Preface

The injured workers of British Columbia need and deserve to have the best system of workers’ compensation in the world. From the perspective of injured workers, we will summarize the changes that must be made to achieve this ambitious goal.

First, an explanation: by "best system", we do not mean that the Commissioners should turn the pocketbooks of B.C.’s employers inside out and make a workers’ compensation claim a short road to riches for injured workers. Fiscal realities must be addressed in any realistic proposal for change, and throughout these submissions we will demonstrate again and again that the "best" system doesn’t have to be the "most expensive" one. In fact, some of the changes which we recommend to make the system more effective for injured workers will also benefit employers as a whole by eliminating unnecessary costs.

A few of the changes we will recommend may seem quite dramatic. In evaluating them, we ask that the Commission refuse to become trapped by the thinking of the 19th century, when the "historic compromise" was achieved. Few legal concepts have remained unchanged throughout the 20th century, in which we have experienced the greatest changes ever in society, technology, government, and law. Are all of the elements of the so-called historic compromise so perfect that they still represent a sound foundation for a system that must carry us into the 21st century? Ask any of the hundreds of injured workers who appeared before the commission whether the system is perfect. For that matter, ask the government, which appointed this Commission because of the intense anger the Board has aroused from both workers and employers. The parties that have appeared before the Commission since its work began may agree on nothing else, but they all know that the existing system is badly flawed. It would be irrational to assume that these serious problems are completely unrelated to the historic compromise which established the basic principles of the existing system, or that all of the problems can be solved without varying any of those principles.

Many individual recommendations will be made on behalf of injured workers, affecting various aspects of the system. Before discussing these detailed recommendations, we will describe the major themes that will be advanced throughout the presentations. These are the broad concepts that will give some unity to our positions on individual issues. Fundamental Principles for a Just Compensation System

1. Compensating and rehabilitating injured workers is the central reason for the Board’s existence. To ensure that their perspective remains uppermost when policy and other governance decisions are made, the governing body must include significant representation from injured workers.

2. Injured workers are responsible, hard-working adults who have had the misfortune to suffer a work-related injury or disease. They are not children or criminals. Throughout the compensation and appeal process, workers’ autonomy, dignity, and right to privacy must be respected.

3. An independent, impartial judiciary is the cornerstone of our legal system, and workers should not lose all access to the courts simply because they are injured at work. The worker should be entitled as of right to elect to sue anyone responsible for the injury other than his or her own employer and co-workers. The courts should also have a discretion to allow the worker to sue the employer or a co-worker in specified circumstances, such as where the employer’s misconduct has caused the injury, or where the employer is generally liable for the type of injury suffered by the worker (e.g., motor vehicle accidents or medical malpractice) .

4. In order to carry out its mandate, the Board is entitled to receive all relevant information from the worker, employer, treating doctors, and other sources. The worker should be entitled to full disclosure of that information upon request, so that he or she can participate meaningfully in the adjudication process. The Board should not disclose a worker’s information to anyone else, including the employer, unless the worker consents, and the disclosure is necessary for the fair administration of the claim.

5. Injured workers should receive full compensation for their loss of earnings or earning capacity due to work-related injury, disease, or vulnerability, whether the cause of the condition is a physical accident or the accumulated physical and mental impact of work activities. Where the condition has a serious and/or permanent impact on the worker’s non-employment activities, there should also be compensation for intangible losses.

6. An injured worker who cannot safely return to the pre-injury employment should be entitled to receive a reasonable amount of vocational rehabilitation benefits to reestablish his or her pre-injury earning capacity in a new occupation. A worker who does not want to accept a substantially different job for the pre-injury employer or another employer in the same industry should not automatically be denied all such benefits.

7. Throughout a claim, an injured worker’s condition should be assessed and treatment should be determined the worker’s treating physicians. If the Board or worker wishes to dispute the assessment of the treating physicians, any additional evidence that may be needed should be obtained by a referral to an independent specialist, not a medical adviser employed by the Board. At no point should the Board or appeal tribunals assume that the worker’s attending physicians are biased.

8. Workers’ compensation is a no-fault social insurance program which replaces the adversarial process of court proceedings. Allowing an employer the status of an adverse party to every claim contradicts this fundamental principle, and reintroduces unnecessary and destructive elements of the adversarial process. An employer should only be a party to a decision such as a penalty assessment which imposes direct financial consequences.

9. Disputes between an injured worker and the Board should be resolved by independent tribunals which can make any needed investigations, hold fair hearings, and reach decisions within a reasonable time. There should be a final right of appeal to the courts respecting issues with important consequences to injured workers.

10. All workers should be entitled to free legal advice and assistance with their claim. Where there is a dispute, and the issues are complex and financially important, the worker should be entitled to representation by a lawyer or other trained advocate. Workers should not automatically be denied such assistance simply because they may belong to a union.

11. The Board must be generally accountable to its governing body and stakeholders, and consult with them regarding policy development and other important initiatives. The Board must also be accountable for improper conduct to the injured worker affected by it. Where an officer deliberately violates policy or otherwise acts improperly in administering a claim, there should be an independent complaint process with effective remedial powers.

Introductory Discussion

One of the greatest strengths of the workers’ compensation concept is its potential as a social insurance scheme to eliminate the adversarial atmosphere which accompanies a fault-based process such as tort law. In theory, rather than pointing fingers and attributing blame for a work-related injury or disease, the focus should generally be on compensating, treating and rehabilitating the worker, regardless of fault. Since fault should not matter, an employer should have no self-interested reason to oppose a claim, and should be willing to cooperate in investigating the cause of the injury, helping the board determine a fair level of compensation and trying to find a suitable job for the worker given the consequences of the injury.

Instead, conflict has poisoned the compensation system so badly that it often cannot function effectively. Some employers routinely oppose all claims, or at least all appeals, in the same way that they would routinely defend all lawsuits against them. The misguided e.r.a. system, supposedly meant to motivate employers to make greater efforts to ensure safety, instead motivates them to go to great lengths to oppose claims, or to minimize benefits, and to also to waste a great deal of time and energy of the Board and others seeking to shift the cost of the claim from the employer’s own class to the general accident fund. In the process, tens of thousands of workers have their confidential compensation files sent to employers, where they end up as part of the worker’s personnel records, and where any curious employee with access to those records may learn intimate details of the worker’s medical condition, and often other very private aspects of the worker’s life.

Part of our recommendations will therefore be to eliminate the aspects of the system that motivate employers to oppose claims for reasons other than their merits. One of those adversarial aspects is the status of an employer as a party to each compensation claim by one of its workers. We believe that eliminating e.r.a., and the employer’s party status, will bring many benefits, and not merely to workers. Blameless employers will no longer feel aggrieved at being assessed more because of an injury for which they had no responsibility. Workers’ privacy rights will no longer be sacrificed merely because they have had the misfortune to suffer a workplace injury. Workers will also benefit by not having to face two adverse parties in an appeal - the Board which has made the decision and created the record on which the appeal will be decided, and the employer who has been turned into an adversary because its financial interests are at stake. Employers as a whole will pay less, because there will be lower administrative, disclosure, and appeal costs.

Our recommendations are intended to fit together into a coherent system, and therefore cannot be fully evaluated in isolation from each other. For example, one of the three explanations given by Professor Thomason last July for having an experience rating system is that

... linking employer cost to firm accident experience rating provides employers with incentives to invest in accident prevention. In other words, because the employer's costs depend on its accident experience the employer has an incentive to reduce accidents in order to save costs and I think that this is really an important point to make here. That's probably the primary rationale for experience rating.

While we are completely unconvinced that e.r.a. does any such thing, there can be no question that accident prevention is a vital goal for the workers’ compensation system. Injured workers, of all people, are best able to appreciate the importance of preventing future injuries to other workers. They have been there.

How then can there be an effective link between this crucial goal and an individual injury, if we abandon the irrational approach of penalizing the employer no matter how the injury occurred. Our presentations will answer that question in a number of ways. For example:

(1) In place of automatically assessing the employer with part of the cost of an injury, unless there is a substantiated reason to relieve it, the Board should consider whether the circumstances suggest that some deficiency in the employer’s safety program and compliance with regulations was in any way related to the occurrence. If so, there should be a separate decision concerning the employer’s responsibility, and what steps should be taken to prevent similar injuries in the future. These steps could be remedial or educational, instead of or in addition to an additional assessment.

If the Board does impose an additional assessment, it should be based on the degree of the employer’s responsibility, rather than the cost of the worker’s claim. (The worker’s medical information would therefore be irrelevant, and disclosure of the claim file would not be necessary.) The worker’s benefits would not be affected, and while an important witness, he or she would not be a party to that decision. The decision would be appealable separately (and not necessarily to the same tribunal or in the same manner as compensation decisions are appealed). The entire decision-making and appeal process would focus on the supposed objective of e.r.a. - the effectiveness of the employer’s accident prevention program, and its relationship to the injury.

(2) One of our fundamental principles states that workers should regain partial access to the courts, including the right to sue their employer or co-worker in specific circumstances, and with the court’s leave. The Act should set a significant threshold for granting such leave, such as gross negligence, willful violation of the regulations, intent to injure, or other serious failing on the part of the employer.

In our view, such a system would be far more effective in encouraging safe work practices than the present e.r.a. system, which from the standpoint of an innocent employer amounts to a lottery. Each significant work injury would lead to an examination (sometimes very detailed, sometimes quite brief) of the causes, focusing specifically on whether the injury could have been avoided, and if so, how. The answer would result in an appropriate action, which again would focus on the cause of the injury. That action might range from an order to repeat worker safety education to an enforcement order coupled with a high penalty assessment. Finally, in the relatively rare cases where the employer’s fault meets the litigation threshold, two beneficial results will occur. First, a worker who has been the victim of the employer’s serious failing will receive the same level of compensation as a personal injury victim in a motor vehicle accident. Equity demands no less. Second, the employer will be required to pay the cost of such a judgment directly (or through its liability insurer), rather than passing it on to all members of its subclass. Equity to innocent employers also demands this.

Another principle is the restoration of substantial access to the courts. The legislation should allow a worker the absolute right to elect to sue anyone responsible for the injury, other than the worker’s own employer or co-workers. There is no defensible excuse for depriving a person of equal compensation for an injury caused by someone with whom he has no employment relationship merely because that person was working at the time.

Another fundamental principle is that workers are entitled to be treated with dignity, and that their right to autonomy and privacy should not be forfeited simply because they have suffered a work-related injury or disease. Now, the system violates both rights. The Board regularly ignores the opinions of a worker’s own doctors, and relies on its own medical advisors who clearly appear to have a motive to deny or reduce benefits. Few aspects of the current system so infuriate injured workers, and often their doctors as well.

The principle of autonomy means that the Board must generally respect a worker’s right to make vital decisions concerning treatment and rehabilitation. Wherever possible, workers should have a choice of service providers, and should be entitled to receive both physical and vocational rehabilitation services from external sources even where the Board can provide the service itself.

As for privacy, it must be remembered that most adults’ circle of acquaintances centers on their employment. The release of sensitive medical and other claims information to the employer can be an extremely serious violation of the worker’s right, all the more so if the purpose of the disclosure is to assist the employer to defeat the worker’s claim.

Another principle we have advanced is that the Board must be accountable for its specific conduct in administering a claim, as well as its policies. An independent review process would enable a worker who feels that the Board has violated its own policies or otherwise acted improperly in administering the claim to seek additional compensation for avoidable losses, and would give Board officers a real incentive to respect workers’ rights.

Perhaps the most important principle of all is that an injured worker should receive full compensation for what he or she has lost due to the injury. Partial coverage for losses is a feature of private insurance schemes where the person may choose the amount of coverage (e.g., life insurance) and where the right to benefits in no way prevents the person from suing someone responsible for the loss for full compensation. It is also a feature of some social insurance schemes such as Employment Insurance, but here too the scheme in no way precludes the claimant from seeking full damages from an employer, as in an action for wrongful dismissal.

The principle will be reflected in many specific recommendations concerning wage rates, the statutory maximum, and conditions which are treated as non-compensable because the worker’s inability to return to employment is characterized as "preventive". It is also reflected in the treatment of workers who cannot work because of diagnosed mental conditions resulting from the psychological effects of their work or work-related events. Most glaringly, it is reflected in the pernicious practice of deemed employability, which reduces a worker’s compensation by the amount of wages which the worker has not, will not, and cannot receive.

Rehabilitation is second only to compensation in its importance to injured workers. In fact, the two cannot really be separated; to the extent that the worker is successfully rehabilitated, compensation will be less needed. The current legislation and policy gives too much discretion to the Board, and imposes too many restrictions on the right of an injured worker to determine how to spend the rest of his or her life. It also depends too much on the Board to evaluate the worker’s needs. It is the injured worker’s life, and the system must respect the worker’s right to decide what to do with it, given the effects of a work injury, and must offer the worker a reasonable level of assistance in achieving that goal.

The need for fairness in decision-making (both real and perceived) is another fundamental requirement of a fair compensation system. This must be present from the outset of the claim until the final levels of the appeal system. Given the complexity of the legislation, the issues, and their importance to a worker, anyone who has suffered a serious injury must be entitled to free, independent legal advice and representation. Without this, other rights will have little meaning.

No system involving so many difficult decisions can expect to get them all right the first time around. The most recent issue of the Reporter series, Volume 14, Number 1, consists of ten decisions of the Appeal Division concerning applications to reconsider their own previous decision because of an error of law going to jurisdiction. Over half of those applications were successful. If a generally respected tribunal which usually has the benefit of a Review Board decision to clarify the facts and issues still makes acknowledged serious errors, how can it be seriously suggested that a person whose family income for life may depend on the outcome should only have one level of appeal? The Employment Insurance system allows three appeals (including a judicial review as of right by the Federal Court of Appeal), and that decision usually involves less than ten months of benefits. The Canada Pension Plan also allows three levels of appeal for disability and other pension decisions, two of which are conducted as full "de novo" hearings. We submit that rather than restricting the current appeal options, workers should be granted a final right of appeal to the courts.

We do agree that some changes are needed to the existing appeal system. The Review Board has received much criticism due to delays, and to perceived poor decision-making. The Appeal Division is seen by many workers as a part of the Board (and hence, the worker’s true adversary), even though most experienced advocates do not believe that it is unduly influenced by its internal status. Since the perception of fairness itself is crucial, however, we would prefer to see the senior appeal tribunal independent of W.C.B.

Medical Review Panels serve a vital, though limited function, in adjudicating medical disputes. However, the process suffers from delays, and also from weaknesses at both the front and rear ends of the system, where the Board continues to control both the establishment of the panels and the implementation of their decisions. While we certainly can’t support the Review Board’s suggestion that the M.R.P. become nothing but an advisor to the general appeal tribunal, we do see much benefit in partially integrating the M.R.P. process by having a common appeal registry (something the Ombudsman recommended in his 1987 report) and by having an expedited procedure for the worker to challenge the Board’s determination of the non-medical consequences of a certificate.

Finally, the workers’ compensation system is just what is called - a system to compensate workers. What most important perspective can there be for the governance of such a system than the viewpoint of those who have been there? Workers must have a meaningful permanent role in the Board’s governance. As a major stakeholder, injured workers should be consulted regularly about policy issues. And for the role of all stakeholders to be meaningful, the Board’s governing body must be firmly in control of its policy. We will propose that a clear rule be announced and enforced that any change in the way the Board administers claims, assessments, or other aspects of its mandate, which affects the substantive rights of its clients - workers, but also employers - must first be approved by the governors. The debate over "code R", etc., and whether it involved changing policy or merely practice is really a dance around semantics. What is important is the Board management changed the amount of benefits received by workers after their wage loss benefits end without the authorization of the governing body. Such changes should simply be prohibited, no matter what label is attached to them.

Over the next two weeks, we will present in further detail the changes in the existing compensation system that are needed to provide B.C.’s workers with an excellent level of compensation coverage that continues to be easily affordable for employers.

What Workers and Others Are Covered?

The main problems with who is covered by the system are primarily related to the people who should probably be workers, but are forced by those who want to "hire" them to register in their own names. Examples are courier drivers, some loggers, etc. There is currently an appeal before the Court of Appeal in B.C. arising from a human rights complaint by an injured worker who was "hired" on a contract basis by a truck dealership, which terminated his employment after several years when he had a minor new injury and W.C.B. ruled that he was actually an employee of the dealership. That case appeared to be motivated by the dealer’s fear that it would suffer if the worker became disabled due to his earlier injury while working for them. (Incidentally, this is an illustration of the negative impact of e.r.a., and the fear it engenders among employers.)

The Board should be more diligent in investigating situations in which employers may be forcing people who are really performing employment to register in their own name. In many cases, this should be regarded as claims avoidance (at least, that is the employer’s intent), and the Board should be able to take effective steps to penalize the employer.

The other area of major concern is the differences between Personal Optional Protection (POP) and regular compensation coverage. So long as the broad bar to litigation exists, we submit that the Board should be required to assess such a person on their full proven earnings or earning capacity, and to pay them accordingly if they are hurt. At present, the POP applicant can choose a very low level of coverage, which many optimistic or financially strapped workers do. If they become injured, the savings turns into a trap.

The problem is that W.C.B. coverage is not like private insurance, in which a person can purchase the level of coverage he or she wants from one company, supplement it from other sources, and still sue the person who causes them to become disabled. The unique aspects of the Board’s process requires that it ensure that the level of coverage is a fair reflection of the person’s potential loss, whether or not they might prefer a lower amount.

Moreover, despite some assurances to the contrary during the presentations, we are advised that workers with POP are subjected to an 8 week review, which can result in a lower wage rate than the coverage they have purchased, but not a higher one.

We recommend that the Board assess all people who want POP on the basis of their proven past earnings. We also recommend that if an injury occurs, the Board pay the claimant (like all claimants, in our view) for all the earnings and earning capacity they have lost, as determined at the time of the injury. Mr. DuGas acknowledge that the Board could both assess and pay on that basis. What Injuries and Conditions Are Covered?

The scope of coverage raises a number of important issues which the Commission should address in order to ensure that workers who are covered by the Act are not deprived of benefits when they lose income due to their work activities.

1. Occupational diseases raise a number of problems which will be addressed under that heading next week.

2. The "normal body motion" issue should not be one. Almost any movement or activity could occur off work. It is no more a "pure coincidence" that a person turns their ankle walking into their office than it would be if they fell down a flight of stairs carrying a toolbox.

3. Another non-issue should be injuries suffered when a worker is doing something wrong, such as failing to follow safety rules. If compensation were always denied merely because the worker could have avoided the injury with perfect work habits and attention, many people would not be covered. The Board has it just about right now in excluding people who are really misbehaving on the basis that they are not in the course of their employment.

4. "Stress" is a sly misnomer for psychological disabilities arising out of work activities which the Board now adamantly refuses to accept. These are not claims for being tired, worn out, or feeling harried. They are genuine medically diagnosed anxiety disorders and other conditions which in many cases are clearly related to the workplace, yet are denied coverage because of political (small "p") and policy reasons.

5. Far from legislatively removing such conditions from the Act, as the employers suggest, the Commission should recommend that the Act specifically state the such disabilities are covered, and that the governing body should develop a fair policy to adjudicate such claims as requested by the former Chief Appeal Commissioner several years ago.

6. Preventative compensation may also be discussed under pensions and rehabilitation. The Board should compensate a worker for what he or she has actually lost due to the inability to return to the pre-injury employment because to do so would almost inevitably result in a reinjury. It is simply sophistry to suggest that such workers are not "disabled" because they can function "normally" as long as they avoid the particular work activity or workplace exposure.

Section 10 and 11: Workers’ Compensation and the Courts

Throughout our legal system, the courts provide redress for those who have suffered injury due to another person’s violation of their legal responsibilities. As part of the "historic compromise", an injured worker’s right to sue his or her own employer and fellow workers was taken away. However, the legislation goes too far. It takes away all right to sue, even if a violation of safety regulations or other legislation by the employer or fellow worker led to the injury. It also takes away the right to sue another employer or a person working for another employer. Because of the extension of universal coverage, a worker who suffers additional injury during the course of treatment may be barred from suing for malpractice. And a worker who is innocently injured in a motor vehicle accident while working cannot sue if the responsible driver is also working and covered by the system.

The present rules make little sense, and would almost certainly be rejected if workers’ compensation were new legislation being proposed today for the first time. For example, when no-fault auto insurance was recently proposed, a broad coalition of disability advocates joined the private bar and others in successfully opposing it, because it would largely take away the right of an accident victim to sue for damages. A bar to court proceedings as broadly based and unrelenting as s. 11 would be roundly condemned and rejected in any other legal context. It is time for the workers’ compensation system to rejoin the mainstream.

It must be stressed that "the right to sue" means much more than the choice of the type of hearing and the evidentiary and procedural rules that will determine the outcome. General damages (and, in extreme cases, punitive damages) can be a large component of the compensation for a non-work injury, but are totally unavailable under B.C.’s workers’ compensation legislation. This is not an inherent part of a workers’ compensation system, and some jurisdictions do provide for limited general payments. As long as B.C. continues to deny such damages, losing "the right to sue" really means receiving no compensation for a very substantial part of the worker’s losses.

The same point can be made about numerous other aspects of the current system which fall short of providing injured workers with full compensation for their financial and other losses. These include the determination of future earning capacity, the maximum earnings ceiling, denial of medical and related expenses, and highly inadequate rehabilitation. If all of these issues could be finally resolved, it might then be possible to argue that the bar against suing is primarily an issue of "venue" and "process" - where do injured workers go for redress, and what are followed when they get there. Unless and until that happens, however, the s. 11 bar simply amounts to forcing people injured in the course of their employment to go uncompensated for much of their losses, even when they believe that they can prove someone else to have been at fault.

The bar against suing also removes from the work injury arena another function of tort law, which is to provide a monetary, non-governmental incentive to people to behave responsibly and to take steps to avoid causing injury to others. In the case of highway accidents, the driver who is found to be at fault will pay significantly higher premiums. An innocent driver, however, does not pay more for insurance simply because he or she is involved in an accident. In non-highway cases, the responsible party may have to pay the full amount of the judgment personally. Perhaps most significantly to the deterrence factor, the Insurance (MV) Act deprives a driver of insurance protection if the driver was impaired, engaging in dangerous driving, or otherwise severely at fault for the accident. Why should an employer who intentionally ignores safety regulations, resulting in catastrophic injuries to a worker, suffer no worse consequences (with the possible exception of a penalty) than one who is entirely blameless? Even worse, why should a worker whose life would not have been shattered but for such an intentional violation of the law receive no more compensation than a worker whose own negligence caused the injury?

Consequently, we recommend that the bar to suing other employers and their workers be removed. Prudent businesses have liability insurance to protect them from the cost of lawsuits by customers and others who may be injured due to their conduct. A person buying a rebuilt transmission for his own car from a wrecker’s will be allowed to sue if the wrecking yard’s guard dog escapes and attacks him, or if he slips on a puddle of oil carelessly left on the floor and injures his leg. He will be entitled to compensation for pain and suffering and other intangible losses as well as any loss of earnings. Why should someone sent to wrecker’s to pick up a transmission for his employer’s car be denied equal compensation for an identical injury? It simply makes no sense. Liability to third parties with whom one has no employment relationship is a fact of life which all businesses must accept and from which they must take steps to protect themselves.

If anything, the bar to suing is even less defensible in cases of motor vehicle accidents and negligence during medical treatment. All doctors and hospitals, and all drivers and vehicle owners must as a matter of law have liability insurance covering the risk of exactly that type of injury. Why should the benefits of these universal insurance systems be denied to someone merely because they are working? Since s. 11 makes no sense in such a case, we recommend that a worker be permitted to elect to sue anyone responsible for such an injury, including the employer or a co-worker.

Finally, we recommend that the Court be entitled to give leave to a worker to elect to sue the employer or a co-worker in other circumstances. These will have to be defined carefully to preserve the general purpose of workers’ compensation (taking most work injuries out of the adversarial litigation system), while serving other valid goals that are more pressing in the circumstances of the particular case. We have already referred to employers who are grossly negligent, or who deliberately decide to violate the requirements of the law. There would appear to be no valid reason why the cost of such injuries should be borne by all the employers in the subclass, or why such a victimized worker should have to settle for anything less than a court would award in similar circumstances. There also should be a residual discretion to grant such leave in other cases where, in all the circumstances of the case, it is just and convenient to do so. This would allow a fair disposition of such situations as an injury or disease involving dangerous materials supplied by other companies. A prudent plaintiff’s counsel would want to include the employer as a defendant, since it may be responsible for exposing its workers to the risk. Under the present scheme, the potential partial liability of the employer (and of any other insured B.C. employer) would simply result in a reduction in the compensation if the lawsuit is successful. This introduces unnecessary risks and complexities for a worker wanting to seek full compensation in such cases, and may deter the action altogether, thus letting the liable third parties off the hook as well (unless the Board decides to pursue a subrogated action against them).

That raises the next point - what if the worker does claim compensation in a case where another employer or its worker is responsible. Since the worker has a right to elect to sue, should the Board be able to do so in the worker’s name? In our view, the answer should normally be no. While there is no compelling reason why an employer should not be liable for injuring a person who is working, there are policy reasons why W.C.B. should not be carrying on lawsuits against its own customers (unless they have done something sufficiently serious to forfeit their immunity). In such cases as gross negligence or intentional violation of the law, however, sound public policy favours such action by the Board to recover its costs, just as it favours allowing I.C.B.C. to sue a drunk driver who injures or kills someone.

Some other brief points regarding civil liability and the Workers’ Compensation Act:

1. The B.C. Act should shift from an "elect or sue" model to a "claim and sue" model. See the Board’s presentation on sections 10 and 11, slides 17 - 19.

2. The time limit for making an election should not be shorter than the limit for claiming compensation under s. 55 (one year in most cases). We applaud the Board for making the present legislation work by regularly waiving the 3-month requirement. The Act should be changed, however.

3. The current practice of allowing a worker to take action directly where the Board decides not to exercise its right of subrogation is quite reasonable, even if "elect or sue" is retained.

4. The current 29% administration fee which the Board retains in such cases seems excessive, given the full recovery of actual expenses and the likely award of legal costs. The fee seems to be based on the global "overhead" of the Board divided up by all of its claims. It would be more reasonable to limit the administration fee by the difference between taxable solicitor and client costs (since the Board has acted as the worker’s solicitor) and whatever cost it has already recovered from the other party.

5. We do not agree that allowing workers to sue for their excess earnings or for gaps in the compensation system, would result in a fair or sensible system. If it is acknowledged, e.g., that it is unfair for the bar to litigation to apply to a worker’s wages above the $56,000 statutory ceiling, it makes very little sense to respond by introducing partial litigation which can only recover the "gaps". The obvious and fair response is to remove the ceiling so that all of a person’s wages are either insured or not insured. The same can be said of other present and potential gaps in the system, such as the 3-day waiting period sought by employers, or the value of group benefit packages not included in calculating average earnings.

Privacy and Disclosure

The following observations and recommendations are presented on behalf of injured workers, and in order to promote and protect their right to privacy during the compensation process.

1. The Board should be entitled to whatever information it genuinely needs to fairly administer the claim. It should strive, however, to request and retain only relevant information, and should destroy clearly irrelevant material or return it to whomever submitted it. Ms. McDonald stated that the Board does this when, e.g., it receives medical information from the worker’s doctor about unrelated conditions. We ask that the act make this mandatory.

2. The worker should be entitled to early, ongoing and complete disclosure of all information which the Board receives about him or her, subject only to the exceptions contained in the legislation, including the F.I.P.A. This is not only beneficial to the worker, but also the Board, because it allows the worker to correct any misinformation at an early stage, before it has had time to become repeated so frequently in various officers’ summaries of the facts that the very repetition seems to give it credibility. Where there is a genuine difference about a material fact, early and ongoing disclosure will at least flag that issue so that it can be properly investigated.

3. By "complete" disclosure, we mean that the worker should be provided with an opportunity to receive all information the Board may have, even if it’s kept apart from the claim file. There can be no justification for the gamesmanship described by Ms. McDonald when she said that if workers used the magic words, "... all the information the Board has about me" or specifically mentioned the F.I.P.A., they would receive full disclosure, but otherwise they would only get the claim file. A worker who is seeking disclosure obviously wants what the Board has about him or her. At the very least, each such request should trigger an inquiry as to whether the worker also wants disclosure of any information being kept apart from the claim file. A better change, however, would simply be to provide workers who request any form of disclosure with all of the documents.

4. Workers have the right to comment on information they consider inaccurate, and to have those comments flagged and linked to the challenged information.

5. We will be recommending that the employer’s status as a legal party to individual claims be eliminated, along with e.r.a. as it is presently constituted. If this is done, the employer will not have a right to file an appeal or oppose one as a worker, and there is no reason why it should have a right to disclosure. Even if the Commission refuses to go quite that far, however, there is legislative precedent for a provision allowing an interested person to participate in a proceeding without having the rights of a party to disclosure and other attributes of natural justice. See, e.g., s. 11 of the Environmental Management Act, which allows the EAB to grant a person either full party or limited "participant" status on appeals. As a "participant", in a worker’s appeal involving an issue of general importance, the employer could have right to present evidence as a witness, or to make submissions, or both, but not to receive confidential information provided by the worker. Such a carefully tailored compromise, if used sparingly, might meet whatever legitimate needs the employer has to challenge an appeal that it sees as a dangerous precedent without sacrificing the worker’s right to privacy or reintroducing a full-blown adversary system into the compensation process. It should be noted, however, that the employers’ counsel have made it clear in questioning that employers will not be satisfied with anything short of complete disclosure.

6. The only alternative that would offer any protection to a worker’s privacy while allowing employers to retain their status as parties would be the Ontario appeal model, where both the employer and the tribunal only receives documents determined to be relevant to the issue under appeal. As Mr. O’Brien acknowledge on April 6th, however, that would be a very expensive and time-consuming addition to the present appeal procedure. It would also make it very difficult for the tribunal to perform an inquiry role, since it might not even know of the documents which would indicate the need for investigation.

7. E-file would appear to introduce some new problems regarding privacy right, while potentially solving many of the problems with disclosure. In particular, the fact that it is virtually impossible to delete information from the e-file computer, even where the Board agrees that it is irrelevant and should not be part of the file, means that a person with the necessary computer skills and access could retrieve such information in the future, for whatever purpose.

8. The increasing use of third party providers by the Board creates new challenges and concerns. E.g., we have seen a contract between the Board and Kinko’s for copying files for disclosure purposes. The extent of the confidentiality provision seems fairly complete, but it says nothing about training or supervising the employees who actually do the work. This is a concern for all third party providers used by the Board.

As indicated, only complete removal of the employer’s right to disclosure (other than the "need to know"information described by Ms. McDonald) will satisfactorily resolve the conflict between the worker’s right to privacy and the requirements of natural justice. The Commission should not assume that such a step would be a hardship on employers. According to the Board’s statistics, 7,500 appeal disclosures were made to employers in 1997. Eliminating this would be a substantial cost savings for the system which employers insist that they, and they alone, fund. Protecting the System from Fraud and Misconduct

No one, including injured workers, supports fraud. They agree that the Board should be able and willing to take effective action when fraud occurs. But innocent workers should not be humiliated by an investigation motivated by an anonymous telephone "tip" or by an adjudicator believing that the worker has been off work too long, unless there is real evidence of wrongdoing. Such circumstances are difficult to articulate clearly, but crucial for worker’s interests.

A worker I represented many years ago was followed around and photographed in the small town where he lived, and learned upon receiving disclosure that the Board’s field investigator had questioned various people, such as the liquor store clerk and the head of the community college about his drinking habits and physical activities. The whole humiliating process was the result of a fishing expedition; the worker had successfully appealed a number of Board decisions, and the staff was upset and looking for vindication.

While it occurred some time ago, this illustrates very well the need to establish a fair threshold for the Board to meet before it engages in such potentially destructive activities. If a witness identifies himself or herself and states that a worker who claims to be unable to work due to a back injury has just spent several hours helping a friend move, the Board has the right to investigate. If the Board simply receives an anonymous call saying that the worker is cheating the system, no action should be taken that could result in embarrassment for the worker. The Board can pursue the tip in other ways, such as reviewing the recent medical reports to ensure that the doctor still considers the worker to be disabled.

As the employers conceded in their opening statement, the Board should also investigate alleged fraud and other illegal conduct by third party providers, employers, and its own staff. As with workers, there should be a reasonable threshold of reliable evidence before an intrusive investigation is undertaken. A fraud "tip line" seems unlikely to meet this requirement, and in any event the person who wants to report apparent fraud can telephone the Board now.

One area where the Board needs to become more active is in the monitoring of "incentive" programs. There can be few more compelling forms of claim suppression than the knowledge that making a claim will cause all of your co-workers to lose their safety bonus, etc. The answer is quite simple - make it specifically illegal for an employer to offer or withhold a safety-related benefit for one employee because of another employee’s performance. The intent of some such programs may be quite innocent, but the effect will still be to make it very difficult for a worker to make a claim. Adjudication of Claims

Despite the importance of this subject, and the number of complaints which result from poor adjudication, our discussion will be relatively short. The Board’s role and duty is set out reasonably well in s. 99 of the Act: to make its decisions according the merits and justice of the Act, and in evenly balanced cases, to give the benefit of the doubt to workers. The fundamental principles set out at the beginning of our submission further describe how decisions should be made.

Workers understand that the system is not able to turn over large sums of money to every claimant. They do not, however, understand why the Board seems to assume that they are lying, or why it will not accept the evidence of their own doctors, who know far better than some WCB medical adviser what their condition is. We will continue to make recommendations throughout these submissions concerning the adjudication process. The most important ones, however, are:

1. Injured workers are responsible, hard-working adults who have had the misfortune to suffer a work-related injury or disease. They are not children or criminals. Throughout the compensation and appeal process, workers’ autonomy, dignity, and right to privacy must be respected.

6. Throughout a claim, an injured worker’s condition should be assessed and treatment should be determined the worker’s treating physicians. If the Board or worker wishes to dispute the assessment of the treating physicians, any additional evidence that may be needed should be obtained by a referral to an independent specialist, not a medical adviser employed by the Board. At no point should the Board or appeal tribunals assume that the worker’s attending physicians are biased.

It’s fairly easy to recommend principles such as treating injured workers with dignity, but much harder to implement and enforce. Workers are not merely upset with perceptions of rudeness, distrust, and lack of concern on the Board’s part. Such perceptions are common, and arouse justified resentment, but more important is the unfairness of the decisions themselves. This has been demonstrated over many years by the high rate of success on appeal, and the Commission has heard about many unfair decisions from the affected workers and their unions.

We are cautiously optimistic about the case management proposal that the Board relied upon so heavily during its presentations as an answer to workers’ complaints. As the process was described by the Board’s speakers, the injured worker will (or should) become much more a partner in the process of managing his claim, treatment, and rehabilitation, and there should be less reason for serious dispute over the compensation decisions that will occur along the way. The best indication that this is true (or otherwise) will be the trend in appeal rates over the next few years as the process is implemented across B.C. and becomes settled. The Commission cannot, of course, wait that long, nor should it do so. We ask that many of the positive promises made by the Board during the presentations be adopted by the Commission, not as simply an acceptable policy or practice, but as principles of conduct to be contained in the new legislation. If time permits, we will file some suggestions for these statutory principles of conduct at a later date.

Accountability of the Board at All Levels

One of the most common complaints of injured workers who appeared before the Commission was that the Board cannot be held accountable for the damage it does through improper conduct and unfair decisions. We recommend that an independent process by created to allow complaints of serious misconduct by the Board itself to be investigated and to provide an appropriate response when such complaints are found to be justified. Such a process might resemble the police complaint procedure in some respects, although in other ways it would be very different. To be effective, the essential requirements are that it be independent of the Board and that it have the authority to provide a real remedy to a worker who can show that the misconduct caused losses that are not met by later awarding the denied benefits at an appeal or review.

In addition to showing greater respect for the concerns of aggrieved workers, and in some cases granting a meaningful remedy, the mere existence of such a process would be a motivation to staff to treat workers properly, particularly if the accountability body also has a disciplinary role (if only on an advisory basis).

The January, 1998 report of the Auditor General makes a number of recommendations that will enhance accountability at the highest level to the Board’s stakeholders. The complaint process we have just proposed will inject some degree of accountability at the "bottom" of the system, on the part of the officers who actually decide claims. There remains the question of accountability of the Board’s management (senior and middle). Without that, fair and consistent decision-making will simply only happen where the individual officer is committed to it.

Many of the Auditor-General’s recommendations are useful, but two in particular stand out because they are brilliant in their simple, yet direct focus on the Board’s three most important purposes - preventing injuries, compensating injured workers, and providing rehabilitation that restores their earning capacity:

(1) At pages 17 - 19, he recommends that the Board examine the causes of serious injuries, including factors that may influence worker or employer behaviour, and report on this to the governing body.

(2) At page 16 he recommends that the Board assess the adequacy of the compensation it pays by comparing workers’ pre-injury and post-injury incomes.

(3) At pages 16 - 17 he recommends that the Board assess and report on the effectiveness of its rehabilitation services by analyzing the return to work results for to determine whether workers have really returned to work at the pre-injury income levels, and remained employed on a durable basis.

Perhaps this should not seem so profound or revolutionary. What more obvious way to determine how well the Board is doing than to examine the impact of its decisions on injured workers, who are the subject of its mandate and the reason for its existence? Whether the suggestions should have seemed obvious or not, what is important is that the Board simply doesn’t do it that way. And that is a major reason for the wide dissatisfaction with its decisions.

To achieve accountability at management level, then, the Board should not only measure its overall effectiveness, but should compare the results from each area office and managerial unit. Where it appears that the staff in one area is doing significantly worse on one or all of these performance tests, further analysis should be done to determine what the reason is and how to correct it.

Benefit Levels

As the Auditor General notes, the best way to measure the Board’s success in awarding fair compensation is to ask how many workers end up receiving roughly equal income after their injury as they were able to earn beforehand. The language of s. 33(1) and s. 23, 29 and 30 of the Act all reflect the Legislature’s intent, which is much more relevant today than the intent of 1913 authors of the so-called historic compromise. Nothing in that language suggests that the Act is intended to under-compensate workers in order to provide some compensation to others. On the contrary, the language clearly suggests that the goal is to do exactly what the Auditor General says - to enable the worker’s post-injury income to match his or her pre-injury earnings. The provisions which may result in some workers receiving more than they pre-injury earnings and earning capacity are very limited in scope, such as s. 29(2), and do not support the idea that other workers should receive less than full compensation to pay for the excess. To put it bluntly, the Act does not seek to redistribute the income of injured workers among themselves to achieve socialist ends, and it should not do so.

Given the goal, then, of adjudicating a claim so as "best to represent the actual loss of earnings suffered by the worker by reason of the injury" [the words of guidance contained in s. 33(1)], what features of the existing system must be changed to achieve that purpose?

Statutory Maximum

The provision limiting a worker’s wage rate to $56,000 per year, no matter how much he or she is actually earning, simply must be changed. This issue has been discussed thoroughly before. We believe that much of the value of the Act is lost if it forces an injured to BOTH claim and sue in order to receive full compensation for his or her economic losses. Indeed, the employers would feel highly aggrieved if every highly-paid worker was permitted to sue for the excess earnings. They want their full protection in return for paying only partial assessments. We say that this is unfair.

Wage Rate Determination

This is a hugely complex and important (and often misunderstood) component of the compensation process. A worker’s benefits are calculated on the basis of two basic factors:

(1) the earnings and earning capacity at the time of injury, which result in the wage rate; and

(2) the degree of disability, as measured either by reference to loss of physical (or mental) function compared to a totally disabled person, or as measured by directly comparing the worker’s earnings capacity after the injury with the wage rate.

If both factors are measured fairly, the result should be a level of compensation that, when added to the worker’s reduced earning capacity, restores him or her to the pre-injury position.

The second factor is the pension assessment process, which will be discussed below. The wage rate is the first factor.

Section 33, the key provision when determining a wage rate, is unnecessarily complex, and perhaps unintentionally restrictive. The purpose of the process is contained in the words of guidance quoted above. But other aspects of the language have been interpreted by the Board to restrict its ability to achieve that goal. For example, the Board interprets "earnings" to exclude the possibility of adding in the U.I. benefits a person may have received shortly before the injury. The Board also does not believe that it can base the wage rate on a typical period of time in the worker’s past work history, but instead must use a continuous period ending with the injury. These views, which are often applied to the same claim, make it impossible to reach a fair result if the injury occurs after a lengthy period of low employment and hence low earnings.

Another grievance workers have described many times is the Board’s refusal to consider the value of group health and other "fringe benefits" when determining a wage rate. In certain cases, those packages may cost employers several dollars per hour. If the union (or individual worker) had chosen to negotiate for that money as additional wages, it would be included in the wage rate without question. There is no rationale that can justify ignoring these important benefits.

Numerous other issues involving wage rates are described in documents from 1993 and 1994 which were prepared on behalf of the Workers’ Compensation Advocacy Group for the Board of Governors. Each of the specific issues, in the end, is concerned with the same difficulty - the current policy (perhaps due to weaknesses in the legislation) does not result in accomplishment of the goal stated in s. 33(1) in certain cases.

Taken as a whole, there are two types of problems that result in unfairly low wage rates. First, the Board interprets "average earnings and earning capacity" in a peculiar manner. If usually disregards the capacity part of the phrase, although that is the most relevant term if one is measuring not what the worker did earn in the past, but rather what the injury will prevent the workers from earning in the future. Second, the Board interprets "earnings" to confine the inquiry to wages, etc., and to exclude other forms of income such as unemployment benefits. This is perverse, since the very basis upon which the worker receives E.I. benefits is that he or she is involuntarily unemployed, and therefore has unused earning capacity. In Manitoba, I believe, the Board and stakeholders engaged in a similar debate several years ago, but the issue was significantly different. There the Board conceded the U.I. benefits should be included as average earnings, and the dispute was over the remaining 40% of the worker’s capacity which the U.I. Act did not pay.

The U.I. issue does raise some complex questions and considerations, and we won’t go into them further in this forum. Instead, having recognized that the current system does not adequately measure what the worker actually stood to lose at the time of the injury, we should consider the possible solutions. In our view, the answer is to both simplify and broaden the language so that the intent is clearer, and so that there is no limitation on the reasoning and calculation processes the Board can use to achieve the goal of compensating each worker for what he or she has really lost and or will lose by reason of the injury.

"Net" v. "Gross"

Our position is that an injured worker is entitled to full compensation for what has really been lost due to the injury. 75% of the gross wage rate is a fairly straight-forward way to do that. It may theoretically result in high-income earners getting a small benefit, since their combined federal and provincial tax rate might be higher than 25%, and it may correspondingly deprive low-income claimants of equal benefits to what they earned before the injury.

There are two possible fair alternatives, both of which would cost considerably more and increase the complexity of the system. The employers’ proposals to go to a flat rate of 80% or 90% of net earnings is totally unfair and unacceptable, since they would deprive the injured worker of a portion of his or her economic losses (not to mention the non-economic losses the worker has already been denied), without restoring the right to seek that compensation in the courts. In effect, such a law would simply seize a substantial portion of injured worker’s earnings, without compensation.

The first alternative would be to pay 100%of gross earnings, but make them taxable. That would automatically adjust each worker’s total income to the pre-injury amount (if the pension percentage is correct), but would result in much higher costs to employers, and a windfall to both levels of government.

The second alternative would be to pay 100% of net earnings (non-taxable). The problem with using net earnings, however, is that the net which the worker would have received if not injured changes several times throughout his or her life. It is affected by marriages and divorces, by the birth or adoption of children, and by other factors that may be difficult to measure. The theoretical gain in equity of going through this process would be more than offset by the increased complexity, the repeated intrusions into the worker’s life to review the basis for the calculation of net, and appearance of unfairness of a different kind: a worker with more dependents will receive more benefits from the Board for the same degree of injury and same wage rate.

We therefore support continuation of the existing 75% of gross standard. Funding the System

Classification System

The Board is in the relatively early stages of completely revising its classification system and policies (based on the current legislation). It appears that many of the problems with irrational classifications and arbitrary differences in rates will be corrected by this process. From what we understand of the proposals, they appear sensible and workable, and should resolve many of the complaints made by employers. We agree with the basic choice made by the Board to base classifications on the employer’s major activity, rather than the individual occupations of its employees. The details of the classification system are primarily a matter for the Board to work out with employers. This is not true of the other aspects of the funding system: rate-making and experience rating.

Rate-making

The current and proposed systems of rate-making determine rates on the basis of payroll. With the exception of the relatively few employers who can qualify for multiple classifications, the entire payroll will be subject to the same rate, which in turn will be based on the collective experience of the subclass and the overall experience of the system, and on the experience rating of the individual employer. In our view, the reliance upon payroll, rather than hours worked, is wrong, and contributes indirectly to the Board’s tendency to set unfairly low wage rates based on past earnings, rather than future earning capacity.

The importance of measuring a worker’s future earning capacity (which is what the worker has totally or partially lost by reason of the injury) rather than merely calculating past average earnings (which the worker has already received before the injury) is discussed under the heading of "Compensation - Benefit Levels", and need not be repeated here. What does require emphasis in this consideration of funding policies, however, is the close link between the payroll method and the reliance on past earnings.

Take an example from construction. A union ironworker may earn $25 per hour plus benefits for high-rise construction. A non-union ironworker whose employer competes with the union company for contracts may only earn $15 per hour. A rate-setting system based on payroll charges the non-union employer only 60% of the WCB assessments of the union company, for the same number of hours worked. A system based on hours would charge both companies the same.

When asked to justify this, the Board refers to insurance principles that the cost should be related to the potential loss; i.e., they assume that because the non-union worker is being paid less when he is injured, his compensation will be correspondingly less. When asked at a March 20th consultation on the Employers’ Services Strategy whether the Board had statistics showing that the cost of compensation is directly related to the amount being paid at the time of injury, the Assessment department was unsure.

The more important question, however, is not whether cost of compensation has been so related in the past, but whether it should be so related in the future. The discussion under "Compensation - Benefit Levels" will explain why, in our view, the focus has to be on the future loss, since the fundamental purpose of the wage rate is to measure the worker’s actual loss of future earnings by reason of the injury. It follows that a similar injury to two ironworkers of the same age with comparable skills should lead to very similar long-term benefits, even if their short-term losses would be quite different based on their employment at the time. Otherwise, the Board is assuming that the non-union ironworker would never have been able to secure union-wage employment, either by securing union work or because changes in the labour market or in labour legislation will eventually force non-union companies to match union wages.

In addition to supporting the unfair assumption that a worker’s long-term losses can be accurately determined solely by measuring their past earnings, the current reliance on payroll unjustly subsidizes companies which compete for contracts by paying their workers low wages. The risk of injury for those workers, on an hourly basis, is at least as great as it is for workers earning much higher pay. We suspect that greater adherence to safety standards by union companies and the relatively greater experience of union workers may result in a greater risk in the non-union sector, but it does not appear that the necessary statistics have been kept to determine this.

It will no doubt be argued by some employer interests that the Board should not interfere in what is really a labour relations issue. Our point, however, is that the Board is already taking sides with the non-union employers, by enhancing their competitive advantage by charging them lower WCB assessments for identical work with at least equal risk. If only to preserve a "level playing field" (such as it is) for union and non-union employers in the same business, the Board should charge each of them the same basic rate for an hour of risk (employment). Experience Rating

It is our firm position that experience rating is a profoundly irrational process, and that its negative effects far outweigh whatever slight effect it may theoretically have in promoting safety efforts and/or accommodation of injured workers by employers. Professor Thomason said in his evidence that:

... linking employer cost to firm accident experience rating provides employers with incentives to invest in accident prevention. In other words, because the employer's costs depend on its accident experience the employer has an incentive to reduce accidents in order to save costs and I think that this is really an important point to make here. That's probably the primary rationale for experience rating.

We urge the Commission to require the Board to devise a far more effective method of rewarding employers for safety efforts (and imposing sanctions for unsafe practices) than the clumsy imposition of identical assessment increases on all employers whose workers suffer an injury no matter what the cause or degree to which the employer could have done anything to prevent it. The universal motor vehicle insurance system in B.C., while not perfect, has a much more rational link between unsafe driving practices as represented by accidents and claims, and the cost of insurance. While a few employers may consider the e.r.a. system a reason to prevent injuries, a much more natural response of employers to a system that charges them more for something they could not have avoided will be oppose every claim, no matter how legitimate.

We believe that the great majority of employers are conscientious and socially responsible, and will make all reasonable efforts to prevent injuries because they know and care about their workers, and because the law requires it. It is depressing to hear repeatedly from the organized employers who speak through the ECG that the only way to make them care about safety is to make it economically beneficial for them. Considering the cynical position taken by the ECG regarding virtually every compensation issue that has arisen, however, we cannot feel very surprised.

The fact remains that socially and systemically undesirable conduct is far more likely to flow from experience rating than genuine safety programs. Those employers who only respond to economic motivations will find it much more advantageous to avoid claims in other, more direct ways.

1. They may require workers to register with the Board as "contractors" with their own coverage, as was described in the coastal logging industry example related to the Commission on April 7th. Where the employment has been structured in that fashion, experience rating simply adds pressure on these workers (in these cases there can be no doubt who is paying for the system) to refrain from making claims for any but the most serious injuries. It also frees the real employer from any incentive to promote safety, by shifting the obligation to the worker/contractor who must make a cruel choice between refusing unsafe work and losing their income or gambling with their lives and health.

2. They may refuse to hire older workers, people with disabilities, or people who have had prior W.C.B. claims, because they are seen as being more likely to become injured and make a claim in the future. The truck dealership case described on April 7th, currently before the Court of Appeal regarding a human rights complaint, illustrates such conduct.

3. They may oppose even legitimate claims and seek to minimize benefits in much less positive ways than accommodating an early, safe return to work. Even if the worker eventually receives fair benefits, the employer’s active opposition throughout the claims process will do serious damage to any prospect of the worker returning to that employer on a durable basis, and will increase the administrative, disclosure and appeal costs of handling the claim.

4. Experience rating also drives the relief of costs process discussed below, which requires the Board to make a determination in every case of whether there was something wrong with the worker that should lead to full or partial relief. This process adds to administration time and expense, disclosure costs, violations of workers’ privacy, and puts added burden on the appeal system, all to determine just what "pocket" the Board dips into to pay for the claim.

Experience rating has even more bizarre consequences in the public sector, where budgets are often fixed and where it is the taxpayer who ultimately pays the compensation costs, not the owners or shareholders of the employer. In fact, the only people directly "penalized" for an experience rated injury in a school or hospital may be the students or patients, if the result is that something must be taken out of the budget to pay the increased cost.

A New Focus on the Causes of Injuries

We propose that the current unfocussed and arbitrary process of experience rating be replaced by requiring that the Board consider in each claim the way in which the injury occurred. This would enable the Board to follow the advice of the Auditor General and determine trends and patterns in the occurrence of injuries, so that prevention programs can be directed where they will do the most good. It will also enable the Board to categorize the claim so that the financial and other consequences to the employer will be appropriate.

Only where it is found that a identifiable failing in the employer’s prevention program caused or contributed to the injury should the Board consider an increased assessment. Moreover, the punitive response of increased assessments should not be the only response open to the Board. Where the degree of the employer’s responsibility is small, and consists of less than ideal efforts to train and supervise its workers, other kinds of remedial steps may be more appropriate, and would certainly meet with less resistance. Such non-economic responses should be the norm in the public sector, since the public user of the system and the taxpayer would otherwise be penalized for the inadequate safety program.

The focus of this entire decision making and appeal process would be the employer’s responsibility for an injury or disease and the steps that can be taken to prevent it from recurring. To further reduce the adversarial nature of the present system, the worker would not be a party to such determinations or appeals (although he or she may be a key witness), as the result would not affect the worker’s benefits. Similarly, the employer should no longer be a party to a compensation claim (and should therefore have no right of appeal, right to participate in the worker’s appeal (except as a witness), or right to disclosure.

We have recommended that workers should regain the right to sue in certain cases, such as those where the employer not only contributed to the injury, but did so by grossly negligent or criminal conduct, or by intentionally disobeying the safety regulations. The decision-making process just described would often be the first step in identifying such hopefully rare circumstances. When it is decided that this high threshold has been met, the worker (or the worker’s survivors) should be entitled to claim benefits, and the Board’s legal department should be directed to recover the cost of the claim, together with general damages, punitive damages (which would be appropriate in many such aggravated cases), and all other costs by taking court action in the worker’s name.

This would create a comparable incentive to promote safety (and to refrain from recklessly endangering workers’ safety) as the provisions of the motor vehicle insurance legislation which deprive a driver who has caused an accident while impaired or otherwise behaving criminally of any indemnity protection.

The represented employer community claims to support experience rating because it is more equitable to make the "bad"employers pay more and because it will encourage safety programs. We believe that the current system will do neither. However, the proposals we have made will accomplish both objectives very effectively, and at the same time will enable the Board’s prevention staff to focus their efforts on the identified causes of claims coming before the Board.

Relief of Costs Applications

The purpose of such applications will largely disappear if experience rating is confined to injuries for which the employer’s conduct or safety program has been found to be responsible. In neither of those situations would cost relief be appropriate anyway. The remaining possible basis for relief of costs would be situations in which a worker’s previous condition contributed to the cost of the injury. However, since there would be no impact on the employer’s assessments, the only purpose such an application would serve would be to shift the cost of the claim from the subclass to the general accident fund.

Does it make sense to have a formalized decision making and appeal procedure for doing this? We say no. Such a process would result in numerous shifts of claims from all subclasses to the general fund, largely offsetting each other. It is quite possible that the additional administrative and appeal costs would result in almost all employers paying more because costs have been added to the system, without removing any in return. If relief applications are eliminated altogether, there would be no reason to disclose information concerning a worker’s medical condition to employers. The gain in protecting workers’ privacy and reducing administrative costs far outweighs any theoretical benefit of fine-tuning subclass assessments.

Vocational Rehabilitation

Introduction

Effective vocational rehabilitation is one of the Board’s three interrelated goals, along with preventing injuries and compensating injured workers fully for the their losses. Debates about which of these have the most priority are of limited value; what is crucial is that the Board recognize that all three must be achieved if the system is to be successful.

Every prevented injury is a real (though usually invisible) victory for the Board, the employer, and most of all the worker who would otherwise have been injured. Preventing all injuries and diseases, however, is plainly impossible - as long as people engage in work activities, human nature, the limitations of current knowledge, and the imperfections of technology will continue to cause some workers to become injured (or even to die) in the course of their jobs. When that happens, the overriding obligation of the Board is to fully compensate them for their economic losses (injured workers absolutely cannot accept the notion that they should receive less than full compensation). That obligation is the minimum which the law can morally provide for taking away the worker’s right sue for all losses where the employer or a coworker were at fault.

Like prevention, successful vocational rehabilitation benefits all parties. To the extent that the worker can return to his pre-injury earnings, the cost of fully compensating the worker is reduced. There are also very important non-economic benefits that flow from successful rehabilitation. The worker once again enjoys the satisfaction of being independent and self-supporting. The post-accident employer may benefit economically from training assistance or other WCB incentives, but its biggest gain is the addition (or return) of a valuable, motivated employee to its workforce. Unlike compensation, which costs money and may therefore seem to pit the interests of workers against the Board and employers, vocational rehabilitation is a "win-win" objective.

At least, that’s the way it should work. In reality, when deemed employability rather than a real return to work becomes the standard for assessing the loss of earnings pension and the need for rehabilitation, the only winners are the Board and employer. The worker loses a substantial part of the pre-injury earnings without compensation. We propose that decisions based on deemed employability in both the rehabilitation and pension contexts be restricted to very limited circumstances in which it is clearly the only alternative.

Section 16 currently gives the Board the authority, but not the obligation, to provide vocational rehabilitation. The current policy recognizes that the worker has a right to such help in certain circumstances, and there is a full right of appeal regarding rehabilitation decisions. While this mitigates the discretionary nature of rehabilitation, there should be a recognition in the Act itself that such assistance is a right when an injured worker cannot return to his or her pre-injury employment, or to comparable work. This would enhance the worker’s autonomy over the most important decision he or she faces - "How am I going to spend the rest of my life?"

One proposal which we will discuss would make rehabilitation a statutory right, and also provide incentives through the assessment program to encourage employers to provide job opportunities for injured workers. If successful, such incentives could be converted into a program separate from workers’ compensation, which would apply to all persons with disabilities. While such a law would be outside the Commission’s mandate, it would further the rehabilitation goals of the Board. We will ask that the Commission consider this broader proposal, and you agree that it has potential merit, recommend that it be investigated.

Rehabilitation and Case Management: Timing is (Almost) Everything

We are cautiously optimistic that the case management approach, if implemented as it was described to the Commission by Mr. Buchhorn and others, will go a long way toward eliminating the existing delay in implementing vocational rehabilitation, which is conceded by almost everyone to be a very serious impediment to its success. In theory, the vocational rehabilitation consultant will be part of a return to work planning process that will begin relatively early in the claim, and will involve the injured worker and the treating physician(s), as well as the employer, as full participants.

This will make it possible to identify return to work impediments, such as the insistence of some employers that an injured worker be fully recovered before returning to the job, or the simple inability of some employers to accommodate a worker who has any residual disability or vulnerability to reinjury. Early recognition of rehabilitation problems should enable many of them to be resolved without the economic pressure which termination of wage loss benefits places on the worker. In fact, it may even be possible to conclude an expedited appeal over an early rehabilitation decision before wage loss ceases, especially if the proposed Review Board pilot project for mediation of rehabilitation disputes proceeds and is successful.

Injured workers agree with the Board that it is important to keep a clear focus on successful treatment and return to work during the initial few months of a disability. This supports the Board’s January 29, 1998 proposal that the 8 week rate review be delayed to 13 weeks, so that a reduction in the wage rate doesn’t poison the atmosphere and thwart the cooperation that is necessary if the continuum of care interventions are to succeed. However, the Board’s proposal doesn’t go far enough. A reduction in the wage rate will have just as disruptive an effect on vocational rehabilitation planning and execution. If the goal is to facilitate a durable return to employment for workers who cannot go back to their previous jobs, the date of injury earnings rate should be maintained unless there is specific evidence that the job would be ended or that there would have been other significant changes in the worker’s earnings.

Eligibility Issues

When a worker has been injured, and cannot return safely to the previous work, the goal of all concerned should be to assist the worker in restoring his or her earnings in another employment. Board policy currently recognizes this. In fact, the policy regarding rehabilitation avoids some of the mistakes in the compensation policy, such as the refusal to acknowledge that workers who cannot return to pre-injury employment because they are likely to become immediately reinjured are disabled and entitled to benefits. These so-called preventive situations will be addressed below as one of the issues where the policy on pensions must change. In the rehabilitation arena, however, the Board rightly considers such workers to be eligible for benefits.

Scope of Rehabilitation Assistance

Within the limits of the Act’s goal, which is to restore the worker’s pre-injury earning capacity, the scope (and cost) of rehabilitation are largely left to Board discretion. At the upper end, this is inevitable; it is very difficult to imagine how policy (let alone a statute) could rigidly define how much assistance will be required in each case. That is not true of minimum benefits, however. We propose that the statutory right to rehabilitation entitle a worker who cannot return to pre-injury employment, or to a substantially similar kind of work, to a specified length of assistance as a matter of right. This assistance should be a kind of fund that the worker can draw upon years after the injury, if a worsening of the disability or changes in the economy again create a need for it.

A major benefit of such entitlement is that it would work to preserve workers’ control over their lives after the initial return to work. The five "Phases" of rehabilitation options set out in paragraph 87.20 of the Policy Manual will mean that most workers will be channeled back to their pre-injury employer, or at least industry. As a general pattern, that will often be appropriate, and indeed will be what many (but not all) workers desire. Sometimes, however, this will result in a job that is only suitable only because of substantial accommodation by the employer. Should the employer go out of business, or the job disappear, the worker will again face unemployment which is really due to the work injury, though it may superficially appear to be due to lack of work. (If not for the injury, the worker would have many other options for work.)

Given the risk of such future changes, many workers would no doubt choose to "save" a portion of their guaranteed rehabilitation entitlement so that it would be there for them should they need it. This would reduce the disruption to the worker’s life resulting from renewed unemployment, and serve much the same ends as the case management system is designed to serve immediately after the injury: the worker will be able to move promptly into retraining

Continuity of Income and the Alphabet Soup

The Commission has probably heard at least twice as much it would have liked about "Code R" and its various relatives. The twists and turns of the Code R story are perhaps most significant for what they tell us about the particular view of policy (and "practice") followed by the Board, and the need to find a clearer way of guaranteeing that only the governing body can change the rules about the amount of benefits workers receive. This issue will be discussed below in the context of governance and policy.

Continuity of income benefits are of vital importance for injured workers whose wage loss benefits are terminated because their condition is said to have stabilized, or reached a "plateau". This is typically one of the most sensitive and difficult times for a permanently disabled worker. The active treatment process is usually concluded, and the worker essentially has to accept the fact that the disability is unlikely to become any less, and that he or she will have to change jobs. The current practice (or policy, depending on one’s view) only adds to the inherent stress of this phase of the claim by drastically cutting the level of benefits even before the loss of earnings assessment is completed. While the Commission was told that the practice now requires that the worker be given 30 days notice to make a submission before the reduction actually takes place, there is no guarantee that the Board will change its mind no matter what the worker tells it.

According to Ms. Wakelin and Mr. Buchhorn, the only workers that will be negatively affected by the change to Code R will be those who do not qualify for one of the other "Code" benefits because they are not pursuing rehabilitation. It was suggested that these would mostly be older workers who were content to live on the partial pensions being assessed by the Board, plus savings and perhaps other benefits they receive from CPP, group disability plans, etc. That is not the experience of the advocates who persisted in raising this issue since the change in Code R became known. In any event, workers who do not believe they are fit to return to work yet will be placed in this category by the Board.

In our view, the whole process is misguided. The solution is simple - wage loss benefits should continue until the pension assessment is completed. The Board’s presenters confirmed that the case management process will result in the vocational rehabilitation consultant becoming involved in a claim long before wage loss benefits would be terminated. Case management will make the Board an active partner in creating a return to work plan which may include rehabilitation assistance of various kinds. In the process, the consultant will (or could) acquire and update most of the information needed to complete an employability assessment for pension purposes. At the same time, the proposed Arcon project (or an alternative process of assessing the worker’s functional disability without waiting months for an appointment with a Board doctor) should end that portion of the delay. The functional examination can be done almost immediately, and the consultant can complete the report simply by obtaining and considering a few missing pieces of evidence. Why then upset the worker and disrupt whatever cooperation he may have with the Board merely to reduce benefits for a few weeks? Instead, the wage loss benefits should simply continue.

Paying for Rehabilitation Assistance

Over the years, many injured workers have financed most or all of their own rehabilitation by commuting their pensions, because the Board would not agree to sponsor them in the direction they wanted to go. This is an added argument for a right of rehabilitation, rather than a discretion. Paragraph 88.51 recognizes that the Board should contribute the amount it concedes to be necessary to restore a worker’s earnings to a more extensive program which the worker may wish to pursue. However, the policy also suggests that the worker might have to resort to a commutation if the desired training is a program which the worker "might well have undertaken regardless of the injury."

Creating a Statutory Right to Rehabilitation

We will distribute a document that was prepared in 1991 entitled "Defining the Right to Vocational Rehabilitation". While some of the specifics may need to be adjusted in light of case management and other changes in since then, the proposal will at least serve as an reasonable example of how a coherent, worker-driven process which give the worker a right to rehabilitation.

Creating Incentives for Employers to Accommodate Injured Workers

The final section of the 1991 paper proposes a scheme of incentives based on adjustments to the assessments of larger employers, which would serve as an incentive to hire (and to maintain the employment of) disabled workers. This is a modification of a much more ambitious new act proposed in the attached document, which would benefit all persons with disabilities.

Deeming Employability for Pension Assessment Purposes

The infamous issue of deeming employability will be discussed under this heading, since employability assessments are performed by rehabilitation consultants, although deeming itself is really part of the pension process.

Injured workers oppose deeming employability except in circumstances where it is impossible to provide the worker with effective rehabilitation leading to an actual job, or where the worker has made a deliberate choice not to pursue reemployment. Examples of the former would be a pension decision resulting from a reconsideration of a much earlier decision, or an appeal decided in the worker’s favour after a lengthy delay. Examples of the latter would include a worker who chooses to "retire" rather than undertake a new and different occupation, or a worker who decides to pursue a college degree, using his or her own resources as well as the value of the rehabilitation the Board concedes it would have paid to restore the pre-injury earnings. Pensions

Elements of a Pension Decision

As Mr. Ingraham confirmed in his presentation, a pension decision involves several different issues, each of which affects the worker’s entitlement. These include 1) the start date; 2) the wage rate; 3) the functional impairment; and 4) the projected loss of earnings.

In addition, if a claimant who will receive a loss of earnings pension says that he or she would have worked past the age of 65, the Board must decide when the loss of earnings will cease.

Start Date

This is rarely a subject for dispute. Pensions start when the wage loss benefits were terminated. Any rehabilitation or other "Code x" benefits received in the interim are nominally repaid from the pension. If there is a dispute involving this question, it’s usually over the termination of wage loss benefits, and any appeals are from that decision (by the Claims Adjudicator), rather than the pension decision.

Pension Wage Rate

Approximately 20% of pension decisions set a different wage rate than that used for wage loss purposes. We believe that this number should be much greater.

Virtually all of the concerns raised over wage rate determinations above apply equally to this element of the pension decision. For pension purposes, we will only address the differences.

By definition, a pension is a lifetime benefit. The wage rate must therefore represent the worker’s pre-injury earning capacity over the longest term. Vagaries in the worker’s employment history prior to the injury, such as non-seasonal periods of unemployment, have little relevance to the worker’s capacity over the rest of his or her life. Even more than the 8 week (or 13 week) rate, the pension wage rate must focus on future capacity, not past history.

Earlier I gave an example of two ironworkers who suffer identical injuries. They are the same age and have the same skills. One worked for a union employer, earning $25 per hour, and the other for an unorganized employer paying $15 per hour. Their short term (immediate) loss due to an injury would reflect this difference in their current pay. But for pension purposes, which must estimate the loss over the balance of the workers’ lives, the two ironworkers would have identical earning capacity. In our submission, it would be grossly unjust to pay the non-union worker only 60% as much as his union counterpart throughout the balance of his life. Yet that is almost certainly what the Board would do.

This failure to recognize the differences between short-term and long-term wage rates can lead to even more bizarre consequences for a worker with two or more injuries. If a worker is hurt after a year in which there were substantial periods of unemployment or part-time work, the Board will establish a long-term rate based on that earnings history. Even if a period of more than one year is used, the inclusion of the "bad" year will drag down the average. The pension benefits payable as a result of this injury will be reduced accordingly.

What if this worker returns to the pre-injury employment despite the disability, works through a year or more when the economy is strong and there are no shortages of work, and then suffers a further injury? This time, the Board will take the "good" year into account. The result could very well be that the same worker’s wage rate (supposedly representing his or her earning capacity) for the second claim, despite the disability from the first injury, will be higher than the wage rate assessed when the worker was slightly younger and had no disability at all. This irrational result flows from the failure of the Board to focus sufficiently on the future rather than the past in determining long term wage rates.

A special wage rate issue arises in the case of younger workers, such as high school students engaged in work experience. In such cases, there may be little or no work history to rely upon. The Board responded to a question about this by suggesting that it would not automatically base the wage rate of a student on the low earnings at the time of injury if there were evidence that the student would have gone on to medical school or entered another highly paid occupation. Based on past experience, such a generous decision seems highly unlikely. The Act needs to provide more flexibility in the ways wage rates can be determined, especially in determining the rate for pension purposes, which will be payable for life. Greater reliance on class averages would often be a more accurate and reliable way to estimate an injured worker’s lifetime earning capability, provided the appropriate class is selected. Special problems are posed for the Board when injuries occur to young people (and others) who did not consider the work at which they were injured to be their permanent occupation.

Functional Impairment Assessment

As in other areas where the Board’s presentation consisted mostly of descriptions of a new program or approach that has yet to be fully implemented, we find it difficult to take a definite position. The new technological approach ("Arcon", which is only one of the alternative companies that could have been selected) has both advantages and weaknesses. It takes the assessment out of the hands of the Board’s medical advisors, which injured workers will heartily applaud. But it replaces them with a machine and a technician, supervised by a doctor employed by the third party which performs the assessments and owns the equipment. That will make workers nervous.

The Arcon equipment measures range of motion, but not (as we understand it) strength or durability. Life measurements taken by a doctor, the results will be affected by the slight differences in the way the technicians conduct the tests, although the differences should be less.

The approach also leaves little room for subjective comments, unless the worker and treating physicians insist on submitting them separately after the examination. We submit that the Board should be required to make the attending physician part of the pension assessment process. We could be done at the time of the Arcon examination, or afterward, when the doctor reviews the Arcon results. The observations of the doctor, who may well have treated the worker for many months or years, will be very valuable in understanding just how the injury affects the worker’s capacity to function, and hence the pension entitlement.

Loss of Earnings Assessments

Loss of earnings pensions are the core of the compensation system for workers with serious permanent disabilities. Without them, many workers who cannot return to their previous employment could not receive adequate replacement of their lost earnings. However, misuse of deemed employability and the way in which the Board estimates the worker’s maximized, long-term earnings undermine the ability of the system to provide full compensation for the worker’s losses. Deeming generally is addressed above under the Rehabilitation heading.

Even where the worker has returned to employment which the Board acknowledges to be suitable, and has thus done everything possible to minimize the loss of earnings due to the injury, the Board often refuses to accept the worker’s actual earnings as the basis for the calculation. Instead, it chooses a higher post-injury rate, supposedly based on the amount which the worker will be able to earn at that occupation in the future, after receiving raises and other increments. Often this maximized amount is based on wages paid in relatively rare union jobs which the worker has no realistic hope of obtaining.

The unfairness of this approach is enhanced by the fact that the Board takes the opposite approach when determining the worker’s wage rate, which is the first factor in the loss of earnings equation. Except where there has been a lengthy history of steady employment at the pre-injury job, the Board is rarely willing to use maximized earnings for the wage rate. By subtracting artificially "maximized" post-injury earnings from an artificially reduced wage rate, the Board often assesses a loss of earnings pension that falls far short of providing full compensation for the worker’s real losses.

Reviews and Changes to Loss of Earnings Pensions

Board policy calls for at least one periodic review of each loss of earnings pension to see whether the worker is doing better than expected. According to material supplied by the Board in response to counsel’s request, only a few loss of earnings pensions were increased from 1995 through 1997 as a result of reviews, and usually the functional pension was increased as well. These were presumably cases where the worker’s condition had deteriorated between the original assessment and the review. In the majority of other cases, the loss of earnings pension was reduced or terminated as a result of the review.

These figures show that periodic reviews are a one-way street. If the worker has done better than projected, the pension will be reduced or eliminated. But if the worker still hasn’t found the job the Board considered to be suitable and available, or still hasn’t matched the optimistic earnings level projected for such employment, the pension simply remains unchanged. This is an obvious inequity that must be changed. If the Board continues to review loss of earnings pensions (and we agree that at least some reviews are warranted), the pension should be adjusted upward as well as down as a result of the findings. Commutations

The Board’s current policy on commutations is, in its own words, "paternalistic". [See Tab "O" of our materials for the Board presentations.] This is offensive to injured workers, and inappropriate in a period when workers are no longer mostly naive and illiterate, and when most of them regularly make crucial economic decisions that affect their long-term interests such as purchasing a home, saving for their children’s education, purchasing life insurance, and numerous other matters. Why should the Board assume that workers who deal with banks, accountants, and others in making these decisions need to be protected from their own folly once they are injured? The exchange of correspondence at Tab "O" clearly shows the irrationality of the current policy; the worker would have saved more than the value of the pension by paying down his mortgage early, but was refused the commutation because the officer didn’t think the CPP was "stable".

Lump Sum Compensation for Non-economic Losses

This is a benefit which has never been payable as such under our legislation, except perhaps for the small payments awarded for disfigurement (and even they are conceptually linked to their impact on the worker’s earning capacity). Injured workers should be entitled to such compensation when serious injuries drastically affect their lives. Otherwise, the Act will continue to fall short of providing full compensation for what the worker has lost, which in our view is a fundamental principle of a just compensation system.

There can be a threshold for such benefits, based on the nature and severity of injury. In establishing it, however, the Commission should bear in mind the fact that seemingly minor disabilities (at least, from a functional impairment perspective) can drastically affect the worker’s personal life.

Some years ago the Supreme Court of Canada set a limit of $100,000 for non-monetary compensation in personal injury cases. Courts have been applying this limit with adjustments for inflation, and the limit is now approximately $250,000. We submit that this would also be an appropriate maximum for the Board to pay for any one injury or disability. The proportion of this amount that would be paid in each case should be based on a realistic assessment of the impact the injury has had on the worker’s life, and not just the functional impairment itself. The compensation should at least be payable in cases where the worker would have had a good cause of action against an employer or worker, but cannot pursue civil remedies because of s. 10. Arguably, in a no-fault system, at least partial non-monetary compensation should be payable even where no one except the worker is at fault.

Proportionate Entitlement

Proportionate entitlement under section 5(5) of the Act applies to reduce a worker’s pension benefits when the work injury is superimposed on a pre-existing injury or disease. Only in the case of a functional pension does apportionment make sense. If the work injury has worsened a previous disability in the worker’s back from 2% to 5%, the Board should compensate the worker for the increase of 3%.

We submit that proportionate entitlement should never be applied to temporary benefits, and that the current policy must be changed so that it does not apply to a loss of earnings pension either. The reason is that in both cases, the worker was working and earning the pre-injury wages despite the pre-existing disability. It was the work injury, and that alone, which in such cases caused the loss of those earnings, and it would be unjust and contrary to principle to reduce the compensation for that loss merely because the worker was able to achieve the earnings despite a non-compensable disability.

Does this mean that a worker who has a partial disability pension and then becomes disabled for non-compensable reasons should lose that pension? Of course not. Nothing in the Act, nor in the principles upon which it is founded, would support taking away benefits which the worker is already receiving because of a subsequent event which prevents employment. After all, the worker is entitled to choose not to work, if he or she wishes, and will still receive the pension which the Board has awarded. Why should the worker’s position be any worse after a non-work injury or other disability prevents continued employment?

Section 98(3) - Terminating Benefits for Imprisoned Workers

This provision, and accompanying policy, results in automatic termination of benefits when a worker is imprisoned, unless there are eligible dependents to whom the benefits can be paid. In our view, this provision is perverse, and should be removed from the Act.

As noted above, a worker is entitled to choose not to work and will still receive compensation benefits flowing from the disability. That is even true for loss of earnings pensions prior to the age at which the considers that the worker would have retired had the injury not occurred. Suspension and/or cancellation of benefits during imprisonment is an exception to this general rule. In our view, the exception doesn’t stand up to scrutiny, and results in the Board quite literally profiting from the crime which led to the worker’s imprisonment.

Appeals to the Review Board and Appeal Division in 1992 and 1993 led to decisions which ruled that the Act doesn’t authorize the Board to cancel such benefits automatically, as the policy requires, nor does it extend to workers who have day parole status and are permitted to engage in employment. Section 15 of the Charter of Rights and Freedoms was argued in these cases, but the tribunals did not find it necessary to decide the case on that basis. We now have two appeals pending before the Review Board raising similar issues, and will again rely upon the Charter.

From a policy perspective, however, we submit that the provision should be repealed (and the policy with it). Presumably, its intent is to prevent prisoners from amassing large savings from their benefits while they are incarcerated at public expense. If so, it is misguided. It is not the function of the Workers’ Compensation Act or Board to punish criminals. Moreover, the Board simply keeps the "savings" resulting from s. 98(3) and its policy. In effect, it confiscates the injured worker’s benefits for the Board’s benefit, thereby discouraging the victim of the crime from seeking civil compensation since there will often be no other significant assets from which a judgment could be satisfied.

The policy would make somewhat more sense if it required the benefits to be paid to the victim, or to the prison authorities in partial repayment for the cost of imprisonment. Such repayments, however, should not be required only from injured workers. Until there is a general scheme allowing people serving sentences to the charged for the cost of their imprisonment, injured workers should be able to retain their benefits just as other prisoners do, subject to any judgments which their victims may obtain.

Chronic Pain and Psychological Disabilities

Employers’ groups have argued that the Commission should recommend that the Act be changed to prevent injured workers from receiving compensation for chronic pain, or for psychological disabilities that are not the result of physical injuries. Injured workers strenuously disagree with both arguments.

The fundamental basis for the compensation system is that a worker who becomes disabled in the course of the employment and because of that employment is entitled to compensation for at least the economic losses resulting from that disability. Any ad hoc exceptions to this principle such as those proposed by employers undermines the system. In fact, Mr. Bates stated during his presentation on section 10 and 11 that there is an exact correlation between section 5 and 6 entitlement and the bar to litigation in section 10. We agree. Accordingly, the effect of legislatively excluding psychological disabilities from the compensation system would be to expose employers to lawsuits by workers who believe they can prove that the employer (or a fellow employee) was responsible for the condition.

The situation is different in the case of chronic pain. Employers argue that B.C. should follow the lead of Nova Scotia and restrict benefits flowing from a chronic pain condition to minimal treatment amounts (and deny compensation altogether). This would leave injured workers who suffer from disabling pain arising from a work injury with no compensation for their losses, and no right to sue. There can be no principled reason for such an unjust result, and employers have not presented any. They merely argue that the causes of such pain conditions are often unclear, that the mechanism of causation may be complex, and that some workers are more susceptible to such disability than others. All those things are true of many disabilities. They do not justify denying compensation where the worker can demonstrate by the weight of medical evidence that in his or her case the pain is caused by the work injury. The Appeal System

Introduction

This part of our submission will address both the formal appeal system, and other mechanisms currently available to enable injured workers to resolve disputes over their compensation claims and benefits. These other mechanisms, which are critical to the effective running of the system, include reconsiderations at all levels, managerial reviews, the Ombudsman (both the internal WCB position, and the B.C. Ombudsman’s office), and judicial review in the Supreme Court. First, however, we will discuss the formal appeal system.

There can be no misunderstanding about the importance of an effective appeal process. Unlike some types of benefit legislation, the outcome of a compensation claim can literally determine the financial well-being of the worker and his or her family for life. Its importance is comparable to a Supreme Court proceeding for similar injuries sustained in a motor vehicle accident or other personal injury. The goal of ensuring that a just decision is reached in such crucial cases cannot be balanced against any short-term cost benefit of eliminating a level of appeal.

While workers have legitimate complaints about the appeal structure, we must keep in mind that the anger is not nearly as widespread or intense as the animosity which existed before 1991 toward the former commissioners. Realistically, if one or more of the existing tribunals were eliminated or combined, many of the current decision-makers at the Review Board and Appeal Division would be offered a role in the new system, and rightly so. The challenge before the Commission is to ensure that any changes to the appeal system will enhance the overriding goal of reaching a just result in every significant dispute between the worker and the Board. Speed, efficiency, and cost are all legitimate secondary goals, but all of them combined are not nearly as important as reaching a fair outcome to each appeal.

The Parties

The true parties to a compensation dispute are the worker and the Board. In an essentially no-fault system, the employer need not and should not be considered a separate party in its own right. It is simply one of the collectively insured within the subclass that may be affected by a claim. If our submissions on a new approach to employer accountability are accepted, the employer will not be directly affected by a claim unless it has been found by the Board to be responsible because of something which it has done or omitted to do. That will be a separate decision focusing on employer responsibility, leading to a separate or review appeal process. Consistently with our position on the employer’s role in a compensation appeal, the injured worker should not be a party to this process either. Proposals for Change

On behalf of injured workers, we totally oppose the suggestion that one or more of the current levels of appeal be abolished (or combined) in order to save costs and reduce the overall length of the appeal process. Achieving a fair outcome is of such vital importance to the worker and his or her family that one level of appeal is simply not acceptable. CPP, EI, and BC Benefits, social benefit legislation which may have less impact on a person’s welfare than a compensation appeal, all allow two or three levels of appeals and reviews.

In considering the position of the employers’ groups and the Review Board that there should only be one level of appeal, it is important to beware of false economies. The Appeal Division would not have been able to achieve the high level of worker satisfaction it now enjoys if the Review Board did not resolve the majority of appeals, and if it did not produce a focused decision and record in the cases that do go on. A single new tribunal will not have these advantages, and will require more time to determine the same number of appeals that are now coming before the Review Board.

In our view, the work performed by the existing tribunals will reappear before any new tribunal, perhaps in new forms, and will require nearly as many resources. For example, the Review Board’s submission acknowledges that a mechanism will be needed to allow parties to seek reconsideration of a decision which is believe to be based on an error of law or jurisdiction. It will not be possible to maintain a neat line between such "legalistic" proceedings and applications relying in part on new evidence. Whatever the Act might say, workers and their advocates will feel compelled to bring deserving cases before the reconsideration panel, in the hope that it will find a way to reach a fair decision on the merits. Like many tribunals faced with such pressures, the reconsideration panel may "push the envelope" further and further in order to find ways to give relief in cases where the formal appeal decision now seems unfair. Whether it does so or not, much time will be occupied deciding applications by workers who realize only after their appeal is rejected that they did not present their best evidence and arguments.

The Formal Appeal System

The Review Board is the heart of the existing appeal system. It hears nearly all initial appeals by injured workers (and currently by employers as well). It hears these appeals "in the raw", in the sense that it does not have the benefit of a lower tribunal decision setting out the facts and evidence, as the Appeal Division has should the matter proceed there. The Review Board normally holds oral hearings at a party’s request, and does so in communities throughout B.C. Workers are less likely to have trained representation before the Review Board than they are when they get to the Appeal Division, and there are more likely to be gaps in medical or other evidence that may make it difficult to decide an important issue.

The Commission has heard many complaints about the delay in receiving decisions from the Review Board. These are justified, and indeed the Review Board itself has proposed that a time limit be imposed on the new Appeal Tribunal which is proposed in its submission. Presumably Mr. O’Brien and the other authors of that submission would concede that a similar limit should be imposed on the Review Board, provided it had sufficient vice-chairs, members, and other resources to comply. The factors described above would make it impractical to comply with a 90 day limit from the date of initiation, but a longer limit or one which starts from the time of filing Part 2 might work.

Some of the recommendations in the Review Board’s submission are worthy of consideration. For example, incorporating the MRP procedure as a means of resolving a medical issue in an appeal may make sense. Adverse decisions rarely involve just a medical issue - the actual dispute is always over denial or termination of benefits, or the amount of benefits, based on a medical determination. There could be a real advantage to injured workers in having an general appeal tribunal such as the Review Board able to decide what benefits flow from the medical decision.

The proposal for mediation is more questionable. If all workers have competent representation, and if the Board participates in good faith, mediation could lead to faster, more certain results than an appeal decision, and give the worker greater control back over his or her claim (and life) in the process. But it could also lead to a climate of expected "trading" in which a worker would be almost required to abandon some legitimate disputes in order to secure a fair settlement of others. More fundamentally, mediation between the worker and the tribunal whose decision is under appeal seems bizarre. If the Board is willing to admit that some parts of its decision are wrong, why should the worker have to drop other appeals before the Board will correct the acknowledged error? Any such process could compromise the appeal tribunal’s neutrality in the eyes of the appellant worker, should it appear that the mediator is pressuring the worker to accept a compromise that is not acceptable. Appeal Division

The Appeal Division is generally performing very well, within the limits of the current legislation and mandate. There are some problems, however. Oral hearings are denied almost routinely, forcing workers to try to present their own case in writing, or to find an advocate able and willing to do so for them. The promptness and brevity of decisions sometimes leads to poor analysis of the issues. The lack of any effective mechanism to challenge a bad decision is one of the greatest weaknesses of the present system. In our view, appellate and review processes should focus on the merits of the issue that is raised, not on artificial jurisdictional requirements. The Act and policy should be revised so that the appeal tribunals can reconsider any decision they have made, on the same standard of correctness that applied at the appeal itself.

More importantly, both the appeal division and the medical review panels should be fully independent of the Board. It would be quite feasible to set up a common appeal registry for all three tribunals, with common procedural rules that would simplify the process for claimants and insulate the tribunals from suspicion that they are tools of the Board. See the 1987 System Report of the Ombudsman for a variation of such a proposal regarding the Medical Review Panels.

Medical Review Panels

The MRP process itself is not working badly, but there are several minor, and two serious problems associated with the WCB’s role in the process. These problems occur at the front end (initiation and establishment of the panel) and the rear end (implementation of the resulting decision).

At the front end (by which we mean all of the steps preliminary to the MRP meeting, examining the worker, and issuing its certificate which answers the questions asked of it pursuant to s. 61), the process is entirely controlled by the Board. This is itself a difficulty, given the lengthy conflict likely to have taken place between the worker and the Board by the time a dispute reaches the MRP. How likely is it that a worker, after battling the adjudicator, Review Board, and Appeal Division (in most cases), will trust a tribunal which depends entirely on WCB to file and process the appeal, appoint the panel members, set up the hearing, define the issues, create the evidentiary record, etc.?

The inherent perception of Board control, while important, is not the only issue of concern. Section 61, as interpreted by the Board, requires that every MRP be asked to answer the whole range of medical questions relevant to the worker’s claim. These go far beyond the specific issue that was defined by the enabling doctor’s certificate. Consequently, appellants must be advised that there is a possibility that the Panel will not only deny their appeal of the specific issue in question, but also reverse a previous medical decision that favoured them. The law seems to contradict itself: why insist that the doctor define the "particulars" of the medical issue in dispute if the panel is going to be asked to answer all possible medical questions anyway? Another difficulty of the present legislation is that an MRP is limited to medical issues. Even where the decision in question is clearly based on a medical finding, the worker’s concern is almost always with the compensation consequences of that finding. I.e., the worker is not concerned per se with how his disability is described, but rather with the benefits which flow from it. An MRP cannot directly decide such benefit questions, and the worker must therefore rely on the Board to implement its decision. As often as not, the implementation results in a new "non-medical" dispute, which can only be resolved by a new appeal to the Review Board, and perhaps later the Appeal Division. Since the Review Board and Appeal Division may already have dealt with the medical decision before it was resolved by the MRP, the time and resources spent on such a matter could be truly enormous should a second cycle of appeals be necessary.

The solution to this problem is not to eliminate levels of appeal, thus leaving unfairly treated workers with no recourse, but rather to ensure that appeal decisions are implemented in good faith and on their real merits. Moving the responsibility for initiating appeals, defining issues, and implementing decisions to the Review Board, without changing the independence of the MRP within its own jurisdictional sphere, was a key recommendation of the Ombudsman in his 1987 System Study, Public Report No. 7.

Reconsiderations, Reopenings, and Managerial Reviews

The current policy and legislative provisions regarding this informal and discretionary means of resolving disputes are generally acceptable. One major difficulty is s. 96.1, which places severe limitations on the ability of the Appeal Division to reconsider its own decisions. The limits on the types of new evidence that can lead to such a reconsideration is especially unfortunate in a system which generally seeks to follow the spirit of s. 99 in determining claims. Like all tribunals, the Appeal Division makes serious errors from time to time, and needs the authority to fix them without requiring the worker to first go to the Supreme Court and overcome the privative clause.

The Role of the Ombudsman

The role of the Ombudsman in the compensation system has been important to injured workers since the office was formed. The 1987 System Study was a major element in the process leading to the 1991 amendments.

In recent years, the Ombudsman’s role has been largely performed by Peter Hopkins, a Board employee, on an internal basis. According to information we have received, the office has been quite successful in resolving some types of disputes.

That being said, injured workers who are locked in bitter conflict with the Board do not trust any Board employee to assist them. Since the Ombudsman is often the end of the line for a worker, it is important that he or she be seen to be independent of the Board. We have been assured that the B.C. Ombudsman’s office will continue to respond to complaints against WCB if the worker doesn’t want to have it dealt with by the internal office.

An Appeal to the Courts

For reasons already described, many injured workers with the bitterest disputes simply do not trust any tribunal or other entity which they see as being part of the system. One of hallmarks of a good appeal structure is the "loser satisfaction index" - the extent to which those who are unsuccessful at the end of the day leave with at least the sense that their case has been fairly and courteously heard and considered, even if it was ultimately rejected.

For many injured workers, the only tribunal in which they would have that level of confidence is the regular court system. The Commission heard from many workers who said that they wanted their day in court. Sometimes this was described as wanting to sue the Board, sometimes as wanting to appeal, and sometimes as wanting the courts to administer benefits. However the individual workers put it, what they wanted was the ability to have a judge, whom they perceive to be truly independent of the Board’s influences, determine their dispute.

Because of the overriding importance which workers’ compensation has in the lives of significantly disabled workers, we recommend that a special form of appeal to the court be added to the existing appeal structure. In proposing this, it is only fair to point out that there is a fairly strong sentiment in the worker advocacy community opposing such a step, because of fears that appeals to the court would necessarily be complex, expensive, and time-consuming, and that they would lead to much greater involvement of lawyers in the system.

The latter may be inevitable anyway, if workers are to receive the level of representation they need in resolving disputes over the most significant legal disputes they may ever face in their lives. The 1987 Ombudsman Report discusses the need for trained representation, and another theme which the Commission heard repeatedly from injured workers is that they do not now feel that they have adequate access to advice and representation. See the submission to the Board of Governors from the Canadian Bar Association, which proposes a limited, partial response to this concern.

As for appeals to the Court necessarily being expensive, complex, legalistic, and time-consuming, that will depend on the procedures and rules which are developed. Courts can operate quite informally, if the legislation indicates that they should do so. Procedures can also be informal. Quite a few years ago the Supreme Court of Canada ruled that Family Court judges could not issue injunctions to enforce custody orders. This led to development of the Supreme Court’s "Interim Family Rules" which expressly overrode the general rules of court and established a very informal, free process for bringing such issues to the Court. Typically, hearing in Chambers are quite informal, and a separate time could be set aside to enable the Court to hear compensation appeals separately from other cases. The judges assigned to hear such cases could be limited to a modest number (as needed in light of the workload) who would develop expertise as they hear more and more cases.

We would not favour limiting such appeals to issues of law or jurisdiction, as that would be little improvement over the access to the courts which workers now have by way of judicial review. At what will clearly be the final hope for vindication, a worker should be able to talk about the real issues, and to receive a decision based on those issues.

If it is felt that allowing all decisions to be appealed to the Court would result in too many appeals for the system to absorb, we would prefer to see a system of applications for leave to appeal to a registrar-like official used to control the floodgates, rather than restricting the grounds for appeal. The leave process can be flexible enough to recognize that some appeals should simply proceed because of their financial importance to the worker, while others might to granted leave because they do involve a legal issue of general importance. Whatever the status of the Appeal Division, such an appeal to the Court would certainly result in decisions which the Board would be obliged to follow in other cases turning on the same legal issue.

Occupational Diseases

Our full written submissions on this important subject will be filed as soon as possible. The major points are as follows:

1. Anomalies in the present language of the Act must be eliminated. For example, the reference to "... and is thereby disabled from earning full wages at the work at which he was employed..." in s. 6(1) should be changed so that a worker suffering an occupational disease which doesn’t become disabling until after retirement is not denied all compensation. In cases of permanent disabilities due to injury, functional pension benefits payable under s. 23(1) continue for life, whether or not the worker would have been retired anyway. While there are theoretical explanations for this, the appearance to injured workers is that victims of occupational disease are not receiving just compensation (in fact, they’re not receiving any compensation), and that this is discriminatory and unjust. It should be noted that the creation of a new benefit for non-economic losses, as we have proposed under the heading of pensions above, could be a more appropriate form of compensation in such cases.

2. The cost of occupational disease claims should be allocated to the classes representing the industries where the relevant exposure occurred. This is an area where employers do need an economic incentive to spend what may be large amounts of money and/or disruption to the work process in order to replace dangerous materials with safer ones, provide better protection from airborne and other potential causes of disease, and change the process of the work to reduce risks.

3. The Commission has received a submission from West Coast LEAF urging that sexual harassment be specifically recognized as a compensable, work-related injury. The section 10 bar and the current limits of compensation would raise some problems, but the submission makes the excellent point that harassment makes women distracted and increases the risk of injury both to the victim and to others, and that the Board is in the best position to educate employers on the need to develop policies and rules that prevent harassment from occurring, and respond appropriately when it does. By not regarding this as a compensation issue, the prevention of such harmful and potentially dangerous activities is also removed from the Board’s mandate.

4. The same point can be made about work-related cancers, which according to comparative statistics from the U.S., are vastly under-reported (and therefore under-compensated) in B.C. Cancer is one of the leading causes of disablement and death. It poses special problems for the Board both respecting prevention and compensation, because it is often so long after the causative exposure before the cancer appears, and because there are so many potential other causes of most cancers that proving causation is extremely difficult. If that a reason for the system to leave cancer victims uncompensated? We say no. We also say that only by recognizing that many cancers are work-related, and paying the appropriate compensation in such cases, will the Board do what is necessary to prevent or reduce further occurrences. It’s really quite appalling that municipal governments (meaning we, the taxpayers) are spending large amounts fighting compensation claims by firefighters and others who are exposed to clearly dangerous substances in the course of their employment protecting our lives and property. The focus of both the Board and employers should be on acquiring the knowledge to avoid the most dangerous exposures with better protective equipment, and to search for means to neutralize the damage caused by exposure after it occurs. That will not happen until the responsibility of the Board and employers is accepted. The same can be said for many other workplaces and work processes in both the public and private sectors. Governance of the Board

The governance of the Board is obviously of great importance to injured workers. They are the intended beneficiaries (and, too often, the unintended victims) of the Board’s policies, which are created by the governing body. They are equally affected throughout their dealings with the Board by the manner in which the administration carries out those policies.

Accountability has been an important theme of injured workers’ presentations to the Commission. We have tried to suggest various ways to make the system more accountable, such as changing the focus of experience rating from the cost of a claim to the employer’s degree of responsibility, if any, for its occurrence. We have also urged the creation of an independent body to hear complaints of abusive, illegal, or otherwise improper conduct by the Board respecting a worker (and there is no reason in principle why employers should not have equal access to this process).

Accountability starts at the top, however, and injured workers want and deserve to have a recognized role in the governance of the Board. We recommend that there be injured worker representation on the governing body itself. At this stage in the development of an injured workers’ movement in British Columbia, it is not feasible to detail a formal means of choosing those representatives. Injured workers have been disenfranchised and ignored by the system, until this Commission (to its great credit) determined that their interests be represented in the final phase of the hearing process. Granting the injured worker community the respect it deserves and the role it needs to be able to perform will bring about changes that will gradually enable the choosing of its representatives to be done on a semi-autonomous basis, as is the case with the representatives of the Federation of Labour and the employer community. In the interim, the Minister may have to choose injured worker representatives, following a careful and fair process of consultation with all interested parties.

In addition to a role on the governing body, injured workers and their groups and leaders must be included in the consultation process which the Board now undertakes regarding significant policy issues. Since consultation leads to advice and criticism, but not decisions, the existing groups and leaders should be included at their request, and new groups added as they are formed. The perspective of these representatives of the community, while they will often disagree with one another, can only benefit the governing body in reaching decisions that respect the needs and desires of injured workers in general.

Policy and Law

What is Policy?

Complex administrative agencies such as the Workers’ Compensation Board require complex and detailed legislation to define their powers and the ways in which it may be used. Most drafters do not attempt to include all of the needed details in the statute, both because it would be too cumbersome and because it would be too difficult to change. Instead, the statute sets out broad principles, and confers authority on an appropriate person or body to fill in the details by enacting regulations. Once validly enacted under the authority conferred by the statute, the regulations have the same force of law as the Act itself.

In many cases, no detailed written rules, whatever form they take, could be sufficiently broad and flexible to allow the administrators to reach a fair decision in the many different and sometimes unforeseen circumstances that will come before them. The most common approach to such situations is to grant the administrator a range of discretion, coupled with guiding principles which should indicate the kind of result intended by the legislators for all situations. An important provision of the Workers’ Compensation Act which tries (however imperfectly) to achieve this is s. 33(1), in which the Board is directed to determine the worker’s average earnings and earning capacity so as "best to represent the actual loss of earnings suffered by the worker by reason of the injury..."

Because consistency is considered an important element of justice, agencies which must employ many administrators to make a great many decisions often feel the need to define as precisely as possible how their discretion should be exercised in any given case. They do this by issuing general policy guidelines. For the WCB, the main set of such guidelines is the Rehabilitation and Claims Manual.

As important as the goal of consistency is, it should not be forgotten that the legislation granted the Board a wide discretion precisely because it is required to deal with a myriad of different situations that cannot be fully foreseen in advance. Good policies must be carefully drafted to reflect their limited purpose, which is to guide the exercise of discretion toward the statutory goal in the great majority of cases, without precluding the administrator from finding another way to achieve the goal in the unusual and unforeseen cases. While the Manual often strikes such a balance, there are many instances where it does not do so, leaving the Board’s officers with the view that they must apply the policy in a certain way however irrational and unfair the result may be.

It has been well established that policy is not "law" and that an administrative agency errs if it attempts to treat policy as law. The Supreme Court of Canada has said that an administrator "may validly and properly indicate the kind of considerations by which he will be guided as a general rule in the exercise of his discretion ... but he cannot fetter his discretion by treating the guidelines as binding upon him and excluding other valid or relevant reasons for the exercise of his discretion..." Maple Lodge Farms v. Canada [1982] 2 S.C.R. 2, quoting the reasons of Le Dain J in the Federal Court of Appeal with approval. The British Columbia Court of Appeal has applied the Supreme Court’s reasoning to the Workers’ Compensation Act in Testa v. W.C.B.

The applicability of these principles to the current workers’ compensation system should be clear. There have been frequent suggestions, however, that the references to "policy" in s. 82 and to "published policy of the Governors, " in s. 96(4), both of which was added to Act in 1991, somehow elevates policy to a higher plane. In our view, that position is untenable. All that these references do is to designate the Governors as the appropriate part of the Board to create and change policy (clearly consistent with the Munroe Committee’s view of their role) and to provide an way for the Board to secure a second examination of a decision of the Review Board which appears to violate a policy. It makes sense for the Board to have this ability, to be used if its senior executive officer agrees that the issue is serious enough to warrant its use. It by no means follows that the Legislature meant to make the Board’s "published policy" (which is not even defined in the Act) to have the status of law, like the Act or regulations, until it has been formally set aside by a court or revised by the governors.

How Should Policy Be Made (and Changed)?

We agree that policy should only be made (and changed) by the governing body of the Board. Section 82 requires this. However, as the "code R" debate demonstrates, the line between policy and "practice" needs to be more clearly defined so that the administration cannot do an end run around the safeguards that apply to policy changes by treating them as practice changes (or as issues of the "implementation" of policy, which fall within the president’s authority under s. 84(3)(b) of the Act. It should be noted that the president’s powers may be delegated pursuant to s. 84(4) to "an officer of the board or any person..." [emphasis added]. Only by calling the president to account can the governors control the implementation of their policies at the individual claims level. This is a necessary feature of such a large organization handling so many individual matters, and would not be a matter for concern if both the governing body and the administration understand the line between creating policy and implementing it.

The present official system for stakeholder consultation before any policy changes are made is also a reasonable one. If it is followed in good faith by the governing body, all affected parties will at least have an opportunity to participate in the process, although they may be disappointed by the result. We recommend that established groups and leaders in the injured worker community be included in these consultations. This includes the right to attend information meetings to discuss policy development (such as the ongoing Employer Services Strategy process), and written notice of upcoming issues so that they can participate by way of written submissions to the governing body.

Interim Policy Changes Following Appeals

The current practice of ignoring decisions of the Appeal Division that a policy is illegal (in that it violates the Act, for example) and continuing to apply that policy until it has been changed by the governors cannot be allowed to continue. The appeal system loses much of its credibility when the same issues must be re-appealed and re-decided in claim after claim. The solution is to put an interim policy into place in these infrequent but high-profile and important cases. The Board failed to do this when the Appeal Division ruled that current policies violated the Act by automatically terminating all loss of earnings pensions at age 65, and by automatically cancelling all functional pension benefits upon a worker’s imprisonment. An interim policy was eventually adopted regarding the loss of earnings pensions, but even after several years, the imprisonment policy is still being applied.

What should this interim policy be? The most "neutral" approach is for the Board to advise its officers to disregard the portions of the existing policy which have been ruled illegal, and simply administer the Act according to the remaining policy and general principles of law. One of the misconceptions which seem to underlie some of the Board’s repeated problems with "policy" issues is the implicit belief that a policy is needed for every situation which arises. In fact, the Act could be administered without any policies at all, although consistency of decision-making would suffer and claimants would be even more confused about the "rules" than they are now. The former Chief Appeal Commissioner asked the Governors to develop policy covering claims for psychological disabilities not resulting from a physically traumatic incident. The fact that the governors did not do so certainly doesn’t mean that the Board is entitled to reject all such claims simply because there is no policy to allow them. (Unfortunately, however, statistics show that this is exactly what the Board has done.) Instead, such claims must be adjudicated according to the fundamental principles set out in s.5 and 6 of the Act, and the relevant medical and other evidence. This applies equally to situations in which the existing policy has been ruled illegal, but not yet replaced.

Finally, a related issue which concerns the structure of the appeal system is the Board’s present view that it would somehow be improper for it to judicially review a decision of the Appeal Division, because it is internal to the Board. That reticence will be removed if the Commission agrees with us the appeal division, like the review board, should be independent of WCB. If that does not happen, however, we believe that the Board should change its position on judicial review. Since s. 85(5) of the Act, etc., protect the decision-making function of the Appeal Division from interference by the Board, there is no apparent reason why the Board could not apply to set aside a decision which is thought to be based on an error of law or excess of jurisdiction. We believe that the court would recognize and respect the Legislature’s intention that the Appeal Division operate at arm’s length from WCB, and recognize that a judicial review is the only appropriate means the Board has of ensuring that the Appeal Division doesn’t exceed its own limited but independent jurisdiction.

Why would injured workers advocate a more active judicial review stance by the Board, given that many (though by no means all) of the challenged decisions involve appeals by workers that have been allowed? In short, because the Board would then no longer have an excuse to apply the decision only to the individual claim, forcing other workers in similar circumstances to file and pursue their own appeals.

In our view, the Board’s present position is somewhat hypocritical. If the decisions of the Appeal Division must be regarded as the Board’s own, and therefore unassailable in court, it should follow that the Board must observe them in similar cases. The present position that the Board "can’t" or "shouldn’t" challenge a decision it disagrees with, but is free simply to disregard it in all future cases is totally unacceptable in any system that seeks to administer benefits according to law.

How Should Policy Be Implemented?

Policy should be implemented according to the spirit of the Maple Lodge Farms and Testa decisions. I.e., the administrator must never lose sight of the ultimate objectives of fair compensation as embodied in the Act itself. Where the details of existing policy seem to lead to a result that contradicts the "merits and justice of the case," section 99 requires the administrator to depart from the policy to the extent needed to achieve that goal. We understand from the presentations of the Board that they recognize this, as the Manual itself recognizes that it is subject to law.

Remaining Issues from the 1st Phase: Fatalities and Prevention

Fatality Benefits

Should Fatality Benefits Be Based on Need or Loss?

Our position is that surviving dependents of a worker killed on the job should receive compensation for the family’s economic loss, and that this should be paid not as charity, but because justice and fairness demand it. Need should not be the focus of survivor’s benefits, anymore than it is for other types of compensation. The surviving dependents should receive compensation for the income which the worker brought to the family without having to plead and establish poverty. It follows that the distinctions based on age should be repealed, whether they are constitutional or not, because they can only be a very clumsy attempt to address need.

Remarriage in the context of "need" and "loss"

Terminating benefits for surviving spouses who remarry is more difficult to analyze in "need" v. "loss" terms. From one viewpoint, the "loss" from which the Act insures workers includes the loss of their contribution to their dependents should they die on the job. When a worker dies, benefits should be paid regardless of whether the dependents later find new sources of support (which could be a new job or life insurance, as well as a new spouse). An alternate view is that since tort law may take the contingency of remarriage into account, and might also deduct a new spouse’s actual contribution if the remarriage occurred before the trial, workers’ compensation should do the same. We submit that workers’ compensation is much more an insurance system than a tort system, and that the former approach is therefore more appropriate. Charter of Rights Issues

Age Discrimination

As counsel for the appellant widow in the closely related Canada Pension Plan case (Nancy Law), which was argued before the Supreme Court of Canada in January and is now awaiting decision, I am in a relatively good (yet awkward) position to comment on the question of whether the age distinctions in s. 17 contravene the Charter. I will therefore comment briefly on the issues raised at page 149 of the Commission’s interim report. `

I personally believe that the age distinctions in s. 17 are discriminatory and unconstitutional. The two earlier decisions of the Appeal Division were right, and the most recent one is wrong. The latest decision is based on a misguided analysis of whether the stereotypical assumptions underlying the notion that younger survivors have less need are flattering or insulting. The constitutionality of a provision which uses a group characteristic such as age to determine the right to receive an economic benefit should not turn on such a subjective factor. If it does, the government will always argue that the legislature simply didn’t feel that the excluded group needed it. Rarely will the record show that a group of people was excluded because the government didn’t like then and wanted to make them suffer.

This approach is wrong because s. 15 of the Charter is primarily concerned with the discriminatory impact on the persons affected by the law, not the intent of the government. The proper approach is to ask whether the group characteristic used to grant or withhold the benefit is a reliable indicator of whether an individual fits within the law’s purpose or not. For reasons set out clearly and logically in the Decision 93-1222, age bears little if any relationship to need, which is clearly the only purpose the age distinctions could address. Age may not even be relevant to need, but it certainly is not so closely related that it can be used in place of a direct economic test.

Remarriage and the Charter

We will primarily address this question as a matter of fairness and justice for survivors rather than constitutionality. In a Charter context, remarriage could be seen as a much more direct indicator of need than age, and remarriage may also be considered relevant to whether the survivor continues to suffer a loss. However, its relevance to either need or loss could only be determined by examining the details of the financial position of the new spouse, as well as the survivor. Moreover, the relationship to loss also depends on whether the Court is willing to treat loss as "net economic loss" , determined by subtracting the new spouse’s contributions from those which the deceased worker would have made. We will argue below that this is an offensive and insulting analysis which a court may well be unwilling to employ, especially in a Charter equality case. Should Remarriage Terminate the Pension?

In a word, no. Surviving spouses are not applicants for welfare or charity; they are dependents of a worker whose support and contributions to their family income has been taken away because of a tragic workplace accident or disease. It would be quite wrong to create disincentives for remarriage by providing that a pension would cease for that reason. A survivor wishing to enter a new family relationship should not be penalized for doing so, or find herself having weigh the loss of her pension against the economic and non-economic benefits the remarriage will bring.

If ending a pension due to remarriage is seriously considered, the Commission should carefully examine just how the compensation system could fairly take account of variables such as the risk that the new marriage may not last, and the ability and willingness of the new spouse to make the same contribution to the family’s income as the deceased worker. Gathering such information would be intrusive and offensive to survivors and their intended new spouses, and the whole process would convey the apparent "message" that the WCB considers the life of a worker to be replaceable, like a car that is stolen or a house that burns down.

Every compensable death is one too many. But the total each year is not large. There were 125 deaths in 1997 leading to accepted compensation claims. Not all will leave eligible survivors, and certainly not all survivors will remarry. The "savings" resulting from terminating those pensions would not justify the intrusion into the lives of the survivors that it would necessitate.

Stacking and Integration

In our view, survivors as well as injured workers should be entitled to receive both CPP benefits, if any, and s. 17 benefits. A CPP survivor’s pension is not large (not nearly sufficient to support the survivor) and merely replaces a part of the deceased worker’s contribution to the family. The compensation under s. 17 will usually be greater, but will still rarely equal the worker’s full pre-injury earnings.

In any event, the principle which we feel should apply is that benefits under the Workers’ Compensation Act should not be reduced because of other monies which a survivor may receive, whether from group or private life insurance, CPP, or other sources. If the federal government decides with the agreement of most provinces that CPP benefits should be integrated with compensation, the Plan will be amended so that workers accordingly, and in all likelihood will make the WCB continue to the "first payer", thus reducing the CPP pension rather that compensation benefits. If there is to be integration at all, it is more appropriate that the compensation system, which is created to pay benefits for this type of loss, should bear the primary responsibility. Prevention of Injuries

What Agency Should Be Responsible for Prevention?

We agree with the Federation of Labour and employer groups that WCB should continue to be the agency responsible for prevention, including both educating employers and workers and enforcing the regulations, by carrying out inspections, making remedial orders, imposing penalties, and assessing the cause of an injury or disease for purposes of an employer responsibility rating process that should replace the present system of experience rating. The Board told the Commission that the updated computer system now being installed would enable staff in preventions, assessments, and claims instant access to information collected by any of the Board’s departments.

Having this comprehensive safety and health information about each employer would be a great advantage if the Commission agrees with us that the the experience rating system should be changed to focus on the causes of serious claims and whether the employer bears any responsibility for them.

Safety and Health Education

It also makes sense for the Board to be a major source of safety and health education program for employers and workers. In fact, it should be a priority for the Board to develop a short program on workplace safety that can be incorporated into the work experience programs of B.C.’s secondary schools. Aside from the benefits of reaching students before the leave school to go into the workforce, such a program could help to reduce the risk of injury during work experience itself.

The Board’s education program can go beyond the current limits of compensability to deal with behaviour that makes injuries more likely to occur. For example, the submission of West Coast LEAF argues effectively that sexual harassment distracts its victims from their work and increases the risk of injury to them, and to their co-workers. While sexual harassment per se is unlikely to be made compensable (in the absence of an injury which disables the victim from working), it is a very legitimate subject for prevention regulations and education.

Preventing Injuries to Home Business and Homeworkers

This is an especially difficult area of workers’ compensation reform, since it leads to a conflict between the safety and health of workers and their right to privacy and autonomy in their own homes. A carefully designed solution is required, since advances in technology, and the increasing problems and costs of commuting and working in big cities will inevitably make such work arrangements more and more common. With almost universal coverage, many types of work arrangements that would previously have been outside the Act altogether are now covered.

The task is not simply to protect a new class of cottage peasants from exploitation by their masters. The "new home workers" do include recent immigrants employed by the garment industry at low piecework wages, but many other home workers are highly educated professional and consultants who have sought the right to work at home because they value the flexibility and independence such arrangements offer. With technology improving, more and more clerical workers may want the advantages of working at home to avoid commuting and stay closer to their children. Most of the new home workers will not thank the Board if an overzealous prevention program introduces expensive and inconvenient new rules that dictate how their home work areas must be arranged and equipped.

The Commission also should not exempt all home workers from all safety rules. Home workers who are covered by the Act, whether they work at home primarily for the employer’s benefit or their own, are still at risk of suffering an injury, for which the Board would have to pay compensation. The Commission must weigh the invasion of worker’s privacy and loss of control over their family homes against the need to promote safe work practices and reduce claims costs by avoiding preventable injuries.

In our view, the need to balance these factors calls for different results, depending on the particular circumstances of the home workers in question.

1. Those who have chosen to purchase P.O.P. protection should be required to comply with reasonable safety requirements even in their own homes, since they will expect the Board to compensate them for any injuries they may suffer while working there.

2. People who not only work out of their own homes themselves, but also employ others to work there should be subject to whatever safety requirements are necessary to protect their employees from injury. Workers should not be left at greater risk because their employer has chosen to operate the business from the employer’s residence rather than a separate workplace.

3. Some home workers are self-employed persons who have mandatory coverage only because they have incorporated their business or practice, and are employees of their companies. There is no convincing policy reason why such "employees" (who are also owners, and hence their own "employers") should be covered by the Act at all, unless they voluntarily take out P.O.P. coverage. If the Commission agrees that coverage in such cases should be optional, those who voluntarily remain in the system should be subject to reasonable regulations.

4. Home workers whose employers require such arrangements as a condition of employment (or strongly encourage it because it saves the employer overhead costs) should be subject to reasonable regulations, which should be sufficiently flexible that they do not effectively force the employer to dismiss the worker. Since the home work arrangement was reached at the employer’s initiative, any costs of complying with the regulations should be borne by the employer. When orders are made in such circumstances, the Board should be vigilant in protecting the worker from dismissal.

5. Employees who work at home all or part of the time at their own initiative pose the most difficult problem. If the arrangement is primarily for the worker’s benefit, any regulation or order that requires the employer to spend a significant amount on the worker’s home work area is quite likely to bring the situation to an end. However, it would be a sharp departure from the fundamental principles of the Act for the Board to be able to force the worker to make such changes at his or her own expense. One solution is to make the regulations advisory rather than mandatory in such cases, and leave the question of costs to be worked out between the two parties.

The law does not have to arrive at a definite answer to every circumstance. The solution we have proposed would balance the opposing rights, leaving it to the worker, who is most affected by both the cost and the risk, to make the choice. Would this necessitate depriving the worker of full compensation if injured in a way that would probably not have happened had the regulations been strictly applied? In our view, no. Workers will not be reckless with their health; self-preservation is a basic instinct, and especially in their own home, workers will be reasonably careful whatever the law may say.

Should the employer be financially affected by an injury that would not have occurred, had the worker who was working at home at his or her own request complied the Board’s safety regulations? Probably not, if this was the worker’s own choice. Since the law would allow a worker to make such a decision, it can be argued that there was nothing in such an employer’s conduct (or inaction) that brought about the injury.

Finally, the task for the Board of determining whose idea it was for the employee to work at home would not be as difficult as it might first seem. The starting point is the history of the arrangement. Other factors would include whether co-workers doing similar jobs also worked at home, whether the employee also has a desk or other workspace at the employer’s site, whether the arrangement is full or part time, whether the employer paid to have specialized equipment installed in the worker’s home, etc. This finding of fact will be relatively easy in most cases, while some circumstances will pose difficulties. That is no different than many aspects of the workers’ compensation system.

Regulations Must Be Reasonable

In all of these cases, regulations which will apply to the worker’s home must be reasonable, and include considerable flexibility to accomplish the safety goals in different ways, so long as the goal is met in the end. (Of course, all regulations should be reasonable; the fact that the requirements are to be applied to the worker’s home simply makes this more obviously important.)