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.