A: You should be and we’ve been instructing the consultants to ensure that there is dialogue in every case. We’ll be continuing to insist that that happen. I would also just like to mention to you that we are in the process of undertaking an evaluation on business start ups through our program evaluation research unit. We are expecting the final report to be available to us by the end of March. It is a retrospective study and it looked at quite a few business start ups. We had to dig a little to get the statistical information and the sample size but we are relying on that particular study to really guide us in the future with respect to our business start ups.
Q: So this is like a durability test on business start ups? After a certain period of time - a year, two years, three years - is it still there and how viable is it?
A: Correct
Q: That takes me into outcomes in general. You’ve put in a chart that has shown us the increase in the referral to return to work rate of 36%. I understand that there are a lot of referrals that are non-return to work. I would like to talk about measures there, how we measure outcomes and what are the targets in terms of whether the Board is succeeding in its return to work program?
A: We are working towards an 85% return to work of those who make it into the referral system by 2000 or 20002.
Q: There are obviously a lot more claims that don’t get into the referral system. If someone sprains their ankle and is back to work after a week they don’t have to get involved with a vocational rehabilitation consultant regardless off the current system of case management because they are back at work. That is not part of your return to work target? You are talking about ones that fall under your current referral guidelines that we have looked at before.
A: Those other cases would be measured through the continuum of care return to work results.
In terms of other outcomes from a client satisfaction perspective we have just initiated in vocational rehabilitation the other initiatives that we are engaging in within the division and that is that every decision letter will have a card for the worker to fill out on how we did. Angus-Reid will be engaged to do some follow-up surveys for us with respect to vocational rehabilitation client satisfaction. We are currently doing a 90 day follow-up on some of the vocational rehabilitation interventions. Our next program evaluation will be formal training with respect to when we invest in training for workers, how many of them actually go back to work and at what earnings level? Is this a good intervention for us to be engaging in, what attributes would indicate success, similarly in the business start up, what were the attributes that contributed this success, what were the attributes that contributed to the failure? As with the claims area this area is going to be brought into the evaluative framework that currently exists for the claims.
Yes the formal training evaluation is also currently under way and we are expecting that one to either report out at the end of March or there is some consideration being given to folding it into the business start up evaluation. We will know that shortly.
Q: One other area I wanted to explore was the topic of mandatory re-employment. I know Mr. Hartman addressed it briefly. There are two papers that I would like to go through with respect to the negatives that are raised there. One is Item 105 that was dated February 1975, which was prepared by then chair, Ison at the request of the minister responsible. There was a discussion paper, Recorder 2WCR33. The other one is also written by Professor Ison but this time in 1994 when he wrote a book call Compensation Systems for Injury and Disease The Policy Choices. Professor Ison raises negatives about mandatory re-employment. The whole panel’s impression is is that valid in the 90s, what we are doing in BC and how does that work? The first comment he makes is that his view was that the focus when we talk about mandatory re-employment is really not on an injured worker who has total recovery from a disability. The reason being is that there is no residual disability, most employers generally have their worker back to work, they are fully recovered, they are a trained worker and if they don’t want them back it is usually for a reason completely unrelated to the disability. Do you have thoughts on mandatory re-employment of a worker with no residual disability?
A: I am not sure what you are looking for other than to say that a lot of those individuals would be returning back to the current system without that mandatory legislation.
Q: His view was if we are looking at why we would have one. It is not from the view point of the totally recovered it is from the viewpoint of the one that has the residual disability.
A: I think that in most cases that would be true. Although there are cases where a worker is fully capable of returning to work and the employer, for what ever reason, choose not to have them back.
Q: What he says is in that situation you now have someone who is completely recovered and when they return to work they are treated differently than any other worker. The employer always has the right to terminate with or without cause pay the price under employment law or labour law if they did that. Why would you treat an employee who has no residual disability any differently than any other worker?
A: If the individual is cleared to return to work at their pre-injury duties and the manager won’t take him then that would be taken up under a different act.
Q: That is what he is saying too. So you don’t need, he says, mandatory re-employment for that worker who is totally recovered even if the employer doesn’t want to take him back because there are other schemes in labour relations or employment to deal with that situation.
A: It does add to the cost of the system, particularly in small business environments and non-union environments when people are replaced because they were injured. There may be, as a result to that, an entitlement to vocational rehabilitation although it may be small. It does create the problem of the Board’s mandate to return people to employment. If a worker is ready to return to their pre-injury occupation and the employer says that he or she has already hired someone there may be a cost to the system in terms of taking that approach.
Q: The assumption here is that the person is totally recovered, they have no residual disability and no need for vocational rehabilitation. They just don’t have a job. This is a human rights issue then if the employer is just saying that you were injured and we don’t want you anymore.
A: It depends how seriously we take our mandate of return to work or whether we are looking for claims closure. That debate has raged within and without the organization. I am not sure that our responsibility necessarily ends when we have restored function. Someone lost their employment as a result of an injury even though they had their function restored. I can see your point of view but I would suggest that there is another point of view as well. Everyone who works with workers who are disenfranchised from their former place of work, when they have full recovered, would make the point that it adds complexity and difficulty to the system. Now if we are just interested in closing the case and checking out then that would effectively be done. I think that we see our mandate as beyond that. We see our mandate to assist that worker to return to some form of gainful employment.
In fact that is one of the eligibility criteria for referral if you recall when we shared those with you earlier. I would assume that you are not including workers that need rehabilitation assistance on a preventative basis due to an allergy or something like that.
Q: I am talking about person with a papercut on their finger that gets infected and they are off for 2 days and come back to no job.
For people that have a residual disability the first point that Professor Ison raises is that mandatory re-employment provisions tend to create a negative image of the disabled worker as being a burden that the pre-injury employer must bear. On page 36 of Decision 105 this is how Professor Ison describes it. The passage discusses the success of return to work as not only the return to their pre-injury position but also as maintaining or recovering their self confidence and self respect. Ison also said that a person should be hired for their abilities and not because of their disability. What are your comments?
A: I agree that disabled individuals should be viewed and treated with respect to their abilities but I would say that if that argument was extended to include other target groups within the Canadian context then why would we have employment equity legislation? That would then lead us to presume that somebody who is a woman or a visible minority or a disabled person would feel those same things and have those same barriers when returning to the work place. This is a philosophical question.
Q: The next point he raises is that the right to be re-employed may result in a detrimental impact to any other rehabilitation efforts being made. He starts out with the worker’s perspective and says that they may be disinclined to consider other rehabilitation efforts because they know the pre-injury employer must take the worker back. In rehabilitation we often try to motivate an injured worker in the development of new or different skills to overcome the efforts of his injury so that he will be a wanted and needed person by future employers. He may be disinclined to make that effort if he knows that his pre-injury employer has an obligation to take him back. As one rehabilitation consultant put it, the negative effect that the suggested legislation would have on employers and workers would negate much of the present positive philosophy. As rehabilitation consultants we need the willing cooperation of the employers as well as the desire to overcome disabilities on the part of the employees. Any comments?
A: Ison has said that there has been too much made out of outcomes and measurement in the area of vocational rehabilitation and I disagree with that. I think that it really misses the point that the most durable vocational rehabilitation intervention is with the pre-injury employer. When we lose that whole attachment to the pre-injury employer the outcomes go down significantly. That whole argument I think in fact makes the whole job of vocational rehabilitation much more difficult.
Q: He comes to a point at the end where in most cases the employers, for a variety of reasons, do want to have the worker back or are required to have the worker back be it human rights, be it a collective agreement, be it an experienced work force that needs or wants the worker back or be it a moral obligation. What we are talking about here is using mandatory re-employment for the extreme edges as opposed to the general that you are not going to have a problem with anyway.
A: Again this is philosophical. We don’t have much information from other jurisdictions who have experimented with this kind of legislation. We would like to see more before we could offer further comment.
Q: Ison talks about the disincentive of having other rehabilitation efforts made and he now looks at it from the rehabilitation consultant’s perspective. He says that there may be a disincentive to look at other alternatives or to determine if it is in the best interest of the worker to return to the former work environment. He says that a statutory obligation may tend to militate against the sound consideration by the rehabilitation consultant about whether a return to the former employment would be the wisest course. The administratively easy choice is to return him to his former employer. Before you comment I just want to mention something that he says in his 1994 paper. He goes on and says that the ostensible right to continued employment also creates a notion of rehabilitation that is incompatible with a sound rehabilitation service by a compensation Board. One problem in the past has been that a return to a pre-injury job with the pre-injury employer has been too automatic. Indeed many of the Board have prescribed the return of a work to their pre-injury job as the primary goal of rehabilitation. Of course it is a desirable goal for most people who have sustained a disability but they are not usually the ones for whom rehabilitation services are needed. The problem is that what is usually a desirable goal tends to become a universal prescription for all cases. The statutory right to continued employment aggravates that problem. If the injury employer has an obligation to continue the employment of a disabled worker this will be perceived automatically at the Board as what ought to happen. It then says that a statutory right to continue former employment does not preclude the compensation board from offering other assistance but it makes it less likely that other forms of rehabilitation will be considered. Do you have any comments?
A: We make no apologies for requiring that the vocational rehabilitation consultants attempt to retain the contact with the pre-injury employer. Experience, evidence and good common sense would support that. It is also a philosophical statement and it is an issue that would require a tremendous amount of debate.
Q: There is no easy answer but the reason I am asking is because we will have a lot more debate on this point in April and I did want to see other thoughts brought out at this point so that we could use those in our debate.
The next point he raises is concern about the type of job that may be offered by the pre-injury employer to meet the statutory obligation. He said this type of job offered by the employer would also have to be carefully regulated otherwise an unwilling employer could simply offer the worker a position that was so unattractive that the worker would refuse. Again, a resentful employer may tend to offer a worker a position that is unsuitable for his needs. To overcome these problems would not only involve substantial administrative costs but it would also require the rehabilitation consultant to play a policing role. This would tend to make employers resentful and apprehensive in their attitude towards rehabilitation consultants thereby impending the free flow of discussion that is a necessary part of successful rehabilitation. Any comments?
A: Again that is a very good point because return to work in and of itself doesn’t necessarily imbue itself with quality. That is what I was trying to get at a little earlier in my presentation when I talked about the majority of employers not doing return to work well. I put no judgement on that as it is just a matter of observation. Accommodating workers is a labour intensive process that requires a lot of skill and it requires a lot of examination. I think that a legislated return to work doesn’t necessarily result in the quality with respect to that placement.
Q: He raises concerns about the enforcement of it and that most statutory re-employment obligations are time limited and so that if it is really not going to work out then the employee is probably going to quit or be fired. At the end of the period in any event the employee may find him or herself out of a job without the skill development that could have been done through rehabilitation. For example, the enactment of a right to continued employment in the Worker’s Compensation statute is counter productive. It is unrealistic to expect that any legislative right to continued employment will last but a life time of a disabled worker or until retirement age. In practice there are time limits of one or two years. Bear in mind that the statutory right is only relevant only where the employer would not otherwise want to continue the employment. It is difficult to see much benefit in a worker with a permanent disability having a right to continued employment that expires in a relatively short time. The obvious risk is that at the expiration of that period or earlier employment will terminate. Comments?
A: I think in recognition of some of the points that you are making they have been captured in a briefing paper by the policy bureau and given to commission with respect to the advantages and disadvantages of mandatory re-employment. I am not sure that it is for us to comment. This is a broad public policy issue and I’m sure that both stakeholder groups will have quite convincing arguements to be made on either side and we are basically here to implement public policy in this arena.
Q: In my mind this is the team to debate with in regards to whether mandatory re-employment impact positively, negatively or neutrally what you are trying to do with your return to work and rehabilitation programs. The last point then is in the briefing paper. I read the briefing paper as saying exercise caution. They did 2 things here. On page 17 they note that the Ontario experience since the introduction of re-employment divisions in 1992 illustrates how legislating the employment relationship can lead to increased litigiousness, decreased ability to respond to the nuances of individual situations and escalating administrative costs. Then you it concludes on page 18 that the models being propose by other provinces offer some interesting examples for BC to consider. It may, however, be advantageous for BC to monitor the experience of other jurisdictions before setting a new course if that course includes legislatively mandated provisions. Do you agree with that kind of approach on how BC should be handling this?
A: I think we spoke earlier about need to continue to monitor what is going on in other jurisdictions, which is what this briefing paper says.
STEEVES
Q: We need to go back to Code R very briefly. With respect to the entitlement to Code R or U it is important that we don’t leave the impression that every worker who is plateaued ends up with a Code R or U. I am thinking of policy 89.11, which says that these payments will apply to cases where there is likely to be either a significant permanent partial disability award based upon the permanent disability evaluation schedule or likelihood that the pension will be calculated on the worker’s potential loss of earnings under section 23.3. That is the policy of the Board, correct?
A: That is the policy on income continuity or Code R benefits yes.
Q: So there are some workers who don’t get any code?
A: Yes
Q: Some of those workers are still referred to disability awards even though they are not getting any Code R or code benefits. Is that correct?
A: Yes because some of them may have returned to work.
Q: Some might not have a significant permanent disability.
A: Correct they may not be eligible for other reasons.
Q: In some of those cases it will end up in the appeal system and then it will come back to you at the end of the day and certainly from the worker’s point of you that is the bitterest kind of dispute with the Board. That is when they have been cut off wage loss and suddenly they have nothing. They think that they can’t go back to their pre-injury job and they have to go through the appeal system. Take it that what you said is in order to get people back to work and encouraging it Q: In some of those cases it will end up in the appeal system and then it will come back to you at the end of the day and certainly from the workerís point of you that is the bitterest kind of dispute with the Board. That is when they have been cut off wage loss and suddenly they have nothing. They think that they canít go back to their pre-injury job and they have to go through the appeal system. I take it that what you said today is in order to get people back to work and in order to get them motivated to get back to work is to prevent exactly that kind of attitude to the Board into the system.
A: I think that it would go a long way to increasing our success.
On the recovery and return to work graph that Doctor Blair presented in his presentation you will see in the soft tissue area, which is probably the most contentious area with respect to your comments, that the whole strategy is designed to ensure that through early intervention, investment and treatment that we significantly reduce that population of worker who is there at 24 weeks with basically having expired and plateaued with no job to go back to. So the whole strategy there is to reduce that population from 4000 to perhaps 500 or 600. At the end of the day the functional evaluation unit or the functional capacity evaluation is what determines entitlement.
Q: The other point with Code R is that when the pension decision is eventually made it is made net of Code R or other benefits. Is that right?
A: Correct
Q: If there is a problem on the employer side in terms of cost there is a difference and the Board absorbs that difference.
A: Yes
Q: In many cases there is no difference. In fact, there is a bit of a retroactive payment to the worker. So the employer will have to pay that as a pension or as a Code R benefit either way.
A: Yes
Q: If we have a worker who is in their mid-30s the capitalized reserve for a pension, which would be the total cost of the pension could be quite significant can it not? It could be close to half a million dollars right?
A: In cases it could be up to $700,000 or more. You will be seeing some actual figures tomorrow when Mr. Hurst presents on functional and loss of earnings pensions.
Q: If we were interested in a cost benefit analysis it makes sense to spend a $100,000 to save $700,000?
A: Yes
COMMISSION
Q: I had a question that is sort of in the cross over between vocational rehabilitation and pensions. It concerns the practicality of a worker being able to find employment in the deemed position that he is found on a work capacity evaluation. Does the Board look at whether positions are available regionally or throughout the province in the area that he is deemed to have capacity to work in? To what extent is the reality, the age, the language barriers and geographical factors taken into account?
A: There are two tests that a deemed job and I use that term even though it does not exist in our policy because we have a common understanding. There are two tests that a job must meet. One is that it is physically suited for worker and the other is that it is reasonably available in the long term. When the vocational rehabilitation consultant is choosing jobs, hopefully with the involvement of the worker, to use in the employability assessment. They will certainly focus it primarily on the physical suitability and the reasonable availability of those two jobs. The other factors that you referred to, the geography, language, age are also taken into consideration. Again, because it is an individualized process it will be a different assessment for each individual client.
We consider any of the issues that may arise preventing or affecting an individual from securing employment. All of those issues that are identified at the time would be considered in making that determination.
Q: Where does the vocational rehabilitation consultant get the data with respect to job availability and job openings? What information do they get and what source?
A: There are multiple sources. It could be different job banks, help wanted ads, a log from the Board with a list of employment opportunities as provided by employers contacting the Board. We average about 100 of those per year and we also contact employers and ask about turnover rates and the reasonable availability for our specific client.
We also look at publications from HRDC, some of the job searchers publications and any other information that might be available. Mr. Hurst has prepared a list of those resources that he will share with you tomorrow.
Q: The other point that I had was just for clarification. I guess that it probably seems evident but I don’t know that anyone said it. During that bridging period from the plateauing until the pension is decided upon I take it that the pension is retroactive to the plateau period?
A: Yes it becomes retroactive to the day after the conclusion of Section 29 and 30 benefits.
Q: What we are talking about here is on whatever Code R or U or E is the difference between what he would get on the pension calculation and what he would get on the short term wage loss calculation?
A: Yes that is right.
Q: How does the Board account internally with respect to Code R once the pension is retroactive to the plateau date
A: That is what I referred to earlier as the rebate from pensions so it is actually refunded to vocational rehabilitation services. I am not sure about the actual paper transaction that takes place.
Q: The short fall then on the reimbursement to rehabilitation from pensions would be the difference between the long term pension, which is retroactive and the short term rate?
A: Yes
Q: I thought we said Code R was designed for income continuity for people not engaged in the vocational rehabilitation process and that all of the other codes dealt with people who were actively job planning or job seeking and so on.
A: Decision 320, which I referred to was the beginning of the income continuity implementation. It talked about the difficulties in coming to a conclusion around a worker’s employability and the systemic delays that ensued. Because Section 29 or 30 benefits could not, by law, be paid it was felt that a bridging allowance was appropriate for unemployed workers while the pension assessment process was happening. Now in actual practice some of those individuals may have been fully cooperating with vocational rehabilitation and been actively engaged and some of them not. I some cases Code R would have been paid and in some not. That is how inconsistent those applications of benefits had been over the years.
Q: As I understand the complaint of Mr. Winter on behalf of his clients if someone does not cooperate with vocational rehabilitation and simply says that I am not interested in participating that they should be cut off. The effect of that then would be that until their pension is determined they would get no money what so ever.
A: Yes for those who were uncooperative that would be true.
Q: Then they would get a lump sum that would be retroactive to the date of their plateauing so it is a cash flow problem in addition to how you calculate the amount that they get?
A: Yes exactly
Q: What kind of data base are you building now? In Prince George we talked about this being an opportunity in which to build a data base from which you could do comparisons because, to be quite candid, you have a difficult time in giving us comparisons that go very far back compared to some of the data that you are giving us now. I asked whether the new project in North Vancouver was part of an ongoing program and was told no that it was actually a pilot starting up in North Vancouver. I was also told that the project in Prince George was trial before the pilot.
A: A prototype
Q: Okay so it was a prototype before the pilot, which is before anything happens that is going to be permanent.
A: That is the process our governance prefers. We start modestly, demonstrate results and move it to the next phase. Quite frankly with systems investments it is probably an appropriate way to go rather than some of our sister companies that have written off many millions of dollars through investment in systems that haven’t done what they were supposed to do. I think that our experience with e-file was positive, I think that our case management approach is conservative. I would like to see it happen a lot faster but there are people who want to be sure first. So we did a prototype in Prince George and now there are 2 pilots in Prince George and North Vancouver. We are tracking data on an access data base and from that experience, gaining the type of knowledge that will allow us to build the data base into e-file on a permanent basis.
Q: I got the impression that that was not necessarily being done because it was still a prototype and so they were not sure if it was going to go anywhere, thus, you were not collecting the data with the idea of keeping it as part of a formal base.
A: We are tracking it on an access data base and learning from that tracking and then we will build a permanent MIS system.
Q: Do you monitor your vocational rehabilitation consultants? Can you tell if some consultants offer more training than other consultants or if some are quick to put training into place while others are more quick to put them into Code R?
A: In each service delivery location the manager meets weekly with the vocational rehabilitation consultants in their area and they do case conferencing at that time with the other vocational rehabilitation consultants. We are usually talking about 4 to 6 individuals sitting around and discussing files with the manager there. Also any file that goes over $10,000, which with the wage rates that we deal with isnít’ that long a time. It may go over $10,000 within 12 weeks so in those ways it is brought forward and the manager is aware of what is going on.
You seem to be looking for the inconsistencies that may be there. We are hoping that when the management information systems are in place with the kind of detail that we want and we are sure they will be that we will be able to get desk information for each rehabilitation consultant. So where there appear to be anomalies with respect to expenditures, time frames for response or a particular gravitation towards a particular event then we will be able to monitor that a lot better with our future systems in place.
At this time our information includes things like outstanding employability assessments. We also get monthly updates on the status of each claim and on each case load and the work volume or the number of claims in and the number of claims closed per month. We are hoping to expand on that and get even better information.
Q: How long after a person returns to employment before you check up on them to see if they are still there?
A: Presently we really only sporadically do follow-up. We have no follow-up in place for returns to work to check for durability. The usual time frame that most organizations employ for measuring durability is 3 months. With some of our clients we may want to see how they are doing after 6 months or after a year depending on the circumstances.
That would be in cases where it is not an ongoing plan. Once the rehabilitation plan is over so there is no more expenditures and the person is returned to work we would not follow up.
Q: You are tracking this now or you intend to?
A: We intend to. It is not happening now unless a consultant chooses to follow up with a particular client.
Earlier I suggested that the program evaluation and follow-up in vocational rehabilitation would mirror what is happening in the rest of the organization. In the clinical rehabilitation area we do follow up 3 months post and that is in the process of being implemented for vocational rehabilitation. Earlier I suggested that 3 months probably was not an appropriate period for some of these clients based on a change of jobs and those kinds of things so we should probably be doing about a 1 year follow up as well.
The follow-up procedures will be incorporated into our business plan for this year. We will have that finalized by the end of March. Then we will be instructing the consultants to begin a follow-up process.
Q: You can track it through a private back pain clinic or something like that because you pay them a bonus for getting the injured workers back to work within 90 days.
A: We follow-up there because irrespective of whether there is a performance based system in place we track occupational rehabilitation programs and pain programs on that 90 day follow-up.
Q: On the numbers of referrals if the person is referred to vocational rehabilitation, finds their way back to work through the system, is there for a period of time, comes back to vocational rehabilitation because they do not make it, and then goes back to employment, etc. If they do that 3 times does that count as them entering the vocational rehabilitation 3 times through referral?
A: With our current system yes.
Q: So they could be counted more than once?
A: Yes and we do not have anything in place to track that.
Q: How long do you think that a person should be back at work before you stop following up on them in an ideal situation?
A: In an ideal situation 3 months is used as the rule of thumb for most organizations that are involved in placement activities. With some of our clients we may wish to go a little further out if there are any other particular difficulties that were anticipated. We will have to have some more discussion around how we identify those where 3 months is a good follow-up period and where 6 months or a year might be appropriate. We need to establish some criteria.
In the disability awards area we do a 2 year follow up so it depends on the complexity of the client and the situation.
If there is no follow-up that does not mean there is no further assistance warranted. If an individual’s plan does not work then we can see those workers again and figure out why it did not work.
Q: Along the way we discovered that there a number of employers , usually large ones, and their worker representatives that enter into agreements or programs that provide for return to work job modifications, an internal program within their operations that involves not only work related injuries but non-work related injuries and those joint programs are operating in some locations. Does the WCB take part in that, encourage it or support it?
A: That is clearly part of disability management with the kind of program that would look at all injuries or all injuries or all illnesses in the return to work context.
Certainly the rehabilitation consultants are probably more active in some of the area offices where a percentage of their work would come from some larger employers. Certainly they are working with those employers, sometimes in helping to get them started but also participating in an ongoing basis in helping to facilitate the program.
Q: They actively support this activity?
A: Absolutely
If consultants have good relationships with employers then, in the past, they have sat on rehabilitation committees with particular employers to facilitate the return to work of injured workers. Yes we encourage it but we have to always ask our consultants to balance their work loads well so that they are not doing those kinds of activities at the expense of clients who need interventions. We certainly encourage them to be out in the work place as much as possible.
Q: Are there working definitions that you have on return to work and durable return to work?
A: No not at this point.
Q: You do not have a system for monitoring return to work programs but you intend to have one at the end of this business year?
A: That is part of this year’s business plan.
Q: You are operating now on a 3 month outcome objective?
A: Simply because that is the standard within the return to work arena.
Q: I would like to see where that standard is being set because there is a lot of literature saying that it is 1 year, 3 years and 5 years that are better markers.
Q: On the issue of business start-ups how many businesses are started up and what is the cost of these on an annual basis?
A: We only began, this year, to track numbers. We have a code that captures business start-ups, Code S and I would say that we are probably seeing an average of one coming to us at the rehabilitation committee per week. So in a year we get about 50 requests and not all are approved.
Q: I thought Code S was self-employed. Is that the same?
A: That is business start-ups.
Q: Self-employed and business start-ups are in Code S?
A: That is correct.
Q: Do you know the costs of that annually?
A: I can find out for you very quickly.
Q: I want to know what the annual costs are, the number of businesses that start-up, the failure rate, that kind of information.
A: That information would come from the program evaluation, which will hopefully be done at the end of this month.
Q: So you don’t have any information on previous years that you have been doing this?
A: No unfortunately none of that program evaluation was done in the past.
Q: When you look at individuals who come asking for support in business start-up what criteria do you use? Do you have profiles, or what characteristics would be considered important in their success?
A: We have not developed guidelines to this point to assist consultants. What we have required is that when a plan comes through for approval it has to have a feasibility study done. That is usually done by an outside agency with expertise in those matters.
Q: So $61,000 to 61,500 was spent over the last 12 months or was it for one fiscal year?
A: That was over 1997 for one year.
In 1997 it was $1.2 million for business start-ups.
Q: So the $61,000 was spent on how many business plans approximately?
A: We do not have that figure.
Q: That strikes me as a low number and you get what you pay for with respect to feasibility studies.
A: The primary provider that we use is the federal business development bank. The money we spend on that code, they would be producing most of those reports.
Q: They would be going at market rates would they not be?
A: I am not sure about the market rates but the rates do vary depending on the complexity of the business. In cases where we are presented with an existing business with guaranteed contracts obviously determining feasibility would be easier then working with a brand new business.
Q: Is there any business support after the start up? Do you go back to the business development bank.
A: Yes and we are certainly encouraging and addressing this issue more than we had been in the past. We recognize that it is an area of concern.
Q: Is there anybody on the vocational rehabilitation committee that reviews these applications who has a business background?
A: Yes the divisional controller has experience in the air line industry as well as designations in the business world.
None of these individuals are running a small business. They are qualified and designated accountant.
Q: You mentioned earlier on that there is a research and development function in your department?
A: Yes
Q: What kind of a budget do you have for the research and development department?
A: It is not established as a separate budget. I have 2 vocational rehabilitation consultants who are assigned to assist in that area. The support staff is in addition but there is no separate budget at this time.
Q: Who does the performance evaluation and is that done on the vocational rehabilitation councellors?
A: The first line manger there would be responsible for the performance evaluation of the vocational rehabilitation consultant. In the past year each vocational rehabilitation consultant has sat down with their respective manager to go over our outlined expectations and set goals for themselves for that year. That is happening on a regular basis.
Q: That is not the case manager but the functional manager?
A: Yes the vocational rehabilitation manager
Q: With respect to duty to accommodate would it not be appropriate for the Board to take the initiative and do some analysis on the economic impact of something so dramatic as the duty to accommodate because that will have a significant impact on the labour market on the province. Would that not be something that the Board would undertake in anticipation rather than just monitoring other jurisdictions?
A: Typically absent a Royal Commission the Board would not have advocate for a particular legislative change of that nature. We would have relied on government to come to us and say that we are looking at this issue so would you do some research and study that area. I don’t really see it within our pervue to be doing that kind of research. Should someone ask us to do that we would attempt to make the resources available but certainly I haven’t seen it within my mandate to do that kind of research. If the panel was interested in that kind of information they would put that to the policy bureau for research and analysis.
Q: Let me start with a question going to the discretionary nature of vocational rehabilitation. Is it entitlement to vocational rehabilitation that is discretionary or is it the level of rehabilitation that is appropriate that is the discretionary element?
A: I would say that the discretionary aspect refers to both eligibility and level of assistance available.
Q: What would be the rationale for not saying that entitlement should not be discretionary but the amount in any particular case is really the issue? In other words mandating an assessment.
A: The question is very difficult to answer. I think that it would come down to the wording of any mandated legislation because there are many many clients who, at this point in time, do not require vocational rehabilitation services. They are the ones who have soft tissue injuries or cuts to the finger and who go back to work. Would it be necessary to legislate vocational rehabilitation for those individuals?
There are some other jurisdictions in the United States that have legislated mandatory rehabilitation and without advocating for or against I think that it would be instructive for the panel to discuss that issue with Washington State, some of the other jurisdictions that have done that.
If there was a mandatory requirement for consideration as opposed to extended services you would have to define fairly carefully to which population that you are applying it. Is it to the full 200,000, the permanently injured?
Q: For those who vocational rehabilitation services are provided, Mr. Buchhorn you mentioned that you saw that the mandate of the Board in terms of rehabilitation and rehabilitation duties that it didn’t just stop at restoration but went further to actually get people working. Is that mandate prescribed by policy?
A: If you recall earlier we talked about scenarios that would render someone eligible for vocational assistance and there is one particular principle, which is if someone has lost their job as a result of being off on compensation for an extended period of time. In that case they would get through the gate and we would likely keep services to a level that would help them with a job search, go to a job finding club or with career redirection so it would probably be limited assistance. Again, individual cases require individualized attention.
In terms of the overall direction there has been much written and there has been much debate over whether employment or employability is the appropriate objective for the Board. Certainly it has been the focus of our executive team within the compensation rehabilitation division that we strive for employment as the outcome. We are not satisfied with anything short of that. Having said that we are not there in terms of outcomes. We have people with decisions made based on employability. We see employment as success and employability without a job as a failure.
Q: Given that not all of the factors that influence the ability to return someone to work as opposed to restoring their function are within the control of the Board what are the guidelines for determining when you finally say enough?
A: I think that those are the difficult situations that we have been talking about today. You do not have the motivation or you do not have the situation within your control and at that point we say that we have done what we can to strive for employment as the objective. That certainly the focus that I have brought over the last 3 years.
Q: Looking at policy 89.11 that deals with income continuity it does not really speak out to me as to whether income continuity is an inclusionary process or an exclusionary. Are you supposed to get it and then define the situations where it should not be allowed or is it the opposite where generally income continuity stops at the plateau level unless you can establish some reasons for it to be given. How do you see that?
A: I have never really thought about it in those terms. I would say that we probably look at it as exclusionary but I am just trying to formulate how we apply it in practice.
Q: So you’ve got to find a reason why it should be provided?
A: A reason why in accordance with the criteria that are outlined there but I would agree with you that it looks fairly neutral on the face.
Q: One of the criteria that I don’t see listed there is the issue of whether the worker must necessarily cooperate with any vocational rehabilitation plans. I guess that is something that has crept into the process.
A: I believe in 89.11 there is actually a sentence that says "be involved to the best of the worker’s ability" or wording something like that.
Yes the last sentence.
Q: Ms. Wakelin you mentioned the existence of a vocational rehabilitation committee that, as one of its functions authorizes anything over $75,000 or anything relating to business start-up expenses. Does that committee serve any other functions?
A: Well we all have other jobs so we come together once a week as a committee to review files that have come to us through the managers. Our function is one of approval of expenditures of that nature.
Q: I am wondering since a lot of the underlying problem with respect to income continuity is the fact that you have people that are plateaued and awaiting processing as it were in terms of having their residual disability assessed and what not. Under the case management motto I am assuming that there were no backlogs to be dealt with. Does the Board have any projected timelines for how quickly residual disability and pensions could be established and assessed following the plateauing of the worker? Of course it would vary from case to case but are there any projected targets for that?
A: I believe that Mr. Ingraham will be speaking to the service standards that he expects with respect to the new initiative that he is leading. There are a number of steps in the process that create potential service impediments. The first is access to the functional impairment examination. The employability assessment is an area that we have worked extremely hard at, reducing the cues and putting internal service standards in place. If you line them all up I believe what we would like to achieve is somewhere between 3 months to 6 months from plateau for the average. However, there are many less complex claims where it could be a matter of weeks.
Ultimately we would like to be out of the business of having to do very many employability assessments because really what we would like to do is substitute those for good rehabilitation plans that result in returns to work either through retraining or some other intervention.