Royal Commission on Workers' Compensation in BC
March 5 Full Day Session
Name(s): Rob Ingraham
Title:
Affiliation: Disability Awards and Pensions
Location of Meeting: WCB
Date: March 5,1998
Commissioner staff: GG, GS, OE, TR, AC, JS
Notetaker: Judy Stott
GENERAL COMMENTS
Disability Awards and Pensions
Disability Awards Overview
Functional Pensions
Loss of Earnings Pensions
Questions on
Section 17 - Compensation for fatal cases
Noise induced hearing loss pensions
Sensitive claims
Lead Speakers
Rob Ingraham
Dick Hurst
Ron Buchhorn
Janice Woodland
PRESENTATION
Ingraham
- If a worker sustains a permanent residual impairment to an occupational injury or disease after temporary or total disability benefits have been terminated the worker may be entitled to a pension award for a permanent disability. Depending on the condition of the worker the benefit can either be for permanent partial or permanent total disability
- Permanent disability awards are the responsibility of the Disability Awards department within compensation services
- As soon as it becomes evident that a permanent disability is likely to result from a claim the file is forwarded to disability awards for the purpose of confirming the worker’s average earnings or long term wage rate
- The realization that a permanent disability will likely result is generally based on reports from attending physicians, medical documentation or advice from the unit medical advisor.
- BC employs a dual approach to benefits for permanent partial disability
- A worker receives benefits based on an assessment on either the degree of psychological or physical impairment referred to as permanent functional impairment
- Or a pension is considered on a loss of earnings basis
- The worker’s pension entitlement is based on a functional pension or a loss of earnings pension, which ever is greater
See submission - page 1
- We receive approximately 200,000 claims a year and about 75,000 of those are wage loss claims
- After about 4 weeks 52,000 of those claims drop off or the people return to work, they have just gone back to work under the normal recovery period of their claim
- Of the 23,000 left these are the ones we focus our case management activities on to try and effectively return that injured worker back to work
- Of the ones left with a permanent impairment we receive about 5500 claims into the disability awards area on an annual basis
- Short term disability costs averages about 265 million per year
- Our health care costs are about 152.5 million per year
- Once a worker reaches a point of stability that means that their condition is not expected to change significantly for the next 12 months
- If they have been left with a perceived permanent impairment it is referred to disability awards and it is either moved into the functional assessment area or if the person is not returned to pre-injury employment and there is a potential for loss of earnings then we will consider it in that area as well
- About 500 loss of earnings pensions per year cost the organization about $91 million
- Functional pensions that we process add up to about 5,000, which costs about $135 million
- The overall disability costs, which includes survivor benefits is in the range of $272 million
- The disability awards department receives its mandate from the following areas listed in the submission – page 3
- Section 23(1) is the key section of our act - see submission page 4
- Section 23(2) - see page 5
- Scheduled awards are awards made under the permanent disability evaluations schedule, which is set out in Appendix 4 of the rehabilitation services and claims manual
- This is a rating schedule of percentages of impairment for specific injuries or mutilations
- The permanent disability evaluation schedule is a set of guide rules not a set of fixed rules
- The disability awards officer or the claims adjudicator in disability awards is still free to apply other variables in arriving at a final pension
- The other variables referred to mean other variables relating to the degree of physical impairment not other variables relating to social or economic factors
- More rules including schedules and guide rules established in other jurisdictions
- Any revision to the schedule must be undertaken by procedures that are appropriate to changes of legislative nature
- It will not be done through appeal decisions and individual cases
- In cases where the specific impairment is not covered by the schedule but the part of the body in question is covered the disability awards officer or claims adjudicator must first determine the percentage loss of function in the damaged area
- I refer you specifically to Section 39.10 of the rehabilitation services and claims manual
- Section 23(3) – see page 6 of submission
- It speaks specifically to permanent partial disability awards based on a projected loss of earnings
- It is important to note that it is not the policy of the Board to grant an award under the dual system without regard to the nature of the condition or disability causing unemployability or loss of earnings
- The Board must not only have a disability accepted by the Board but the disability must be a significant factor in reducing employability or loss of earnings potential
- Therefore, the Board has declined to grant awards under the dual system when the unemployability of the worker is related directly to psychological problems, which are not considered as an accepted part of the claim
- Where a disability awards officer of adjudicator in disability awards decides that no pension can be awarded on a physical impairment basis because the impairment is unlikely to affect the worker’s earning capacity no pension can be awarded on projected loss of earnings basis
- While Section 23(3) is not expressed to be dependent upon an award being made under section 23(1) this must, in practice, be the case
- The Board could not consistently decide at the time that the worker’s impairment was too minimal to affect earning capacity and that it would cause a loss of earnings in the future
- Section 23(5) – see submission page 8
- The disfigurement must be permanent, serious, capable of impairing the worker’s earning capacity and this is normally assumed in head and hand injuries
- In other cases the decision must be made which has regard to the age and the occupation of the worker, the visibility and the extent of the disfigurement and any other relevant circumstances
- Since 23(5) states that the amount the worker is currently earning does not have to be diminished this requirement is concerned with the worker’s long term earning capacity
- Where there is a disfigurement as well as a permanent disability the worker may receive awards for both
- The ultimate aim of disfigurement in disability awards is to compensate for loss of earning capacity
- The workers should not receive double compensation for the same loss
- No disfigurement award is granted for something that is directly covered by a permanent disability award
- For example, deformity caused by an amputated limb would not be a cause for compensation
- Long term disability organizational chart of the disability awards department – see submission page 9
- We have one manager that is responsible currently for sitting in on the disability awards committee
- Our 12 claims adjudicators deal primarily with loss of earnings pensions but they also produce functional pensions
- 10 disability awards officers focus on functional pension awards
- 2 junior disability awards officers always deal with our more straight forward functional pensions, for example, hearing loss
- We have 2 claims adjudicators working in our fatal claims area and our sensitive claims area
- The rest are support staff
- Process for long term disability claims - see submission page 10
- Until the condition plateaus the claim is dealt with by a claims adjudicator in the service delivery location or area office
- When the temporary benefits are terminated the file is sent to disability awards for pension consideration
- When a short term disability claim reaches a point of plateau usually what occurs is that there is a team meeting between the medical advisor, claims adjudicator or case manager, disability awards claims adjudicators and the vocational rehabilitation itself
- They are discussing the next steps in that injured worker’s claim
- Usually the worker is placed on an active vocational rehabilitation plan
- The file is referred to disability awards electronically and it is put in our cue and then assigned to an officer
- If the claim was a claim where the worker has returned to work and they are left with a functional impairment the file is referred for a permanent functional impairment examination, a functional pension decision is made, sent for calculations, entered into our pension system and the pension is paid
- If there is a situation where that person with the impairment has not returned to work and there is a risk of loss of earnings they will be given a permanent functional impairment examination to determine the percentage impairment of that worker
- We will go and ask for a vocational rehabilitation update on the plan and if we get to the point or stage where that plan is not moving forward we will ask for an employability assessment of that worker
- It is at that stage that we are really dealing with the Code R benefits
- If there is no loss of earnings any longer when we get the vocational rehabilitation update then that would just move into a straight forward functional pension that would be calculated and paid
- If there is a potential for loss of earnings the claims adjudicator is responsible for making a recommendation to the disability awards committee
- That committee is made up of a senior manager from disability awards, a senior vocational rehabilitation manager and a senior medical advisor who review the recommendation and either approve it or they don’t approve it
- They may sent it back for further work
- If it is approved then the loss of earnings pension is calculated and paid
- Processing times – functional awards
- When I took responsibility for the disability awards department we undertook a process review of disability awards
- The primary reason is that we feel that the department, in terms of service, was in a service failure situation
- We were not pleased with the amount of time that it was taking to process a functional pension nor were we pleased with the amount of time that it was taking to process a loss of earnings pension
- Due to a number of process improvements that we made in 96/97 we have improved our overall time lines for functional pensions but we are still not happy with where we are today
- There is a number of factors that impact these numbers
- When we measure the time line for a pension in disability awards it is the time that that pension is referred to the time that we close that pension and pay the pension
- What can occur in that process is that because we are the end of adjudication process often that file is requested by the review board, the appeal division and there are multiple other meetings that require access to the file
- Because of that we often lose access to that file for significant periods of time, whether the claim is being taken through appeal or review
- The meter within disability awards that measures the processing time continues to tick so if that claim leaves our department, goes into the appeal process and the worker would rather go through appeal first when we get that claim back and we process it registers that it took us 14 months to process the claim
- In reality we may only have had access to that file for 2 to 3 months
- Even so we are impacted by the length of time it takes to get a permanent functional evaluation from the medical services department.
- Processing times – loss of earnings pension - see page 12 of submission
- Ms. Wakelin mentioned yesterday that we did have a huge backlog of outstanding of employability assessments, which directly impacts the overall processing time for loss of earnings pensions because if we can’t get that information back we can’t make a recommendation on the claim
- We have reduced the backlog of employability assessments significantly and that has had an impact on reducing the overall time line for loss of earnings pension
- Again, we still feel that it is at an unacceptable level
- Queue – waiting for assignment - see page 13 of submission
- One of the first things that we undertook in disability awards was to introduce a new management information system to allow us to better manage the queue that we are responsible for
- The management system identifies the types of claims that we have in our queue and it breaks it down into a number of categories so we can prioritize the work and assign it accordingly
- The queue in January of 1998 had approximately 1600 files and 826 were no return to work permanent partial disabilities, 187 were in for reassessment, 421 were return to work, permanent partial disability awards
- We also have about 7 other categories, which would be return from the appeal division, return from the review board, commutation requests, Section 24 claims, etc.
- We have made some significant strides in reducing the queue but we are still looking at a back log of 3 months
- Challenges - see submission on page 14
- Consistency of the permanent functional impairment evaluation – concern about consistency from office to office
- Perceived bias of the permanent functional impairment evaluator – a worker may be seeing the same doctor for an evaluation that was providing medical opinions on that claim file to a claims adjudicator for the life of that file
- That same doctor may have examined the worker for an at Board medical examination throughout the course of the claim file
- Accessibility of the claim file will be benefited by e-file
- Disability awards is probably one of the most difficult areas to maintain ownership of the file because it is end of process and everyone wants the file
- What is Arcon - see submission page 15 - 17
- A primary component of Arcon is the impairment rating program or impairment rating software
- Currently in our system if a file is referred to a doctor for permanent functional impairment evaluation the doctor conducts the examination, then goes through a detailed mathematical calculation by hand to determine the percentage of impairment, then he dictates the report, refers it for typing, gets the file back, makes corrections and that process may take anywhere from 2 to 3 months to get a file back from their own physician
- This impairment rating software automatically calculates the percentage of impairment for us
- We can receive the outcomes of that electronically or by paper so in other words if we are moving into an e-file environment then this software links very closely to what we are doing in e-file
- The other component of Arcon is the testing tools and the test platform software
- What it gives us is a standardized testing protocol that deal with the inconsistencies or perceived inconsistencies during permanent functional impairment evaluations
- It also gives us automatically generated reports when the examination is concluded so doctor doesn’t have to be involved in a lot of dictation although the doctor can add their comments to the report
- Platform shows the functional impairment evaluation tool, which can be calibrated immediately before every test and the program is generating a report as the test is being conducted
- Why Arcon - see submission page 18
- External Preferred Providers Arcon - see submission page 19
- We currently have a pilot project going on
- When a worker finishes through the continuum of care and they reach plateau it is referred for pension
- What we are currently doing in our pilot is referring that file to an external preferred provider in New Westminster, we have 2 working for us at this time
- They are conducting a permanent functional impairment examination
- It is coming back to disability awards where disability awards uses the software to calculate the percentage of disability impairment and then we are processing the pension
- The difference is that this whole process is taking less than 10 days versus 3 to 4 months
- Another major impact of this is that when we send a file for a permanent functional impairment examination to our external provider we usually get that report back the same day or within 24 to 48 hours with the worst case being 72 hours.
- The Arcon testing tools that we are using in the external preferred providers we’ve provided them with standard procedures and protocols that have been developed through the medical services department and disability awards in conjunction with our external providers and the electronic data exchange
- There was a concern about confidentiality by using an external provider. What is sent to the provider is a detailed summary of the medical components of the file and what we want tested in a form that we refer to as a 24A
- That information is encrypted so that nobody can read it unless you know what the encrypting code is at the other end
- Strategic issues
- We are moving into a new model of case management and there will be impact on the business processes in the disability awards department
- We are currently meeting with the case management team to determine what functions of the disability awards department can be incorporated into a case management model
- We have introduced new tools and technology to our staff
- There is an impact on workers and employers in terms of concerns over quality of adjudication and pension costs
- In our pilot we are building a quality assurance program into the pilot and we are experimenting with various procedures around quality control and Dr. Thompson would be available if you have any questions on that particular topic
- We have developed a quality assurance program we feel that we didn’t have in place before and we continue to develop it as we move through the pilot
- We are also questioning people who are going through Arcon project
- We are doing a client survey and the majority of surveys that we have received back to date are extremely positive and people seem pleased with Arcon and the overall examination
HURST
- See submission -
- Issues to be discussed
- Loss of function pensions, Section 23(1)
- Loss of earnings pensions, Section 23(3)
- Compensation
- One of the most important responsibilities of the WCB is to award compensation to workers who are permanently disabled
- The objective of this compensation is to reimburse workers for the estimated economic losses that they suffer due to permanent disability
- The Board provides two main types of awards
- functional awards are based on an impairment schedule, which makes no allowances for individual loss but is intended to represent the average loss incurred for that type of disability
- In 1973 the Board also began granting awards using a projected loss method in recognition that permanent impairment has different economic consequences depending upon occupation and a number of other variables
- Section 23 (1) of the act provides the authority to estimate the impairment of earning capacity based on the nature and degree of injury
- Section 23 (2) provides the authority for the Board to compile a specific ratings schedule
- Section 23 (3) grants the Board the authority to estimate the loss of earnings where it is more equitable to do so
- About 90% of the permanent disability awards are granted on the loss of function method
- Permanent disability evaluation schedule
- A schedule is used for guidance in the measurement of personal disability
- The schedule attributes a percentage of disability to specific impairments
- For example, the loss of a hand is equal to 50% and if fused or immobile it is equal to 25%
- An enhancement may be applied in terms of multiple disabilities and age adaptability factors are used for workers over 45 up to a maximum of 20% of the assessed disability
- Pension amount is determined by applying the disability percentage to the client’s average earnings
- The Board’s permanent evaluation schedule has remained largely unchanged since the 1960s
- The most notable change was included in a section on the spine, which was introduced in 1990 and codified earlier practices
- The present schedule used in BC was developed through the work of a committee commissioned by the Association of WCB and shared by Dr. Bell of the Ontario WCB
- This committee studied various schedules and ultimately developed a schedule, which was adopted by most boards across Canada
- Acknowledged that the figures may be arbitrary in nature but were considered fair and responsible predictors of the average economic loss
- Some Boards use ratings by the AMA guide to estimate the degree of incapacity
- It is, however, acknowledged that this guide is also arbitrary and has no scientific correlation to actual earnings loss
- The AMA guide has higher ratings for spinal impairment, multiple fingers and loss of vision
- The BC schedule is higher for amputations
- Most Boards using the AMA guide award a lump sum for non-economic losses rather than estimate the impairment of earning capacity based on the worker’s earnings at the time of injury
- Functional Awards by Year, Average Cost and Total Cost
- We have a range from 4493 to around 4497 with some variance in the years in between
- The average costs we are talking $116 million to a low of $110 million in 1995
- The average or unit cost runs from $21.8 thousand to $28 thousand
- If you were to look at this over a 35 to 40 year period there is nothing particularly unusual about these peaks and valleys
- 10 Year Breakdown of Functional Awards by Year and Percentage of Disability
- I would like to point out that some of the numbers here are different than the ones that you saw in earlier slides because they come from a different source
- I accepted that difference in order to get the breakdown by percentages
- Over the 10 year average fully 2/3 of the awards are for less than 5% of total and it is relatively evenly split between the up to 2% and the 2 to 5%
- You’ve got around a 20% piece between 5 and 10%
- By the time we get to 20+ % of total you are down to 4% of overall awards
- Generally speaking in the up to 5% range you are not very often going to get any significant loss of actual earning capacity
- Range of Disabilities by age and it is simply to give you some sense of overall cost based on disabilities from 5% to 100%
- There is a mistake that we will clear up for you - obviously that should be less than age 47
- You can see the descending value, if you will, for the same percentage of total based on age
- This is based on a salary of $40,000 annually and the life table or 3% discount rate
- These amounts represent the capitalized value that the Board would set aside for these different pensions
- For example, given this 100% range if the worker was a maximum wage earner then you would be looking at about $1 million to fund that
- Comparison BC Schedule/AMA Guide
- This is a rather interesting table and it comes from a study that was done a number of years ago that involved over 1800 awards
- What we did because of discussion around our schedule vis a vis the AMA guide was look at a range of disabilities involving the spine, fingers and a knee amputation
- Using the bell schedule of the schedule in effect in BC the average impairment for those awards was 6.87 and that involved several 100 awards
- The cost of that in BC, and this is using a cash table so this represents the commuted value that would be paid
- In BC the worker would receive a commuted value of $39,661
- Based on the same findings the AMA guide would evaluate that impairment at 17.2%, which is obviously considerably more than our schedule
- I looked at Boards using AMA guide and having a lump sum system by and large
- A lump sum system payable in Ontario, which is age graduated would be $9, 848
- In Saskatchewan a fixed lump sum that is not age graduated would be $3,887 and for fingers you have the same kind of spread
- In BC it is evident that substantially more would be paid for the same disability although the schedule varies
- With the knee amputation you can see that there is a significant difference
- So the commuted value for a knee amputation in BC based on 40 year old worker and $37,500 a year, which is considerably below the statutory ceiling, would be in the range of $288,000 would be $20,000 in Ontario and just over $8000 in Saskatchewan
- We can afford to be more magnanimous with the schedule if you have lump sum system
- Method of payment and commutations
- Lump sum will be paid when the pension is not more than 10%, the monthly amount does not exceed $100 per month and the commuted value is not more than $40,000 so those are essentially automatically commuted and the worker receives the cash value
- The choice of a lump sum or a monthly pension is awarded when the pension is less than 125/month and the value is less than $60,000
- A monthly award is paid where it is more than $125/month or more than $60,000
- With respect to commutations generally there are no commutations granted for monthly pensions
- These involve more serious disabilities and may impact actual earning capacity or potentially impact promotional opportunities or competitiveness in the work place
- Commutations may be granted upon a specific application where the funds are requested for a specific purpose that is likely to enhance the applicant’s income
- General criteria of commutation - these would be requests for commutation of the category C type cases
- It must be for a specific purpose
- It must be designed to enhance the worker’s income
- The applicant must have a stable source of income other than the pension
- Types of commutations
- A partial commutation by suspending benefits for a fixed period simply means that the pension or a portion there of stops for a period of months or years and resumes once the value of the commutation has been used
- The pension may be reduced for life or there may be a total commutation of the whole pension
- Overhead giving you a break down of functional awards by cash choice and monthly category
- Typically 75% of the awards, and I think that relates back to that 0 to 5% range, are paid in cash, about 5% are paid as a choice where the person gets to make an option and around 20% are paid through a monthly pension
- Discount rate
- The Board uses a discount rate of 3%, the real rate of return after inflation to calculate its reserve
- The pension reserve fund exists to ensure that adequate resources are available to provide continuing benefits for long term disability claims
- Reserve figures are actuarial values, which may be altered by the investment return or unforeseen circumstances
- Commutations that are automatically granted will have a discount rate of 3% to calculate the lump sum
- Commutations granted at the request of a worker will have a higher rate at 3.5% to protect the long term viability of the fund and to protect against mortality or investment selection
- If you would like more information for the rationale behind the discount rate and commutations you might want to look at Decision 382 under the public policy of the Board
- Summary
- The Bell schedule has remained relatively intact since the 1960s
- Like other schedules this is not based on scientific data
- Rather it is based on the opinion of medical experts who, arguably, may be more qualified to determine the physical impact of injury rather than the economic impact on earnings or earning capacity
- Equity is an issue as cases with higher earnings at the same percentage receive a proportionally higher amounts although there may be no actual loss involved
- For this and other reasons a number of Boards in Canada have developed a lump sum payment system for payment of non-economic losses
- Such a system is not dependent on pre-injury earnings or occupation and like impairments receive the same amount
- Some have graduated lump sums and others have fixed rates
- Compensation for a permanent disability is a complex issue and in 1994 the governors of the Board approved a comprehensive study to review compensation for permanent impairment and this issue remains outstanding
- Section 23(3)
- We are now talking about 600 or 700 cases annually out of the 75,000 or so short term disability claims
- These are the most complex of cases that the Board has to deal with
- It is within that context that I wanted to make this presentation
- Loss of earnings pensions were first introduced in 1973 and covered only spinal injuries
- The concept was expanded to all injuries in October 1978
- Loss of earnings pensions are awarded when permanent impairment impacts the ability of a worker to return to pre-injury level of earnings
- The pension compensates for the projected shortfall in earning capacity when it exceeds the amount paid to the loss of function award
- A present dual system for awarding compensation is based firstly on the waiting schedule or loss of function, which estimates the average loss of earnings and secondly on a projected loss that compares the worker’s pre-injury earnings to long term earnings potential
- The worker will then receive the higher of the two alternatives
- The projected loss of earnings differs from the actual loss method because it is an average predictor of loss over the long run rather than a frequent ongoing review to continually evaluate loss
- Initially there were no reviews of projected loss of earnings awards but because of the concern about the accuracy of long term projections reviews were introduced based on the recommendations contained in an internal task force report completed in 1983
- In 1997 there were 691 loss of earnings awards with a value of $145 million
- Loss of earnings awards over the last 5 years
- The number across the top ranges from a low of 553 in 1995 to a high of 691 in 1997
- The total capitalized value ranged from $107 million in 1995 to a high of $150 million in 1993
- The unit cost is across the line and it ranges from a $195,000 per unit cost to a high of $232,000 in 1994
- Interestingly enough the average percentage of functional impairment is relatively constant from 9 to 11% during that entire period
- There is a wider spread in the average percent of loss of earnings awarded during that period ranging from 45 to 57%
- Considering the complexity of these cases I think that is a relatively consistent range
- Top 3 injuries resulting in a loss of earnings pension
- During this 5 year period backs are at the top of the list accounting for 21% of the loss of earnings awards
- Backs are followed by shoulders at 10% and leg impairments at 7.5%
- Those injuries, collectively account for about 38% of the loss of earnings pensions
- Top 5 subclasses by number and cost in 1996
- Those 5 subclasses accounted for $55 million in loss of earnings pensions, which is about 40% of the overall cost
- It is about 1/2 of the total number of the awards involved
- Loss of earnings by $ amount for the top 10 subclasses
- For example, logging and building construction
- In that top 10 we were talking roughly about $75 million of the overall loss of earnings cost
- I looked at the top 15 and it came to about $90 million
- Overall during this period there were about 65 to 70 subclasses involved in loss of earnings so the top 15 are getting very close to well over 2/3 of the cost
- Loss of earnings pension – distribution by age group
- The normal distribution of loss of earnings distribution tends to follow this so this overhead is a few years old but I don’t think things have changed very much
- So fully 40% of the full loss of earnings pension fall into the 60 to 65 age range followed by 33% in the 50 to 59 age range and about 20% in the 40 - 49 age range
- Employability assessments
- Section 23(3) requires the Board to compare the average weekly earnings of the worker before the injury to the average amount, which he or she is earning or is able to earn in some suitable occupation after the injury
- The comparison with pre-injury earnings is limited to the maximum wage rage, which is currently 75% of $56,900
- In other words, if you are earning over the maximum, have a loss and are still earning over the maximum then you are not entitled to a loss of earnings pension
- It is not the policy of the Board to grant an award under the dual system without regard to the nature of the condition or the disability
- The worker must not only have a disability accepted by the Board but the disability must be a significant factor in the reduced employability and loss of earnings
- Where the claims adjudicator in disability awards has determined that the disability has caused a loss of earnings or is likely to cause a loss of earnings a formal employability assessment is requested from the vocational rehabilitation consultant
- Vocational rehabilitation consultant must assess the financial impact of a worker’s disability on long term earnings
- The preferred outcome is return to work that maximizes long term earnings
- Where that is not possible or where immediate earnings do not maximize post injury potential the vocational rehabilitation consultant must arrive at a long term projection of earnings capacity
- In exercising this judgement the vocational rehabilitation consultant must take into account jobs that are suitable given the limitations of the disability, education, language, age and transferable skill
- The job must be reasonably available in the long term
- No definitive policy has been established with respect to long term as it varies with respect to age, level of vocational assistance required and whether relocation is necessary to achieve the goal
- It is the worker’s responsibility to do his or her best to maximize his or her earnings, therefore the worker must cooperate with the vocational rehabilitation consultant and present in good faith to obtain a suitable job at the highest level of earnings possible
- Where that is the case this is generally their earnings level that should be used
- In other words, the worker has a responsibility to mitigate the loss as much as possible
- Provision of the employability assessment
- Workers are provided with a copy of the employability assessment report before a final pension decision is made
- They have 30 days to provide a written submission, which will be considered in the final decision
- With the permission of the worker a copy will be made available to the treating physician who can also offer comment
- Following the completion of this process the claims adjudicator disability awards weighs all the evidence and reaches a recommendation on the projected earnings loss
- The recommendation is then referred to a disability awards committee consisting of senior representatives from disability awards, vocational rehabilitation and medical services
- This committee makes the final decision on all loss of earnings pensions
- Vocational Rehabilitation Employability Assessments
- Left hand column (red) shows the numbers referred for assessment and the right column (yellow) shows the number of assessments completed
- From 93 to 96 you can see that the employability assessments completed well exceeded those completed
- There was an inventory of employability assessment during this period
- By the time we got to 1997 the employability assessment referrals and assessments completed were about the same so we are down to a much more current inventory
- Duration of earnings loss pensions
- Where the worker is at or below 50 at the time of injury the loss of earnings is payable for life
- If the worker is between the ages of 51 and 64 the pension continues to age 65
- At 65 or over it is recalculated on the physical impairment method plus a proportion of the difference between the two
- For example, a worker at age 60 will receive the loss of function pension plus 1/3 the loss of earnings pension
- This is based on the fifteenths formula set out in the published policy of the Board and I believe it is in the Reporter Series under decision 22 if you would like to look at that
- If at the date of injury the worker is 65 or over then there is generally no loss of earnings payable
- We have had some recent discussions about that and some recent appeal division decisions found that act to be unlawful so some interim guidelines were put into place that allows a rebuttable presumption
- So we will look at the evidence and if there is clear and compelling evidence that the worker would have worked beyond the age of 65 then we can extend the loss of earnings pensions based on individual judgement
- That matter is with the policy bureau at the moment regarding longer term implications for change to policy
- Reviews
- Initially projected earnings loss pensions were not reviewed and there is now an automatic review of an award made on a projected loss of earnings basis at 2 years
- Following that review there will be no further automatic reviews but the adjudicator has the discretion to set up the claim for reviews at a future date
- So we look at approximately 600 cases annually as part of this review processes
- About 250 of that 600 will have a more penetrating review depending upon the results of the preliminary analysis
- Deeming
- Where it is not possible to return a worker to work decisions must be made pursuant to Section 23 (3) to decide what the worker is able to earn over the long term
- This process is referred to as deeming and may be applied when
- The worker does not have a job but is considered employable
- The worker has a job but it does not maximize the long term earnings
- The worker, for personal reasons, decides to withdraw from the labour force
- The worker fails to cooperate with the vocational rehabilitation consultant
- Deeming requires a significant degree of judgement and objectivity
- Decisions on this issue are controversial
- Workers complain that these jobs are theoretical and not always available
- or suitable
- Employers argue that the projected earnings loss is often more due to factors unrelated to the disability such as age and general economic conditions
- This is particularly so if the physical impairment is small and the projected loss is large
- All other provinces with earnings loss pensions have some form of deeming
- Deeming chart
- This shows the number of loss of earnings awards granted in 93 through 97, the number of awards deemed and the percentage of deemed awards out of those granted
- It ranges from 41% in 1993, with a high of 59% in 1996 and back down to 39% in 97
- We need to put this in context in that a 10 or 15% difference may only involve 50 or 60 claims because we are dealing with such small numbers
- Challenges
- Changes in economic conditions, new technology and increased efficiency has resulted in a shift of employment from the resource and goods sector to the service sector
- This decline in traditional jobs poses a significant challenge in finding new positions for disabled workers who cannot return to their previous occupation
- In addition to the compensable disability factors such as age, lack of transferable skills, language limitations, educational levels and a labour intensive work history make successful training or placement a real challenge
- The average age of a loss of earnings recipient is 56
- In addition to the compensable injury many have to deal with the noncompensable injuries described above
- Employers contend that the noncompensable factors outweigh the compensable injury in terms of restricting new work
- On the other hand, the workers with permanent disabilities expect assistance in returning to employment and argue that but for the injury they would have continued with their pre-injury employment or at the very least could compete on a even footing in an open labour market
- It is within this context that vocational rehabilitation consultants and disability awards adjudicators must make the difficult decision about jobs that are available and suitable over the long run
- The problems for the 600 or so cases annually are among the most difficult to resolve
- We are hoping that early intervention, case management, the continuum of care and more focused rehabilitation will help address the challenge
QUESTIONS AND ANSWERS
WINTER
Q: I had some questions about the slides. Mr. Ingraham you put up a slide called disability awards claims flow, it is the 3rd one in your package. You have loss of earnings as approximately 591 million and the bottom it says updated figure 1998 with 1997 figures. I take it that you are saying that approximately 500 loss of earnings in 91 million is the 1997 numbers?
A: Yes
Q: On Mr. Hurst’s first page you will see that it says the number of loss of earnings in 1997 is 691, which is a significant number above the one you put.
A: That is the correct number so we should be using that one.
Q: Would that be the same with respect to the functional awards?
A: It was just to exhibit a point but the correct figures would be the actuarial figures that Mr. Hurst provided.
Q: Mr. Ingraham you put in a slide showing the processing times for functional and for loss of earnings pensions. I wasn’t sure quite how this works. At the bottom you have a month and then on the left hand side you have number of months. I took this to mean that January, for example, was when the referral started and number of months was how long it took from that referral.
A: It means that in the month of January the average processing time for loss of earnings pensions was 14 months for that particular month. In other words, all the cases that we closed that month would show up in our statistics as the overall average, which was this. We are comparing month to month and year over year.
Q: The month at the bottom is when the file is closed and it tells you how long it took to get to that point on the side?
A: Yes
Q: I want to start with the loss of earnings pensions. I am just giving out decision 297. It establishes the historical roots of the loss of earnings pension. Loss of earnings pensions were first used in 73 and that was only for spinal injuries.
A: Correct
Q: Then in October 1977 as discussed in this case the Board raised the question as to whether loss of earnings pension should be extended into non-spinal injuries for permanent disability awards.
A: Yes
Q: What they did was they had a type of a pilot project from October 1, 1977 to January 31, 1979. What they did during that period was to review all permanent partial disability awards not related to a spinal column. The adjudicator would make a decision about whether he or she felt that it should be looked at for loss of earnings pension and that would be referred to this committee to also make a determination whether or not that would be appropriate for loss of earnings. Is that correct?
A: I think that is correct.
Q: On the second page, page 12, it says at the very top that there were 4,180 permanent partial disability awards during that period that were not related to spinal columns. The disability awards officer recommended that 13 should have a loss of earnings pension and of those 7 were accepted by the committee. My understanding is that those 7 were implemented by the commissioners. So they accepted 7 out of 4,180. That is where it started and the intent at that time was that loss of earnings would be applied in exceptional cases. On page 12 the first full paragraph starting "All other awards&ldots;" The guide is the same as in 1973 as it is now with the exception of the inclusion of the word "back" in 90?
A: Correct
Q: Would you agree that the Board has significantly swayed from the original intent to use loss of earnings method of calculating a worker’s pension in exceptional cases?
A: I don’t think that I can agree that it has swayed from the original intent. As with any new policy it is going to develop over time and a number of practices will develop from that. I believe that we were the first Board in Canada to introduce a loss of earnings concept and introduce a dual system.
Q: Let me tell you why I think that it is swayed. It was intended to be used for exceptional cases. You would agree now that policy requires loss of earnings pensions has to be considered when ever there is permanent disability case. It doesn’t mean that you are always going to get a permanent disability in ever case but it must be considered by the adjudicator in every single case that there is a permanent partial disability. Is that correct?
A: I think that it is correct that it must be considered in every case.
Q: That is why it is no longer exceptional cases because it is a norm in every case that has to be looked at.
A: What I suggest to you is that it is still rather exceptional. We are talking about 600 cases out of 75,000 with maybe a degree of exception.
Q: We are not talking about 600 and 75,000 because 75,000 did not go to pension. We are talking about 600 out of 5,000.
A: Yes
Q: As compared to, in 1977, 7 out of 4000. My calculation was that 7 out of the 4, 180 was .2%. Your average that you gave us is in the 10 or 11% range every year.
A: I have to add that at the end of 97 there was also a 1500 claim backlog so your average might change slightly if you add in the 1500 claims.
I think, as well, there have been significant changes in the nature of the work and in the work place.
Q: You mentioned loss of function awards and gave an average. You said that this pattern is the same over the last 30 or 40 years in that you are going to see peaks and valleys. Would you agree that we haven’t seen this same sort of pattern for loss of earnings? There has been an escalation as it started with 7 back in 1979 and it has increased to where we are now. It hasn’t had those ups and downs.
A: I would agree that the loss of earnings paid as a percentage of disability awards granted has increased over the years yes.
Q: I asked you if it is swayed and if it is no longer exceptional because look at the numbers that we have and the percentages - in 1993 it was 13% and the ranges that you have given are 10 or 11%. The administrative inventory also commented on this point in 1996. Are you aware of that?
A: I am aware of it.
Q: I am going to read you what they said on page 112 of the 1996 report. You say that you disagree with that reasonable argument that standards have been lowered over time especially for loss of earnings pension. Is that correct?
A: It is difficult for me to comment on whether or not the standards differ. Certainly as we get more experience with the new policy and as a number of these cases are considered and reconsidered through the appeal process, etc. you are bound to get differences over time.
Q: The conclusion of the people that were retained by the Board through the administrative inventory was that they felt that a reasonable argument could be made that the standards had been lowered.
A: That was their conclusion.
If you speak to the vocational rehabilitation consultants about what is different today from 10 or 15 years ago you will get an almost universal comment that the clientele that they are dealing with who are coming out of $20/hour jobs with permanent functional impairments and who are not likely to return to that earnings level is much higher today then it was 15 years ago. The ability to put people back into $20/hour jobs in today’s economy is much more difficult than it was 10 or 15 years ago. That doesn’t speak to the lowering of the standards of a loss of earnings pension but I think it speaks to the complexity of returning people to pre-injury earnings.
Q: I will get back to that because I disagree with that. Mr. Hurst pointed out that employers have taken issue with some of the other factors that are looked at in loss of earnings pension - age, education, language skills and that is a lowering of standards in the employer community’s version. I will come back to that. I want to continue with the administrative inventory. Their attention points are set out in the back on page 255 and this is for pensions incidents and costs. I read this as saying that it is a significant problem area that there has been significant growth in loss of earnings pensions and this has to be addressed by the Board. Do you agree that that was their conclusion?
A: I don’t disagree with your statement.
Q: Has the Board accepted that and put something into place to try and identify the trend ?
A: We have looked at a number of issues around the difficulties of re-employment. There is no question, in our perspective, that there have been changes in the work place with respect to certain sunset industries, industries that have declining opportunities. We have begun to analyze those sorts of. We have looked at trying to deal with these things much earlier. I alluded to the continuum of care, the early intervention strategies, the idea that we would get focused on trying to address these cases much sooner rather than later and those are the kinds of things we have looked at to try and address the circumstances. As you know there was a recommendation for a major study that sits with the policy bureau at this time.
Q: The briefing paper called Permanent Disability Pensions was prepared by the Board on January 13, 1997. On page 4 it notes that, after quoting the same part of the inventory that I just read, in November 94 the governors of Board approved the idea of a study and authorized its scope and how it should be done. In January 13, 1997 it says that little further action has been taken. Can you tell us what action has been taken now?
A: It rests with the policy bureau.
Q: This is another example of something approved by governors in 94 and 3 years later nothing has happened. You would agree with me that Section 23(3) loss of earnings pensions is really a one way benefit and it is only used to provide a higher pension to a worker and that is never used to lower a pension?
A: It is not used to lower a pension.
Q: For example, if a worker loses a thumb the schedule says that they have a 10% functional pension. Is that correct?
A: Correct
Q: That worker in that industry may have had no loss, actual or projected, because of the loss of the thumb so if we did a loss of earnings that would be 0 but they still get the 10%?
A: Correct
Q: You identified some of the concerns of employer community in the area of loss of earnings pensions. They are concerned about small functional pensions resulting in large loss of earnings pensions. The two categories I want to deal with are called nominal and small, my words not your words. Those are in this presentation from Mr. Hurst. On the 4th page is a breakdown of functional disability. You said that if it was under 5% you are not really going to get any significant earnings. I called nominal the first category of earnings, which is 0 to less than 2% and that is 33% of the awards and the small awards are the 2 to 5% category, which is another 1/3 of the awards. Now the Board has statistics on a monthly basis showing the loss of earnings pensions that were prepared for that month compared to the functions.
A: Yes it does.
Q: I have one from June 97 and I would like to get a couple of comments. It shows all of the functional awards that had loss of earnings pension considerations, because some of them were zeros, for June 97. Is that accurate.
A: Correct
Q: If you look at the first 9 those are the ones that say between 0 and 4. The first one is zero, which I find very surprising because I think Mr. Ingraham identified that the policy clearly says that if you have a zero functions award then you cannot have a loss of earnings pension.
A: This was a new report that was made in a new system of pension import data. When an adjustment was made to the pension system it reflected the 0 at that particular time but it is not an actual reflection of the pension paid. That glitch in the system has been fixed if I understand correctly. If you look to the far right, third column in, there was an appeal division decision and this is reflecting an adjustment to an existing pension.
Q: You can’t tell me today what that pension would have been it is just a glitch that shows 0?
A: Yes
Q: I have seen other examples of zeros and that would be the same glitch. If it was 0 then there would be no payment of an loss of earnings pension?
A: We do not pay loss of earnings pensions for zero functional.
Q: You read the section from the manual I think about why it is zero. Basically it is felt by the commission that if you have 0 it is so minimal an impact you can’t have a loss of earnings because it is so minimal. I guess that is the same sort of argument employers are trying to bring up with .2%. If the functional was .2% employers have to pay the 75% and employers still think that the .2% is so minimal how do we end up? If you look at the first one after the lumbar impairment 1% of functional goes up to 75% loss of earnings. The next one is an arm impairment that goes up from 2% to 48%. The knee had a 3% and goes to 56%, an elbow with a 3% goes to 52% and a wrist that had 4% goes to 46%. Has the Board done any studies on how these wide variances occur from what the functional provides to what the loss of earnings provides? How does it do that?
A: We haven’t done a study no.
Q: Basically it is each individual case and we can’t talk about it anymore.
A: I think that the process that is followed is our most senior managers in the areas of interest form the disability awards committee to ensure that there is scrutiny, accountability with respect to these awards . So we have the senior medical advisor, the senior vocational rehabilitation manager and the senior disability awards manager who ensure that when these awards are made they are in keeping with the recommendations and they are consistent across the organization. Now I get that report every month and when I see a 2% with a loss of earnings pension of that nature it is not unusual for me to refer that to my director in vocational rehabilitation and say are you telling me that there is no likelihood that we can restore this individual to some kind of pre-injury earnings level? So there is that kind of scrutiny. I can assure you that this is not just a clerical function that transfers the functional to the loss of earnings.
Q: Is there a document that is produced that summarizes on an annual basis or is only on a monthly document that shows this kind of information?
A: We produce this document monthly but we can write a query to see an annual report.
Q: I would like a copy of 5 years going back from 93 to 97 so that I can look at each monthly one or if there is a summary one that would be just as good.
A: I will see if we could produce it for you.
Q: If you can’t I would like the monthlies from 93 to 97. I assume that what we have done in the past is that these requests end up going through Mr. Bates and everybody gets a copy - all council and the commissioners.
A: Yes that is certainly acceptable. Occasionally the Board staff will be able to provide it through the week if the information is readily available.
STEEVES: There may be a need for additional information so if we could get the date of injury as part of that information that might be helpful.
A: We can do that yes.
WINTER
Q: I want to continue with loss of earnings pension questions. I want to talk about some factors that are relied on in accepting in a loss of earnings looking towards language in the inventory of a lowering of standards or maybe it is a widening of standards.
I want to talk about a case that was decided basically on language skills. It is a review board case. This involves a painter who was an Iranian worker. He fell off a ladder, injured his right wrist and he was on wage loss for about a year. He was given a permanent partial disability award, 4% for the wrist impairment and 1% for subjective complaints for a total functional award of 5%. He had a very poor command of English, the work he did was within the Iranian community. What the Board did was they provided extensive rehabilitation training in English training. Does the Board still provide that - language training?
A: Yes
Q: Okay so that was the rehabilitation effort that the Board put in.
A: We would provide that training if that would improve their ability to earn their pre-injury rate.
Q: The loss of earnings issue came down and it was agreed by everybody including the worker that he was physically capable of doing other jobs - parking lot attendant, security guard and production line work with no excessive repetitive motion. He agree that he could do those so he received no loss of earnings because each of those jobs had an equal or higher rate than he was receiving as a painter. He appealed that to the review board because of his language barrier. On page 9 of the review board decision the majority of the panel finds that the worker is currently suffering a loss of earnings by virtue of the injury to his wrist under the claim. It goes on to say that this loss of earnings is directly relatable to the serious impediment of his inability to read, write and understand English so he received 100% loss of earnings award. That was not because of the injury but because of his inability to read/write/speak. My understanding is that it is the Board’s policy or practice that they will look at age, language or education and loss of earnings could be awarded for those aspects as opposed to only the injury. Is that correct?
A: In essence the reason for bringing in the dual system and if you look at decision 8, which speaks to the matter in detail there is a recognition that factors such as those make it significantly more difficult for a worker to adapt to re-employment. It can have more profound effects based on those other issues. That is the whole rationale for this dual system.
Q: I thought that the whole rationale when it started with the spine was that the Board gave very low functional percentages for the back but because of restrictions for bending/squatting/lifting that had an adverse effect on earnings in many cases. Those restrictions stopped people from finding other work and they ended up with a dual award.
A: On the contrary. In decision 8 the review at that time speaks to the matter and resists the temptation simply to increase the percentage of impairments for back injury as a solution to that problem.
Q: Let’s assume the same person, the painter, was returned to work with the pre-injury employer as a security guard because the employer says yes we need a security guard. A year or 2 later the business folds so what would the Board do with that worker 2 years later?
A: The Board would not conduct a review unless there were disability changes or there had been some evidence indicating that we erred in our initial assessment.
Q: He lost his job two years later due to economic circumstances. He is not able to get work because he can’t speak English but the Board is no longer concerned because his disability hasn’t changed.
A: Yes
Q: So at the front end it makes a big difference but there is going to be a time line where that difference no longer becomes the Board’s concern but rather a market economic factor. That is where I have difficulty with it.
Q: Chronic pain syndrome is also affecting loss of earnings. Mr. Hurst your chart set out the top 3 injuries for loss of earnings pensions. Where does chronic pain fit in here?
A: Some of those obviously will have complaints of chronic pain. It is not its own diagnosis per se. There may be well defined impairment and there may also be on going complaints of pain.
Q: Do you think at the BC board there has been a significant impact of chronic pain syndrome on loss of earnings pensions?
A: Most of our clients discuss the fact that pain is a factor in their ability to work.
Q: I dealt with several chronic pain cases. The literature seems to say that you have to distinguish between chronic pain and chronic pain syndrome. Is that your understanding?
A: Chronic pain is more of a general term and that is used among clinicians. Chronic pain syndrome has more behavioural characteristics that accompanies chronic pain so it constitutes a set type of chronic pain population. Right now the term chronic pain syndrome is being used less and less and is being replaced by pain disorder, which is DSM IV terminology
Q: This is my understanding of the difference between chronic pain and chronic pain syndrome. Chronic pain is where there is normally an organic cause for the pain but the pain, intensity and duration is longer than what would be expected for the average person that has that injury. Chronic pain syndrome has no objective organic cause anymore. It is psychological.
A: That is not correct.
Q: Do you have literature on that because when we get to argument I will be putting in literature.
A: Yes the current literature and research on chronic pain phenomenon indicates that this is actually a bio-psycho-social phenomenon. Any pain experience, whether you would call it chronic pain or chronic pain syndrome has a biological, physiological, cognitive, affective and behavioural component. Only a bio-psycho-social interdisciplinary approach to pain helps to understand it. You are thinking along the Cartesian model where mental is different from physical. In chronic pain mental and physical is intertwined.
Q: All of the cases of chronic pain that I’ve dealt with have had medical evidence saying that there is no reason why this person shouldn’t be returned to work. Their physical disability was considered to be resolved and the pain is not associated with an objective physical injury.
A: The current state of clinical knowledge around neuro imaging techniques and other audiographic techniques such as that there is no objective proof of pain. The international definition of pain is that pain is a subjective phenomenon. So what we are facing at the WCB is a subjective phenomenon that is being assessed using objective criteria. Therefore, in many situations we will have no so-called organic findings because the organic findings may be more clear in 10 or 20 years when radiographic techniques and other imaging techniques improve to the point where you will see it. The newest theory of pain is that this is actually a brain phenomenon and therefore there is really no way that we can pinpoint or have a pain measure per se.
Q: I think that we are back in agreement then. My point was that pain is subjective and that is what we are trying to deal with as opposed to looking at the objective area. Chronic pain syndrome is based more on subjective statements of clients.
A: In many clinical conditions the primary reliance of clinicians and the actual data they practice is on subjective complaints and on history. In many years the objective evidence will become available after years and years and years of research. We are very often dealing with a behavioural phenomenon that we are analyzing and that requires treatment management.
Q: The Association of WCBs of Canada has done a paper on compensating chronic pain in 1997. Is that correct?
A: Yes and we have done research on it as well.
Q: They felt that chronic pain was a significant problem for all WCBs in Canada. I think that you have already said that.
A: Very much so it costs about $2 billion a year for all Canadian WCBs to pay expenditures
Q: It notes on the first page of the executive summary that this issue was addressed by a task force in BC, which estimated that the WCB of BC was dealing with at least 1000 chronic pain cases at the 6 month interval at the cost of at least $140,000 each. While these figures suggest that chronic pain is a tremendous expense to the compensation system they represent only one aspect of the problem as chronic pain can have devastating effects not only economically but personally as well.
A: Yes
Q: Were you on this task force?
A: My predecessor Dr. Bart Jessup was on the task forces and I continued his work.
Q: So the estimated numbers that they give here are accurate?
A: We probably have more updated cases. We analyzed 439 cases of loss of earnings in cases of lower back disability in 1995. We were looking at potential predictive factors and also looking at the correlation between impermanent disability. So you may be interested in looking at these findings, which we presented to the World Congress of Pain in 1997.
Q: I was going to ask if the BC task force had a paper and can it be produced?
A: Yes
Q: In reading this paper it seems that other boards are taking steps to deal with and I am going to say limit chronic pain syndrome in some cases. Are you aware of that?
A: Very much so
Q: So, for example, in 1996 Nova Scotia has started a new program for early intervention and management of chronic pain. It is called their functional restoration program. Are you familiar with that?
A: Yes
Q: It has two stages. The first one focuses on workers who are potentially at risk for developing chronic pain and the emphasis is on pain management with the goal of return to work. The 2nd phase is for those workers who appear to be ready to return to work but who are still limited by pain from actually doing so. Those workers receive an additional 4 weeks of chronic pain services and after that there is no more further compensation for chronic pain in Nova Scotia.
A: Yes
Q: My understanding is that in Ontario their Bill 99 has gone to a similar limiting compensation for chronic pain. Is that correct?
A: Yes but I would like to say that the Nova Scotia policy and likely the Ontario policy is based on a monograph that was published about 2 years ago by Dr. Forsythe, out of Seattle, who has done a tremendous amount of work in the area of chronic pain. The monograph is called Pain in the Work Place. This particular monograph summarized research studies in the area and it actually recommended what Nova Scotia implemented as a policy. The monograph actually met with a tremendous amount of opposition among clinicians and the Canadian Pain Society has issued an explicit protest against recommendations of the monograph and the work place recommendations of the type that were presented. The idea in the monograph was to identify the pain problem with work intolerance or activity intolerance. It was based on a very behavioural understanding of pain, which is inconsistent with the current definition of chronic pain. This particular Board has taken a number of steps to actively combat and prevent disability stemming from low back pain particularly around a continuum of care program, early intervention and case management. We are the envy of other Boards in North America with respect to having an integrated system that probably in 3 to 5 years will result in significant reduction in chronic pain disability. We will not be talking as much about the forensic aspects of chronic pain disability but rather about prevention. This is where the actual pain should be.
Q: I wanted to talk about the deeming aspect. It really is an integral part of the loss of earnings pensions that the Board has to have the ability to determine suitable or reasonably available employment for the long term. Is that correct?
A: I would agree with that statement.
Q: Deeming is the last resort when efforts to return the worker to work fails for reasons that you have identified. Right?
A: Yes
Q: I want to talk about the automatic review that you commented on. The policy in the claims manual says that there has to be automatic review of the loss of earnings pension at least once 2 years after the decision is implemented or after the last appeal decision. Is that correct?
A: That is correct.
Q: I understand that wasn’t always done - I think in 91-92 - and now you say that it is done.
A: Yes we took some measures in the mid-90s to catch up on those that have not been addressed under the policy requirements. It is now done automatically for pensions that have been established. They are diarized for a 2 year review.
Q: I find it surprising because is any letter sent to the parties of interest - the employer and the worker - that the review has been done change or no change?
A: We don’t send out that to the employer but we do to the employee and the worker is required to send in certain information and cooperate with the review to make sure that the award that as initially established well reasoned, well thought out and representing the loss.
Q: Why wouldn’t that be communicated to the employer?
A: I think that it is a matter between the Board and the worker. It is a review to see whether in fact the initial projections that were made are, in fact, borne out over time. At that stage I don’t see them as a party of interest.
Q: I act for Alcan and Alcan is the only aluminum smelter in the province where they basically pay dollar for dollar through assessments. If I understand, if you gave a worker a 70% loss of earnings Alcan would have that capitalized up front and paid now. Is that correct?
A: If they are a deposit account.
Q: If you made a change and you reduced that loss of earnings pension then Alcan would have the ability to say that they want reimbursement because you took the capitalized value from us and now you have decided it should be less.
A: If the pension is adjusted there would be an actuarial adjustment to Alcan. They would then be notified so that would be taken care of.
On any decision when we are reviewing these claims if the pension goes up or down it is like any other decision letter and the employer would be notified.
Q: The only time they wouldn’t be notified is when there is no change.
A: That is correct.
Q: Do you have any statistics about how many of these reviews end up in change?
A: Yes we do and I can get those numbers for you.
Q: I know from looking at files that everything adjudicators do is put in memo form. I have never seen a memo saying that I have conducted the 2 year review of the loss of earnings file. Why have I never seen that?
A: As a manager since 1991 I have seen those memos so they should be there.
Q: What information do they use when they do the review? Is it just a conversation with the worker?
A: Generally the first starting point will be the loss of earnings decision that was made in the first instance so in some cases those worker may or may not have returned to work so the loss of earnings may have been a deemed award. The worker may have chosen not to return to employment.
Q: How do you know that? You ask if they have returned and if they say no is that the end of the story?
A: Usually yes. The rehabilitation consultant has been working closely with the worker to return them to work so there will be information on file about the employment status.
Q: From two years ago?
A: That’s right. We are talking about the review now two years later. Is it just a matter of phoning the worker and him or her saying I am not working and that is the end of that?
A: The worker is required to provide us with a declaration form. If there are earnings reported on that form then we will do a follow-up and ask for their T-1 returns so that we can do detailed review. If 2 years ago that the worker chose not to return to work or because they retired then the office, for the most part, will accept the worker’s evidence.
Q: Is there any reason for that review why you could not require that workers show you a T-1 for 2 years?
A: There was a lot of discussion, in 1991, regarding the kind of information that we would ask workers to provide us. It was ultimately decided that workers would provide us that information on a 2 year review form, which is generated automatically through our pensions department.
Q: The policy is very clear that a worker nor an employer has the right to apply for the review for a projected loss of earnings pension at any time unless there has been a change in the client’s physical condition. Why is that if the employer has reason to believe the person is capable or is earning more that they can’t have the right to come and say this is information that you can investigate and then let’s have a review?
A: They do have that right and it happens.
Q: So the policy is not followed then?
A: If we receive information from the employer that the worker is undertaking certain activities and they want us to review the loss of earnings decision it is incumbent upon the officer to review that information in light of the physical restrictions that have formed the basis for the loss of earnings decision. In essence, by undertaking that additional review on occasion we have asked the worker to come in and be reassessed to determine whether or not there has been a change. In other occasions we may undertake other kinds of investigation to get information on a worker and to get a better view of a worker’s capabilities in relation to what our evidence was 2 years previously. In practice there is enough evidence to allow us to make a determination that there has been a significant change since the initial decision.
Q: You are back into the physical and the policy allows for the physical. Let’s say the person is not working with the pre-injury employer and the pre-injury employer finds out that the worker has gone from a lower rate job to the vice-president of the company and they are making a lot of money. I understand this to say that the employer cannot bring this to the Board’s attention?
A: The policy requires a 2 year automatic review but that doesn’t mean that we can’t undertake a review earlier than that. If we have evidence to show that the decision we made 2 years ago or more recently is that the worker is not sustaining a loss to the extent that we anticipated then we would go to the worker and ask for that information so we could revisit that decision. The whole premise behind the review was to put as much accuracy as possible into those loss of earnings pension decisions.
Q: Has any thought been given by the compensation services division to recommend a change in policy here to open up the ability of the worker or the employer to be able to initiate this review as opposed to leaving it to only 2 years for the claims adjudicator to review?
A: That goes to the issue of broader policy. You may recall originally that there were no reviews on the projected loss of earnings. If the reviews, in fact, are consistently done and are more frequently done you then move into an actual wage loss system, with detailed monitoring so I think that some margin of error is accepted over the long run. The idea of the one initially being was that it needs to have one acid test that would ensure that the initial decision was reasonably accurate and reasonably well thought out. A compromise was struck to review at least once and then at the discretion of the officer if the circumstance is warranted otherwise I suggest that it is a broader policy that one might address under a natural wage loss system.
Q: Now the policy does set up parameters even for the adjudicator where it has to be up or down over 5%.
A: Correct
Q: I have some questions about the loss of function awards. Mr. Hurst you discussed AMA guides versus the BC Schedule and the kind of controversy there that both are arbitrary and some are higher here and some are higher there. After reading the Board’s briefing paper on permanent disability pensions of January 1997 they postulate on page 10 that an internal Board study in 1987 suggested that adopting this schedule, the AMA guide, would cause an increase of costs between 25 and 35% for Section 23(1) awards. Is that accurate?
A: I can’t comment on the number but I do recall the study. The study was indeed undertaken.
Q: It would be a significant increase?
A: I think that is a fair comment.
Q: My understanding is that it would really have no impact on loss of earnings. Those would be there at the significant number they have too. It would be raising the function and you still have to always compare the loss of function with the loss of earnings.
A: That is not entirely correct. It would obviously raise the loss of function. Presumably if the loss of functions are increased it would capture some awards picked up on a loss of earnings basis if there was a small differential.
Q: If the loss of function was 10% and the loss of earnings was 20% the AMA guide would end up with a loss of function of 30% so you don’t have to give the loss of earnings because you still have the 20% it is just a lower amount?
A: Correct
Q: It would have no impact on any of the underlying problems, concerns, costs of a loss of earnings. It may transfer now some of the money that is coming out of function because it is higher?
A: That is reasonable.
Q: On the briefing paper, page 5 I think that there is an error. It talks about the heading what consequences of permanent disability are compensable. It divides permanent disability into three types . There is monetary loss caused by a loss of ability to work and that is covered by compensation. There is monetary loss unrelated to the ability to earn, for example, medical or rehabilitation expenses or increased expenses around the home or in recreation and that is compensated by compensation. Then it says for non-monetary affects such as pain and suffering and loss of enjoyment and expectation of life the Board does not pay. That is incorrect isn’t it because the Board has a policy to pay for subjective feelings of pain and the range is somewhere between .5 and 2.5% in cases where it is appropriate. Is that correct?
A: There is always a question about the physical impairment that leads to the award. Sometimes the impairment might result in a loss of function of some type, sometimes it will involve subjective complaints but it doesn’t change the award. The award is a loss of function award and it is based on loss of earning capacity.
Q: Are you aware of Quebec’s schedule for pain and suffering?
A: I don’t know about that.
Q: Your comment was that one of the three types is non-monetary effects such as pain and suffering. Then you say that the Board does not pay compensation for non-monetary effects, i.e. pain and suffering. In fact, the Board does pay for pain and suffering through subjective complaints
A: The Board doesn’t pay specifically for pain and suffering. The Board pays for disability that affects earning capacity and part of that disability may be pain and suffering. It is similar to the courts where there is an award for pain and suffering.
Q: We do it in a different way. Here is what the inventory says on page 106, "Subjective complaints [pain, etc.] in the presence of an impairment may also lead to a somewhat higher impairment rating [+ .5 to 2.5%] by and adjudicator or officer. They call those subjective complaints pain." Do you agree that that is paid in BC.
A: I could only repeat what I’ve said. The paper maybe should have been precisely worded to indicate that sometimes the pain is a factor in determining whether there is a disability or not. If the pain amounts to a disability then we pay for it.
If the question is do we increase the functional pension in that range for additional subjective complaints the answer is yes.
The policy for administering that is under 39.01 in our rehabilitation services and claims manual. I think that it clearly states that pain or subjective complaints must have the ability to impair income capacity.
Q: I am not sure if it is that clear.
A: Read reporter series decision 318 and 39.01 I think that it is reasonably clear.
Q: In the briefing paper on page 7 it discusses different types of pension systems and there is a reference that in other jurisdictions there is 2 separate types - a lump sum specifically for non-monetary effects and a pension if there is an actual loss. Then there is a footnote and it says that in 1983 the Board set up a task force so it could stop to consider if such a system should be introduced in BC. The task force concluded that it should, a discussion paper was prepared and sent out for public comment in 1987. As the general response from both employer and worker groups was negative no further action taken. Can I get a copy of that 1987 task force paper?
A: Yes we do have a copy to provide you with.
Q: I want to come back to Code R and Code U benefits and I am going to call them income continuity payments. I want to talk about the ones that are trying to bridge the gap between plateau, the termination of wage loss and the implementation of pension. The policy 89.11 says that income continuity is to be paid where there is likely to be a significant permanent partial disability or the likelihood of a loss of earnings pension and the worker, as far as is capable is actively participating in the rehabilitation process. You are aware of that policy?
A: Yes
Q: The concern that we talked about yesterday was the discussion about this income continuity being paid even though the worker says they don’t want to return to work and that they don’t want to cooperate. Then we try to get the employability assessment done so that we can get the pension done so that we can stop the income continuity. The issue that I was raising is the problem seems to be how quickly we can get the pension looked at and implemented in those cases where the worker is not actively participating. How do we get this going a little quicker? Would you agree that administrative inventory requested some way to expedite this?
A: Yes I would.
Q: The concern that I have here on behalf of employers is that what happens when the pension is awarded it is backdated to the day after wage loss was terminated. So if wage loss is terminated January 31 and the pension is implemented in December it is backdated retroactively to February 1. Is that correct?
A: Correct
Q: That worker may have received income continuity from February 1 all the way to December. That’s a usual case is that correct?
A: I wouldn’t say that it is usual anymore but it could occur.
Q: Let’s say that it took 3 months to get the pension. Let’s say that you do it in June and you backdate it to February 1. You won’t give the money retroactively because they have already received it through income continuity?
A: That is correct.
Q: In my experience in most cases the level of the loss of earnings pensions is less than 100% in those cases so the worker has been overcompensated for want of a neutral term. If the pension was implemented immediately they would not have gotten full wage loss.
A: If the pension was implemented immediately that is correct.
I think that we need to make a distinction. The assumption at this stage is that the worker is going to be provided with rehabilitation, which would restore the worker to pre-injury earnings so we are dealing with a motive whereby the Board and the worker are trying to restore the worker back to pre-injury earnings in most cases. That Code R practice change was made to deal with the point you made where the worker chooses not to actively participate. That is where we change from continuing short term disability benefits to the estimated pension amount because that is what the worker would receive on their pension.
Q: We debated this yesterday Mr. Buchhorn and I won’t go into it again. I think that you just put Code U in to do the exact same thing.
A: No I beg to differ. Code U is a planning code where the rehabilitation consultant still has every expectation that the worker is actively participating in a rehabilitation plan.
Q: Let’s go back to the case where the Board determines in June that there is going to be a loss of earnings of 50% and they go back and find that the worker had full income continuity. The worker doesn’t receive anything because they have already received more than 50%. If the worker had received less than they would receive the difference. The employer doesn’t get credit for anything. The income continuity was charged to the employer’s class and it is not reimbursed because the pension is less. Is that correct?
A: I can’t comment on how the class or subclass works but I think that is correct.
I think, again, that the assumption is that the employer would get credit for that transaction if the employer had accommodated the worker to a return to work with that same pre-injury employer. It is where the worker doesn’t meet that potential that we have to go to another employer, etc.
Q: We have heard that what actually happens then is that there is a cost accountability transfer within the Board. Vocational rehabilitation services would be paying the full income continuity from their budgets and when disability awards comes up with their pension of 50% the vocational rehabilitation would transfer the cost off their budget to your budget - disability pensions. The employer doesn’t get any transfer it is just internal between the Board.
A: Correct
Q: I want to talk about fatality benefits. This was Section 6.1 and there was a paper dealing with occupational diseases, which talked about a difference between a worker who retires and then suffers and occupational disease will not receive compensation because they retired. They will only receive health care benefits.
A: Correct
Q: The widow of that same fire fighter who passes away while in retirement from a heart attack will receive compensation.
A: That is if the worker passes away from a compensable disability then the widow would receive benefits. The intent of that is that retirement benefits would have ceased post-retirement when the worker passed away.
Q: I never read the reason so I am trying to contemplate this. You say the reason the widow is getting this is because the retirement benefits are stopping. When I look at the worker’s compensation system what I am worried about is what retirement benefits was the worker getting from WCB that if that worker died from a compensable disease should flow to the dependent. We started with the premise that a fire fighter who survives a heart attack in retirement gets nothing from WCB except health care benefits. Is that correct?
A: That is correct.
Q: So there are no retirement benefits that are being deprived of that family unit when the heart attack happens during retirement from the WCB perspective?
A: No but there is a pension from the employer that ceases because of presumably a work related condition or injury.
Q: Now we are getting back to the point where the Board thinks that everything is their business. So the Board steps in and says we need to cover this because the person died. I think that there is an anomaly between the two situations and I think that the Commission is going to have to deal with it one way or the other. I am going to come down to Section 17. My understanding is that almost every section you look at has some kind of economic test relating the payment of compensation benefits to loss of earnings or earning capacity. I see it in Sections 5(2) for personal injuries, 6(1) for occupational disease, 33 average earnings, 22, 23 and for a permanent disabilities it is in sections 29 and 30. Do agree with that?
A: With the sections you pointed out yes.
Q: Section 17 is the reason that I understand the widow is put in this position.
A: That is correct.
Q: That is because it has the words in sub 2 and sub 3 where compensation is payable in the result of the death of a worker and that gets you to 5(1). Is that correct?
A: It seems to me that what we have here is a payment of benefits after the death of a worker where the worker is not entitled. Section 6(11) deals with compensable disablement paid by Board. The worker may not have a pensionable degree of disablement but subsequently dies as a result of a condition of the lungs similar or dissimilar to the compensable feature yet compensation is payable to the survivor of the worker.
Q: I didn’t use example of respiratory and in 6(11) it doesn’t say pay compensation. It says that it must be conclusively presumed that the death resulted from the disease. The disease caused the death do we pay compensation? The reason you pay the widow is because of Section 17 and that leads to 5(1).
A: It stems from 6(1) that you have an occupational disease that has been accepted. Without that you don’t get a presumption in 6(11). Section 17 does give you the ability to pay.
Q: I am not actually looking at 6(11) because I am looking at fire fighter/heart so the assumption under which the Board actually pays the widow flows from Section 17 and the words that I read. Is that correct?
A: Right
Q: Section 17(3) sets out how much compensation should be paid to dependents. It is still used?
A: Yes
Q: 17(3a) deals with a widow, widower or 2 or more kids and 2 talks about if you have more than 2 children then you get $65/month for each child above 2.
A: Less CPP entitlement yes that is right.
Q: I know you are going to bring in CPP but disregard that for the moment. For the WCB that could result in more compensation being paid then the worker would have been entitled to if he had lived and gotten health benefits.
A: If you disregard CPP you are right.
Q: I have 2 concerns with commutations. First my understanding of the intent of WCB is to replace income loss and income is normally paid on a periodic basis in the work world. I take it that is why the Board pays it in that way to try to best reflect how income would be paid to the workers if they were still in the work force. Is that accurate?
A: I think that is accurate yes.
Q: If it was commuted it would take away that aspect of the nature of the protection that worker’s compensation gives?
A: Yes I think that the Board recognizes that there are a number of small awards and that is why, of course, we have the various options available but in those areas where there is the potential to impair earnings capacity the Board prefers to be conservative and pay those on a monthly base.
Q: Acting for employers is an overpayment concern and that is why I think that there should be reasonable limits on commutation. Right now the maximum for automatic commutation is $40,000 for the lump sum so you would discount that by 3% and pay out $1200 less. Or the amount would have been a higher discount rate. There is a discount taken and one of the reasons is a potential of mortality for a cause beyond compensation.
A: There a number of reasons that are set out in decision 382 that speak to the issue of why there should be a discount rate.
Q: If you go out and do a reward that is going to be $40,000 and you commute it the employer, if it is a deposit account or Alcan pays that amount or if it is a member of a subclass the subclass is charged that $40,000, today’s value. Correct?
A: Correct
Q: If the worker is given $40,000 and a week later dies in a car accident unrelated to work that money is not recoverable?
A: That is correct.
Q: And the employer does not get relief?
A: No but we don’t charge you anymore if the worker lives to 101.
Q: True but you have the ability to charge us more under the act under the assessment section 39. The Board does have the ability to get more money from an employer if they need more money through Section 39.
A: I am not aware of that.
Q: If the Board doesn’t pay all the money out then it stays in an accident fund is that correct? Every employer in the province gets what ever benefit it is of the money still being in the accident fund. Is that correct?
A: It seems to me that it is set up on an actuarial tables where some workers will live a shorter period and some workers will live a longer period.
Q: I am talking about a case where the payment is paid out and the person is now deceased. That money, that has been capitalized, is not returned to the employer but it stays in an accident fund.
A: I think that it is the reason that the discount rate is there. It is the mortality table that is used so that over a large sample size of workers it accurately reflects the cost and while your situation does show an imbalance for one employer as Mr. Hurst said the worker could live to 101. The actuary is assuming that that discount rate accurately reflects the mortality rate within that subset of workers.
Q: Is that why if you set your commutation rate higher then you would have to set your discount rate higher? You said that you discount 3.5% when you get into the net bracket of $60,000.
A: There is one discount rate. Obviously the higher the pension the more impact it has on the discount rate. What I can tell you is that at about age 40 if there is a commutation the discount rate would be 7.5%. If you are younger it would be higher and if you are older it would be lower.
Q: I thought you said there was two discount rates. I thought that you said the automatic payment was 3% and I thought you said that you get a choice payment that was 3.5%.
A: When the money is set aside they are set aside on a life table and that has a discount rate of 3%. There is a discount rate of 3.5% of commutations that are applied for. Commutations that the Board is obligated, if you will, to provide will simply process them up to the limits that we discussed earlier then the discount rate will be 3%. It is a higher rate where you apply for and receive a commutation.
SAYRE
Q: I would like to examine the process of assessing a pension with you and get your comments on the various stages. I am looking at the possibilities for bringing the length of the assessment process down. I understand that a pension decision involves at least 4 and now perhaps 5 separate elements – date of pension commencing, date of wage rate, functional impairment percentage and the decision as to a loss of earnings. As a result of the appeal division’s decision about the legality of the policy that automatically terminates loss of earnings pensions at age 65 there may be a 5th decision as to when the loss of earnings pension will terminate if the worker presents evidence that they could work past 65.
A: In general terms those are the general steps. There is a multitude of steps that can flow from those steps. There is the loss of earnings, the vocational rehabilitation plan, updating the plan and the employability assessment.
Q: I am not talking about the steps that lead to the decision now I am talking about the actual decision. These are aspects of the pension decision that could be appealed by the worker to the review board. Is that right?
A: The first step is obviously at the conclusion of a claim file when the worker feels that they have been left with a permanent impairment. The adjudicator must decide they agree and then send the claim forward to the claims pension department.
Q: So before what I was talking about there is the question of whether there will be a pension or not?
A: Correct
Q: If the Board says that you are not going to suffer any loss of earnings as a result of your injury therefore there will be no pension assessment and in that case the appeal is over that decision alone. The review board doesn’t have the authority to decide the things that I just reviewed. The review board can say yes there should be an assessment or no there shouldn’t but they can’t go on to say there will be a pension, here is what it will be and when it will start?
A: Correct
Q: The pension will invariably start the day that wage loss benefits stops?
A: Yes
Q: The pension decisions are made by disability awards, which is different than the claims adjudicators. Is that true?
A: They are claims adjudicators by job description but their specialty is in disability awards function.
Q: Will the process be any different under case management?
A: That is what we are exploring at this stage. Initially there was a pilot in the Prince George office that was a proof of concept of the case management model. They took that as far as the plateau decision. They didn’t go into the pension arena. In the disability awards area we have been doing a process review in trying to improve our overall productivity and performance in that department and look for opportunities. We have now reached a point in sitting down with the case management project team in deciding what functions could be performed by a claims manager and whether or not a claim could be carried in case management to the point of pension. We feel with the appropriate tools in place that could occur.
Q: So you are looking at that actively?
A: Yes
Throughout the Canadian jurisdictions there are examples of Boards that charge the case manager with the entire claim right through to the calculation of pension and it goes to the issue of hand-offs and reworking a file that you have no knowledge of, etc. I would like to see as much of that area incorporated into the case management process as possible. Whether we end up with pension specialists for the loss of earnings awards as most other jurisdictions have is yet to be determined.
Q: Does it ever happen that the date of the plateau is changed by the disability awards adjudicator?
A: Can’t say I am aware of that.
Q: There is often new medical evidence when the pension decision is made. I would think that in some cases that would indicate that the condition is fluctuating as opposed to being stable. What is the practice then? Does it have to be referred back to the claims adjudicator to change the end date of the wage loss benefits or can the pension adjudicator do that?
A: In practice you are right the effective date of the pension you are right the will, in the majority of cases be, the date following the date that wage loss benefits are finalized. There may be cases where the worker is injured and receives no benefits for whatever reason in which case the adjudicator, the officer or the adjudicator in disability awards may establish an effective date of the pension.
Q: That is an unusual case and we are talking about the normal cases. The worker has a disability, it reaches a stable situation, wage loss is cut off, however long after the pension decision is made the pension adjudicator is looking at the new medical evidence that has been provided in the mean time and sees that the condition is changing after the date of the cutoff. Does that ever happen?
A: I can’t recall any from my own experience.
Q: I want to look at some of the overlap between the elements that go into a pension decision and some of the issues that the Board has to be examining throughout the claim for purposes of wage loss benefits and claims management, not necessarily the claims management system but just generally handling the claim. The Board has to be aware at all times of what the worker’s medical condition is doesn’t it?
A: Wage loss benefits are based on the proof of medical disability so for the short term wage loss benefits that is correct.
Q: That is one of the crucial elements of determining what the wage loss benefits are going to be and that is the up to date knowledge of what the condition is.
A: Correct
Q: That is not a new area that only needs to be looked at as of the plateau day. The Board should have had that in mind all along.
A: Yes but we are not looking at the medical information in isolation. We are also doing a review of the physical impairment through testing.
Q: I understand that. From the outset of the claim the Board collects all relevant information about the compensable injury and the consequences that may have on the worker. That is an ongoing process and that is something that starts when you start assessing the pension?
A: Yes
Q: As far as any changes that occur you are advised by that from the doctor when they occur? We have heard about the new processes that have been put in place to speed up the process of doctors alerting the WCB about any change. Is that correct?
A: Correct
Q: The question about whether the worker is functionally impaired or not is an issue that you have indicated has to be addressed in deciding whether there is going to be a pension assessment. So the Board has already come to the conclusion when the pension assessment starts that there is a permanent disability.
A: Yes I believe that our policy manual states that we believe there is a permanent impairment that requires measurement. Whether there is a measurable degree of impairment is based on the assessment. I believe also that the policy manual states that if a worker believes they have permanent disability then a referral should be made to disability awards as well.
Q: Do you know if an assessment will be made if a worker says that they think they are impaired and the Board doesn’t think so?
A: There is discussion and debate over that at this stage. If there is no medical evidence provided by the worker’s attending physician attending, who says that there is nothing wrong with the worker, then it is questionable whether or not they need assessment.
Q: There have been cases where the Board has refused to conduct a pension assessment even though the worker feels that they are impaired.
A: That is usually the case that I have described.
Q: The elements that go into the decision of whether or not to have a pension assessment and so on and ultimately to the pension itself you get input from the attending physician?
A: Correct generally all the documentation is on the file when they arrive at the disability awards area. If prior to determination additional information is required is not on the file then it may be requested at that time.
Q: Under current practice you always get input from a Board medical advisor in making a pension decision?
A: Yes our practice is to get input from a disability awards medical advisor and that is where this assessment occurs. We are currently reviewing process with an Arcon system approach.
Q: If that process, it is a fairly wide pilot isn’t it? Doesn’t it affect the whole lower mainland?
A: It is the lower mainland but it is restricted to 500 cases.
Q: If that pilot is extended or to the cases that it is being applied now is there any input from a Board medical advisor to the pension decision. That takes the place of the disability awards medical advisor examination doesn’t it?
A: At the present time during the pilot process there is input by disability awards medical advisors and there are 3 experienced disability awards medical advisors to survey the files that are being done by the external providers to assess quality assurance and to determine if the information being provided is adequate for the officers to make pension decisions
Q: The intention of the project, if it is successful, is that the software will generate a report, which will take the place of what is being done by the disability awards medical advisor is that correct?
A: This software will generate a report that is reviewed by an external physician to provide comments for the officers to make pension decisions.
Q: I don’t think we heard about that. Who is the external physician?
A: Each of the 2 external providers have physicians employed who have been trained in the aspects of Arcon by the company that created the program. They are also trained in the Board’s needs for the adaptations that we have made by clinicians from the Board. There are two physicians with each of the external providers who have that training.
Q: The Board has trained these doctors?
A: Trained them in the aspects of assessment of permanent functional impairment that are necessary for the Board officers to make their decisions.
Q: What input do they have into the process?
A: Initially the assess the 24A that comes from the officers determining the diagnosis provided by the Board and determining the anatomy to be examined. They then instruct the clinicians in the areas that are to be assessed. The clinicians are not provided any of the background clinical information so that they are unbiased in their assessment of the function of the joint that is to be examined. After the physical parameters are determined by the physician using the Arcon tools the physician and the clinician collaborate to create an interpretation clinically of the information in lay terms that the officers can use to make determinations.
Q: It doesn’t sound to me that the doctor is going to take any extensive history during that process.
A: There is a history questionnaire filled out by the claimant at the beginning of the process. In that, medical history is included.
Q: This sounds like a form one might fill out when going to a doctor for the first time.
A: Correct
Q: Are there any subjective comments that these supervising doctors add to the report that is generated by the software?
A: There is an attempt to remove the physicians from subjective commenting because it is considered that. Often physicians, because of their very clinical experience may introduce biases into the assessment as subjective complaints from patients. The patients are asked to rate on a scale of 0 to 10 - 0 being no symptoms and 10 being symptoms being so severe that they require hospitalization - a number of body functions including bending, lifting, carrying, walking, etc. Those responses are recorded into the computer and then the clinician who conducts the examination asks them during the functional testing is there a place in your body where you have discomfort and where is the place in your body where you have maximum discomfort. This is to ensure that the person doesn’t respond on an area other than the injury. There has been an attempt to correlate the answers clinically by the computer that are given during the testing with the answers provided during the initial interview. There is data in the medical literature that supports this method of assessing subjective complaints as being more objective than a physician simply asking the questions and then giving the physician¢s assessment based on clinical experience.
Q: It is a self-rating process?
A: Yes initially the worker is rating ongoing function before tests and during the testing he or she rates the discomfort that takes place. Since the testing involves multi-plane or multi-joint activity there is a consistency because the patient is undergoing a kind of testing so their attention is distracted sufficiently and there is enough cross-referencing that you can get validity testing.
Q: The doctor is taking the worker’s information and recording it as part of the report so the doctor is not reviewing the information or deciding whether it is true or not?
A: Correct the doctor doesn’t even ask those questions. It is the clinician who conducts the examination that asks the initial questions about discomfort and dysfunction ratings. The clinician then records the claimant’s subjective responses during testing and those are correlated.
Q: The clinician is the technician?
A: Is the technician that operates machine.
Q: What certifications do they have?
A: They are certified by Arcon to do the tests and operate the equipment using the tools that are common medical tools for measurement of body function but these tools are attached to a computer to more accurately register the movements.
Q: Is there any medical training?
A: Some of the technicians are physiotherapists and occupational therapist. One is not but he has the experience with the Arcon use and he is credentialed by Arcon.
Q: How long does this process take of getting back the results?
A: The results are generated about as quickly as a Board doctor would take but the information is placed directly into the computer. What is not being done by the external provider is the actual calculation of the percent of impairment. The data that is sent back to our adjudicators and they have the software that does the percentage impairment calculation.
Q: That is also done electronically?
A: Yes it has significantly reduced the error ratio in the calculations.
Q: Has the Board broken down the cost of one of these examinations?
A: This is a proof of process activity that we are going through so the cost is being done as we go through the process. There are certain types of examinations that take longer than others. We hope to generate a recommended fee schedule for the different types of examinations that would take place.
Q: Any idea how many examinations can be conducted by one clinician, one team with one set of equipment during the day?
Q: I would suggest that we started with 3 referrals today and we are moving up to 4 referrals a day that are operating one machine each. The first week they were working on a part time basis and completed 26 permanent functional impairment examinations for us. Any one facility could have more than one piece of equipment. In theory a physician could have any where from 2 to 3 machines operating for testing.
Q: Are you confident that this program will be successful?
A: Personally I think it will be.
It is a more objective and more consistent method of assessment of dysfunction.
Q: Any problems yet?
A: The problems are just the transition to this testing. We are overseeing the clinicians closely and as their learning curve goes up we expect that they will be more efficient and do more per day more accurately.
Ultimately the decision on whether this project goes ahead will lie with the panel . We have Coopers-Liebrand doing a complete review of this project from a cost perspective, from a client service perspective and from a software integrity perspective. Subject to that being successful, subject to more stakeholder consultation and subject to a decision by a decision by the panel we are hopeful that this will become the standard way of doing this work.
Q: With respect to the final step of the process you send the worker to the assessment and get the report back. It is the adjudicator and disability awards who have the software to determine the percentage of permanent functional impairment. Is that right? So they just have to press a button?
A: Yes it is entering the data into the software. We have a project team doing that right now and it is likely that we will expand that to all officers within the department with the software.
Q: Is there any other input that the adjudicator has for the determination of a functional pension?
A: It hasn’t changed much for adjudicating the pension. The adjudicator’s responsibility is to assess the percentage of impairment based on the subjective component of a functional impairment.
Q: How are subjective components affecting the results coming out of the software you are describing?
A: We didn’t have a lot of structure around the subjective component of a functional test in the past. What we are attempting to do is to put some parameters and some structure around it in a process that would be used consistently province wide. So it wouldn’t matter if you were having functional evaluation in Port Coquitlam or Port Hardy since the method in which the subjective complaints are analyzed would be essentially the same in both locations.
Q: Can you give us an idea of where the input for the consideration of subjective elements would come. Would it come from the self-rating element of the testing process or would it come from comments made by the attending physician in the file or a combination of all those things? You are going to get a percentage generated by the software and is the worker’s rating going to have some bearing on the percentage of disability determination?
A: We still have the same range for subjective complaint that we always have in terms of the .5 to the 2.5% but what we will do is to provide the adjudicator with a guideline as to where they should assign the percentage within that range. Before the adjudicator didn’t have a guideline.
Q: The elements that will go into that decision about where in the range it will be placed those are worker’s answers during the evaluation?
A: Yes
Q: What else aside from Arcon?
A: We will look and see what the attending physician has to say. The adjudicator looks at all relevant medical documentation when they are making their decision, they look at the report that was generated by the testing process, they look at the subjective complaints form that was provided by the worker.
When you ask different physicians to make assessments on subjective complaints you will get different assessments.
Q: As I understand it that is one of the reasons to try out Arcon and that is to avoid that kind of variation in assessments. Is that right?
A: Yes
The protocols for dealing with subjective complaints were actually developed by an association in the United States, the National Disability Evaluating Professionals. We borrowed their particular rules and guidelines around subjective complaints and incorporated them into this pilot.
Q: With respect to then pension wage rate at 8 week point or if the policy recommendation is accepted, the 13 week, there will have been a review of the initial wage rate and a determination of a longer term wage rate. It is correct, is it not that the longer term wage rate for wage loss purposes won’t necessarily be the same as it will for pension purposes?
A: What is supposed to occur is that there is some indication on the claim file at that stage when you are reviewing the long term rate that there may be a permanent impairment of a particular The adjudicator or case manager at that point is supposed to be communicating with a disability awards claims adjudicator to reach agreement on a long term wage rate.
Q: Do you have any figures on how often or what percentage of pensions decisions change the wage rate?
A: No I don’t.
Q: Is that available?
A: I am not aware that there are any numbers.
Q: In your own recollection how many times have you done it?
A: In recent years, probably over the last 3 or 4 years, it may be 10 to 20% of the time and there are no concrete figures that I am aware of to support that.
When we did the average earnings presentation we were using an estimate of about
Q: What steps does the Board take during the pension assessment process to gather additional information in order to decide whether or not the wage rate should be changed for pension purposes?
A: In most cases if there is a different rate set by disability awards, because we are looking at establishing a pension for the purposes of a worker’s life time, we do look at the historical information. Generally we look at 12 months earnings. If we are gathering additional information it is usually because that information is not available to us when we are reviewing a file for the purposes of establishing a pension.
Q: You wouldn’t automatically ask for additional information that had not been requested at the 8 week rate review?
A: We wouldn’t automatically ask for additional information if there is sufficient information on the file. Even if that file had not been referred to disability awards at the 8 week point the adjudicator would review what is there. It would normally only be if there is something extraordinary that we would ask for additional information.
Q: We are getting into rates more after lunch but is it fair to say that the almost invariable approach of the Board in setting a wage rate is to look to the past in order to predict the future loss. That is the way it is done is it not?
A: That is the way it is done.
Q: There is no reason, in that sense, why the Board couldn’t have gathered all of the relevant information about the past earnings history at any point in the claim. You do not have to wait for the plateau date to ask the worker for his income tax receipts for the last 5 years.
A: The 8 week review anticipates that that information will be gathered early on in claim of the evidence is that the worker will go on to have permanent impairment.
I think that one of the assumptions was that if we move to a 13 week rate review there will be many fewer of them and we should do a better job of the rate review at that point in time.
Q: So there might be more thorough information gathering for each one that is done?
A: Yes
AFTERNOON SESSION
JIM SAYRE
Q: We will carry on from where we left off – we were going through the elements of a pension decision and just to make sure that all of us understand what process is followed and what decisions have to be made along the way –we talked about the fact that the first has to be a determination that there will be a pension assessment if there is a likelihood or potential of a functional impairment – if so there is an assessment made and if there appears to be a functional impairment then the actual pension decision will involve 4 or 5 elements: the starting date of the pension which is normally the date when wage loss ended, the wage rate which is in 80% of the cases the same as the 8 week rate but in 20% of the cases it is different and in any case is a new part of the decision and therefore appealable. That is where we left at lunch. The third element as I understand it is the determination of the functional impairment and I think we’ve already talked about that in at least as how the Board sees the future of that process in the extensive discussion of the ARCON project so I won’t propose to ask anything more about that right now –we talked about how subjective elements are taken into consideration –so the fourth element then is the loss of earnings consideration. And you’ve told Mr. Winter that as correctly as I understand the policy that in every case the Board where there is a functional impairment the Board is obliged to consider whether the functional pension will adequately compensate the worker for the loss of earnings to be experienced from the injury and if not then there should be a consideration of a loss of earnings pension- is that right?
A: That’s correct.
Q: So I gather then that’s the threshold for determining whether or not there will be full blown loss of earnings assessment is that you look at the – it is a fairly mechanical calculation isn’t it – you look at the wage rate that you set for the pension and the percentage of that rate is recognized as a person’s disability and then you say – are they earning or could they – or are we satisfied that they can earn or are they earning as much as the wage rate plus what we are going to give them - I said that wrong – are they earning as much – are they earning as much when we add plus what we are going to give them if we add what we are going to give them to what they are able to earn – will that equal their pre-injury wage rate? That is roughly what it’s done and it’s essentially a calculation that can be done on a calculator. Is that right?
A: In most cases what we see is that probably the most significant number of claims – the functional pensions – the person has returned to their pre-injury employment in the same wage; generally the ones we are looking at for loss of earnings is where someone has not returned to their pre-injury employment or there may be an active vocational rehabilitation plan in place.
Q: All right; now the current practice as I understand it is that – this is not referring to whatever changes may be made as a result of case management; the current practice over the past number of years has been that the rehabilitation officer frequently doesn’t become involved in the file –at least in terms of assessing a loss of earnings or a person’s employability until after the plateau date when the wage loss benefits have been terminated- is that right?
A: Again, I’m not sure of the complete discussion yesterday regarding vocational rehabilitation benefits – usually there is active involvement of the vocational rehabilitation in the claim file prior to the plateau date but in some circumstances it may not start until the team meeting.
Q: It was quite common though – it still is quite common for there to be a delay after wage loss benefits have terminated before there is an assessment of the person’s employability? That is one of the sources in delay in assessing a pension isn’t it? That process often has to be started and concluded while the person’s wage loss has been cut off. Now under the case management approach to things as it has been described over the past couple of weeks it sounds as through the rehabilitation officer is going to be actively involved in a claim particularly in a claim where there may be a functional – permanent impairment from a much earlier stage – I believe it is 4 or 5 weeks after the injury?
A: Correct.
Q; I would assume then the rehabilitation officer is going to in the course of that involvement while they are of course focussing on return to work they are going to be looking at much the same issues that they will need to look at in order to assess employability aren’t they? What is the person’s impairment, what kind of skills do they have, can we get them back with their injury employer, if not to their old job can we get them another job in the same industry – all those hierarchy of questions – is that right?
A: I would agree to that.
Q: Okay; and if that involvement does start as early as 4 to 5 weeks – even 2 or 3 months after the injury isn’t it a fair assumption that the rehabilitation officer will have most of the information or should have most of the information that will be needed to make the employability assessment before wage loss benefits are actually terminated?
A: I think in some circumstances that could be the case, yes.
Q: So it might be a matter of having to update or review the information or verify the information but essentially you are not going to be starting from scratch with a whole new inquiry the way the process is done now?
A: No you wouldn’t; they would be involved throughout the process with the case manager involved in various meetings throughout this without closing the claim file. So I would expect them to be as up to speed on the claim file as is necessary. If I may add to that – much of the information that the rehabilitation consultants now put together when they get involved is taken by the case manager at the onset of triage into case management. So much of that information would in fact would reside in the file as part of the development of the information gather process.
Q: And as I understand it the rehabilitation - the return to work plan is a very integral part of the case management process –it’s supposed to be an ongoing part of that process, isn’t it – if anything that is the focus of the process as I’ve understood you explain it is that the Board’s primary goal is to get the person back to work and to understand and cope with whatever impairments there might be to preventing that.
A: Yes, that’s right.
Q; So I would think that very far along the road toward assessing employability at that stage – what additional information – can you tell us what additional information that the adjudicator for disability awards would need that might not be available until after wage loss has been terminated?
A: When they are assessing loss of earnings pensions it’s important to prorate the earnings in suitable employment from the date of injury so that you’re not making an apples and oranges comparison so depending on the duration of disability the officer would need from the rehabilitation consultants if the worker is fit to return to suitable employment at X dollars per month we would need to know what those earnings were as at the date of injury. Normally that can very often be a very simple process but it is
Q: That is a consumer price index calculation isn’t it?
A: We try not to use consumer price index calculations; we try to go on the basis of actual earnings information from old employers if possible; if that is not possible with technology and the change of jobs in the workplace sometimes the best we can do is prorate back by adjusting for consumer price index. Normally that wouldn’t be a lengthy process but occasionally it can be more complicated.
Q: Okay; now I want to turn our attention to the question of how our loss of earnings is assessed –and I want to start first of all – again just to look at the elements of the process – as I understand it the first element in that equation is what was the worker’s pre-injury earning capacity –what was the wage rate as it measures at capacity –and then the next step is to determine what – how they can maximize their earning capacity given the disability that they have suffered and then to compare the two and determine whether the functional impairment is enough to bridge the gap or whether there needs to be more money in terms of a loss of earnings –is that right?
A: That sums it up.
Q: Okay – so let’s look at the first step in that process which is the termination of wage rate for pension purposes – I didn’t get a chance on Monday when we looked at benefit levels to go through the ongoing issues involving long term wage rates that have been left unresolved by previous governing bodies and this governing body and hopefully – some of them may be resolved by this Royal Commission – I want to go through some of those of issues with you briefly; I don’t want to debate them – we don’t have enough time today – I just want you to confirm with me that the policy hasn’t changed and that that problems that we’ve identified, if they are problems are still out there. Whether you agree that they are reasonable policies or not is not necessary to what we are going to discuss today. On Monday we did mention the Unemployment Insurance Commission problem. Unemployment Insurance Commission benefits – is this correct – Unemployment Insurance Commission benefits are not considered in determining average earnings but the period in which a person is unemployed is considered? And there fore if people have been unemployed during the period over which average earnings is determined that combination of those two factors is going to reduce their average earnings figure? That’s right isn’t it?
A: Mr. Sayre I don’t believe the period that a person is unemployed is taken into consideration in deducting that period from determining average earnings.
Q: That is what I meant; it’s counted.
A: Yes, all right.
Q: If somebody worked for 6 months in the year; if you take the one year prior to injury which is the kind of the benchmark although there’s certainly other – there is discretion to take other periods but if that were used and a person was employed for 6 months of that year and unemployed for 6 and on Unemployment Insurance Commission benefits the – you would take 6 months of employment earnings and divide it by 12.
A: That’s correct; I’m sorry; I miss understood.
Q: Now – another issue that has come up is the fact that some workers may suffer a disability which affects their earning capacity but which they equal that capacity by working longer hours – for example – somebody might have average earnings based on having worked only 4 hours a day by choice – they can’t go back to that job and in fact they are going to earn a lot less per hour but if they worked full time they could equal that previous monthly earnings – as the section of the Act is now worded that is not recognized as a loss of earnings is it? Did you follow me? Somebody who has to work full time to equal what they could earn part time previously.
A: When we are looking at loss of earnings essentially we are taking a look at the worker’s physical capabilities following the compensable injury.
Q: Okay.
A: Okay, so we’re taking a look at the earnings the worker was making at the time of the injury – and then we are comparing what they are capable of earning subsequent to the injury if the medical evidence is that the worker is fit to undertake employment on a full time basis that would offset a loss of earnings by making that comparison with the earnings at the time of the injury, then our conclusion will be that the worker is entitled to the functional pension and that there is no loss of earnings.
Q: Yes. I was involved in an appeal over this issue some years so I’ve looked at it fairly closely and given the wording of Section 23.3 it appears to be established that the fact that somebody could – take a simple example – somebody could earn $20/hr before the injury and can only earn $10/hr afterward – if they were only working 4 hours per day by choice before the injury that would be how their average earnings would be calculated in both situations wouldn’t it? You would take their earnings over the previous year which were based on working four hours per day and if the Board determined that they were capable of working at half the pay rate but for 8 hours a day after the injury that wouldn’t be recognized as a loss of earnings, would it?
A: It would not.
Q: Okay; another issue that was I think was mentioned on Monday is the fact that collateral benefits that workers receive which can be a very valuable part of a worker’s compensation package are not included in determining wage rates and includes pensions, disability plans, dental plans for example so let’s just simply things by looking at dental plans –family of four it is probably reasonable to assume that they have to pay the dentist privately for a couple of cleanings a year and a couple of fillings and so on that they may spend $1000 – 2000 a year on dental bills – they have to pay them privately – does that sound like a reasonable guess figure? Now there’s - if their group insurance plan covers their dental bills they don’t have to pay that money – that is money that they in effect - extra money that they get from their employment or extra savings that they get from their employment but there is no adjustment for that –if the person has lost their group insurance coverage as a result of their disability. So that $1000 to $2000 comes out of whatever income they’ve got and they have to pay it privately and the system just doesn’t provide a way of compensating for that.
A: Well, except we should factor in those employment situations where benefits would be continued during the disability so I think there are two situations.
Q: That is why I thought it might be more appropriate to raise it here because here we are talking about people who have a long term loss of earnings because normally they can’t return to the pre-injury employer and while it may be that somebody on wage rate – wage loss benefits – their employer may continue their – some of their coverage while they are off work – it is very unlikely that any employer that I’ve ever heard of is going to continue it for the rest of the person’s life when they’re unlikely ever to return there so I would think it is a fair assumption that most people who are getting loss of earnings pensions don’t get disability coverage or dental coverage from their previous employer. Does it sound reasonable to you?
A: I think that’s subject to terms and conditions of collective agreements and employment relationships but I think you may want to split it that way – the unionized sector versus the non-union sector.
Q: Okay; in any event whether you lose it or not – whether you’ve got it or not the Board is not going to compensate for it - if you lose it you are not going to pay them yourself. Another issue –sometimes the Board will agree instead of taking the earnings - the average earnings over a period of one year which is sort of the standard approach –that because of some aspect of that year that makes it unusual often it is the working saying – look I was out of work – the economy’s lousy and I was out of work for 5 months of the year it is really unfair to pay me the rest of my life as if I was going to be unemployed for five months of every year – and the Board will often sometimes we have to go to the appeal bodies to get this resolved but the Board will often agree that instead of a one year average they will take a 3 year average or even a 5 year average – I think in one case I even got a 7 year average out of them –it was an appeal decision - but there is still a couple of problems –when the average earnings is determined over a period of more than one year there is no consumer price index adjustment for the prior years is there? This was another decision that was appealed to the Appeal Division unsuccessfully – the Appeal Division said that under Board policy there is no provisions for –so if we have an average earnings in situations like that – say if we took the worker’s average earnings from 1993 to 1997 to determine their long term earning capacity –we take their 1993 earnings, their 1994, 1995, 1996, and 1997 – we add them up and divide by 5 and you wouldn’t adjust for the fact that 1993 dollars were worth more than 1997 dollars – now that may not make a whole lot of difference right now because the inflation rate is pretty low but if we were talking 1983 versus 1987 dollars it made a lot of difference because the inflation rate was so high then - so that is one of the problems and that is correct, isn’t it?
A: That’s correct. I believe that issue has also been highlighted by the average earnings committee. And I think that issue has been highlighted for them.
Q: Has that issue been flagged for review?
A: It has.
Q: Now another thing that often comes up in an individual case is that a worker may have been unemployed and may have a pretty unstable past earnings record –sometimes it is younger workers, sometimes it is workers who have been going through a difficult time in their lives for whatever reason; they may have had alcohol or other dependency problems and they may have very sporadic attachment to the workforce – from the Board’s perspective – that doesn’t mean does it – I’m asking your agreement with it I hope to get it that you’ll always assume that the worker is going to continue to be to continue to have those problems for the rest of their lives. People do straighten themselves out. But there is no provision in the way the Board calculates average earnings for the contingency of somebody regular rising their attachment to the workforce, growing up, getting over their difficulties and so – there is no provision for taking that contingency into account when you calculate average earnings.
A: Actually there is -
Q: Is there?
A: Yes.
Q: Could you explain that to us?
A: Yes, the policy envisages – the policy envisages that if there has been demonstrated a fixed, permanent change in the worker’s situation or life style that we can take a look at earnings over the shorter period. Usually we would look at earnings – we might look at earnings in the three months prior to the injury or might even be looking at earnings at the time of the injury – if there is some suggestion that there has been a fixed, permanent change either personally to the worker or with respect to attachment to the workforce then we’ll investigate that. We do want to see some evidence to support that that does represent a fixed, permanent change and even the policy manual, when it is talking about looking at earnings over the shorter period does envision that we will take an historical look in assisting us in making that determination but we will do it and it is not infrequent that we will establish the long term rate based on short term earnings.
Q: To get the benefit of that the worker has to convince you that there has been a change.
A: We would like to see some evidence of a fixed, permanent change.
Q: Okay – so what I was actually asking about was the worker where there is no evidence at the time of the injury but the worker is 35 years old and it’s unreason – it’s at least – you know we’d like to hope that people are 35 years old that have had problems for the last five years are going to be able to get over the – even if those problems have resulted in them losing jobs repeatedly and having a very indefinite attachment to the workforce so that they have very little earnings – there really is no provision in the policy as it now stands for that kind of contingency to be factored into the process is there?
A: Conversely, we would not reduce someone’s earnings who had fallen on hard times after the fact.
Q: No I realize that – some of these things are two way streets – some of them are one way streets but –you agree with me then that that’s not something that the Board could deal with it is sort of like looking into the future and saying there is an X percent chance that you will straighten out so we are going to take that into account and adjust your earnings accordingly?
A: I would suggest that is highly speculative and is not something we would entertain, yes.
Q: Okay; now what about the contingency that people’s –even if a person hadn’t been injured their wage rate might increase greatly – and the Act does provide a special section and I think it is 33.3 that applies to younger workers and refers to apprenticeships in there but this can also happen to people who don’t qualify under that section – industry may be unionized –there may be – the person might have become open to promotions; I think Mr. Winter mentioned an example in one of his questions where somebody is assessed a big loss of earnings and they are a go-getter and they become the Vice President of a company –there’s no way in the way the Board assesses the person’s earnings capacity for pension purposes in which that kind of event is able to be considered in terms of raising their wage rate, is there?
A: That issue is addressed in the policy manual and essentially the policy states that to draw conclusions on the long term loss of earnings with reference to loss of promotional prospects would be speculative, so generally speaking we ¼..
Q: So you don’t do it. Right?
A: Generally speaking we don’t do it.
Q: And in fact isn’t that the case that even if the person by the time the pension comes to be assessed – even if the person could show you that during the last year and a half or whatever it has been – since they have been injured there has been a new collective agreement or whatever they would have been earning a substantial amount more than at the date of injury you wouldn’t take that into account either would you?
A: Yes, we would.
Q: Would you?
A: That might constitute evidence to suggest that there has been a fixed, permanent change so we would definitely take a look at that information.
Q: Okay, well I’m talking about a change that occurs after the injury that never affected the worker.
A: I think it is a situation, which arises infrequently.
Q: It is my understanding that you don’t do it – correct me if I’m wrong?
A: I will correct you. I have seen the odd situation where the worker will come back to us and provide us with some information from the employer or whomever that they were in line for a position – usually it will be something that they were in line for imminent to the injury. I would suggest that if they come back to us and say that in the future I would have had this promotion that the answer would have been no – that would be speculative but if on the other hand there is something temporal to suggest to the injury to suggest that there would have been a change then definitely we would consider that – I would suggest that we have done that in the past. Also, in terms of wage rates when we are making a consumer price index adjustment that is the intent of that policy to adjust the wage rate.
Q: I was going to get to that –that to the extent that the Act does try to do adjust wage rates to take account of these things it does it very globally in terms of the consumer price index adjustment, doesn’t it?
A: That’s correct.
Q: More than specifically looking at the individual worker’s pre-injury work and what they would have worked if they hadn’t been injured in the same job or what promotion they would have gotten – so and the chart that you showed us –I believe it would have been your information Dick - loss of earnings – loss of earnings awards – it shows the figures from 1993-1997 and there was a 20% drop as I can see it –in 1993 the average loss of earnings award was 57% and then it went down to 54% and then for the last three years is that it has been pretty level at 46, 45, and 48% -can you give any indication as to why the award would have dropped by that large a percentage from – basically from 1994 to 1995 is when it happened?
A: It’s difficult
Q: Any study of what happened then?
A: No, it’s difficult for me to speculate on that. Mr. Sayre it could be the mix of injuries, it could be that there were certain demographic changes in the where the various loss of earnings pensions in various subclasses; it could have been a difference in wage rates – I think there could have been a multiple of ¼¼
Q: But you don’t know; you have no idea.
A: In all fairness, no I do not.
Q: I want to ask you next about the printout that Mr. Winter gave you for June 1997 –I was looking at the right hand column – the two columns there – the right hand column is deeming and there is an N and Y I guess that means – yes or no – was it a deemed award or was it not a deemed award – correct?
A: Yes, that’s correct.
Q: Okay; and I was counting up the yes’s and if I can still count there Y – 22 yes and 37-N no's –so 22 of the awards that month were deemed and of those if the right hand column seems to give some added comment on why they were deemed or what the status of the person was –and it appeals that 6 of those 22 were considered to be not looking for work, 2 of them were in training, 5 were working, and 9 were not applicable or n/a – first of all can you tell us what n/a means? What kinds of things fall into that?
A: We didn’t have the information at the time the report was generated in terms of status of the vocational rehabilitation plan – it is also important to note that 17 of those files were also Appeal Division or Review Board findings with respect to deeming. Some of them were deemed through the Appeal Division and appellate body process. Not all 17 but certainly some of them.
Q: I don’t follow you –are you saying that the ones marked appeal were deemed because the Appeal Board said to deem them? Or they were just set by the Appeal Board?
A: Well, they would be set but you could still classify it as being deemed by that decision.
Q: Well, in fact there’s a fairly high percentage of the Board’s deemed pensions that do get appealed, don’t they?
A: That’s correct.
Q: One way or another they - some of them are upheld; some aren’t –so it is not surprising that a lot of those that are marked deemed are also marked appealed – but that doesn’t necessarily mean that it was the Review Board’s idea to deem them or the Appeal Division’s idea to deem them?
A: Correct.
Q: Okay; you described the process for setting a pension and you as I understood it we’ve gone through most of the steps so far –the employability assessment is completed and it is then sent to the worker and if – with the worker’s consent – their doctor for review and they have up to 30 days to comment on it and point out anything that’s incorrect in it or they feel is incorrect before it is made final– is that right?
A: Yes.
Q: And then as I understand it – it is sent to the disability awards committee – now what I want to focus on is why is it sent to the disability awards committee and what input does that committee have that is necessary to this process which it seems to involve input up to this time by the case managers, by the attending physicians, by maybe a medical advisors, by rehabilitation officers, by the disability officer himself or herself – all these expert people have had involvement - why does it have to go to the committee after the doctor and the worker have looked at it?
A: Well, after the employability assessment it doesn’t go directly to the committee; it goes to the adjudicator in disability awards that makes the recommendation to the committee. They are making recommendations usually if we are speaking about significant sums of money in terms of the pension reserve and they have reviewed all the relevant documentation including the medical, the vocational rehabilitation information, etc. and they are making a recommendation in terms of a loss of earnings and pension and pension reserve to be established for this worker.
Q: Doesn’t the adjudicator make the actual pension decision before it goes to the committee for approval?
A: The adjudicator makes the recommendation according to policy; that is the same process you heard about during the vocational rehabilitation discussion yesterday. There is a vocational rehabilitation committee in place for the same reasons. Any expenditures over a certain amount are reviewed by that committee to ensure consistency and quality in decision-making. I think as well that it is acknowledged by all who are responsible for making decisions under the dual system that decisions with respect to loss of earnings - projected loss – are probably among the most complex and difficult to make but the idea of having a committee is to bring a level of expertise and scrutiny to it to make sure hopefully the most appropriate and reasoned decision possible.
Q: Okay, well tell us about this committee then –remind me again - who is on this committee?
A: The senior manager of disability awards is on the committee, and a senior medical advisor is on the committee, and a senior manager from the vocational rehabilitation department. If on the committee there is discussion where they may feel they may need more active vocational rehabilitation on the particular file they are consulting with the senior manager of vocational rehabilitation on that issue. And if there is a medical issue that they feel may not have been addressed appropriately by the adjudicator consultation with the senior medical advisor that has input into that discussion.
Q: Isn’t it open to the rehabilitation consultant that does the employability assessment if there seems to be a question or special problem posed by the file to go to the Manager when they are doing the assessment?
A: Certainly it is open to them there but I mean there may be some issue
Q: Do they use that?
A: There may be some issues that this committee may bring to light that the vocational rehabilitation consultant may not have picked up on in the evaluation.
Q: How often does the committee meet?
A: I guess that really depends on the availability of the people involved – sometimes they can meet daily, sometimes they can meet weekly and sometimes they can meet every couple of weeks. It depends on the number of files being referred into the committee and what needs to be scheduled.
Q: There are 500 awards a year – 500 loss of earnings awards a year – can you tell me how many of those go to the disability awards committee?
A: Every one of them.
Q: Every single one them?
A: Every single one.
Q: Is the committee always the same three people or are there several committees that meet?
A: We have tried to keep consistency in the committee – last year we had a lady that was involved in the committee for a number of years that retired so we have a new manager that is sitting on the committee, Janice Woodland, while she was in disability awards was involved with the committee for a significant period of time so we have one committee functioning at this time, not multiple committees but that doesn’t mean we wouldn’t consider two committees if the volume indicated.
Q: It sounds to me like you have got two awards per working day of the year that need to be reviewed by these three senior people – is that all they do? Is that all these three senior people do is review the files and review the awards?
A: No, they have other functions in their job as well but I don’t know that they would have to do two a day. Every working day.
Q: Well it is 500 a year – and there’s one body of people to review it and I don’t think there’s more than 250 working days per year so that sounds like 2 a day to me. I don’t know what the Board’s year is like.
A: Yes. Mine is feeling long right about now.
Q: What I’m getting at is it doesn’t sound to me like it is possible that these committee members do a very intensive review of the file do they – I mean at most they would have an hour or two per file to review to make it through the committee – a senior medical officer – he may be senior – or she may be senior – but if they only have an hour to go through the medical documents what could they possibly add to what all the other people involved in that file – medically have contributed over the years since the injury? Is this a waste of time?
A: I don’t necessary agree that it is a waste of time; I’m going to let Janice answer this question having worked on the committee – but the work that I’ve seen and having sat on the committee that work that’s done in those committees is thorough from my point of view but I’ll let Janice explains what takes place. A very thorough review of that claim is undertaken predominantly by the manager from disability awards who is the first manager to review the file so the manager who reviews the loss of earnings recommendation will put either a lengthy memo on the file documenting the issues that they see as they review the file. In many cases while the number seems almost unmanageable given that the managers have other work to do in many cases some of those claims can be reviewed fairly quickly. For instance if we are instructed by the Appeal Division for instance to pay a certain level of loss of earnings or the Review Board there is very little discussion around those kinds of claims. Sometimes there are workers who are significantly disabled and recommendations may come through with very little question about the appropriateness of that recommendation. And there are a few claims where there may be some issues addressed that the managers in disability awards
Q: So you have easy ones where you – mind you we have all seen the files that are that thick and just even trying to find the right documents can take a little time –but easy ones where you look at a couple of recent memos you say this is straightforward - I am not sure why I understand why you need a review if it is that straightforward but in any event it doesn’t take too long. What about the others?
A: They can be fairly time intensive. Sometimes more than one meeting may be indicated in order to resolve issues, which may be highlighted by the committee members.
Q: I’ll accept your answer for you’ve given as best you can but I still don’t understand how this committee given the very limited time that it has for each file can add anything useful to the process other than saying gee that’s a lot of money let’s go back and do this process over again?
A: If I could Mr. Sayre I’d like to add that the role of the committee is stated by policy under 38.10 and it states clearly that the disability awards committee is ultimately responsible for conclusions of projected loss of earnings awards so by policy and this has been in effect probably since¼.
Q: I know the policy requires it – I’m not saying you aren’t asked to do it – I’m just asking what good it is and is that an element of the system that we can eliminate and shorten the time process in the process because you don’t have to go to the committee any more.
A: Based on the Code R debate I certainly wouldn’t discontinue it without having the panel make that decision.
Q: I heard a question why from down the table but I’m not going to ask you to answer.
A: It has to do with your private sector example of go-getters rising to the Vice President’s level – it may not be appropriate in the public sector.
Q: I’d like to look just briefly at the question of loss of earnings pensions and when they end and as you mentioned Mr. Hurst the pensions that are paid to workers between 51 and 64 are reduced on a proportional basis given, depending on their age at the time the pension – that they were injured is that right?
A: Yes.
Q: And there is an discretion as a result of the Appeal Division decision and the interim policy that you developed in response to that to pay pensions beyond age 65 –pay the full pension beyond age 65 if there is clear and convincing evidence that the worker would have worked past that age, is that right?
A: Yes.
Q; Now what steps are being taken to alert workers that if that evidence – that if that is the case they need to present that evidence to the Board so that that decisions can be made?
A: Janice can I ask you to answer that. There’s usually some information on the file at the time that it’s reviewed that the worker worked beyond the age of 65 –clearly if the worker was over the age of 65 at the time of injury that loss of earnings review would be already undertaken automatically given the interim guidelines. It’s not infrequent for workers who are injured when the - for the rehabilitation consultant to make comments or make reference to the fact that they would have worked beyond the age of 65 and if that is highlighted then we will go back to the other rehabilitation consultant when we are requesting the employability assessment to ask for that information.
Q: Okay; I’d like to turn to deeming –and I want to look at the four categories listed here of people whose loss of earnings awards are based on deemed employability –first of all you have a worker who does not have a job but is considered employable – how does that relate to the rehabilitation efforts of the Board – is that a situation where the worker has in the Board’s view failed to cooperate with rehabilitation? Or could it also include a worker who just can’t find a job in spite of their best efforts?
A: I wouldn’t say that at all. It may or may in fact include a worker who is undertaking a particular program to obtain a job. I think the statement simply means that we consider that the person is in fact employable that at the moment they don’t necessarily have a job.
Q: Now what about the next category? A worker who has a job but does not maximize long term earnings? How is that decided?
A: Well, it may be that the individual has taken a job; a job that is perhaps closer to home for example, or a job that is more personally appealing but doesn’t necessarily maximize long term earnings. So the conclusion would be yes you are working but no that does not maximize your earning potential. So you may well deem as to what we believe the long-term earnings potential is.
Q: Does it mean in effect that the Board is coming to the worker and saying essentially you’ve been injured; you can’t go back to your previous occupation; we think that X occupation is the way that you can make the most money in the long run and if do anything else we are going to take it off your pension?
A: I think that is an over statement.
Q: It may be a little bit of a hostile way of describing it – is that essentially what you are doing?
A: Just a little bit and no it is not essentially what we are doing. I think the case you tabled for us yesterday to make another point is indicative of that – where the worker had chosen to become an insurance agent despite the employability assessment or the vocational rehabilitation plan indicating that the transferable were there to restore the worker back to pre-injury earnings and the worker in that case made a specific choice to become an insurance agent; I think that might be the situation that you are referring to.
Q: That seems to me to be what I just said –if the worker makes a choice –let me just clarify it then – I think we can all understand that if the worker says I’m going to move into a cabin in the mountains and paint pictures because that is what I’ve wanted to do is become a professional painter – well the market isn’t very good for professional painters and the average income isn’t very good and I think it would probably be unreasonable to suggest that the Board has to make up the difference in their earnings if they were earning at the maximum level before they were hurt –but we are talking about a worker that goes into a mainstream occupation that lots of people do because they can’t do the old job they used to do and the question is does the worker have the right as a matter of autonomy to do that without having part of the compensation from their the compensable injury taken away from them because the Board thinks he could have earned more money doing something else. I am trying to get a grasp from you of the extent to which the Board is going to look over the worker’s shoulder when they make that lifetime decision – what they are going to do with the rest of their lives and say we think you are making the wrong choice and we are going to treat you as if you made a different one.
A: Let me restate it; if there are two jobs that are equally available and equally suitable. One pays less than the other and the worker for whatever reason chooses the lower paying job then we would exercise our prerogative and choose the higher paying job with the proviso that it’s equally available, equally suitable. If you look at the policy in Decision 8 in all the subsequent decisions about projected loss of earnings that is a guiding principle that is really unchanged from 1973 and even up to and including a very comprehensive review which I’m sure you are familiar with in 1985 under Decision 394 – that guiding principle was unequivocally stated in that¼.
Q: You just confirmed what I asked. I want to turn to another aspect now; the decision about deemed employability is based on the Board identifying a job, which is considered suitable and reasonably available. Those are the terms that are used. And Julie Wakelin, yesterday, when she was referring to this toward the end of her presentation said something that I though was quite significant. In summarizing for the Royal Commission how that process worked she said the Board looks for a job which is physically suitable. And I take it from that and from the experience that I’ve had over many years of looking at the results of these assessments that essentially that is what the Board looks at – could the worker physically perform the job given their or is there some other bar that would prevent them from doing it? Is that what suitable means to the Board in the course of a deeming?
A: If I can respond – when we are looking at suitable and reasonably available we are not just looking at physically suitable and this is one of the issues that the Board has been wrestling with for quite some considerable number of years around determining loss of earnings entitlement. We also have to take a look at what the worker is capable of doing so a worker may be physically suited to perform certain activities but they may lack the intellectual or other resources to access those occupations so ¼.
Q: If they are incapable then they – even though they could physically do the work of a lawyer if they don’t have a law degree they probably aren’t going to qualify so that’s not suitable.
A: When the vocational rehabilitation consultant - to get back to your previous point – when the vocational rehabilitation consultant is working with the worker to determine what employment they are suitable to undertake, the worker’s choices are always the first thing that they consider. And then they explore those choices to determine whether or not that is feasible – from an academic perspective, from a physical perspective, from a variety of different perspectives in assisting us in determining what plan we are going to put in place from a rehabilitation perspective and ultimately what work may be available to that worker in the long run.
Q: I’ll tell you what I’m getting at –we are running a low on time here so I don’t – I’m going to jump ahead a little bit - in employment law this –the issue often comes up – I think you’ve been talking about the question of whether worker is capable of a job for reasons other than their physical limitations and I appreciate that the Board doesn’t deem people – doesn’t use the job employability if the worker couldn’t perform it because they don’t have the education or whatever to get the job but what about at the other end. In the case of employment law for example – wrongful dismissal situations the issue often comes up but – the person has been demoted or transferred or their pay has been cut and the law has always considered that the person isn’t forced to perform that lower paying job they have the right to treat themselves as if they were dismissed –another aspect in which that – of employment law – in which that question of suitability in a way can come up is in the question of mitigating damages while they would have been while they would have been entitled to reasonable notice. Their only required – the - if there was a job available to them which they did not take advantage of then their damages will be reduced accordingly but only if it was a job that was suitable given their age, their educational level, and their experience. An example came up yesterday of somebody who has been a millwright earning top dollar – until they suffered a physical injury and then the Board deems them capable of sitting in the doorway of Wal-Mart and greeting people. They are probably capable of doing that job – they can speak English, they can say hello, they can say let me tape your bags shut so you don’t steal something – they can do all the things that a Wal-Mart greeter does but it is humiliating. It is humiliating to them not because there is anything intrinsically wrong with being a greeter but because that’s not they have been in the past. And no court in any or no court in any setting would say that that’s a suitable job for a person with that background. Unemployment Insurance Commission would not say that an unemployed millwright is required to take a job as a greeter at Wal-Mart or will be penalized by losing their Unemployment Insurance Commission benefits but the Board seems to feel that it is perfectly appropriate to in effect to force the unemployed millwright to take that job if they can’t find anything higher paying or suffer a loss in the pension and I would like you to explain why the Board takes that very hard line attitude toward –
A: Well, first of all I don’t think we take that line; we work with the individual to do everything we can to restore that individual to a pre-injury level of earnings that would be appropriate, with the dignity, respect, etc, that an individual should get in that kind of a situation. If the individual does not cooperate, does not engage in that kind of activity, demonstrates a lack of motivation to mitigate against that particular situation then at the end of the day what we say is that there may be a job that you can be deemed for that is readily available, and that is in your community that you should be doing to mitigate against this particular pension. And it would be a last resort. I don’t think you should characterize that the Board starts out with that presumption. We are prepared as you heard yesterday to spend hundreds of thousands of dollars to appropriately rehabilitate an individual recognizing that there is a return on investment for that if we don’t have a loss of earnings pension.
Q: Okay – let me read to you something that was said during one of the presentations to the Royal Commission by one of the union presenters – " One of the policies the Board is using is deeming a worker capable of earning a certain amount of money so that the pension is reduced accordingly. For example, Frank who after more than one appeal of various issues was finally given a pension at 63 – he was a heavily accented Italian Canadian hard of hearing; the Board deemed him capable of earning $7/hr as a security guard, telemarketer, or gas jockey. Frank was a welder by trade." Now, from what you have heard is that a decision that the Board feels appropriate?
A: Mr. Sayre we hear one perspective on a number of cases in a variety of forii and I think that it would be very difficult for us to comment unless you can give us the actual claim number – we’ll go back and investigate those kinds of allegations and I’ve always made that public and if in fact we’ve dealt with something inappropriately we have the right to reconsider. So I’m not sure that that kind of hearsay or that kind of an example should be debated without having the ability to look at the claim file.
Q: Well, we have a fair number of specifics there, he was 63 years old, he was a welder most of his life presumably, he’s got a language difficulty, he can’t hear very well and he’s being told that he can be a telemarketer. Do you need the claim file to know that that was not an appropriate decision?
A: I guess I’d like to see that and then in the system although we don’t like to think that a worker has to go that way there are appeals accessible to the individual now has that particular case been appealed?
Q: Well, I am reading to you from one of the presentations that the Royal Commission heard about.
A: So we don’t know whether that’s been appealed and upheld or appealed and overturned or we don’t know whether it is headed to the Appeal Division.
Q: I don’t know; it wasn’t my case. It was one of the cases the union presented to the Royal Commission.
A: I think that’s my point.
Q: Let’s look at the review of loss of earnings - something that came up during Mr. Winter’s questions - I think you said there were 600 cases per year that the Board looks at and that of those 250 have a more penetrating one and Mr. Winter asked you for the number that were changed as a result –I’d just like to add a little qualification to that - I’d like to know how many were increased because I don’t know of any over many years of practicing in this area of law I’ve never seen one increase - and I’d like to know how many were decreased of the ones that were changed?
A: We can provide you with that information.
Q: You can provide that as well as the number, which were changed?
A: Yes. There were some increased in the statistics that we are going to provide you.
Q: Now the next question I have has to do with the area of commutations –and I’ve given a set of documents to you labeled Tab O – we are running very short of time and I am not going to go into any of the supporting documents but I did want to quote from the paragraph in the middle of that letter which describes the Board’s approach to a request for a commutation –and I’ll just introduce this by saying that this was a worker – it says in the letter I think that he was 41 years of age at the time. He requested a commutation for the purpose of paying down his mortgage and supported his requested as the next page that if he did get that commutation and pay down his mortgage he would save more money then the monthly value of the pension doing that. The third paragraph says "Judgement must be used in terms of commutation requests. The main objection to commutation is an element of paternalism. What seems good to the worker at one point may not be in his best interest in the long run. It is natural to feel the needs of the moment as being more compelling than the needs of the future. One of the purposes of our system is to get away from lump sums settlements, which left the worker destitute in future years. And then the writer of the letter goes on to say " it appears that your primary source of income is Canada Pension Plan disability benefits. Goes on to recite a couple of other things about the worker and says – given the interest that is being taken with respect to Canada Pension Plan entitlements I can’t agree that your present entitlement is stable." So it looks to me as if – well what this letter is saying is that you a 41 year old worker who is by all accounts is responsible, owns a house, has a mortgage – has gone to the trouble of finding out what difference it would make to his long term liability if he was able to pay down his mortgage by the amount of the commutation is being told no because A. We have this rule that you have to have another stable source of income and B. we think that Canada Pension Plan is unstable because the government is looking at it. Which the government looks at everything all the time. Would you like to comment on that – anybody on the panel?
A: Sure, with respect to the issue of commutation the legislation indicates that payments to workers will normally be on a periodic basis. And there is some discretion on the part of the Board in terms of determining whether we are going to pay out a monthly pension. The policy states that there would normally have to be exceptional circumstances and that a monthly pension is normally paid on a monthly basis unless something exceptional can be presented to us to allow us¼¼
Q: Okay; this is a worker saying look - this is my money –I’ve been awarded it for life because I’ve got a disability and if I can use it now in a way that I think best to pay down my mortgage that would be more in my interest than getting it in small amounts for the rest of my life. Why wouldn’t the Board agree with that?
A: What we are looking for when we are looking at the commutation of pensions is not necessarily what would work toward the worker’s advantage. If there are some extraordinary circumstances which would enhance his future income potential and the reducing of a debt can always be argued that by reducing a debt is going to enhance the income potential, but if all of the evidence is that the worker’s circumstances at that point in time are such that that person is able to meet their financial obligations then the question would arise – what are the extraordinary circumstances which would warrant us to depart from our guidelines.
Q: You are reciting policy –let’s hold up a minute here - this is a Royal Commission –we are looking, not just at what the policy is – I’m not trying to argue an appeal here – I’m just saying that the policy is wrong. I mean it is wrong for the Board to say we adopt a paternalistic attitude toward injured workers. They don’t need a paternalistic Workers' Compensation Board; we need a Board that gives them fair compensation and respects them as responsible individuals who can make their own decisions about their lives. This is a worker who said I want my money up front because that is what is responsible – by all accounts it was a reasonable request backed up with financial information and the Board said – no – because it is our policy.
A: In fairness I think you know I think you should be dealing with that in your submission to the Royal Commission; I mean this is the policy we have now and I think Janice is trying to reflect the application of current policy and if you disagree I mean that is what is done.
Q: What I am asking I guess is for comments on whether you the people who have been implementing this paternalistic policy – to use the word of the person who wrote the letter – feel that that paternalism is still needed –I mean let’s keep in mind that the Workers' Compensation Act was enacted at the beginning of the century – a time when most workers were illiterate and uneducated and might very well have needed a paternal body to protect them from people who would have taken advantage of them if they’d been given a large sum of money.
A: If that’s the case then¼
Q: Times have changed –
A: Well¼
Q: We don’t need that anymore.
A: They may very well have and that may be a broad policy issue in terms of going to a lump sum system so I think it should be in the context of a bigger policy issue rather than dealing with one particular situation.
Q: That is what I was asking about – is the bigger policy issue.
A: I’d like to sort of provide some clarity around that. This is an issue that did come up in 1992 or 1993 – the whole issue of commutations and the Board’s approach - paternalistic approach - and a paper was presented to the Policy Bureau at that time for review there was some discussion and as far as I know it is still with the Bureau so that issue has been highlighted by the Board for discussion at the Policy level.
Q: I realize that I am past the time I had hoped to end – I just wanted to raise one further question if I may because I think it is an important element of pension assessments that hasn’t been mentioned by anybody yet. Could the panel talk about section 5.5 – what’s called proportionate entitlement – and how those decisions are made. Not obviously don’t do a presentation on it but just explain for everyone’s information what that means and how that affects the pension decision.
A: Okay, if a worker has a disability in – let’s say for example that a worker comes to us with an injured shoulder and there is measurable impairment in that shoulder and then as a result of a compensable injury sustained further injury to that shoulder. When the worker comes for a pension assessment some assessment will be undertaken as to the overall impairment to the limb and then the medical advisor will be asked based on the historical medical evidence with respect to the previous shoulder injury to put a figure on the pre-existing disability and the worker will then receive the difference between the pre-injury disability and the extend to disability arising from the compensable injury.
Q: So that would add another element to that pension decision in addition to the 4 or 5 that I listed earlier.
A: Exactly.
Q: Is the determination of what was the disability before the compensable injury? It also might be an element that would be involved in an appeal.
A: That’s right.
Q: I’d love to continue I have a number of areas that I haven’t covered yet. I’ll stop now and hope that Mr. Steeves will cover some of them for me – for the Commission.
JOHN STEEVES
Q: I’d like to proceed in sort of 2 ways –firstly, roughly in the order of the slides and then roughly in the order of questions that were asked and first of all straight off the bat Mr. Ingraham - I was concerned about you mentioned that workers’ claims go to disability awards where there is a permanent disability which is likely to result –the actual policy much broader than that isn’t it?
A: Yes it is, and I did point that out.
Q: Yes, and the policy is that if there is a possibility of a permanent impairment?
A: Or if the worker feels that they have been left with a permanent impairment it would be referred.
Q: Or the worker is not able to go back to the pre-injury job?
A: Yes.
Q: Yes, okay, - I just had an appeal on that so I’m up to date. I wonder if you could turn to – I think these are your slides Mr. Ingraham – the first batch –and I’ve numbered them - it is number 11 – it is roughly half way through something like that –this is the process for long term disability claims the –do you have that there?
A: Yes, I do.
Q: Now the - you have a bar on the far left and so can you –go to electronic referral to disability awards – correct?
A: That’s correct.
Q: And then the bottom lines ends up where there is no loss of earnings or a functional pension and it is the line above that – where there is a loss of earnings that I’d like to ask you about –and we are talking about the time after the plateau date –and then there’s all these steps and then at the end the loss of earnings pension and I guess this is the flip side of what Mr. Winter was talking about – in the situation where a worker can’t go back to their pre injury job and has a significant loss of earnings potential can you assure us that there is some code – it can be any letter in the alphabet that protects their financial viability from the time of plateau to the time of loss of earnings pension?
A: Yes.
Q: Okay; and the timeline we are talking about here as of today – I think Mr. Buchhorn had some numbers – what is the current timeline from the date of plateau to loss of earnings pension?
A: I think the overhead I showed was down around 10 months.
Q: Okay, and historically it has been how high?
A: It’s been as high as 14 months but again as I pointed out in my presentation these numbers are our – I think they are more impacted in many cases on a month to month basis depending on whether or not we get a file back through the appeal system, etc. and we process that particular pension it can skew the numbers for that particular month.
Q: Okay; sorry - ten months now – is that what you said?
A: That’s correct.
Q: That is an average?
A: For that month, yes.
Q: So can we take it that some are more than 2 years?
A: Yes, but when you statement again – the question is why is it more than 2 years – is it our processing or did something occur in the processing of that claim file when we were looking at it for pension? And as I said before what can occur is if a person – if a worker’s files are referred to disability awards and we start giving it a pension consideration that file can be pulled from the process for an appeal to the Review Board and it may go all the way through the Review Board, all the way through the Appeal Division before we get that file back to finish their pension consideration. Now that might take 2 years. And if it does and we process that file it would reflect in our statistics for that month that we processed that pension over a two-year period.
Q: Okay - I want to – two points on that –so if it is over two years it is not included in experience rating assessment, correct?
A: 30 months I believe it is, yes.
Q: 30 months?
A: Yes.
Q: Are there some that are 30 months?
A: Potentially yes.
Q: Yes - also on delays –I think all three of us are concerned about it and indeed the whole room is concerned about it –and there has been one example at this Board where some good work has been done with delays and that was at the appeal division when they first started – their backlog was what – was it 2500 files? Something like that?
A: Yes.
Q: they eliminated that within was it a year or a year and a half?
A: I think maybe a year and a half.
Q: Okay – and are there not some lessons to be learned there for – I’m not just talking about your department but you’re here today - about how to do that?
A: I think – I think Mr. Ingraham has spoken to the process challenges that may be outside of the control of this particular department with respect to processing. So all of the initiatives that the Board has under way currently – the EFILE initiative will eliminate the issue of multiple – or single access to a file. The ARCON will close the timeline with respect to the functional impairment. There already has been a push as I think you already heard from the vocational rehabilitation department in terms of internal service standards on employability assessments. There has been a significant effort in terms of re-engineering this entire process. The proceeds have not yet been realized but they are forthcoming.
Q: Okay and the 14-month high we were talking about – when was that? 14 months delay?
A: That was when we had a backlog of 2500 claims back at the end of 1995 I believe and¼.
Q: Okay; so we are into 2 ½ years – we are chipping away at it – my point is – I’m sure it is not fast enough for you but it’s not fast enough for my clients as well and for example why not hire some more disability awards claims adjudicators and let me be – try and focus that a bit – I know you have pressure from employers not to hire any more people – but are there reasons other than that that you can’t hire more staff to get rid of this backlog?
A: I think – the way I look at it is that we have done a process review for disability awards and if I put it into simple terms we have a process that was probably designed in the 1940’s and 1950’s. and if it is a factor that’s designed to produce a 1000 claims a month or 500 claims a month it’s probably working to maximum capacity. If we add staff to that factory – we add factory workers to that factory it doesn’t mean that you are going to be able to increase your output because all you are going to do is create queues and backlogs in other areas of the system.
Q: But it’s not a factory; it is a service institution, as you know very well.
A: It’s a service institution but it functions very similar to a process because of the way the process functions we refer thousands of – if we are producing more files and referring more files to vocational rehabilitation it impacts that area. If we start referring or tripling our output of files for permanent functional impairment examinations that instantly impacts the medical advisors and their ability to turn around files. So for everything that we do we have to look at the entire process not just disability awards. In the Appeal Division yes – if you are looking – simply looking at the appeals and grinding them out as quickly as possible – you give me enough bodies and I can do that. That’s not how our process works. If you go back to the initial presentation that I made the first day. I think I indicated that a big piece of the service failure was our process not the quality of our people or the fact that we didn’t have enough people. Now to use your argument in the early 1990’s the staff in this organization increased dramatically and all the service indicators went the wrong way. You can add staff to a poor process and will not get good results. Conversely, over the last three years the short-term disabilities in our particular division have declined and all the service indicators have gone up in terms of timeliness, etc. So I’m not sure we should be debating how we do the business here but I do take exception to the fact that it’s a simple solution of adding more people.
Q: Do you think you’ve got a good process now?
A: I think the piloting that’s going on; re-engineering of our entire claims process will give us the service improvements that you and I will all be looking forward to.
Q: So do you think we have a good process?
A: I think the EFILE system, I think the ARCON initiative, I think the employability assessment initiative when you stack all of them together – they will give us the kind of service outcomes that the Board would like to see achieved. No, I’m not happy with the existing process today.
Q: Okay – how much interest was paid by the Board say in 1997 on disability awards?
A: I don’t have that figure with me. I can probably get it though.
Q: Do you have an idea of how much that would be?
A: No I don’t.
Q: Okay; it’s a –
A: I should add also Mr. Steeves that the first day I pointed out the difficulty in making these changes both internally and externally – I mean there is great resistance to change regardless of what kind of service outcomes are achievable because there is a lack of trust by the stakeholder community that is reflected in the resistance to change. And everything we have done has been very contentious, has been resisted inside and outside of the organization and I can tell you it’s been a struggle as everyone here will attest to.
Q: Mr. Buchhorn, you will get no complaint from me about how complicated it is –I’m just saying that you have an example within this institution of someone who did it in dramatic fashion and I – I think that is the standard you have to meet – do you have any problem with that?
A: If the solution was as clear cut as what it was at the back end of the system in that particular situation I would have resorted to that conclusion.
Q: All right; Mr. Hurst – may be not - disfigurement section 23.5 –
A: Yes.
Q: And requires serious and permanent disfigurement –that is the language in 23.5 – was that you Mr. Hurst?
A: No; it was my slide but
Q: And you also indicated that it is primarily –I’m not sure of this – tell me if capturing - the intent – properly – that it’s primarily facial and hands that it is aimed at?
A: The information that I talked to while the slide was up was straight out of the policy manual itself.
Q: Yes; so does that mean if there is scarring in the abdominal area there is no compensation under 23.5?
A: Well I think the point that I made is that if it has an impact in the earning capacity then we will look at the scarring. So I’m not – primarily what that language is saying is primarily face and hands.
Q: By that you mean there has to be a functional award before it is disfigurement?
A: The disfigurement policy was actually reviewed and revisited a few years ago – visibility is one of the factors which is considered when we are determining the quantum of award that is paid under section 23.5. So if the worker has a scar in the area of the body that is not visible then it’s possible that the worker’s entitlement will be less because visibility is one of the factors which is considered in calculating entitlement. And I believe the policy manual provides actually quite a number of examples in terms of how that calculation is undertaken.
Q: Just to give you an example –I hope it is an easy one – a worker is in a car accident during the course of employment has loses one of the lower limbs –fire is involved and has some scarring – some significant scarring in the abdominal area – will the worker get a functional award for the loss of a lower limb as well as the disfigurement in the abdominal area?
A: The way the policy is currently written, yes they could receive an award for both.
Q: Yes they could?
A: Yes.
Q: Do you want to qualify that in there may be some circumstances they wouldn’t get it?
A: If the scarring were relatively minor¼
Q: Yes, I know I don’t want to get into that
A: And not visible, okay. But if it were significant the way the policy manual is written and with the examples which are provided in the manual the answer to your question is yes.
Q: Thank you – with respect to loss of function awards – and Dr. Davidson wants to comment on this – actually could you step up to the table please Dr. Davidson – Thompson I’m sorry – It’s been a long week Dr. Thompson – I think one of the slides indicated that the average functional award was 10% that was over a few years – do you recall seeing that slide?
A: Yes I do.
Q: I am wondering if we could get a sense of what that means in terms of real terms – for example a 10% function award on a hand injury – can you give us an idea of the extent of that kind of injury?
A: I don’t have enough experience with the overall numbers to tell you exactly what the frequency is but with my experience for having done them for a period of approximately 2 years that would be a relatively high award unless there was massive damage to the hand. Usually there is one or two digits involved and the award would be between 1 and 3 or 4%.
Q: Do you recall what amputation of the hand is?
A: No, I don’t have the schedule memorized. The amputation of a hand is 50%. If you wanted some other examples: amputation of the index finger at the mp joint for example is 4%
Q: Are you sure about – an amputation of an arm is 40-50% - I know that.
A: Amputation of a hand is 50%
Q: Below the wrist?
A: At the wrist.
Q: Okay
A: Amputation at the elbow is 60%; at the shoulder 70%.
Q: Okay – so what you are saying is that it is quite a significant injury?
A: From the experience that I had most of the injuries that I saw were one or two digits and were less than that – the other medical advisors had other experiences with other industries.
Q: All right; with respect to a head injury – can you give us a sense – just in sort of clinical terms what kind of injury we would be looking at.
A: That could be anywhere from a very small injury to a hundred percent. A head injury can be extremely devastating¼
Q: No, I was talking about a ten- percent – what kind of symptoms for example?
A: I’m sorry, That would be the American Medical Association guide’s and psychology would be involved in assessing that.
Q: I’ve got one more question for you and then perhaps maybe talk to Dr. Schulz. And a 10% for a back – that is in the high end, isn’t it?
A: That would be very high.
Q: What is the most you’ve seen for a back? Lumbar spine?
A: What’s the most I’ve seen? 6-7%.
Q: Really; I’ve seen higher than that myself. Dr. Schulz could you give us some help with a just giving us in the 10% range – I gather we are not talking about physical injury – we are talking about ¼.
A: Cognitive assessment.
Q: Cognitive, thank you.
A: A person with about 10% permanent would likely have attention or concentration difficulties that would be of a mild nature; that would likely be transient and the person would likely be able to function independently at home and may have periodic lapses of attention. This person would likely have mild short term and long term memory problems – may have some mental inefficiencies – slow in information processing – may require repetition of information occasionally – may require additional instructions – may become more stressed out over overload conditions where there may be too much information coming at the same time.
Q: Thank you –just before we leave percentages and it might take us – I don’t think this involves you but earlier Mr. Winter I think reading from a document I think might have been the briefing paper talked about compensation for subjective pain being from 0 to 2.5% and we see that around a bit – can anyone in the panel tell me where in the Board policy says that there is a limit on subjective pain of 2.5%?
A: There is Reporter Decision; Reporter Decision number 318 which you may be aware of which is the decision that the previous commissioners considered under stress testing and what they found and the wording of that particular Reporter decision is quoted in the policy manual under section 39.01 but essentially what it says is that if there is evidence that the worker would be impaired as a result of his work or other physical activity not withstanding a permanent functional assessment there is no measurable impairment then the Board may consider granting an award and they granted this particular worker 2.5% essentially what we’ve done is use that as a guideline to provide some consistency with the granting of awards for subjective complaints and that’s the practice that’s I think that’s currently being used in our department – in disability awards.
Q: By guidelines you mean your interpretation of – is that it should be Board policy - that there should be no more than 2.5% for subjective pain?
A: I’ve seen awards for subjective complaints higher than 2.5% but generally the practice is that it would be up to 2.5%.
Q: The practice or the policy – let’s be clear here?
A: Reporter Decision 318 states 2.5% but it doesn’t limit us to 2.5%; our practice is up to 2.5% and the reason we use that figure is because it is very subjective and it’s one at least of achieving consistency in terms of awards granted for subjective complaints.
Q: Of – it strikes me that if there is a limit on a functional percentage whether it is subjective pain or anything that that would be a matter of Board policy –someone would have to say that positively – rather than take it out of a decision and call it a practice.
A: It is; it is. I think when the governors adopted the published policies – the issued policies of the Board they also adopted the Published Reporter’s decisions. And what they said was that when there’s a conflict between a published reporter decision if the reporter – if the published policy is newer then the published policy prevails. Absent any direction in published policy the Reporter decision prevails. So if – and I don’t know this decision now well enough.
Q: This decision says that in that particular case Ms Woodland’s right – they award 2.5% and what she is saying is that from that they take that as a guideline, as a practice , that that should be no more than 2.5% - she’s not saying they decided that it should be no more than 2.5%; she’s taking it as a guideline or practice and I’m suggesting that if we are going to put limits on these kinds of things someone at the governance level should make that decision.
A: Yes, without getting into a long discussion about policy – that if it was a decision on a specific case it would be a guideline to the officers; it sounds like it’s evolving to become the departmental practice and as we’ve come to learn now it is in effect is policy. Without a change by the – without a change by the Panel of Administrators.
Q: I accept the first statement – that it has developed into that; I have a trouble with the second one - it is not policy.[takes afternoon break]
Q: Mr. Pinto wanted to offer clarification
A: It evolved into policy 39.01 – so I just wanted to refer the Royal Commission and counsel to 407 because there was a lot of discussion about Reporter Decision 318.
Q: Thank you Mr. Pinto –perhaps we can ask Dr Schulz to step up again – you had a discussion with Mr. Winter about pain and pain disorders and just wanted to maybe add a bit more detail to that –the focus of the discussion was whether someone could get a disability pension – a permanent disability pension for pain where there is no organic basis for the pain – do you recall that Dr. Schulz
A: Yes, I do.
Q: And I wonder if you can just add a bit more detail to that –my understanding is that the situations of pain – first of all there is some terminology questions here – there is a number of terminologies –yes and just for the record there is pain, there’s chronic pain, there’s chronic pain syndrome , there is somatoform pain disorder and you used a fifth one that you said¼
A: Pain disorder and there are three subtypes of pain disorder.
Q: Okay and you use that because that’s in the DSM IV criteria?
A: That’s correct; it’s the most current.
Q: Okay; can we use pain and pain disorder?
A: Or chronic pain.
Q: Okay; well we need to distinguish I think between and a point that and the point Mr. Winter made that there are some cases where there are no – well let’s start with the first case - a worker is injured and has pain –okay and that’s – it may not be objectively verifiable but because their leg is broken we can take it as they have pain; so that is the sort of starting point?
A: This would be an acute pain case.
Q: Acute pain case, thank you. Now over time for whatever reasons we – over time we hope that worker gets better, goes back to work and we never see them again in the system. But from time to time there are problems with the management of that pain or problems with the pain itself and it develops into chronic pain.
A: Right.
Q: And that chronic pain can be – can we still call that acute pain – that is can we still say that¼
A: Typically what we consider to be chronic pain is the pain that develops at between 3 and 6 months post injury. Before that it is called an acute pain and is actually quite different pathophysiological mechanism than is responsible for acute pain versus chronic pain. They are very different clinical entities.
Q: Yes in the first case the pain is there is a warning – it’s what our bodies is telling us is wrong and the second case is almost the opposite – that there’s pain there but there may not be anything wrong –physiologically.
A: Nothing that we can currently identify just to give you an example; for example in cases of phantom limb pain there is really no anatomical source of pain because their limb is missing. Yet, the brain continues to produce the experience of pain and it is a very well-researched phenomenon. In a recent study showed that the brain stimulation in a normal individual can produce a sensation of pain in a limb.
Q: Okay; and that’s where – that’s in the pain syndrome you are talking about?
A: I am talking about chronic pain rather than chronic pain syndrome – chronic pain syndrome is a rather outdated terminology right now – it seems to be out of favour and it stipulates basically behavioural characteristics of chronic pain patients such as feeling depressed, being deconditioned, being inactive, being dependent on medication; all these definitions are presented in the American Medical Association guide. But they never have really been satisfied in any particular way.
Q: All right; let me take you to a sort of conceptual issue among all that and that is from time to time we hear that it is just subjective –that it’s subjective complaints from the worker - you can’t measure them – how can you attach a disability to them and so on and in fact people in your profession can measure these sorts of things can you not?
A: We infer experience of pain and chronic pain from indirect measures of behaviour affect and cognition.
Q: All right; and you have objective standards in the sense of the DSM-IV criteria?
A: I wouldn’t exactly call them objective standards but we do have objective and standardized psychological tests that we use to assess dimensions of pain and coping with pain.
Q: All right; people like you and if I may psychiatrists.
A: Psychologists.
Q; I know you are a psychologist but psychiatrists also do it; you classify people according to criteria such as the DSM –IV?
A: DSM-IV yes.
Q: and that is how you measure subjective experiences of your patients.
A: This is how we label these experiences rather than how we measure. We measure through a clinical assessment.
Q: All right; and – the – since we are there can we talk briefly about psychological disabilities – apart from pain – and there’s been – is it since 1992 that that issue has been developing within the Board and we still don’t yet have an answer on that?
A: Yes, it has quite an ancient history, yes.
Q: Yes, and so how does the Board – what criteria does the Board use now for assessing psychological disabilities?
A: We are using the clinical guidelines that have been developed in a broad consultations with experts in the field including experts in the local community and some international experts. And they have been broadly consulted with labour and business every time when they were first developed. So the guidelines have actually been perfected and they probably one of the best guidelines that exist for these types of evaluation. What the issue at stake is the actual evaluation or classification of percentage increment categories. Something that cannot be scientifically established it can only be arbitrarily decided based on some sort of a political or social consensus as to what the categorization is. The latest edition of the American Medical Association guides does not provide any percent categories for psychological disorders arising from non-organic causes it only provides guidelines for organic disorders such as those arising from brain injuries. This leads all clinicians working with compensation systems in a vacuum in terms of what percentage categories are most appropriate. And this has been I think a source of controversy because there has been really no agreement with particular classification as most appropriate for a setting like the Workers' Compensation Board. So as a result we are following the first edition of the American Medical Association guide, however, we are using the newest clinical guidelines for evaluation. Just the percentages are taken from the first set of guidelines at the time the guidelines were provided with percentages.
Q: Okay; thank you Dr. Schulz. Mr. Chairman, the documents I put in - BCFL –T31 – it should be loose –it is called the "White Paper on Functional Capacity Evaluations" . and I thing Mr. Ingraham has some other documents. Could we pass those out so we can get through this. Now Mr. Ingraham the paper I handed out was with T31 at the top was a report prepared by Union Pacific Railway – a – it looks like a medical doctor suit who in November 1997 and it is a review of a number of different systems for functional capacity evaluation – have you seen this before?
A: Yes, I haven’t seen it before you handed it out, no.
Q: Okay, now I want to take you through a few things –first of all at page 3 –
A: Could I just make a point? The use of the ARCON equipment that we are using it for is for non-funct – we are not using it for functional capacity evaluations – I’ve asked Mr. Butterfield to come up who is our manager of our functional evaluation units – the use we have for the ARCON equipment at this time is primarily in the assessment of functional impairment for pension purposes and the primary use again – one of the key areas is why we selected the equipment and we’ve handed out here is some of the selection criteria that we were looking at in the process. And we also assembled a selection committee of senior medical – excuse me – the Director of Medical Services, Dr. Blair and Andy Butterfield the manager of the functional evaluation unit and myself when we selected this and we went through the purchasing department and selected ARCON to make sure the process was fair. But it’s important to differentiate between the difference between a functional evaluation and a measurement of impairment for pension purposes and Andy can explain that much better than I can.
Q: Okay, when you say you went through the purchasing department does that mean there was a call for tenders was made and¼?
A: Yes, we went through a request for proposal process and we had six vendors submit proposals; we went through a review of the proposals and selected ARCON as the number one submission.
Q: Okay, and you’ve provided us with two documents –one entitled "FAE: Overview" and the other is "A Comparison between ARCON Functional Abilities Evaluation System and a Kinesio Physical Functional Abilities Evaluation Protocols".
A: And that is fairly similar to what you’ve handed out in this document in that it is just another look at it and again I¼.
Q: Yes; I want to compare them in a minute but in your documents the comparison – the one with the - between ARCON Functional Abilities Evaluation System and the Kinesio Physical Functional Abilities Evaluation Protocols – who prepared this document?
A: It’s - I actually put it together with the assistance of someone from FAIR Assessment Centres.
Q: Fair?
A: One of our external providers.
Q: Okay – the second document – FAE Overview – who prepared that document?
A: Again, that’s just what – I checked with the one that went through after the assessment of the original vendors and I put that together.
Q: Okay; now – my documents – this is from Union Pacific Railway – at page three is a – some list of kind of bullets there and it says " in order to develop representative and appropriate normative populations one must consider a minimum the following variables." And I gather this is a kind of calibration if I can use that term –that you want to make sure that age, gender, race, and so on are properly put into the system – and can you ensure us that these sort of – that all these sort of are being covered in what I call the calibration of ARCON?
A: Yes.
Q: Okay – and is it done at the beginning of each assessment?
A: I do believe the machine is calibrated each day for a full run of the calibration. The calibration is checked prior to each client. The information that you are suggesting is entered into the system before every test, yes it is – the information that you are referring to in that.
Q: Okay, so things like gender, and race, and age are put in beforehand.
A: Yes, that’s part of the questionnaire that is completed.
Q: Now on page 4 is in the paragraph in the middle there –about half way down – you’ll see the ARCON on the right side there that sentence "The ARCON system is a combined impairment evaluation and functional capacity evaluation system however the FCE component – that is functional capacity evaluation – of the ARCON is quite limited in that it only takes into consideration strength factors – the ergos and hannen systems employ psycho-physiological to evaluation and takes into consideration behavioural factors as well as all physiological factors of performance." Is that – are dealing with – in BC is the ARCON system of this same type?
A: The ARCON system that we are using is just purely for the impairment at this time. From the literature on the other pages there ARCON has increased its capacity to do fingering and other testing but doesn’t show – our indicator isn’t known on this form – just on the quick glance through.
Q: Okay; well specifically is the ARCON in BC limited in that it only takes into consideration strength factors? Rather than psycho-physiological factors?
A: We are not utilizing equipment for that purpose in BC at this time. Yes, is the simple answer. The primary use again is for impairment rating and is not for functional capacity evaluations so in simple terms no.
Q: So this statement here relates to the ARCON in BC?
A: This – yes – this statement – this document is primarily focused on the use of the ARCON equipment exclusively for functional capacity evaluations not for impairment rating.
Q: Okay; now if could you turn to the next page – and I think it is the last two or actually three pages are some
A: Excuse me? Sorry to jump in but we don’t do strength testing as part of the impairment rating; it is active range of motion and so we are using it just for purely active range in motion strength testing.
Q: You test handgrip, don’t you?
A: That’s for consistency validation.
Q: For motivation and things like that?
A: Yes. Reliability and¼.
Q: Is strength part of the motivation test?
A: It’s actually repetition – it’s a consistency over repeated effort, to show motivation, to show the consistency of effort. It is actually not used as a testing but it is to show the consistency of effort and it’s range in motion. It is not a measurement of strength.
Q: So I could have all the range of motion to do a particular job but the fact that I am not strong enough is not measured by ARCON?
A: Not in the impairment, we are not using it at all.
Q: Okay.
A: And it’s – and if we were not using ARCON it’s not used for the establishment of a pension at this stage either.
Q: Right.
A: If we went through a regular examination we are looking at range of motion for the impairment of a joint or the injured area of the body.
Q: All right and is there a- an opportunity to consider strength at any other time in the assessment –my concern is that workers who are off a long time they get out of shape and that is a reason why they can’t work?
A: From the impairment rating strength rating isn’t taken into consideration as one of the factors of active range in motion.
Q: Okay – so could we turn to the next - the first of the three pages of tables –
A: Ah¼.
Q: Yes.
A: With basically the continuum of care; what we try to produce there is a much more expedited process of getting the people through from acute care into through all the treatment programs and so the idea of getting into impairment 2, 3 years down the road which may have been the case in the past won’t be the case in the future so hopefully that won’t be the same problem that has occurred.
Q: Yes - that is one aspect of strength, yes, so can we turn to the tables –and perhaps we - the easiest way to do this is to have your document – the FAE Overview –and you’ll be glad to know that I am not going to take you through every one of these but just going down the list there – do you see pushing force – do you see that if – you half a dozen lines down –
A: Which report?
Q: This is table one
A: Yes.
Q: Do you see that Mr. Butterfield?
A: Yes.
Q: And pushing force - static dynamic – it says that ARCON has static only - is that true here in BC?
A: I’m not sure of the relevance of that question because we are only using the ARCON for active range of motion, we are not using it for strength testing.
Q: Okay.
A: Push, pull, lift, carry, whatever we are not using it for impairment rating – that would be part of a functional evaluation.
Q: All right; so that would be true of the pulling force – static dynamic as well?
A: I was just going to say we haven’t tested the ARCON equipment in a functional capacity evaluation setting. I mean Andy will touch on this but Andy is just initiating that process to look at the equipment to see its value in functional capacity evaluations so to be able to answer those questions we haven’t really gone into that phase of looking at the equipment. We use an ergos system and Andy can touch on that more in our current functional evaluation unit. We have an ergos unit to – actually ARCON are coming to do a preliminary discussion with myself about FCE’s using ARCON on March the 10th and Isaac Hannen is coming on to do a presentation on to the Workers' Compensation Board on March the 13th for functional capacity evaluation. But again at this time we are just using the active range in motion for impairment.
Q: Okay - does that mean that workers will be going through both ARCON and ergos?
A: Again, it’s a separate – the impairment rating is thought to be separate from the functional evaluation. The question is could they – if the person went in for a functional evaluation they could go through the ergos system in that process. Now when they get to the impairment rating for pension purposes during our pilot between now and the end of April we are using the ARCON equipment for testing purposes with range of motion. With functional capacity evaluation I think it’s fair to say that you don’t use just one approach; you use a multitude of approaches to get the tolerances and capacities noted. If you had just asked you know can a worker lift 70 pounds above the head then that’s the tolerance – they can do one occasion. If we were looking at capacities can they do it repeatedly over the course of a day, two days whatever – that gets into capacities. If you just take an ergos machine or an ARCON machine and you were to say can they do it? It may give you the information yes they can but then you’ve got to take other elements into account like awkward positions, working under a cow would be an example, so there’s lots of things to functional capacity – you can’t just go with a snapshot to say this is it – this is the be all and end all – you’ve got to add a lot more to that.
Q: Yes and so not to be too arcane –a functional capacity evaluation is part of the employability assessment really isn’t it?
A: Yes, that’s correct. Yes, and that’s again separate application.
Q: Yes so a functional evaluation measures what work that can be done –so I gather from that – just going below that - still on the table of my document –sitting, standing, walking, and stooping and so one knows that would not be measured by the ARCON in BC?
A: That’s correct; but again we’re not using the ARCON for ¼.
Q: I understand the distinction, yes. Just at the bottom at the page – a sort of non-therapy issue – informed consent in test –it says no there – implied consent in test – yes.
A: I can only speak for our own protocols.
Q: That’s all I’m asking, yes.
A: And we do ask for the injured worker to comply and we give them a full orientation to what tests, what’s expected of them and again they consent to participate in the test. We have separate documentation around that.
Q: Okay – I’m only asking you about BC – you can’t speak for Union Pacific Railway.
A: No.
Q: At the top of the next page third down –it says recording of subjective self report under ARCON – no - Is that the case here?
A: Ah, no not at this time. As I mentioned earlier today we’ve introduced a subjective component in the ARCON impairment rating process. And we’re experimenting with that right now.
Q: Mr. Ingraham I just have a note here –you talk about the computer as the brains behind the whole system – you didn’t really mean that did you?
A: No I didn’t really mean that.
Q: Thank you. And can we be clear what ARCON is for – is it for all soft tissue injuries or what?
A: The – it’s two fold – the actual impairment rating software will do impairment rating calculations for anything that we are assessing. If we enter the data in it will do the calculation for us. We are adding vision and hearing to the calculation process; it doesn’t have it right now but we will be adding it. It has our hand calculation charts and everything else that we utilize. For assessment for impairment it is primarily a range of motion piece of equipment and there are factors that we still need a medical doctor or physiotherapist to do some non- range of motion factors in the examination process.
Q: Well, let me put it another way – what disabilities would not be tested by ARCON?
A: Head injuries, there’s four criteria that it won’t do. Maybe Dr. Thompson could come up and explain that a little better than I can. There’s ¼
Q: I’m finished with the documents Mr. Butterfield thanks.
A: Currently there are four items being tested that are labeled non-range of motion testing that the officers take into account for the calculation of pensions. Those are two point discrimination on the hands, ligament elasticity in the knee, movement of the mid forefoot which is a passive movement, and leg length. There are also other issues that would not currently be calculated on the ARCON and those would involve problems of respiratory disease, internal medicine issues, and gastro-intestinal, genito-urinary difficulties and I can’t thing of – there’s two or three others.
Q: That’s fine doctor –
A: And amputation can be. Spinal injuries involving paraplegia and quadriplegia have a very specific reference in the schedule and wouldn’t be done on the ARCON.
Q: And those latter ones - the genito-urinary problems – you would go to the American Medical Association guidelines for that?
A: They would go to the American Medical Association guidelines after assessment by an appropriate specialist. Also audiovistibular and visual.
Q: And we’ve heard – I’m sure you’ve looked at this – what are the disadvantages of going to ARCON?
A: Some of the disadvantages are I’ve experienced in training the people on the outside is that it is a slightly different way of doing examinations. The ARCON transducers things like a garniometer which is just a protractor with angles on it. Usually has the angles measured on it – come clinicians are used to seeing visually the angles actually printed on the item – that’s not on the garnimeter or the inclinometers that are used by the ARCON helping to eliminate some of the bias that you could do in reproducing or predicting your next test results on a two or three time test.
Q: Currently 2.5%.
A: Right. And the other difficulty is in teaching the clinicians that they have to be very scrupulous about teaching the claimants who undergo the testing – the technique for using these things because there is a learning curve for the patient undergoing the testing and the test has to be repeated with some understanding by the clinician that the first couple of tests may be not valid because of the learning curve. They have to be paying attention to both the claimant and the curves that are generated so that takes a bit of a learning time so those have been the kinds of difficulties that we’ve had.
Q: Yes, those are difficulties –my question was actually – aimed at before that stage – what are the disadvantages to bringing the ARCON into the current system we have given the significant change it is?
A: Mostly the change in the culture that doing it the old way is better; doing it the new way is not because I think the – I know that the new equipment is more consistent, is more fair, and is more accurate in our tests of test cases where there were calculations done by the ARCON equipment against seasoned damas and seasoned officers – all of the mistakes occurred with the humans and none of them occurred with the ARCON program.
Q: Sorry –to be very clear – is ARCON perfect?
A: No, nothing is perfect. It is a computer; garbage in garbage out.
Q: So how is it not perfect?
A: As I said the people who enter the information have to be carefully skilled in the screening of the way that the claimants are taught to undergo the testing. I think just to add to that in the area of not perfect I think there is an assumption that ARCON – by some people that ARCON does everything and I think you’ve highlighted for us that it’s primarily a range of motion piece of equipment for the actual impairment testing. The software for the calculation of the percentage of impairment is very good and that is probably the most significant benefit to this organization. But the equipment is limited in what it will test for and there are still components in the impairment rating business where you have to rely on other sources and other resources to do some of the examinations that the ARCON system will not do and that is probably the biggest short coming.
Q: Okay - leaving ARCON –could turn to tab 30 of our documents – that’s the one in front of Mr. Buchhorn there –Dr. Thompson might want to stay for this just – it’s some medical overlap –so this is the schedule from the back of the manual with respect to lumbar spine correct? I’m not sure it is primarily a medical issue but do you recognize that someone on the panel?
A: Yes.
Q: And I had a question about 112 - loss of range of motion for flexion – do you have it Mr. Chairman?
A: Was it handed out today or?
Q: It was handed out today, yes. A couple of questions here anyone on the panel – when we talk to doctors on behalf of workers that is as part of the appeal process – one of the things we need - we are looking for is an independent assessment of the Board’s assessment of a functional disability –and one of the difficulties we have is trying to explain to doctors – workers’ doctors and to ourselves, frankly about what this means and let me tell you what I’m referring to for example – lumbar spine flexion –it says 0-7% - and my question is that 0 to 7% of a functional award or – in which case – how much flexion loss do you need to get 7% or is it intended to be 0 to 7% of flexion –do you understand the difference there I’m making? That is we don’t know what 100% is – we don’t know what it means and frankly I simply don’t use this any more cause it is not helpful in talking to other doctors?
A: In terms of flexions 0 – 7% means that you get 0 if you get normal function and 7% if you have complete lack of flexion. The test that has been used up until now has been something called the modified surber’s test – in which in short a measurement is taken over the lumbar spine and when the person bends forward or attempts to there is an expected expansion – the normal range for that expansion is accepted as 5 centimetres so that 7% range is divided by 5 centimetres and what your missing from that would be the fraction that would be taken from the 7% is that correct?
Q: Yes - that’s my point –I mean it’s just not there. You are pointing that out.
A: I see; yes that information is not there and with the ARCON they are not able to measure the shelber’s test – and there is in the literature an equivalency of 12% per centimetre for the range of motion so that transformation would be made by the software.
Q: Now the Board’s briefing paper – says that with exception of the spinal portion of this schedule to the regulations the disability schedule we have was from 1966 – the spinal portion being from 1990 – that is a fair comment, Mr. Hurst?
A: I think that’s a fair comment; it may be earlier than that but at any rate it is about right, yes.
Q: But at any rate at least 30 years old?
A: Yes.
Q: And work has changed, society has changed – is there – are we going to have a look at this as part of ARCON or simply because it is about time?
A: We have no plans to address the actual schedule through the ARCON pilot process; that’s – the schedule is actually policy. But there is – there is great controversy in the literature regarding normal ranges of motion and what is normal. Basically although a number of things of changed there basically are two models – male and female – anatomy hasn’t changed a great deal in the last several centuries so the problem is that whatever source you code usually uses a patient population that may not be reflective of BC. One of the benefits of the ARCON program is with time – approximately 2 to 3 years we should be able to generate normal values that would be fairly reflective of the patient population in BC. At the present time we are dependent on those other norms that are accepted in the literature.
Q: As I understand ARCON it’s going to measure impairment okay – not functional capacity and you’ll take the information from ARCON and apply it to this schedule? Have I got that right?
A: Yes.
Q: So the schedule itself won’t change just how you get to the schedule will change?
A: Yes but within the schedule we can compare the injured side to the normal side so we are accumulating data on normal range of motion in the patient population of BC. So eventually we will have a set of norms that will be more reflective of the human population in this province instead of being dependent on the general literature.
Q: All right –could you turn to tab 29 – Mr. Ingraham - this is just the – turn to tab 28 – I haven’t got time to review that document – I wonder if you could send a letter to Mr. Bates just explaining to me what that means –we’ve talked about it briefly and I
A: What 29 means?
Q: 28 – the one at 28 – okay –
A: I can tell you what that means.
Q: Can you do that in writing?
A: Not a problem.
Q: Okay - at tab 29 is a document which is a permanent functional impairment examination – and I want to go through this because what ends up is a man had a knee injury but no pension –and under accident history –we see he injured his knee attempting to stop a ladder from falling – diagnosed as having a sprain of the left knee involving a lateral, collateral ligament – no bony injury – treated conservatively – not restricted range of motion reported – complained of intermittent catching sensation in the left knee – orthoscropic investigation reported to have a small tear anteriorly of the menial miniscus of the of the left knee – condamylgia changes involving the femural condile – medical report indicates complaints of his knee giving out – examination of knee moved through a complete range and there is no detection of ligament laxity and no swelling. The current history relatively pain free normal activity but if he runs the knee pains him; he also indicates that in recreational activities such as skiing this causes his knee to pain – any kind of impact actively bothers the knee – the knee swells with stressful activities such as digging and he indicates that he prefers not to kneel on his knee – the knee moves well – sometimes he notices a crunching – walking on a slippery surface he can notice instability. It has not given out on him for a few years now but he indicates he has given up activities that caused this previously – doesn’t lock. Up on the top of the second page – finds difficulty with activities such as heavy lifting or climbing activities, any kneeling, home he indicates he has difficulty with certain repair activities – personal history – working full time as a cable tester, which is a desk job and his role was changed and then the summary on the next page – indicates subjective complaints as recorded at examination the knee moves through a complete range of motion and there is absence of neurological deficit and no ligament laxity detected – detected slight tenderness to palpitation and medial joint along the left knee and slight palpable carpitus in the left knee on manipulation – left calf measures slightly smaller than the right. The next document is the decision letter – and they acknowledge the subjective opinion symptoms not considered to have a significant impairment of function that will in the long term impair your earning capacity – this is the third paragraph – no award is payable. Now is that - Looking at the examination in that letter is that consistent with Board policy in the panel’s view?
A: Yes it would be. It’s although we don’t have all of the documents before me looking at the findings of the medical advisor – his conclusions – I think it is a him – his conclusions are that there’s no objective evidence of impairment. The officer who has reviewed this claim has made a conclusion that in the absence of any objective evidence of impairment and noting that the worker has returned to employment at no loss of earnings has concluded that there is no disability in the sense that there is no evidence of impairment which is adversely affecting the worker’s earning capacity. This decision is not inconsistent with our policy.
Q: Okay; the last document there is something that I am just going to explain to you – this is a knee injury involving personal injuries – a personal injury case in court and the –I – you don’t have any expertise in this area but I’m raising apropos an issue raised by Mr. Winter on behalf of the employers – that is the Board already pays for pain and suffering –this history – you can read through it if you like – but it’s very similar except that it’s a younger worker – there is prior history in the knee – the life style was not altered and if you see the top there – future loss of income – this resulted in an award of $15,000 and that’s the kind of pain and suffering that’s not compensated for in workers' compensation, is that correct?
A: Based on the information you’ve presented -
Q: That is all I am asking.
A: Thanks.
Q: And just one other point and sort of roughly in loss of function area here – Mr. Hurst you talked about the average loss – loss of function award was a average loss– correct?
A: The schedule was it was designed to represent what is perceived to be the average loss.
Q: Sometime a long time ago we don’t know when – we don’t who – someone decided that¼.
A: Well we do know when and we do know who but it was a long time ago.
Q: All right, well that is another discussion. But that the loss is measured on an average basis that the gurus did a long time ago.
A: I think that’s a fair statement.
Q: And isn’t it true that one way to look at the loss of earnings is that it is the individual measurement of the loss of earnings capacity?
A: Yes, I think that’s a reasonable statement, yes.
Q: One other point – is that when a person is injured on the job, goes off and goes back to work with a functional disability – goes back to the pre injury employment that doesn’t mean they don’t have a loss of earning capacity it just means they have a good employer who takes care of them, right?
A: I would agree it doesn’t necessarily mean that they have a loss of earning capacity – and nor is it necessary to establish one to receive award on a loss of function basis.
Q: Yes – if I could move into loss of earnings pension – tab 27 please –this is a decision letter November 25, 1996 – now this is a loss of earnings decision pursuant to an Appeal Division decision –at the top of the second page is really the heart of the matter –the second line – it is clear you are currently suffering an actual loss of earnings in excess of the functional component of your award, however, I am compelled to arrive at conclusions about suitable occupations that a worker could be expected to undertake over the long term future – a temporary loss of earnings pension cannot be granted –and we sometimes see that in another form do we not – that we might have a loss of earnings in the next 3-5 years but over the long term there’ll be no loss of earnings and is a –we see this decision - this kind of approach from time to time, correct.
A: Yes, we do.
Q: Okay; now my question is - workers don’t understand why you talk about long term earning capacity or earning capacity at all and yet they have to take a loss in the short term because of an accident that happened at work under a no fault system – can you help us understand that?
A: Once policy is written that we be required to consider the worker’s loss in the long run; I appreciate your perspective on this issue and we’ve had to deal with a number of workers in the past and tried to explain unsuccessfully I might add the Board’s position in that regard. Nevertheless we are attempting to determine those earnings which are likely to maximize the worker’s earnings in the long run. Therefore if in the short term, sometimes it is as a result of the training program that has been provided through vocational rehabilitation services. The worker is fit to undertake certain kinds of employment, which we know currently pays less than they are likely to achieve in the future. We are given our existing policies required to consider the maximization of their benefits. As long as we are confident that the maximum of their benefits is reasonably achievable by the worker.
Q: Well - I guess what I’m – what we are talking about is the definition of what measure of long term earning capacity is or any capacity at all and from the workers’ point of view the Board’s interpretation is unreasonable –a reasonable interpretation from their point of view is that there should be no loss of earnings even in the short term, that is what the Board is there for to protect them from.
A: That is their position; I’ve heard that position and frankly from our – in terms of applying the policies – we have to take a different perspective.
Q: That’s a fair answer – a question on the charts – 1995 was sort of an interesting year – it was a peak year for the numbers of loss of function awards but it was the lowest number for loss of earnings awards – do you remember that information on the slides? What’s going on there?
A: There really isn’t much of a correlation in the sense that awards for loss of earnings processed in 1995 – and Janice would probably would be able to help you better but my guess is that those are likely injuries that occurred anywhere between 2 to 5 years earlier – so the exact correlation and the timeframe for processing a loss of function award would be significantly different so your average loss of earnings award process in 1995 likely relates to injuries which occurred very much sooner so I wouldn’t expect to see an exact correlation. And there may be a relationship between I think in Mr. Hurst also showed us the statistic that there was a big gap between the number of employability assessments completed in 1995 and the number referred. And if there was a backlog or queue of employability assessments we wouldn’t be processing as many loss of earnings pensions.
Q: Another area – there was a discussion if you like between Mr. Winter and it ended up being Mr. Buchhorn about the numbers of loss of earnings pensions that have – the proportionate number have increased over the years since the original decision on loss of earnings - do you remember that discussion?
A: Yes.
Q: And Mr. Buchhorn, his point was that there‘s more and Mr. Winter relied on the Hunt Report for that point – he was reading from the page but there was a portion of the Hunt Report which he didn’t read out – it’s at page 19 in Roman numerals – at the beginning and I think Mr. Buchhorn, this is your point – "One could argue further that the aging of the workforce and the downsizing of some industries have played a contributory role in the growth of the loss of earnings pensions."
A: I think the issue of language – I mean the diversity of our province today is much different than it was 15 years ago so I think there are legitimate changes not only to the workplace but society that have changed the mix of consideration that the Board would have in this area.
Q: But the point is Mr. Hunt was concerned about the growth but he acknowledged the reasons.
A: Yes.
Q: The other point - the suggestion was made that loss of earnings always ends up in an increase in the pension and some on the panel agree with that. I think that’s true but isn’t that because of the dual nature of the system – that is you start off with a functional award – if there is a loss of earnings you look at the loss of earnings and you pick the one that is the largest – that is how the system operates? All right - deeming again in Hunt – he was concerned in 1996 – this is at page 150 – while there is certainly a legitimate need for such a procedure – deeming – in cases of last resort significant potential exists for overuse of the deeming process –in situations where the policy focus is on developing employability rather than on actual placement, particularly in absence of clear standards and expectations. Now Mr. Buchhorn you made it clear that your emphasis is on employability and I just want to give you an opportunity to comment on Mr. Hunt’s concern that if you put an emphasis on employability you run the risk of overuse of the deeming process.
A: I thought I said my emphasis was on employment not employability.
Q: I don’t know that there is a difference in the sense that Mr. Hunt is referring.
A: There may not be but there certainly is within the culture of the Board.
Q: Okay - is there not –let’s put it this way - are you concerned about an increasing emphasis on deeming as the Board moves to an increasing emphasis on employment?
A: I – that would depend on the mix of clients who come into the system. If you look at the pie chart – with respect to loss of earnings pensions the significant number of the people coming into the system are in the 60 to 65 year age bracket and in those circumstances it may be appropriate to be deeming because that may be the best solution for both the worker and the Board. So I think it depends on the mix of clients and what their interests are when they enter that particular process.
Q: Thank you –Mr. Winter raised an issue – he was concerned about the situation in Section 6.1 where because of the wording –not disabled that the work to which they were employed the worker can have the claim accepted and not getting compensation and he was concerned on behalf of employers that even though that was the case that a widow of that same worker could get compensation pursuant to section 17 – do you recall that? And if the - what we think – to use Mr. Winter’s term for another question – we thing the anomaly and the current language in section 6.1 – if that was changed – that would eliminate that inconsistency wouldn’t it?
A: Yes.
Q: And one of the other concerns in fatality claims dependents of workers currently on pensions from time to time express concerns that their former spouses pension has ended - you have heard that before?
A: Yes. Yes.
Q: And the concern that – this is under the two year review –that it only happens every two years and why can’t you do it in the mean time – I think the panel made the point but to be precise - the Board under section 96.2 has the authority to reopen anything at any time basically
A: That is correct.
Q: And by the way – I am with Mr. Winter – I have never seen those two-year reviews on files. Just since lawyers are giving evidence here.
Q: There was a chart comparing the BC schedule with the American Medical Association guide - a slide –could you pull that out – do you have it handy –just a bit more information on that to be clear –the - in Ontario you can have lump sums there – but in Ontario there’s a statutory language – and even statutory language that requires a lump sum payment in every case of a permanent disability correct?
A: That’s my understanding, yes.
Q: And it is an arbitrated formula –it is a percentage of $100,000 something like that –it is not related to earnings
A: It is unrelated to earnings.
Q: Right and in Ontario - that ‘s done in every case –and in Ontario there is also loss of earnings pensions to compensation workers for their loss of earnings.
A: Yes.
Q: So the point of all that is to suggest that the 3rd and the 5th column we have to be really careful about comparing those figures. It is really apples and oranges.
A: My point was and I used this – the case table in BC – this is assuming that there is no loss of earnings and that this is simply pay for physical impairment.
Q: Okay, right. One final point on the discount rate –the Board uses that a discount rate of 3.0 on its own investments are you aware of that?
A: Mr. Buchhorn is shaking is head yes – Yes that’s correct.
Q: And yet on commutation of pension you use a 3.5% - I’ve been convinced that it’s probably for actuarial reasons makes sense to use a higher rate on pensions but the question is why half a point? What is the rationale for ½ a point – why not 1/3 of a point. A: I can’t explain the rationale used by the actuary but I’m sure that we can get him to provide one.
Q: that would be helpful.
A: We can do that. The different point was used when the Board used a different discount rate there was the same spread for the commutation policy so when it was 2-5/8 or whatever it was there was a half point spread. It is actuarially based and we can find out why that’s a half a point.
THE COMMISSION
Q: Kind of switch gears here a little bit – into the – Mr. Steeves forgot something.
Q: I had a question just for clarification – with respect to the dual system – the functional and loss of earnings -my understanding is that the functional award pension continues on past age 65 for life?
A: That’s correct.
Q: And the loss of earnings pensions ceases at age 65 subject to that exception that we’ve discussed here.
A: If the injury occurs below the age of 50 the loss of earnings pensions also continues for life.
Q: And either internally or in terms of continuity of pension is there ever an award under both functional and loss of earnings?
A: No, the policy requires that the person receives the higher of the two so you do an evaluation based on a loss of function, compare it to a loss of earnings and pay the higher of the two.
Q: Shift gears here to fatality and I’m not sure who is the best equipped to deal with this. The Royal Commission is of course aware that through litigation the ceasing of pensions on remarriage has been discontinued both by government policy and statutory amendment. One of the controversies surrounding that is the difficulty and the public policy wisdom of reassessing a widow who has remarried in terms of her need. Whether the new spouse or the new partner has – is providing as well as or in a superior fashion to the deceased –and my question is given the numbers involved how difficult would it be on the remarriage of a widow to look at the question of her financial circumstances arising out of the remarriage and reassess the situation just as you might with a loss of earnings pension?
A: Am I able to provide some anecdotal information for you.
Q: Any way that you can answer it.
A: From our experience in dealing with these projects where we’ve reinstated the pensions which were done in two parts – as you know in 1993 for those who remarried after 1985 and 1996 – pardon me – yes – end of 1996 to 1997 for those who remarried – the marriage occurred before that time. What we found is that large numbers of second marriages didn’t work out – we’ve seen third and fourth marriages at times – we’ve seen as soon as the money was gone so was the second husband – there’s been a large number of variables out there and on the other end of the spectrum there’s been some very successful second marriages. I think what’s happened over time is that society has changed; women are no longer as dependent on men as they once were for their livelihood and the support of the family. This has all changed but I think in the old days women on her own with a family was recruiting a husband fairly quickly and that that’s why some choices weren’t as good and why we had so many bad experiences and so often – when you put the project the size that we had – that we would have had a lot of very happy people but actually the converse was true; we have a lot of people say too little too late.
Q: How difficult a project is it to assess somebody’s financial circumstances upon a remarriage? Leaving aside the durability of the remarriage?
A: Yes, I guess initially what you could do is you could get some sort of an earnings history for a background on the husband. I mean is that the sort of thing that we would look at? I think it would be a kind of a mission impossible to be quite honest. And then you have to predict the viability of marriage which – boy in this day and age is a real tough one.
Q: With respect to the stacking versus integration of the Canada Pension Plan death benefits – we’ve noticed in looking comparatively at other Canadian jurisdictions that a large number of them both – either integrate both widow’s pensions and disability pensions or they stack both or they stack the widow’s but integrate the disability pension. BC is the only jurisdiction that treats them differently and stacks the disability pension but integrates the widow’s pension. Has anyone been around long enough to know the policy reasons behind those legislative distinctions?
A: They are all looking at the grey-haired gentleman at the end but – I really can’t tell you the rationale behind it but what I can tell you is that when – there was a major legislative change in I think in about 1972 or thereabouts and there was a significant amount of research at that particular time and that’s when the legislation occurred that in fact introduced the integration with Canada Pension Plan and the widows’ benefits. Now the actual rationale that they used to come to that conclusion – I’m not aware of it but may be Nick is. Well all I can say is – I joined the Board shortly after that but I did hear – the person who I think was a lot responsible for that legislation was Professor Ison who was one of your expert witnesses. And I did – I do believe I heard him say once that essentially the difference was that with the survivors – the concern was more with the you know making sure they had sufficient to live – it wasn’t so much – it wasn’t so much the compensation – it was more the¼..
Q: Needs based rather than loss based?
A: Yes. Needs based rather than loss based. So the idea was that if you had you know they had the Canada Pension Plan and then you sort of added on – you know what the Board would provide then their concern was – as long as they had a sufficient standard of living then that was – that was fine. I think the idea was workers’ benefits and I’m not – my memory is a lot less clear on that – I think the idea was that there was lots of other things that they lose – the idea I think of the maximum and the other things that have been talked at some of these sessions and so there was a less of a concern of stacking in those situations – but maybe I’m passing on what he said second hand so you may want to ask him directly may be.
Q: We might do that –do you know if he has written on it –or you are not aware of any?
A: Pardon?
Q: Do you know if he has written on the subject?
A: I don’t remember – I don’t remember seeing him having written on it – I think it was one of the talks that he gave and may be when he came to the Board once – we had him here for the day and I think that was one of the things that he said.
Q: I’ll start with the issue of the disability schedule –I understand that it has been said a number of times today that there is not necessarily any correlation between the percentage disability attributed – resulting from any particular injury and the earnings lost for that particular person –but rather that - that percentage is to represent the average loss if there is such a thing in the workforce – are there any studies that you are aware of that would even establish that latter assertion – that there is a relationship on a broad basis that it does represent an average loss?
A: I’m not aware of any scientific studies that would indeed that – in fact I think it is unlikely that it is so.
Q: All right - are there any studies that would indicate to what extent individual cases deviate from that average?
A: I’m not really an expert in this area; but there are studies in this area I think in the US, and particularly – I think there are some in Ontario and the east where they sort of looked at workers and they but a lot of jurisdictions use different schedules – it wouldn’t necessarily be the same as we use and they actually gone and looked at what the worker got and then compared and done a study to assess what – what – what was the actual loss that he suffered. But I don’t know that I could tell you what the results were. I referenced some of them in the footnotes to the briefing paper but there may be others; I didn’t really do a complete literature survey on it.
Q: It just seems to me that if we don’t know whether that schedule system represents an average loss or what – how many cases vary significantly from that – I wonder what relevance it has to the objective it is trying to achieve which is to compensate for a loss of earnings?
A: I guess that’s a question. I think it’s a good question and we all ask the same question – we use it because it has been around for 30 years and that’s all we have and it is integral to the system so the current system – we have to have a schedule I think to work the compensation system but I think there are legitimate questions about whether – when you look at it really what does it mean and I should say that you know as – my involvement in the Policy Bureau one of the real problem areas that we have is that you know let’s say we have an area that isn’t covered by the schedule but we have to think of – come up with a percentage of disability – you know to match what we need for the system – it is really very difficult to find a justification for a percentage; it is almost very arbitrary – one’s opinion – one person’s opinion is as good as any body else’s opinion. I mean it is a real problem in the system. And I certainly don’t have any solutions. And indeed I think the very issues that you describe are also applicable to the American Medical Association guide and I believe in fact there is a disclaimer that in fact this will unlikely bear any relationship to any actual loss.
Q: The American Medical Association guide comes with a disclaimer but the BC one does not?
A: We slow off the mark. I think there is a reference to the pension study that the governors commissioned in 1993 or 1994 – it was recognized that there wasn’t a significant work that could be relied on and it was the mandate of that study was to look at the horizontal and vertical equity issues and look at the relevance between the schedules and the loss but – but I think it is recognized that most of the schedules that exist today are either politically or socially driven in terms of objective rather than evidence based.
Q: All right – we talked about loss of earnings pensions terminating at age 65 or at least certain categories if they – if the injury is fairly late in the working life –but the exception established by the appeal division if the worker can establish that he or she would have continued to work beyond the age of 65 – are those applications increasing or – what is the Board’s experience with respect to that issue?
A: I think it’s fair – and this is anecdotal information – I’m sure we could probably generate some statistical information through disability awards – but anecdotally in my experience – following the Appeal Division finding – it’s fair to say that we did have – we did have a slight increase in the number of requests for consideration of loss of earnings beyond age 65 and certainly since we implemented the interim policy with respect to that Appeal Division or the interim guideline with respect to the Appeal Division finding we were more aware also especially of workers who were already 65 or older at the time of the injury and being more proactive in undertaking that investigation. I think the short answer to the question is there has been an increase but I can’t tell you precisely to what extent.
Q: But your personal experience would be that it is not – you would characterize as not significant?
A: I would not say it was significant.
Q: The ARCON functional impairment method we’ve talked about the evaluation of the subjective component to what may be functional limitations and I am wondering whether there is any credibility component to that –that is assessed as part of the ARCON testing process – you mentioned that initially the position takes a history or someone there takes a history –the patient’s or worker’s history and that forms part of – ultimately forms the input into the process and then there’s the test itself and the clinician is doing the test I suppose is making some observations other than just what the dials and needles are telling them –I’m wondering whether there is a credibility component being assessed by anyone?
A: As I said before the subjective complaint questionnaire that we are utilizing is from NADEP – National Association of Disability Evaluating Professionals – I could see if I could get some literature to support the credibility of that method and give you that information.
Q: Okay but it is the credibility of the person being tested that I’m concerned about; whether that’s being evaluated during the course of that process somehow?
A: Well as you are doing the testing, the validity checks and the testing protocols are built in so if someone is giving a subjective – saying that their pain threshold is at 10 through everything they do and as you put them through the testing it doesn’t seem to be consistent – then that would become fairly obvious very quickly so there are validity checks built into the testing protocols themselves.
Q: So that kind of inconsistency in the testing were to be observed by somebody doing the ARCON test would that be simply reported out as an observed fact or would there be any conclusions drawn from that observation as part of that test?
A: I’m going to have Andy come up as well – if we get an invalid test it would be reported back to the Board during the course of the pilot as an invalid test and it’d then be the adjudicator’s responsibility to determine what to do with that invalid test. Andy is going to add a comment. Again just to reiterate – we’re only doing an active range of motion but part of the testing is this rapid grip exchange – pinch grip and the idea being is we are getting into reliability and seeing if the injured worker is actually motivated in performing the test because to do rapid grip exchange – if they are not giving full effort we are going to get an inconsistency on the actual graph that we can actually turn around for the injured worker immediately and say there seems to be some inconsistencies in your approach here – do you realize what this is doing? And we are looking for the consistency throughout the whole test. So there are mechanisms within – which account for reliability and consistency. And as Andy said throughout the test I mean we’re – before the test begins a discussion does take place with the injured worker and an explanation of what the tests are going to involve and how important it is for maximum effort throughout the course of the entire testing procedure and the explanation of the validity checks through the process so they know what’s expect of them going in and what we are looking for and if as Andy said during the test something comes up inconsistent they will discuss that with the individual at that time and try to reduce the number of invalid tests that we end with throughout the process.
Q: Okay, maybe if I could ask the question again from a broader perspective – in the course of evaluating an individual’s work capacity or residual capacity following an injury it would seem that information is elicited from a number of sources – and one of the sources of course would be the worker himself or herself and as a subcomponent of that information coming from the worker it would include the worker’s self-assessment about certain things they can or can’t do – how much pain they have – things like that that form part of the assessment process – is there a credibility component to that evaluation – to evaluate – to evaluating that and if so who makes that assessment?
A: The credibility component as I said of the test itself – the subjective complaint questionnaire – they are completing that – it’s compared against the results of the test and the comments of the physician – it’s compared against the medical documentation of the claim file and it is the adjudicator’s responsibility to make that decision.
Q: So ultimately it is the adjudicator who decides – I think this person is for example – not being completely honest or you know those kinds of things that that – undeniably are going to creep into the adjudication process and I’m wondering how they are evaluated and how they are monitored to make sure the appropriate people are doing them if indeed it’s appropriate that that kind of evaluation be made.
A: I think again – because we are using the computerized garniometre and we are using that testing then we can actually show the reliability and consistency of that – were able to show the consistency of the reporting so if there is less than truthful range of motion delivered we can point that out; that – if it is not corrected by the person performing the test that will come as either an invalid test or as indicator to the adjudicator so that the adjudicator can look over that – we may ask for a further testing to be done but again there’s got to be an explanation that the person has to give full effort – I mean if they went a 90 degrees range of motion for the first three cycles and then went to a 180 degrees range of motion it’s an obvious difference in range in motion. We actually agree and I have to check with Bill on what – what is it 2 degrees – there are no checkable backed up with literature variations in the range of motion themselves – validity check is done with the strength testing and there are several types of strength testing that are done in addition to hand grip and pinch grip testing initially which is an introduction to the concept that we are testing – how well you can put forth an effort during an examination . there are multi-joint – multi-planer functional tests that place. During those tests the claimant is asked for any kind of symptoms of discomfort where the maximum symptoms of discomfort are – that information would be compared with their subjective statements of their difficulties with daily activity at the beginning. They would also be compared with the power read out graphs on the strength testing to see if there was a decrease in strength in an area of the injury accepted under the claim was. If there is a correlation with the subjective complaints on initial history the subjective complaints during testing and the area of original injury then it is reasonable to assume that unless somebody were extremely sophisticated medically they wouldn’t be able to make those cross correlation and there is data to back that up- further in the strength testing that is the functional testing – that are repeated multiple times – some of the tests have to have a coefficient of variation within 14% and some within 7.5% - it’s virtually impossible to fake those on a repetitive stress three times so that the curves would adequately fall within those ranges so over the course of the whole testing process you have enough tests to say an 11 out of 22 times there is a coefficient of variation that was not acceptable. That would be compatible with less than – less than a conscious effort that was maximal unless there was some other clinical reason for instance if the coefficient of variation were in a test that was testing the area that was actually injured you would expect some decrease but those decreases actually take place in a predictable smooth fashion as well. Does that?
Q: That certainly answers my question with respect to the area of the permanent functional impairment examination but my question was broader with respect to credibility – the role of credibility assessment generally in the adjudication process – I gather that’s the role of the adjudicator then – and I gather that – do adjudicators understand the difference between lying on objective evidence as opposed to the impressions of others when making assessments of credibility?
A: I believe so.
Q: Is there any policy that requires adjudicators before they make findings – making - adverse findings on credibility with respect to the worker as part of the decision to see the worker?
A: I don’t think there is any policy to that extent – that’s why we’re driving the whole issue of getting our adjudicators into the workplace and meeting workers and talking to employers and visiting the work sites; I mean that has been a concern of mine and it has been in since I took over this area – and I – I –I – quite frankly, don’t know how you can make decisions about credibility without ever having laid eyes on an individual. I suppose you may get paper documentation that might give you that kind of credibility but that’s the whole basis getting out and dealing with these people face to face.
Q: Thanks; my next question relates to the loss of earnings pensions – and the methodology at the time the pension is initially set as opposed to the factors that are considered at the time that the pension is reviewed – I’m sure that those criteria are the same or are they different?
A: I’m very sorry I have to ask you to repeat the question.
Q: Sure - when a loss of earnings pension is initially set and if for example deeming - a worker is deemed to do a certain job at the time the pension is set –I gather that that deeming – is that deeming approach includes consideration of jobs that aren’t just suitable – not just available to the worker
A: That’s right.
Q: And on that basis a pension is set – I gather – are there other characteristics also considered – such as the skill level of the worker, particular skills, abilities ,age – those kinds of things - in terms of that deeming process?
A: Yes the are; so when we are trying to determine what is suitable and reasonably available we are not focusing just on the worker’s physical limitations – we used to call it the whole man approach or the whole person approach – so essentially if we are trying to draw a conclusion as to what is reasonably available to a worker and suitable we have to take a look at the whole person – in other words we are not likely going to say that a worker who has limited skills and limited education and a vari3ty of other limitations intrinsically is capable of undertaking employment which would simply be quite beyond their capabilities.
Q: So two years down the road when the pension is being reviewed now are you simply repeating the process A-Z – do you re-deem the person and everything else or is the review on the more narrow basis and if so how is it narrowed?
A: When we are – when we are undertaking that review in two years essentially what we are looking at is what happened in the intervening period. Frankly if we see very little – if we’ve made a decision that a worker is capable of undertaking certain kinds of employment and we take a look at the reports that the worker is required to provide to us on the declaration form and they are saying – let’s say for instance that they are reporting back to us that they have not returned to work and that the decision two years ago was that the worker is fit to undertake certain employment and we know that they’ve made a decision not to return to work – if there’s really very little information on that file in the intervening period to suggest that there’s been any significant change – likely at that point if the officer will make a decision that they are not going to make any change to that award. Usually the officer is only going to undertake a more thorough investigation of that loss of earnings entitlement if there is something that comes to us which suggests that maybe there has been a significant change and maybe we need to revisit that decision.
Q: That is where I was trying to get a little bit of clarification – what kind of significant change? We’ve talked about physical changes, changes in – as opposed to economic changes and I gather the physical – if there is a deterioration in the physical condition or something that would merit a reassessment?
A: Yes. Absolutely¼what can¼.
Q: On the economic side that I am not sure about –what are the guiding lines there to determine – for example if the person is laid off two years later and as a result of that – their loss of earnings is greater than projected – is that taken into consideration to reassess the loss of earnings pension?
A: It may or it may not. What happens is if in two years we take a look at the claim file. Sometimes medical reports continue to come in – what you may observe is that two years ago when we were looking at the worker and returning them to work there may have been some questions to the ability to their continuing in that employment. We won’t necessarily follow up on a regular basis. So, if at the end of our two year review and that’s the first time that we are seeing medical reports that there’s been a continuity of complaints we may want to revisit that decision. Maybe we were – maybe we were overly optimistic with respect to that worker’s ability to function in that occupation over the long run. We’ll go back and may make a decision to increase that worker’s loss of earnings entitlement and I know that that has happened. On the other hand if what we find that what we find that two years ago the worker’s physical condition was X and we’ve made a decision that they are fit to undertake certain employment and there’s nothing that has happened in the intervening years to suggest a change in their medical condition – and we may also know that the worker is no longer employed and it is due to economic – and it would appear that it is to do economic circumstances then we would not likely visit the loss of earnings decision. We would be looking to see that there was some medical reason related to the compensable injury that resulted in that change if based on an investigation it would appear to be purely economic then no we wouldn’t be adjusting that loss of earnings pension.
Q: And those guidelines are set in policy – in the claims manual?
A: Yes they are. The policy manual does state that loss of earnings awards would be reconsidered if there is a change in the medical condition of the worker and I believe it also states that – Joe would probably would know more specifically but it also states that if the worker’s loss is from economic circumstances that’s not justification for revisiting the loss of earnings. Judge Gill – I just wanted to add to the answer on assessment of credibility because well it is true that adjudicators generally don’t get out to workplaces and certainly haven’t in the past although some do – there is policy though with respect to a series of Reporter Decisions on sort of the treatment of rumour, hearsay, how you weigh evidence, and I don’t think we have any of our training colleagues here but adjudicators are provided with a way of weighing of evidence, they will use in some circumstances where it’s a matter this person says this and that person says that so it is now clearly an issue of – and they should be – if they are not – but if it is clearly an issue the employer’s word against the worker’s word and I’m thinking particularly the initial entitlement context that we use the field investigators that they perhaps go out and sort that out as well. I’m not here to say that that happens as often as it should but I’m – and they will also assess credibility through phone interviews which again is not fully acceptable but in issues of minor credibility I think they do a lot of their interviewing and investigating by telephone as opposed to at the worksite so the general trend is to get them out there more but to specifically answer your question – is there policy and do they provide training I think there is from all that.
Q: I’ll just ask one more question – hopefully it will be a quick one - the - some of these jurisdiction like Ontario have gone to making a lump sum award for what is described as a non–econmic loss – do you have any sense of the rationale that is behind that –the driving force for making an award for non-economic loss?
A: I think the primary rationale is there is a recognition and I think it goes back to your earlier question about the relationship between any actual loss of earnings and the schedule and that in most cases and probably in fact in isn’t¼.[tape break] Economic losses and this is simply a way of recognizing it. I think frankly no one wants to call it payment for pain and suffering. I think it is payment for non-economic losses and I have some difficulty distinguishing between the two but I think there is a preference to call it non-economic loss.
Q: So it appears to be something your understanding to be something introduced not so much as a ¼that’s okay I think I understand it; I won’t characterize it any further.
Q: Just before the other commissioners I just wanted to clarify this economic loss question –the policy is not to recognize economic factors on a 2 year review – I take it if unemployment was particularly high that wouldn’t be a factor you take into account in adjusting the pension? Now what about the initial adjudication –supposing there’s a downturn in the economy and there’s a 28% unemployment amongst the people of the age group of the workers – is that taken into account in the initial pension adjustment?
A: We have to determine what the worker is fit to undertake in the long run so if there’s a downturn in the economy and all of the indicators would suggest that it is temporary we would tend to anticipate that it will come back up so because we are required to project into the long run – then a short – well a downturn in the economy in the short term would not be a factor in making that decision. If, on the other hand we’re looking at a downturn because there’s been technological changes – there’s been other kinds of changes within the industry generally then that may be a factor in making that decision at the outset.
Q: What kind of expertise do you call upon to look at long term economic trends – do you have economists as resource people or is this within the pension adjudicator’s own expertise?
A: The experts that we rely on are the vocational rehabilitation consultants and they tend to liaise with – there are a number of different sources that they may refer in order to assist us to determine what’s suitable and reasonably available in the long run. Canada Employment, I believe, publish statistics that would enable the labour market surveys – contacting employers – just an understanding of general trends that are happening demographically or within specific industries. So the experts that we rely on are vocational rehabilitation consultants. I have some information about the sources that vocational rehabilitation consultants and there are 6 or 7 and I would be happy to leave those with you.
Q: Thanks, I don’t want to take any more time up – there’s two commissioners left who has some questions I’m sure.
Q: I’ll just ask two or three short questions – one has to do on a subject that’s come up on a number of occasions – the 2 year reviews – you’ve referred to them as well as the counsels have but all 3 counsel have indicated that they are not familiar with these reviews being done and the don’t have any evidence that they are being done – I believe our researchers have come across audits that have been done internally saying much of the same thing. Has the Board planning on taking any action on this at all or is that in its.
A: I guess I can only say that I’m a little confused. Because having worked in that department for many years I know that those reviews are being undertaken. We had one officer – we had a hiccup around initiating the two-year reviews because we needed to refine the wording of the declaration forms. So in 1991 which is when we intended to catch up essentially on the reviews that hadn’t been done that process was postponed until some years. We then initiated – probably 1995 – or 1996 sent out a significant number of declaration forms and on those receipt of those forms we had one claims adjudicator in disability awards who was reviewing those and undertaking those reviews. We do have information in the disability awards department with respect to the numbers of reviews that were – that had been undertaken over the past 2-3 years. I believe we may even have the claim numbers of the claims that were reviewed so ¼.That particular adjudicator was providing me with a report on a quarterly basis which I was reporting at the quarterly management meetings which outline not only the claim number but the actual adjustment amount and I can reassure you that I was reporting on factual information and the work was being completed. So I can provide you with that documentation as I stated before. I can’t explain why nobody’s seen it but I’m sure the adjudicator would love to tell you all about it – because she’s been working on it consistently for 2-3 years.
Q: So in fact the reviews are done and they are reported on in writing and are on the files
A: Yes.
Q: And they look at topping up or taxing¼..
A: Yes they look at them both ways. Up or down and a decision is made and a decision that is completed.
Q: And – I am sure – I thought somebody covered it but I cant’ recall the response or the answer– Revenue Canada is not asked to verify the declarations, is that correct?
A: We do not ask the workers to provide copies of their T-4’s – essentially we accept the worker’s information when they provide that declaration form to us and they write on that form what their earnings are we accept that they are reporting truthfully what their earnings are – the officer will follow up and obtain more information by way of T-4’s or T-1’s if there seems to be some suggestion that the worker is making more or less than we predicted at the time of the original loss of earnings pension. But we do not ask the worker to submit to us on that initial review documentation.
Q: Thank you.
A: When the review program was initially instituted there was a requirement to provide a certified copy of the T-1 return – and that was withdrawn after concerns about privacy and another issue – so it was in effect for a very short period of time and subsequently withdrawn to declaration that has been referred to.
Q: I’m not sure about the issue on privacy but we’ll perhaps leave that for now – on the chart that you provided it shows disability awards by year and percentage of disability – I am wondering if you could provide us with a longer trend line than you have here –it seems to me that there’d be a fairly discernible trend on the 0-4.99% disability area and I’d just be interested in seeing that over a longer period of time to do a trend line and some trend analyses to tell us why those – what that trend line seems to be moving.
A: Yes, I think I can get my hands on a report that was generated some years ago that I believe had a 15 or 20 year historical picture and if I can get that I provide it to you.
Q: I’d appreciate that; thank you.
Q: Where stacking exists or doesn’t exist in BC like in the area of survivors’ benefits there was one offsetting factor mentioned today and that would be a pension granted to a widow where the spouse dies of a disease that the worker was scheduled for and somebody made the point that that was – there wasn’t Canada Pension Plan it was being integrated–right?
A: I think the point that was made was around why would we do that. Number one the policy requires us to do that but the intent of doing that was following the fatality of the worker – certain benefits that that person would normally be entitled to would cease and the pension was intended to cover that.
Q: Perhaps my hearing was bad but I thought I heard a couple of times I heard the word Canada Pension Plan used but ..
A: I think that was on another topic but.
Q: So there isn’t any relationship then –
A: Well, in that specific section Canada Pension Plan – where that came up was we had a – when we talked about the over maximum – the possibility of over maximum occurring because of Section 17.3a(ii) where there were children in number beyond 2 – so if you’ve got 6 kids would you, in fact, get over maximum and the point that I provided counsel with was if you deduct the Canada Pension Plan – no – but if don’t deduct the Canada Pension Plan – if you look at the pre-Canada Pension Plan deduction then, yes, you are over maximum - you do go over maximum – so I think that may have been the confusion. Does that help?
Q: It helps a bit – are there other factors like that that make up - the difference between integration and stacking is significant –are there other things in BC that don’t happen in areas where stacking is provided? For survivors?
A: I think it’s the – I guess your point is – is it an inconsistency that we take Canada Pension Plan benefits away from widows and spouses and we don’t take it away from disabled workers. And so that inconsistency and one side of an argument is that you can take it away from everybody and there shouldn’t be stacking of benefits. On the other side would be that everybody should get Canada Pension Plan and Workers' Compensation Board and so depending on where you are in the argument that’s – I think that points to the inconsistency that most people have a problem with.
Q: I’ll go back to an issue – the example was a millwright taking a job as – being deemed to be capable of handling a job as Walmart door greeter –the point I think Mr. Buchhorn – you made - if the individual is not cooperating then something is going to happen –if the individual is cooperating and says they are prepared to participate in whatever program is being provided do they a choice as to whether or not they are deemed to be a Wal-Mart Door Greeter?
A: Well, we would never deem someone – I mean let’s be clear – it is unacceptable to everyone at this table to be deeming a millwright as a Wal-Mart Greeter – as long as the individual is motivated and prepared to take his or her own future into their hands and avail themselves of Board financial assistance – training – whatever is possible – then that will never happen. The issue is where the worker makes a choice – I don’t want to be retrained – I’m 58 years old – I’m 62 years old – I’m going to get an IWA pension, I’m going to get Canada Pension Plan and I’ve got a functional pension from the Board I don’t want to be retrained. In that case – out of convenience - it may be appropriate to deem that individual the minimum rate not as a Wal-Mart Greeter or anything else but the minimum wage in the province. And say that it would be possible for this individual as a function of the duty to mitigate to accept a job at a minimum wage and those jobs are available in the community. And I think in the Hunt and Lahey Report that was the reference to a necessary evil of a dual reward system is the deeming process.
Q: Well, okay but you didn’t answer the question I asked – income continuity regardless of what label it falls under – is it policy or is it practice?
A: Yes, it’s policy to provide income continuity.
Q: Is there a letter that refers to that?
A: I think we deal with that yesterday; it was 89.11 of the Rehabilitation Services and Claims Manual. It is Decision 320 that sets up the criteria.