SUDBURY CONSTRUCTION ASSOCIATION
ONTARIO PUBLIC SERVICE EMPLOYEES UNION, SUDBURY AREA COUNCIL
ADVOCATE FOR INJURED WORKERS OF ELLIOT LAKE
SUDBURY COMMUNITY LEGAL CLINIC
UNITED STEELWORKERS OF AMERICA, DISTRICT 6
EMPLOYERS' ADVOCACY COUNCIL, SUDBURY CHAPTER
SUDBURY AND DISTRICT CHAMBER OF COMMERCE
ADVOCATE FOR INJURED WORKERS OF SAULT STE MARIE
ADVOCATE FOR INJURED WORKERS OF SUDBURY
NORTH BAY AND AREA INJURED WORKERS ASSOCIATION
UNITED STEELWORKERS OF AMERICA, LOCAL 6500
SUDBURY AND DISTRICT LABOUR COUNCIL
NORTHEASTERN ONTARIO BUILDING AND CONSTRUCTION TRADES COUNCIL
CONTENTS
WEDNESDAY 6 AUGUST 1997
Workers' Compensation Reform Act, 1996, Bill 99, Mrs Witmer /
Loi de 1996 portant réforme de la Loi sur les accidents du travail,
projet de loi 99, Mme Witmer
Sudbury Construction Association
Mr Dean Gatien
Mr Ron Martin
Ontario Public Service Employees Union, Sudbury area council
Mr Bill Kuehnbaum
Advocate for Injured Workers of Elliot Lake
Mr Joe Virth
Ms Judy Burgess
Sudbury Community Legal Clinic
Mr Terry Copes
United Steelworkers of America, District 6
Mr Homer Seguin
Employers' Advocacy Council, Sudbury chapter
Mr Ron Ker
Sudbury and District Chamber of Commerce
Dr José Blanco
Advocate for Injured Workers of Sault Ste Marie
Ms Judy Cranston
Advocate for Injured Workers of Sudbury
Mr Gilles Campeau
North Bay and Area Injured Workers Association
Mr Roland Dagenais
Injured Workers' Advisory Services of Sault Ste Marie and Algoma
Mr Pat Jolin
Crisis Centre North Bay
Ms Kerri Vlach
Mr Kevin Conley
Ontario Mining Association
Mr John Blogg
Mr Gary Hughes
United Steelworkers of America, Local 6500
Mr Kevin Conley
Sudbury and District Labour Council
Mr John Filo
Mine Mill Local 598/CAW
Mr Gary Hrytsak
Northeastern Ontario Building and Construction Trades Council
Mr Andy Holder
Mr Peter Hudyman
STANDING COMMITTEE ON RESOURCES DEVELOPMENT
Chair / Présidente
Mrs Brenda Elliott (Guelph PC)
Vice-Chair / Vice-Président
Mr Jerry J. Ouellette (Oshawa PC)
Mr Dominic Agostino (Hamilton East / -Est L)
Mr David Christopherson (Hamilton Centre / -Centre ND)
Mr Ted Chudleigh (Halton North / -Nord PC)
Ms Marilyn Churley (Riverdale ND)
Mr Sean G. Conway (Renfrew North / -Nord L)
Mrs Brenda Elliott (Guelph PC)
Mr Doug Galt (Northumberland PC)
Mr John Hastings (Etobicoke-Rexdale PC)
Mr Pat Hoy (Essex-Kent L)
Mr W. Leo Jordan (Lanark-Renfrew PC)
Mr Bart Maves (Niagara Falls PC)
Mr John R. O'Toole (Durham East / -Est PC)
Mr Jerry J. Ouellette (Oshawa PC)
Mr Joseph Spina (Brampton North / -Nord PC)
Substitutions / Membres remplaçants
Mr Richard Patten (Ottawa Centre / -Centre L)
Mr R. Gary Stewart (Peterborough PC)
Also taking part / Autres participants et participantes
Mr Floyd Laughren (Nickel Belt ND)
Ms Shelley Martel (Sudbury East / -Est ND)
Clerk / Greffière
Ms Donna Bryce
Staff / Personnel
Mr Ray McLellan, research officer,
Legislative Research Service
The committee met at 0907 in the ITT Sheraton, Sudbury.
WORKERS' COMPENSATION REFORM ACT, 1996 LOI DE 1996 PORTANT RÉFORME DE LA LOI SUR LES ACCIDENTS DU TRAVAIL
Consideration of Bill 99, An Act to secure the financial stability of the compensation system for injured workers, to promote the prevention of injury and disease in Ontario workplaces and to revise the Workers' Compensation Act and make related amendments to other Acts / Projet de loi 99, Loi assurant la stabilité financière du régime d'indemnisation des travailleurs blessés, favorisant la prévention des lésions et des maladies dans les lieux de travail en Ontario et révisant la Loi sur les accidents du travail et apportant des modifications connexes à d'autres lois.
The Chair (Mrs Brenda Elliott): Good morning, everyone, ladies and gentlemen, members of the committee. This is a reconvening of the standing committee on resources development for consideration of Bill 99. We're very pleased to be here in Sudbury this morning, and we look forward to the presentations that will be brought before the committee.
Mr David Christopherson (Hamilton Centre): Madam Chair, as I did in Toronto at the opening of these hearings, I would like to present a motion. I'd like to read it, if I may.
Whereas there has been overwhelming public interest in Bill 99, which would totally rewrite the Ontario Workers' Compensation Act; and
Whereas more than 1,150 groups and individuals who asked to make presentations before this committee have been refused because the government did not allow enough time to hear them; and
Whereas at least 114 groups and individuals from northeastern and north-central Ontario submitted requests to the committee before the deadline, but there is only time for 21 presentations today;
I move that this committee recommends to the government House leader that when the House resumes sitting, the order with respect to Bill 99 be amended so that the bill can be returned to the standing committee on resources development for extensive hearings around the province, including more hearing days in northeastern Ontario.
Madam Chair, it's a disgrace that there are only six days to hear a complete rewriting of the Workers' Compensation Act. On behalf of the NDP caucus, I move a motion that would allow us to provide the kind of public hearings that the working people of this province are entitled to.
Ms Shelley Martel (Sudbury East): I obviously support the motion that's been moved by my colleague from Hamilton. The government makes it clear by the fact that it only wants six days on the road with respect to this bill that it doesn't really want to hear from the public, particularly injured workers, with respect to how this bill is going to affect them. Let's be clear: With the very dramatic changes the government is making here, all of which are negative, all of which are detrimental, the lives of people who are injured now and in the future will be dramatically changed, and it won't be a positive change.
If the government is serious about finding out how these changes are going to impact on the lives of people who get hurt at work, who are getting killed by industrial disease -- unless the government extends these hearings, it will be clear to everyone that once again the government is trying to limit the rights and the benefits of workers in the province of Ontario.
I urge the government to do the right thing and extend these hearings so you can hear directly from the people whose lives are going to be affected the most, that is, the injured workers of Ontario.
Mr Floyd Laughren (Nickel Belt): I understand that the motion has already been put and that the committee can't extend hearings right now as we sit here. I believe the intention is for the Legislature to sit from the middle of August to the middle of September, roughly, and then there would be another break for the fall session. So there is opportunity to have more hearings across the province. It's not a question of there not being enough time; there sure is. Historically, there has been a lot more hearings than this government is allowing when there have been major changes to workers' compensation.
The motion by my colleague is a reasonable one. It doesn't suspend the hearings already under way. It allows those to continue and to hear from people who already understand that they're going to be making presentations. I would urge members of the committee to support this motion.
The government members presumably have nothing to be ashamed of in this legislation. You would want more and more people to see it in the light of day and to speak to it, if you're not ashamed of it. I urge the government members, because that's how the decision will be made, that if the majority on the committee will vote for the motion, we'll get more hearings.
Interjection.
Mr Laughren: It has to go back to the House leaders. I understand that. At the same time, House leaders are known for saying that committees should set their own agenda. They'd be hard pressed to deny this committee's holding more hearings if there was a motion from the committee that supported that.
Mr Richard Patten (Ottawa Centre): I support the motion put forward here. Of course it's been put forward before and defeated each time.
The request is that there are so many groups that have asked to speak to this and don't have an opportunity. I think they should. It seems to me that we can take time. The government is looking at extending special time each day in the Legislature -- three hours in the evening would constitute a day, although it hasn't been passed yet -- so if it wants more time to spend in the Legislature it seems to me it should take more time to listen to the people.
This has grave impact upon many workers throughout Ontario, especially for those who are injured. It seems to me we'd be extremely wise to allow time and also allow the opportunity for the minister herself to meet face to face with some of the injured workers who have been requesting that meeting for a long time.
The Chair: I have reviewed the motions that were made before, on June 25 and June 9, and this is an almost identical motion. I think that it's been appropriate to allow comment on the motion, but I believe the motion is out of order and would require unanimous consent to go forward.
Mr Christopherson: Then I would seek unanimous consent, which would be the parliamentary process that would allow this to be in order. With the support of the government members -- both opposition parties are in favour -- we can give unanimous consent. That would make this particular motion in order and would give effect to the process that my colleague Mr Laughren has spoken about. I seek unanimous consent to put this motion so we can vote for it and give the workers of Sudbury and the other communities of this province a chance to be heard. This is a chance for the backbenchers of this government to stand up and do what's right and stop following, in lockstep, a process your government has set forward that is denying people and is muzzling people. I seek unanimous consent to put this motion.
The Chair: Do I hear unanimous consent? No, there is not unanimous consent. We'll move forward.
Interruption.
The Chair: I remind members of the audience that you are most welcome to attend the committee hearings today. However, this is a standing committee of the Legislature. I believe some of you understand that we are governed by the same rules of the Legislature as would occur if you were at the Legislature at this time. Demonstrations and interjections are not allowed. We are here to hear evidence, to hear comments, to hear advice from presenters.
SUDBURY CONSTRUCTION ASSOCIATION
The Chair: I now call upon the Sudbury Construction Association, Mr Martin and Mr Gatien, to come forward. Good morning, gentlemen. Welcome. You have 20 minutes in which to make your presentation. You can use it as you wish.
Mr Dean Gatien: Good morning. My name is Dean Gatien. I'm the chair of the health and safety committee with the Sudbury Construction Association, and past chair of the association. Mr Martin is our executive director and looks after the affairs of our association. On behalf of our 190 members of the Sudbury Construction Association, we want to thank the committee for the opportunity to speak on Bill 99 today.
Our association is made up of general contractors, trade contractors, manufacturers and suppliers in the industrial, commercial and institutional construction sectors. Our association was established in 1948 and has spent the last 50 years representing the interests of the ICI construction industry in northeastern Ontario. Our members have for many years recognized problems with the WCB system and have lobbied for changes.
We are pleased with the principles behind Bill 99 that support a strong role of the board in health and safety that stresses accident prevention and returning injured workers to their workplace. We also support the implementation of the fiscal responsibility that will allow the board to properly insure injured workers into the future. The previous increase in unfunded liability, as well as the formation of the Workplace Health and Safety Agency, were clearly headed towards financial ruin and put the future of injured workers at risk.
Construction has, for the last few years, seen WCB rates increase at an alarming rate. Some high examples are the masonry and roofing sections, which have increased over 100% in the last four years. We feel these increases have contributed to five years of continuous decline in the construction industry and have become a barrier to investment in Ontario. These increases have occurred while accident frequency rates in the province have decreased by 63% between 1985 and 1995. While we do not have regional statistics as accurate, we are making assumptions that there are no serious variables that would significantly vary the results in northern Ontario from the provincial numbers.
Our members believe that part of the decrease in the frequency rates is due to the CAD-7 rating system specifically developed for the construction industry. We also believe that lower accident frequency should result in lower cost, and the current system has failed our industry.
Currently the cost of lost-time injuries in construction is 261% higher than the cost outside the industry. Future economic loss accounts for 51% of all construction costs, and an injured worker in construction is 2.5 times more likely to be awarded a future economic loss than a worker outside the industry.
0920
While we acknowledge our industry has safety risks for workers, we feel we do not have the capacity to successfully return injured workers to work in the current system. Many of our members are small contractors and the length of time working for a single employer is often less than three to four months. Due to this reality, an injured worker is not likely to return to his accident employer. Under the current system there is little incentive for either the worker or the employer to do so.
The current return-to-work regulations under Bill 162 pertain to workers continuously employed for one year by an employer who regularly employs 20 or more workers. This eliminates the vast majority of injured construction workers in this area. Employers who have reinstatement responsibilities must re-employ that worker for at least six months. They cannot guarantee six months of employment for any of their workers. When the employer has no continuing alternative work, the worker is laid off and the employer is fined under the board. It is much simpler to try not to reinstate, and this benefits no one.
We need a flexible industry solution that puts the responsibility on workers, employers, unions in the organized sector, and the board to return injured workers to work in construction. It must be done with the realization that employment will likely be with another employer and may often be in another industry. All parties should be held responsible to develop a plan to make this work. In the unionized sector there is in fact a disincentive for the union to assist the returning injured workers to work, but they are well positioned to find employment meeting the needs of an injured worker returning to work and should be involved in the responsibility for doing so.
Non-accident employers have no incentive to hire returning workers. They should be given some sort of financial incentive or workers in construction will continue to remain on benefits longer than other workers.
We have several recommendations, most made by the Council of Ontario Construction Associations, to allow for flexibility in the construction industry, and the Sudbury Construction Association supports them.
The first recommendation is to direct the board to initiate a process with labour and management representation that will produce a return-to-work regulation. This must be done immediately as most contracts in our ICI sector expire in May 1998.
The second recommendation is to direct the board to take on the responsibility of a return-to-work program in construction.
The third recommendation is to amend subsection 41(8) of Bill 99 so that subsections (1) and (2), (4) through (7), and (9) do not apply. This would allow for the above principles to be incorporated into a new regulation for construction.
A further recommendation from our association is that we would like to see the implementation of a three-day waiting period similar to New Brunswick. This would reduce the number of lost-time injuries. These are really medical verifications and should not be anything but a first-aid situation, and can become a medical aid, which is the proper progression of a claim.
Our members support the changes in Bill 99 and hope the minister will review our recommendations for changes. There is a deep-rooted belief among contractors that WCB is an out-of-control train that is going off a cliff and we are paying the bill for a system that does not work. We look forward to these and further changes that will respond to our industry's needs.
We wish to thank the Council of Ontario Construction Associations for their assistance in providing some preparatory material for our presentation today.
We again thank the committee for this opportunity. We are prepared to answer any questions at this time.
Mr Bart Maves (Niagara Falls): You mentioned that in your sector, in the unionized sector, there's a disincentive for unions to put injured workers back to work. Could you explain that?
Mr Ron Martin:. The issue is that in construction often the job at which the person was injured no longer exists. Therefore, there is no incentive, because the way the system works, the union is looked down on by the worker to try to put the person back on to that job. There is no incentive for the worker, the employer or the union under the current system to get the person back to work. The job no longer exists in construction most of the time.
Mr Maves: When another project comes up, is there not just as much incentive to get the worker back into that project as the project he had been working on that had been completed?
Mr Gatien:. The difficulty is that we're in a market that is affected by a bidding process. That same employer will not get the next job that is in that industry sector, the headache being that if a second employer goes to the hiring hall and says, "I need a worker of this type of skill," they're not going to send somebody to him who has limitations to do that ability. They want a worker who can do the full skill for them. They don't want to have to look after somebody else's WCB problems. There just isn't any process or system in place to get that worker back in, because he's now assigned to an employer and that employer, not the industry, has to get him back to work.
Mr John Hastings (Etobicoke-Rexdale): How would you structure or model a rapid return-to-work approach, given the realities you outline in the existing construction industry? It's very ad hoc, project to project, or maybe year to year. How do you see such a thing working?
Mr Gatien: I would look at it more as a labour pool and a group or classification of employers, and inside that group in that area they have to create a return-to-work and modified work system that everybody participates in, because the number of contractors is high but the number of employees per contractor is very low and the duration of jobs is very short.
The timing of things is difficult and the grouping of people would be much better in bigger numbers, where the union could be the controller of how the person is carrying along. His return to work, his voc rehab, things like that could be pooled inside the control of the union with the support and the interaction of the employers involved. This gets the person back into the industry, not waiting to see if that accident employer is ever going to have a job for him again. It's difficult.
Mr Hastings: The cost is then shared by all the contractors in the industry?
Mr Gatien: The cost is being shared as it is now, because you get to a maximum limit and the rate group pays for it anyway, so why not be more interactive and more positive and everybody try and get this person back to work?
0930
Mr Patten: Thank you for your presentation. I don't know if you have any more copies of it, but we'd welcome having copies.
Mr Gatien: We talked to the Chairperson's assistant and said that we would fax a copy to them.
Mr Patten: I see some members have them already.
I would like to follow up on this idea because I think it has some merit. One of the problems with any government-operated service is flexibility. You try to tie things down so tight that you can't anticipate the continual wonder of variance with human life, that there is always something new in the circumstance.
The idea, if I understand it, is to provide the best of all worlds for the opportunity for employment, for an injured worker to return to work, and in an industry where you have short-term projects and small employers and sometimes there isn't a good fit with a single individual, a person can be part of a pool ready to go back to work now and there's an agreement on an incentive to hire people from that pool. Is this essentially the idea you're promoting?
Mr Gatien: Generally.
Mr Patten: What kind of an incentive, though, might you imagine for an employer to take from that pool?
Mr Gatien: I don't have any specific details. It's things we're going to have to green-light on and toss around and come up with what a proper incentive is, but if there is none, nobody's going to look at it. What we're looking at is, the person gets assigned to a specific employer and until that employer has a job that meets the limitations of this worker, that worker stays at home. That's of no use to the system, it's of no use to the employer, it's of no use to the worker. The worker, in short order, loses his skill, loses his incentive to go to work, and the employer is paying a large bill on top of the actual costs. You're into the CAD system, the NEER system, and the cost of that rating just skyrockets. We've got to work more as a group to get the person back to work of some sort. The person has a specific skill because he's in a specific sector of construction. Somewhere in that sector his skill is usable, so we've got to get him into a group of employers instead of a single employer.
Ms Martel: One of the recommendations you made was a for a three-day waiting period for benefits. You wouldn't be surprised, of course, that I fundamentally disagree with that whole view. I have to ask you your reasoning to support that. You have an injured worker who gets hurt at work. He or she reports that to the accident employer. They go and seek medical attention. It's the physician who orders that injured worker off the job. Yet your premise is that the worker should be denied benefits they are entitled to for the first three days. Why would you put forward such a position?
Mr Gatien: My request and background on it is that through the due diligence and the concern an employer would have for a worker, as soon as a person is injured -- and what I'm looking at is not critical injuries or serious injuries; I'm looking at minor strains, sprains, soft-tissue injuries -- you would normally send the person to medical aid only to verify that the person is okay. A large number of lost-time injuries are three to six days and really shouldn't be lost-time injuries. They should be listed as first aid and medical aid and progress to the lost-time injury based on how the person receives medical attention.
Maybe I can give you a small example. Due to the geographic location of northern Ontario, a person could be working anywhere that is miles and miles away from proper medical attention. It could be he receives a bruise or a strain or something and you want to verify that person is okay. It could be just a cut and you want to verify that is not infected, it's not serious, it's not gone to the bone, it's not gone to ligaments, things like that. You want to verify the person's okay. Normally, you will see that it is a minor injury, the person returns to work the next day, and in three to six days that injury is healed and he's back to normal. The difficulty is that you get into medical aid and automatically then jump to a lost-time injury if the person has to travel to get medical attention and travel back to work again.
So it's not for the critical or serious injury; it's more for the smaller soft-tissue injury. It's a verification that the person's okay. We could be working in a locale such as Sandy Lake or Trout Lake, north of Cochrane, whatever, and it may be a day or two to travel that person around to get medical attention, depending on where you are.
All I'm asking for is the soft-tissue injuries, that the person doesn't miss work but travels to get medical attention, comes back to work again, verifies he's okay. That's all we're looking at. There are a lot of injuries in construction that shouldn't be medical aids and shouldn't be lost-time injuries. It's just escalating the costs of operation.
Ms Martel: It sounds to me like you're going to penalize people because of where they work and because of where they're able to seek medical attention. I don't think it's the fault of construction workers or any other workers that in some places in northern Ontario, lots of places, you can't get a physician to deal with you immediately. It seems to me what you're saying -- this would apply not only to people in your industry; if it's accepted by the government, it would apply to everyone, regardless of where they seek medical attention -- is that because people work in remote areas because they want to feed their families, if they do get hurt and have to go somewhere to get medical attention which takes a day there and a day back, they should lose benefits for that. I can't agree that you should penalize injured workers because they get hurt and have to seek medical attention that's not close to home.
Mr Gatien: We didn't say we were going to penalize them.
Ms Martel: But you are.
Mr Gatien: We said we were looking at the assessment of it.
Ms Martel: They lose benefits.
Mr Gatien: They're still receiving wages and benefits.
Ms Martel: They're entitled to workers' comp, right? They're entitled to workers' comp from the day they go off to try and seek medical attention.
Mr Gatien: Correct.
Ms Martel: You want a waiting period, right?
Mr Gatien: We want an assessment period.
Ms Martel: Maybe you'd better define "assessment period" for me.
Mr Gatien: They're not losing out on wages or benefits. What we're looking at is the proper process of the assessment and classification.
The Chair: I must interrupt. I'm sorry. Our time has expired. Thank you very much, gentlemen, for taking the time to come before the committee this morning. We appreciate your presence.
Interruption.
The Chair: Order, please. I would remind the members of the gallery that you are most welcome to be here today, but we must allow for an atmosphere where presenters can come to speak, either in favour of the bill or against the bill, in comfort and in confidence. That's what we are here to do, and we will do it appropriately.
I must inform my colleagues that the presenters from the MacIsaac Mining and Tunnelling company are unable to be with us this morning because of a sudden death in their business.
ONTARIO PUBLIC SERVICE EMPLOYEES UNION, SUDBURY AREA COUNCIL
The Chair: We'll ask if the Ontario Public Service Employees Union representatives are here yet this morning. They are. Welcome. I'm very glad you are here. You have 20 minutes in which to make your presentation, and you may use that time as you see fit.
Mr Bill Kuehnbaum: My name is Bill Kuehnbaum. I'm a professor of mathematics at Cambrian College in Sudbury and I've been a member of OPSEU for quite some time. I am not an expert, I'll confess up front, on matters WCB, but because I have been a steward in my local for 25 years and the local president, and have represented workers in all kinds of forums over that period, I have had a lot of experience with the dynamic that takes place between individual workers and their employers.
In particular, I have a lot of experience with observing how unequal a contest it is when an individual employee meets with an employer in a matter outside of the employee's particular area of expertise. One of the many changes in this act is to set up such contests, and I know what the outcome of those contests will be. That's why OPSEU asked to have standing at this particular hearing.
Under the current act, if an employee has not returned to work within 45 days, a WCB case worker is assigned. It's the obligation of the board to get involved with the situation. The case worker is to work closely with the worker and with the employer to ensure that the provisions of the act, in particular those around rehabilitation activities, are lived up to. The case worker can ensure that medical assessments, modified duty provisions and a host of other details under the act are attended to.
0940
This provision for automatic assignment of a case worker is being eliminated under Bill 99. In its place is being substituted a new set of obligations and concepts which in general form mandate the comanagement between the worker and the employer of the process of returning to work after an injury. Although the board under Bill 99 "may" monitor the progress of the return to work, it would no longer be required to get involved unless the dispute between the employer and the worker is identified. Although Bill 99 is permissive, we know that because of staffing levels at the WCB this permissive aspect would probably never be taken up by the board.
"What's wrong with this kind of comanagement process?" I can hear some people asking. "What's wrong with two parties working together, the employer and the employee, to bring about a return to work unencumbered by outside monitoring? If they reach an impasse, they call in the board. What could be neater?"
This theoretically elegant approach may work when the parties are relatively equal in authority and knowledge, but this is not the world of the injured worker. The worker is not the equal of the employer. That's the nature of the relationship in the workplace. The worker may have a great knowledge about the particular set of skills or the job that the worker is hired for, but the worker's knowledge about rights and obligations under the act will be vastly inferior to the employer's. Most employers either hire an agent to advise them on how to conduct themselves under the act or have employees in the personnel area whose sole job is to do this kind of work. That's an extremely unequal contest between the worker, whose life is not involved in interpreting the act, and the employer, who has expertise readily available to advise them. The worker is not equal to the employer in this particular situation. As a result, workers will systematically not access features of the act that would benefit them. They will systematically miss or avoid notifying the board that there is a dispute.
How can I make that kind of statement so categorically? I have some firsthand experience in a situation very similar to what's being proposed under the act.
In the 1970s I chaired a bargaining team that negotiated the contract for the community college teachers. One of the issues in that bargaining was the assignment of overload, or overtime, to teachers and the compensation that was attached to that overtime. The union wanted a premium rate, as is the standard for overtime pay, and the employer insisted that many teachers preferred alternative forms of compensation -- maybe more vacation, maybe some kind of preferred or lighter workload later in the year. The compromise agreed to in that set of bargaining was that teachers could refuse an overload assignment. They had the absolute right of refusal of the assignment if the college would not offer compensation that the teacher thought was fair.
I thought at the time -- and I negotiated this agreement -- that you couldn't ask for a better system. The teacher and supervisor discuss the situation together, and if they can't agree on compensation, the teacher walks away from the extra work. This is exactly parallel to the WCB concept except that the injured worker doesn't walk away from the extra work. The injured worker would have to walk over to the board and say: "There's a dispute going on here. I need your help."
What happened in the colleges under this theoretically perfect system? Virtually all overload was compensated with money, and the majority of that was at less than straight time. Up to 15% or 20% of the teachers in some colleges taught overtime for free: zero dollars per hour overtime. Even though teachers talk for a living and their supervisors are seen for the most part as peers, unlike your average workplace, when teachers went one on one with their supervisors, they came out with the short end of the stick even though they had the absolute right to refuse the assignment.
You may say they're stupid or they shouldn't be so dumb in their own personal bargaining with their employer. Maybe that's true, but this is the dynamic in the real world when an employee, no matter who it is, gets in a one-on-one situation with the employer. There is total inequality of power. It's an unequal contest. If teachers in the situation I described came out with the short end of the stick, as I know they did, I know that the parallel system at WCB, as proposed under Bill 99, will have even worse results. Bill 99's comanagement and non-assignment of a case worker will provide more dismal outcomes for injured workers because the contest is even more unequal than it was in the college system.
This bill takes plenty away from injured workers as it is. The non-assignment feature guarantees that many injured workers will not access even that which is left. If this has been done inadvertently, then you must change section 40 to reinstate the mandatory assignment of a case worker. If it has been done on purpose, you ought to be thoroughly ashamed.
The Chair: We have nine minutes remaining for questions, three minutes per caucus.
Mr Patten: Thank you for your presentation. I appreciate your thesis. My wife is a teacher and, as you know, teachers put in a heck of a lot of overtime for which there is no compensation. It happens in many areas.
I agree with your model. Without some kind of arrangement, I don't think the board can simply say, "All right, workers and employers, work out an arrangement here that will be satisfactory for a safe and healthy work environment." Your thesis is that that's not an equal relationship. Where that does happen -- and it does happen -- you have a more enlightened employer, but in far too many cases it probably wouldn't and it doesn't, so I agree with your analysis of that.
Your solution is that the existing arrangement of the case workers -- that their role should be maintained and strengthened. It seems to me that the legislation takes away some of the previous roles and responsibilities and says that we want to see a stronger work environment, but there's no commitment to any resources to be put into that. It's almost laissez-faire: "We trust you. Go ahead with things and we'll see what happens."
Other than the case worker, what else would you recommend to strengthen that particular role of the board?
Mr Kuehnbaum: There are going to be lots of people coming on behind me who are experts in WCB who will give you advice on that. My only area of expertise in this is in the example that I gave you. I know what happens when you have this theoretical comanagement -- "We'll negotiate an acceptable solution" -- and that takes place in a closed forum where you've got the worker and the employer. I know that is going to fail under this system. Well, not fail; it depends what your objectives are. If your objective is to make sure that a whole truckload of workers who have entitlements under the act don't receive them or will not receive them, then you've set that up. But if your objective under the act is to ensure that what is in the act is availed by injured workers who are entitled to those benefits, then you can't have this system of negotiation and comanagement; you have to have the board involved from the beginning.
0950
Mr Christopherson: Bill, thanks very much for your presentation. We appreciate your coming out today.
I want to pick up on the last point that was mentioned in terms of the board having to become involved, that leaving it up to the concept of comanagement is bound to fail, based on the lack of balance of powers within the workplace. It's interesting that most of the employer groups that come in talk a lot about the cooperation and the partnership this bill provides, yet almost everybody who comes in representing the workers involved is saying exactly what you're saying. At the end of the day, a very clear picture starts to form in terms of who the winners and losers are.
I don't think you can say it too often. I'd like to hear you once again talk about the fact that the workplace is not a place of equal power. The workplace is not where democracy reigns. There are clear powers that some people have over others, and that means that the board stepping back is giving those getting even greater powers under Bill 99 more control. Could you elaborate a little more on the kind of day-to-day situations or a scenario you can imagine where that power shift will work against the interests of working people?
Mr Kuehnbaum: Anybody who has worked for an employer and needs to work to get the money to provide for their families always has hanging over their head that the employer can deprive them of income. Most employers don't set out to do that, but that's always at the back of every employee's mind. Every day when you go into work your employer gives you direction on where to go and what to do. The whole relationship between an employee and employer is that the employer has much more authority and directs the employee's operation, what they do. That is the dynamic of the workplace, and it does not change as soon as a worker becomes injured. It would be nice if, as soon as a worker became injured, they would wake up in the morning and say, "Now I'm superman and I am the equal to the employer and I'm going to go in there and, in terms of my behaviour, throw off all my training and all my experience with respect to the person who is my boss." But that's not how we work.
I challenge anybody around this table to tell me that on occasion, when they've gone up against their employer on any issue, from when they're going to get their vacation to -- those of you in caucus who have gone up against Harris, don't you have a bit of a knot in your stomach when you do that? Well, that's the same knot that every worker has when they try to contradict their employer on anything.
Mr Christopherson: It's too bad neither Gary Carr nor Toni Skarica are here to answer that question for you.
Mr John O'Toole (Durham East): Thank you very much, Bill, for your presentation; an interesting perspective, as a math teacher. I can read the reports. I suspect that in your background checks you probably have too. The auditor, Erik Peters, in several reports has stated that there is a serious concern with the unfunded liability. You're a math professor. Do you think this is some kind of fantasy, or do you think that somehow there's just an endless amount of money?
Mr Kuehnbaum: No. Although I did take one actuarial course in university, I found it too hard and did not continue, so maybe I'm not the right one to talk about actuarial concepts, but liabilities do have to be funded, just like pension plans. I know when my pension plan fell into arrears, or whatever the technical term is, we worked out with the employer a way of bringing it back to being funded properly. That was not done totally at our cost; that was a negotiated settlement between all the people involved in the plan. If the employer had come to us and said: "This is your problem, folks. We're taking it all off your pay. You're the ones who are going to pay for this unfunded liability even though you didn't have any responsibility for managing the money in the first place," we would have objected mightily to that. That same objection applies to how you're going about eliminating what is alleged to be the unfunded liability.
Mr O'Toole: You made an assumption, Bill, that I found -- you're a member of a very large union, the Ontario public service, probably larger than the employer in many cases. It is collective strength, if you will, the Samson and Goliath kind of thing, big versus -- this is the class struggle thing that you're putting on for us here.
Interjections.
Mr O'Toole: Could I have a little order? Thank you.
The thing is that the vast majority of employers are small employers. The vast majority of the construction industry, the people who just spoke before you, are small businesses, sole proprietorships. Probably 85% of employers are small. Are you aware of that? You really have to look at the ability of small employers to sustain employment. Do you want an environment where there's no room for the small employer, for the entrepreneur?
Mr Kuehnbaum: The premise behind your question is that the current costs of WCB are driving small employers out of business and away from Ontario and that therefore the only way to get at the unfunded liability is to somehow take it out of the workers' hides. That's a premise that is not supported by fact.
Mr O'Toole: I'm not disagreeing with you, Bill. I'll stop now, because I'm not sure you were listening. In your presentation you characterized all employers as big and bad, overpowering the small employee. That is not the case whatsoever, unless of course you're a member of OPSEU or a large union, and then you see this confrontational approach.
Anyway, I appreciate your presentation and look forward to more of them in the future.
The Chair: Thank you very much, Mr Kuehnbaum, for taking the time to come before the committee this morning.
ADVOCATE FOR INJURED WORKERS OF ELLIOT LAKE
The Chair: I now call upon Mr Joe Virth. Good morning. Welcome. If you would introduce your colleague for Hansard, please, you have 20 minutes in which to make your presentation.
Mr Joe Virth: My name is Joe Virth, and my colleague is Judy Burgess, from Elliot Lake.
I'm an injured worker. You people all can speak beautiful English. I'm surprised some of you people don't even understand what the heck we're talking about. We're talking about compensation. These gentlemen just talked about injured workers, 80% of the people, small construction, how good they are. Look at my hand. Do you see my hand? I was told by the small contractor, "If you go see the doctor or go on compensation, you will be fired." Do you have any note of that, sir? I don't think so.
Second, I'm deaf. Do you know what my children and my friends call me? A loudmouth bastard. Do you know why? Because I'm deaf from mining injuries, from contractors, sir. There's your proof again -- working for the Algoma mines. At that particular time, if you asked for safety and health, they gave you two choices: Put up or shut up.
I'm not so educated as you gentlemen here, I'm sure; I've only got grade 6. But you don't need to be a scientist to figure out that you people want to get blood away from the mosquitoes, blood they've already sucked away from the poor people. All I'm trying to tell you people is that Bill 99, if you go back in history God knows how far -- when you have governments spending millions of dollars opening casinos making billions of dollars, why don't you open one of those casinos to go to the injured workers and leave their pay alone?
I lost half of my clothing allowance. This is how I have to walk. I've got blisters all around my ribs. I don't need any pity. It's my fault partially, probably. I was too stupid and worked hard. But I wanted to work hard for my company. I'm the most discriminated-against person because I'm hurt, and now my government is discriminating because I'm hurt. I'm deaf, I'm bloody well crippled, and I can say I'm dumb too.
How can you people just go home and relax and make a complete decision like that? We've got so many people -- I'm talking about immigrants. You don't even know how they lost their money. You don't. You keep cutting. How much more do you want to take? You want to go from 90% to 85%. I believe it was like that in 1958 or 1959; you want to go back to 1959. The cost of living is going up, but not ours. We're going to stay back. Eventually we're going to be just like the rest. Let's take a hat and go to the streets in Toronto and beg for extra money because I want to have a nice pair of shoes for my wife.
1000
I don't make too many long stories. I can't make a nice speech, period, just what's in my heart. All I ask the honourable members here is to make an honourable decision so you can sleep at night. You were elected by the public for the public, to work for the public. This is the way we were taught in my school where I come from. Your responsibility is to the public, to do the work. Don't take away the money we have. You know the cost of living is going up.
Look at Chrysler company. The guy makes $20 million a year. I'm making a lousy $22,000. Is he that much smarter? I don't know. He can't be, because without the worker he's a nobody. You still need us idiots there to push the buttons or whatever you want to call it. Automation will come and you're going to put the workers right outside? Sure, the industry would like that very well. The automatic machine doesn't need oil, it doesn't take vacations, it doesn't get hurt. If it gets hurt, scrap the bastard. But unfortunately, human beings get hurt, human beings trying to do work.
Anyway, that's all I'm going go say to this committee. Thank you very much for listening to me. I hope to God that you have compassion enough -- and I'm not using any party -- to understand that we're not just a bunch of suckholes that want to live off the system. We can prove it. I can prove my problems and many other injured workers can show to you what happened. I've talked to Shelley Martel many times about people who were turned down. I have a lady who has been operated on three times for her back. They tell her to be ready to go back to work; she can't even walk. Who makes these kinds of decisions? Anyway, to make the story short, I thank you very much. I'll let my colleague do the rest of the talking.
Ms Judy Burgess: I'm totally unprepared for this. Mr Virth asked me to speak and it was yesterday before I could prepare anything. I'm with the injured worker advocates in Elliot Lake. We have already sent in our submission. It's a written submission; I have some copies here. I won't be speaking on it today because there's not enough time. But I would like to read something. I want to get across the message that this committee should speak to more injured workers and listen to injured workers, so there's something I have to read.
Mr Virth is a prime example of what is happening with injured workers. A lot of the injured workers I deal with and help on a daily basis cannot read or write English. A lot of them are illiterate, especially in the northern communities. It's just unbearable. They come in and they're crying. They lose their wife, they lose everything they have, because they're on workers' comp and they can't get the money to them fast enough. They end up on social assistance.
I'm asking you people to come to a meeting in Elliot Lake and speak to the injured workers. There are probably over 600. We also have people coming from southern Ontario to Elliot Lake because the housing is cheaper. They can't afford to live in southern Ontario any more. That's all my message is.
The Chair: Thank you. That leaves us with almost four minutes per caucus; we'll begin with the NDP.
Mr Laughren: I must say that you need not apologize for having grade 6. You present your case extremely well. We don't need high-priced, meter-clicking lawyers here to make a presentation when you can do it as well as you do.
I must say that if there's a blight on the employer community in this province, it's headquartered in Elliot Lake. The history of Elliot Lake is disgusting, absolutely disgusting. I won't speak ill of the dead, but there weren't many tears shed when Stephen Roman left this world.
In my constituency office, workers' compensation is still the number one problem. We get a lot of family support problems as well, but workers' compensation is still number one, and I suspect that's true in most northern Ontario constituency offices. I know Elliot Lake doesn't have the industrial base, the mining base it once did, but I suspect that what's been left there is wreckage from the mining industry. I wanted to ask you, what kind of organizations are in place there now to look after injured workers' problems? You have an MPP, but --
Ms Burgess: We have the OWA.
Mr Laughren: They have an office there?
Ms Burgess: Yes, and the injured workers' advocate's office, North Shore and district. We actually go almost all the way to Sault Ste Marie and to Manitoulin Island, so it's a big area.
Mr Laughren: You still have problems with the retired folks, or people like Mr Virth who might not be retired if he was healthy.
Ms Burgess: Yes. There are people who come in every day who can't read, can't write, and they're too proud to admit that. It's really hard to get it through their head: "It's fine. Come in to the office. I can help you, type a letter for you. You sign your name to it. I'll help you.". It's hard to educate them any further on WCB issues, and with Bill 99 it's going to be worse.
Mr Laughren: Yes, there's no question it's going to be worse. I thank you for helping out, and Mr Virth for coming before the committee. It's important that people who are themselves victims make appearances before this committee, and that's why we appreciate very much your presence here today.
Ms Martel: Let me ask this question: Like my colleague from Nickel Belt, I have a full-time person who does nothing else but WCB. That's been the same since I've been there, for 10 years; it was the same for 20 years before that when my father was the MPP. The government, when it talks about this bill, likes to say it gets lots of people who have to deal with workers' compensation and it's a real problem. They somehow, by saying that, suggest that what's in Bill 99 is going to fix the problem and help those injured workers. Can you tell me -- you're an injured worker, you represent injured workers -- do you see anything in this bill that's going to help injured workers?
Ms Burgess: No, and adding time lines to appealing and stuff like that -- especially in a community like Elliot Lake, there are so many injured workers and there are going to be more, obviously. They're all commuting and they're all coming from southern Ontario. I deal with people from all over the place. They're coming to Elliot Lake because it's cheap to live. I don't see anything. How are we going to deal with all these people? How are we going to help them all?
Mr Virth: The other point is that -- I'm talking about my group of people, which is Sudbury too -- a lot of people are afraid to confront the compensation board: "I'm going to rock the boat and I'm going to get cut off." This seems to be the situation or criterion. These people are afraid. Now you're putting something else on. You give the company an inch, trust me -- just like insurance companies, they charged you at one time $50 a year for life insurance. Well, you're paying for life insurance now, and a cost of living is involved too, and you're paying almost $2,000 a year. You think the company's going to stop? You give him an inch, he's going to stop? You take the safety of it, they'll do like they did to me, "You put up or shut up or get out, and kick an empty pop can because you're a bum." They can't say "foreigner" because then maybe you can sue. But you can't do that. This is what honourable members have to realize. You're creating so much of a conflict here, so much authority, to other people.
If you like the businessmen, go for it. You got elected I suppose by the businessmen, or by who I don't know. But we will have to come down somewhere, a synchronized line that at least both sides can be happy and walk decent like a man instead of call it PR or whatever. That's it.
1010
Mr R. Gary Stewart (Peterborough): Sir, thank you for your presentation. I've been involved in the business community for a long time with a lot of different companies and I've never yet ever heard of them saying, "Either put up and shut up or get out."
Mr Virth: Excuse me. Can I answer that?
Mr Stewart: This may happen in the north. Maybe it does happen. Also I believe, if you would just listen for a second, that there seem to be problems on both sides, and I have difficulty with that, when everybody constantly points fingers at the other person. I suggest that what we should do is, when we point a finger, we should do it while we're looking at the mirror; that's the number one thing.
The other thing is that the priority of this legislation is safety and prevention. Do you not think that should be a major priority? Your condition now: If the concentration had been there, instead of compensation, maybe things of your experience would not have happened.
Mr Virth: Sir, I'm surprised. I don't mean to insult you, okay?
Mr Stewart: It's not a problem, sir.
Mr Virth: But I'm surprised you got elected when you talk like that. I'll you something, when you go, as a small businessman, you're going to look at dollars and cents. You said you've never come across a situation like that down south or wherever you come from, I don't know, but you definitely don't talk to too many people either, then, maybe. I don't think so.
Listen, I can bring you here a hundred people, hundreds, and not just northern Ontario. My friend died; he worked down south. He was still fighting the compensation board for lousy carpal tunnel, and he's dead.
Mr Stewart: You're right, sir, but I can also bring you some of the other people the other way as well.
Mr Virth: Just a minute. Let me finish.
Mr Stewart: Shouldn't we have cooperation, sir, between both sides?
Mr Virth: How can you get cooperation if the other side has been done before the 1960s?
Mr Stewart: We can't if we keep pointing fingers.
Mr Virth: I don't want to point fingers.
Mr Stewart: Good, that's my point.
Mr Virth: What did I just say to you? Let's synchronize, sir. Let's put everything in the middle. Let's just don't take blood from a stone; take a little bit from the fat people.
Mr Stewart: I agree with you 100%.
Mr Virth: That's what I said.
Ms Burgess: Why can't we have the standing committee come to Elliot Lake and speak to injured workers? Why can't we have it? That's who you should be speaking to.
Mr Stewart: You're probably right.
Ms Burgess: I'm not "probably," I am right.
Mr Stewart: Why shouldn't we go to every other town in this province? You're probably right.
Ms Burgess: Well, then, do it.
Mr Stewart: It's called a cost factor because many of the groups are presenting the same thing in each one of the cities.
Ms Burgess: Because you have to be paid to do this, is that why?
Mr Stewart: I'm sorry?
Ms Burgess: Is the cost factor because you have to be paid to do this?
Mr Stewart: No, we don't get paid to do this.
Interjection: Oh, yes, we do.
Mr Stewart: Indirectly.
Ms Burgess: Yes, you do. I don't get paid for half the work I do. I don't get paid for it, but some day I may be an injured worker. That's why I'm fighting the cause.
Mr Stewart: We all could be.
Ms Burgess: That's right, and that's why you should be listening to the injured workers.
Mr Stewart: I think that's what we're doing.
Ms Burgess: No, you're not. You're not listening.
Mr Stewart: We're here. I probably meet with the injured workers in my riding at least once a month.
Ms Burgess: You're not listening, though.
Mr Stewart: We are listening.
Interruption.
The Chair: Order, please.
Mr Patten: I want to thank you for your presentation today as well because, as is obvious, it's the people who have to deal with the results of changes in legislation who are most affected in their lives and in their families, so I listen very carefully to what you're saying. The committee might not go to Elliot Lake, but you might invite the minister to go and see first hand and understand the history of that place and what happens to people.
Ms Burgess: Okay, because it is a different area.
Mr Laughren: Or the parliamentary assistant.
Mr Patten: Or the parliamentary assistant as well.
The government members say the priority of the legislation is health, safety and prevention. In my opinion, I don't believe that really is the priority, because essentially what it does is it cuts rates for employers and cuts benefits for workers; it makes it more stringent for people to qualify for compensation, makes it more difficult. I also appreciate that you need to provide supports to help people get back to work, but it seems to me there's an element here that's to force people back to work almost regardless of the condition they're in, and that the employer is still in the driver's seat on this one.
Ms Burgess: That's right.
Mr Patten: I wish that weren't the case because there should be an increased accountability. In all honesty, there's a little bit of it, but I don't think it's enough on the employer to really share with the workers the responsibility for a safe workplace.
If you had to change a couple of things in this legislation -- and the reason I ask you that is that we would want to scrap the whole thing. However, it's not going to happen. We have to deal and we have to argue and debate and at some point go through each of the points in the legislation. If you have now or if you would like to share with us later, we'd appreciate your comments. Pick out those things that you think are absolutely crucial that we should change.
Ms Burgess: I handed in my submission.
Mr Patten: It's in there, is it?
Ms Burgess: Yes. It was on chronic pain. That was a big one for our board and for the injured workers in Elliot Lake.
The Chair: On behalf of the members of the committee, thank you for your heartfelt and sincere presentation this morning.
SUDBURY COMMUNITY LEGAL CLINIC
The Chair: I'd now like to call upon Mr Copes from the Sudbury Community Legal Clinic. Good morning, sir, and welcome.
Mr Terry Copes: I welcome the opportunity to speak to the committee this morning. I know it's a very rare honour, given the large number of groups that wished to speak to the committee and the small number that actually will get the opportunity to do it.
I have been doing workers' compensation for over a dozen years now. I must say I've seen changes through the years -- first Bill 101, and then Bill 162 and then Bill 165 -- but Bill 99 takes the cake. It's a complete change. We no longer have a workers' compensation system under Bill 99; instead, we move to what essentially becomes an insurance system for employers.
No longer is compensation of injured workers the primary purpose of the legislation, and this represents a real break with the historic compromise which was made with injured workers back in 1914. At that time injured workers gave up a very valuable right, a right to sue their employers for the devastating effect of injuries caused by the employers. In return, they thought they were getting the security of a no-fault system where at least they would get something if they were injured at work.
What should be recognized here is that by giving up the right to sue, in effect they gave up the right to get fully compensated for the effects of injury, because I can tell you that the results of most litigation for the kinds of injuries I see coming through my office would be many times the amount of money that injured workers get through the workers' compensation system. It might take longer, it might be a more expensive process, but they would get a lot more.
But in return they did get the security of a no-fault system and some guarantees that they would get some compensation, and also that they would have the opportunity to be rehabilitated back into the workplace. This act removes that.
For example, for certain types of injuries you don't get compensation. For workplace stress you don't get compensation. Why? Who knows why? Because employers are afraid of possibly being held responsible for the consequences of their actions? Why is there any rational reason to discriminate based on the kind of injury? The basic principle should be that an injured worker gets compensated for a workplace injury regardless of the type of injury. As long as they can show causation, they should get compensation.
The same applies to chronic pain. The act in effect removes chronic pain, and it does it in a very subtle manner by giving the board the power to regulate it away. I don't know. Was the government too afraid to just say, "No compensation for chronic pain. We'll just leave it to the board"?
I've seen the draft regulation which has come out. It's a very interesting regulation because, on the one hand, it recognizes that chronic pain is caused by workplace injury and says, "You get compensation for a period of time while you undergo a treatment program." But as soon as the treatment program is ended, you're off benefits regardless of whether the treatment program works.
There is no proof that treatment programs for chronic pain work. I'd say that about 70% of the injured workers I deal with have chronic pain or fibromyalgia. They have been through tons of treatment and simply aren't getting any better. There's no rational reason to say, "Once you've been through the treatment program, you're out the door and tough luck." It's merely a way of saving money for employers and also removing from employers the financial consequences of those workplace injuries.
1020
If one says that workplace safety is one of the primary purposes of this act, how on earth do you promote workplace safety if you remove from one of the parties, the party that causes workplace injuries, the consequences of their actions? That doesn't promote safety; that promotes increased workplace accidents. I've heard a lot of talk here that safety and prevention are one of the primary purposes of this act. Where are the provisions in the act which promote safety and prevention? They aren't there. Eliminating and watering down organizations in the province which deal with workplace safety, such as the independence of the disease panel and also the workplace health and safety organization; does not promote workplace safety.
Simply putting it in the name of an act doesn't promote it either. You have to look at the guts of the act and what it does. As I say, this act essentially is about insuring employers for the consequences of their actions. It's interesting. In effect, what the act does is change the Workers' Compensation Board into a big insurance company for employers. With private insurance companies, say in the auto or house insurance field, if you get insurance through them and you're dissatisfied, you can sue, and it's governed by the principles of contract law and there are definite rules out there which courts enforce.
In this case, what does the act do? In plenty of places it says the board can make the rules. You can appeal to the appeals tribunal, but guess what? The appeals tribunal is now bound by the rules which the board makes. The board becomes a big insurance company which gets to make its own rules, and there's no accountability for those rules. The rules can contradict the legislation. You can appeal, but it doesn't matter, because the board gets to make the rules and the appeals tribunal has to enforce the board's rules. What can you do? You can go for a judicial review through the court system. It's very expensive, and all it can do is say, "Yes, it's contrary to the legislation," and go back and make a new ruling. It really removes accountability. The board becomes accountable only to itself. Given the past record of the board, I'm not sure we really can trust the board to govern itself properly.
Another major concern about this legislation is what it does in terms of vocational rehabilitation. The key to getting injured workers back into the workplace is effective vocational rehabilitation, because in the case of serious injuries, a lot of injured workers simply cannot go back to the kind of work they were doing before. For a lot of injuries, a simple one week off, that's not a concern. But for the serious injuries, the only way of restoring the injured worker to some dignity is to get them another job and to retrain them for another job.
In the past, the board hasn't done a particularly good job of doing this, but at least they had the power to do it. The Workers' Compensation Act specifically lays out that the board has the duty to assess the injured worker early in the process and to determine what appropriate vocational rehabilitation is, and lays out the steps which can be taken to do that.
This new legislation removes all that. It removes the whole concept of vocational rehabilitation and replaces it with something called labour market re-entry. I don't know what labour market re-entry really means, because the act doesn't define it. The act also doesn't say what you do to achieve labour market re-entry. What it says is that you can take whatever steps are necessary.
On the one hand, that sounds pretty good. You figure it's wide open, and if you don't like what the board does you can go to the appeals tribunal and say, "These are the necessary steps to get me back in the workplace." But what do you run into? You run into the same problem again. As long as the board has made policy, you're out of luck. The board can make a policy the day after this legislation is passed that every injured worker enter the labour market immediately and has to go find a job with no retraining. If that's their policy, that's what the injured workers are going to be stuck with.
The act should lay out specifically a right to vocational rehabilitation where it's necessary and flesh out what that right is. Where can we look for some appropriate wording for that? The current act. Restore that, because that is really a key.
The act also totally abdicates any kind of voc rehab, because the board isn't going to provide it; the board is given the power to ship it out someplace else. The board itself can just wash its hands of any responsibility for rehabilitating injured workers.
Do you know what's going to happen? There are going to be these labour market re-entry plans, they're going to fail, and what's going to happen? They're going to say the injured worker isn't cooperating. Currently when that happens, the effect on the injured worker is simply that they may lose some supplementary benefits, but under the wonderful wonders of Bill 99, there are no supplementary benefits. What happens is that you can lose all your benefits. That's riddled throughout the act. The injured worker does what the board says, or in some cases what the employer says, or else. What is the "or else"? The "or else" is that you lose every cent of your benefits. That is atrocious coercion on injured workers.
They talk about balance and negotiation between employers and injured workers. Well, the injured worker is going in there with a gun stuck to his head and is told, "You do what we say, you negotiate with us on our terms, or your benefits are cut."
Of course you can appeal it, but the appeals may take years, and in the meantime where do the injured workers end up? They end up on social assistance. That's really what happens here, because the bottom line for a lot of this stuff is that it's downloading injured workers on to the social assistance system and is shifting responsibility from the employers to the taxpayers of the province.
At what cost? It's more than just the cost of the actual compensation for the workplace injuries, because unless you get the injured workers back into a job they can do, and do effectively, you've got other costs. What happens is that they sit at home, they get increasingly frustrated, and you have their families break up. You've got other costs there. You also tend to have a lot of injured workers ending up very frustrated, depressed; some of them end up suicidal. So you've got the additional health care costs in the mental health system. In the end, we all end up paying for this. It is a downloading on to the taxpayers from those who should truly be responsible: the employers.
There are a couple of other points I'd like to make, minor points about a few of what I consider drafting problems which affect even the intent of the act.
I notice, for example, in terms of survivor benefits, that the definition of "spouse" has been removed from the act. It says a spouse is entitled to survivor benefits, but, at least in the first reading version of the act, "spouse" wasn't defined anywhere. I think there's a need to define that somewhere; otherwise, there are going to be all sorts of problems.
1030
Another problem I noticed with the first reading version of the act is in subsection 14(5), which appears to eliminate entitlement for survivor benefits for survivors of injured workers who die of silicosis. The provision in the act first of all states that an injured worker doesn't get benefits for silicosis unless he can prove that he's had exposure for two years in Ontario. Then it goes on to say that the survivors of such injured workers are not entitled to benefits. I think the intent was probably there that unless the injured worker could show the two years' exposure, the survivors weren't entitled, but the way it currently reads, it seems to preclude any entitlement to the survivors of silicosis.
Another real problem I have with the act is that in many places it puts a positive obligation on injured workers to report a material change in circumstances. The problem is that nowhere in the act is a "material change in circumstances" defined. It creates an obligation on injured workers to report something, but they can search through the act until the cows come home and they aren't going to find what exactly they have to report. Given some of the consequences of not reporting a material change in circumstances, to be fair to injured workers it's important that that be included in the act.
Another problem in the limitation section of the act -- I'm not really in favour of limitation sections, but I don't have time to deal in detail with that -- is that the limitation periods seem to run from the time decisions are made by the board, not from the time the injured worker actually learns of that decision. That can be a real problem. I've run into many cases where the board will make a decision; then the decision will go in for typing of the letter to an injured worker. It can be several weeks between the time the decision is made and when the injured worker finds out about that decision. When you're dealing with a 30-day limitation period in the case of labour market re-entry plans or return-to-work problems, that can be a real problem, because half your limitation period may be gone before you learn of the decision. A fairly simple change that can be made is to make the limitation periods run from the time the injured worker or the employer, in the case of decisions which affect employers, learns of the decision.
Also, there is a problem in that while an appeal being put in has to be in writing, there doesn't seem to be a corresponding obligation on the board to put its decisions in writing. I know that most board decisions do end up being in writing, but it may be advisable to specify that the decision has to be in writing. Once again in terms of determining the limitation periods, it's very important that they start to run after a certain event for the injured worker, or the employer, as the case may be, which would be that they receive the decision in writing.
I also think there's a real problem with limitation periods in the sense that there is the obligation that the appeals be put in writing. With a short limitation period, particularly the 30-day limitation period -- an awful lot of injured workers are not literate, cannot put together a written appeal. It can be awfully tough to find representation for injured workers. What representation there is is overloaded and swamped. Most places that do represent injured workers have very lengthy waiting lists, and by the time an injured worker can find that representation and find someone who actually has the time to sit down and put in a written appeal for the injured worker, the limitation period may have expired. That is a real concern, particularly for the 30-day limitation period dealing with disputes over ability to return to work.
The Chair: Mr Copes, thank you very much for your presentation this morning. Unfortunately, there is no time for questions.
UNITED STEELWORKERS OF AMERICA, DISTRICT 6
The Chair: We'd like to now call upon Mr Seguin from the United Steelworkers of America.
Mr Homer Seguin: Thank you, Madam Chair, members of the committee. Before I start, I want to remind everyone that the workers' compensation system has been built on the premise that he who causes pays. It gets at the question of hiding.
In addition to that, Honourable Mr O'Toole, having spent four and a half years on the WCB board of directors and having the knowledge of how the unfunded liability operates, I know it was caused primarily by the Progressive Conservative government exacting pressures to force the board to not meet its criteria for the unfunded liability over the years. The records speak to that. In the four years I was on the bipartite board of directors, we enacted administrative savings that, along with the NDP legislation, have resulted in over $1 billion in savings over the last three years -- no thanks to the current government, because they haven't put in their changes yet.
With that backdrop, the government's track record in ramming through anti-worker, pro-employer legislation manifests itself in Bill 99. Initially, I thought a meaningful presentation would be a waste of time, since the government has repeatedly demonstrated its unwillingness to listen and to amend its proposals when proven bad-spirited and wrong. However, health and safety compensation and true prevention are so important that I have decided, in the faint hope of the government listening, to attempt to persuade the government members to argue for much-needed amendments to Bill 99. We know the opposition parties agree this is required already. Therefore, I begin by thanking the committee for this opportunity to speak for true fairness and true prevention.
Before proceeding, let me briefly refer to my credentials in this field. I have 46 years of active experience in health and safety and accident prevention, 31 years of active experience in workers' compensation and occupational disease, four and a half years as a member of the board of directors of WCB and nine years as a member of the ODP. I have international recognition in these fields, having attended and presented at numerous world forums.
Labour Minister Elizabeth Witmer is repeatedly quoted, on behalf of the government, as saying Bill 99 emphasizes accident and disease prevention. All my experience screams that this is absolutely an incorrect statement. How can you prevent accidents and disease by reducing benefits and cost-of-living protection, or by providing access to employers of injured workers' medical records? How can you prevent accidents or disease by making it more difficult to file claims, reducing time limits for appeals or making return to work to fair jobs more difficult? How can you prevent accidents or diseases by changing the name of the WCB to the Workplace Safety and Insurance Board? This proposed name change effectively removes "health" from the name, but hiding health doesn't prevent diseases. How can you prevent workplace stress simply by outlawing benefits for stress?
All of this is horribly wrong, contrary to prevention, and mean-spirited. I urge the government to respond to our demands for fairness and meaningful prevention.
Occupational disease: Although I view the foregoing, and more, as vitally important, I know these issues are well covered in many presentations. Therefore, I propose to concentrate most of this presentation on the government's proposal to eliminate the ODP.
How can you prevent disease by eliminating the independent ODP and returning its duties to the WCB, which botched its responsibilities for occupational disease for 70 years, from 1915 to 1985, when the ODP was born?
The facts are clear and speak decisively. In its 11 years of existence, the ODP has exposed more occupational diseases and their causes than the WCB did in its 70-year history. Are we nuts, to propose a return to such a horrible track record, or is this a deliberate plan to prevent disease from being exposed?
1040
There are no proposals in Bill 99 for disease prevention, not one, so why should we expect prevention when the bill eliminates the one bright spot, the ODP?
In 1993, 53% of accepted claims for workplace deaths were because of diseases. This horrible statistic is despite the fact that less than 4% of the claims filed were for diseases and despite the fact that experts say we are only compensating 10% of the true picture.
In 10 years the ODP has investigated and issued 18 reports on occupational disease, identifying 28 distinct work-related diseases. In most reports, the ODP identified the probable causes of such diseases. Regrettably, in some workplaces, such as all hardrock mining -- nickel, gold and uranium -- the ODP found that workers were exposed to so many carcinogens that it was impossible to positively identify one as the cause. It is very likely that the cause of the excess lung, nasal, laryngeal and stomach cancers found in mining are the result of a carcinogenic cocktail which the ODP did identify and which has killed literally thousands and thousands of northern Ontario miners.
Prevention: Before prevention is possible, the problem must be identified. The ODP was established for this very purpose, and its track record is impressive. See their 10-year report, some copies of which have been filed with you.
Two more 1997 reports, in addition to the ones mentioned, have been forwarded to the WCB for action, and have been buried. The most recent identified a horrible four-to-five-fold statistically significant increase in laryngeal cancer in this very city, in Inco and Falconbridge Ontario mine and mill long-service workers, and a two-fold increase in Port Colborne Inco nickel refinery long-service workers. Remember Inco.
The ODP reports have triggered prevention, if you want prevention. The JOHC committee -- Inco and the Steelworkers -- have placed the ODP reports of excess cancers on their priority list for action. Falconbridge and Local 598 CAW have reacted similarly.
North American mining and labour have formed a working group. This committee's primary goal is the elimination and/or major reduction of carcinogenic oil mist and diesel exhaust fumes; Inco and the Steelworkers and CAW are prominent players.
Following the ODP identifying radon as one of the carcinogens in gold miners' excess lung cancers, the Ontario government enacted a non-uranium-mine regulation as a protective precaution for Ontario mine workers in 1993.
Following the release of the ODP 1995-96 reports identifying oil mist as the carcinogen causing excess cancers of the larynx and esophagus in auto workers, the CAW and three Ontario auto giants negotiated protective standards in their 1997 collective agreement. That's prevention.
Following the release of the ODP 1994 firefighter disease report, many fire stations are known to have put prevention to work; for example, eliminating diesel fumes in firehalls.
In 1992 the WCB, acknowledging an IDSP 1988 report, added asbestosis and mesothelioma to schedule 4 of the WCB regulations, thus positively enhancing workplace prevention.
Following years of USWA and NDP pressure, culminating in a health and safety strike in Elliot Lake in 1974, the Progressive Conservative government established a royal commission to investigate mining. The commission made 117 recommendations, including major ones about changing our approach to occupational disease.
In the next 10 years, the royal commission on asbestos and the Weiler report on WCB disability both recommended the establishment of an independent occupational disease authority and criticized the WCB's disastrous track record on occupational disease.
The Jackson review of workers' compensation had no criticism of the ODP's work and therefore failed to lay a foundation for the elimination of the ODP.
The ODP's budget, averaging about $1 million per year, certainly cannot be considered excessive, particularly if one considers the fact that only three prevented disease victims more than pays this budget.
Only two letters recommending the elimination of the ODP were sent to the government, and guess who one of them was from? None other than Inco Ltd. This is the same Inco where the ODP reports identified large, statistically significant workplace excesses in 1994, 1996 and 1997 reports of lung, nasal and laryngeal cancers. Prior to these reports, Inco was a supporter of the ODP. What do you think has changed?
In our view, Inco's recommendation is self-serving, immoral and profit-motivated. It is an attempt to prevent compensation for occupational diseases in its workplaces and to prevent the ODP from studying its workplaces. Inco knows that the WCB historically did little about occupational diseases in its workplaces and wishes a return to the old "do nothing" system.
Even the Ontario Mining Association, the umbrella organization for all Ontario mines, supports keeping the independent ODP. The OMA writes, "The OMA continues to believe that an external, scientific advisory body is necessary to provide the science/medical based, expert, independent and objective advice required for the board in determining a relationship between disease and work."
Since the OMA speaks for all mining on these matters, Inco's contrary recommendation should hold little weight and be viewed for what it is: a self-serving refusal to acknowledge the disease and death carnage its workplaces have caused and are causing. Falconbridge joins the list with Inco. Their energy would be better spent in cooperative disease prevention activity.
The OMA believes the current composition of the ODP is not scientific enough and should be replaced, but the OMA does not agree to fold the ODP into the WCB.
Who supports the ODP? While only two corporate organizations support the Bill 99 proposal to eliminate the ODP and fold its duties into the WCB, over 1,500 letters or other forms of written support to maintain the independent ODP structure have been received by the government and/or opposition parties.
A large number of the supporting letters and petitions are from disease victims or their survivors, from union and local union officials, from health care providers, from university researchers and disease-related educators. Many are from other countries, from high-ranking health care and government officials.
Harry Hynd, director of District 6 Steelworkers, in his brief to your committee, says: "Through the work of the ODP there was hope for survivors to have their claims recognized. Bill 99 eliminates the independent ODP and in turn eliminates the hope for widows or the diseased workers."
Gord Wilson, president of the Ontario Federation of Labour, says in part: "The panel has saved the WCB millions of dollars in expenditures by identifying the relationship between disease and the workplace. By knowing the cause, we have been able to prevent future diseases from occurring."
Although time does not allow a proper demonstration of the written support for the ODP, a small sampling, with partial quotes, is set out below and is included in the appendix in full text.
Buzz Hargrove, president of the CAW, writes, "The Occupational Disease Panel has done outstanding work in occupational disease research."
Kevin Conley, compensation officer with the Steelworkers Local 6500, writes: "Minister, integrating the ODP into the WCB will be a grave injustice to all. The ODP will lose the ability to release their research to the public, becoming another bureaucracy lost in the shuffle of the board."
Four senior officials from the University of Quebec in Montreal, all highly qualified -- they're listed -- say: "The mandate of the former IDSP was to provide high-quality, independent, scientific evidence to inform policymakers, and they frequently succeeded in achieving this. It would be unfortunate to lose this resource since it will be hard to replace. We hope you change your mind."
Dr Melissa A. McDiarmid, MD, associate professor, Occupational Health Project, University of Maryland School of Medicine, formerly the chief medical officer of the US occupational safety and health, OSHA, writes:
"I am well acquainted with and have been impressed by the work of the ODP. It is well known that 'prevention pays,' and the work of the ODP has been a work largely of developing prevention solutions for the province's occupational health problems. Failure to keep the ODP's doors open will be seen as a clear and deliberate step backwards in the eyes of the public health community worldwide."
1050
Dr David H. Wegman, MD, professor and chair, plus eleven other highly qualified professors from the Department of Work Environment, University of Massachusetts, Lowell, USA, write:
"Several of us have worked with the panel over the years and have always been impressed at the extremely thorough and rigorous way they have approached the difficult and often contentious task of determining the work-relatedness of disease. The integrative research reviews of the scientific literature developed by the panel are highly regarded and often cited by the international occupational health community. We hope you will reconsider your decision and maintain this highly regarded and valuable institution."
Janie Gordon, chair, occupational health and safety section, American Public Health Association, writes,
"The ODP has promoted prevention through conducting scientifically sound investigations and review. We urge you to reconsider the elimination of this panel which has provided wide-reaching benefits to public health in North America and throughout the world."
Dr Jeanne Beauchamp Hewitt, RN, assistant professor, School of Nursing, University of Wisconsin, Milwaukee, writes:
"The ODP and the policymaking process for workers' compensation received well-deserved recognition for its process by being published in this most prestigious of occupational health journals (the Scandinavian Journal of Work and Environmental Health 1995). I found the commitment of panel members and staff to scientific standards to be impeccable. In addition, the panel's chair, Ms Nicolette Carlin, and the staff have been among the most efficient and industrious of government agencies (or private agencies) with whom I have ever worked. I hope you will reconsider this decision based on the benefits of the ODP to Ontario and its citizens."
Ms Jane Cornelius, RN, president of the Ontario Nurses' Association, writes:
"Within a short period of time the ODP has carried out invaluable research and investigation into causes and contributing factors of occupational diseases. As you know, it was the inherent conflict between the goals of the WCB and the goal of increasing knowledge, and ultimately, compensability of occupational illness, that led previous governments to create the ODP, a neutral arm's-length scientific agency for the investigation of occupationally caused diseases. It is the ONA's view that this conflict of interest continues to exist and that the elimination of the ODP will be a significant setback in furthering knowledge about relationships between work and occupational illness."
Finally, a quote from Dr Jan Muller, world-renowned scientist and epidemiologist who headed the Ontario government's epidemiology mining studies for 30 years. He writes:
"I sincerely hope the WCB will act on your report and the families of gold miners will receive compensation.... I am deeply disturbed by your statement that the government has ordered that the ODP cease operation as of December 31, 1996. Is this the way to create a good business environment, or do we want to transform the province into a developing country or province?"
Summary: An objective review of the facts clearly demonstrates the following:
(1) Prevention of accidents cannot be enhanced by cutting injured workers' benefits, outlawing work-related stress or disablements, or making claim filing or appeal processes more difficult for injured workers. Giving employers rebates and more control of return-to-work and claims processing may hide accidents but will not prevent them. In fact, these changes will cause more accidents, not less.
(2) Outlawing or restricting illness claims only hides WCB numbers but does not reduce illnesses. In fact, these changes will cause more illness, not less.
The rest is a summary which I want you to read, but to allow some questions, I want you to turn to the last paragraph on page 20. If I could get your attention, Madam Chair, it's kind of important that you listen since this is supposed to be the process.
The Chair: I know where you are, sir.
Mr Seguin: This is a critically important matter. Literally speaking, if the government stubbornly proceeds with the elimination of the ODP and some of the other proposals as proposed in Bill 99, in the face of the overwhelming contrary evidence, the blood of innocent disease victims will be on your hands and on your record. I plead for a reconsideration of all the above and for the health and lives of potential disease victims whom your decision will impact upon. I thank you for listening.
The Chair: Mr Seguin, thank you very much on behalf of the members of the committee for taking the time to come before us this morning.
Mr Seguin: There's still time.
The Chair: Not according to my watch, sir.
EMPLOYERS' ADVOCACY COUNCIL, SUDBURY CHAPTER
The Chair: I now call upon Mr Ron Ker from the Employers' Advocacy Council. Good morning, sir.
Mr Ron Ker: My name is Ron Ker. I'm the provincial policy chair for the Employers' Advocacy Council and I'm representing the Sudbury chapter of EAC today. Accompanying me at the table is our executive director, Sherri Helmka. A list of names is on the inside of the cover of our presentation. We certainly thank the committee for allowing us to have the opportunity to address you today.
As you can see, our document is quite detailed and comprehensive and covers a number of areas of Bill 99. It is our intention today to just address a couple of issues, as some of these other issues will be expanded upon at other locations on your tour.
Briefly, for those who may not know, the Employers' Advocacy Council is a non-profit, volunteer organization for employers across Ontario. Our mission is to reduce employers' workers' compensation costs by influencing constructive change to workers' compensation in Ontario and through the education of employers in all aspects of workers' compensation and workplace health and safety.
We have over 1,700 members in nine regional chapters across Ontario. Of course, Sudbury is one of our chapters. Our members include a broad section of Ontario's economy. We have small business owners, right up to major employers, including public sector employers in schedule 2. For the past 12 years the EAC has been presenting the views and concerns of the employer community on workers' compensation issues.
To give time for questions, I'm going to move on. Essentially today, in the brief time we have, I want to talk about entitlement, the definition of "accident" and the board policies that are associated with Bill 99.
First, on the entitlement issue, it is the position of the Employers' Advocacy Council that if the entitlement issue is defined and redefined, we would have a system that would function as Sir William Meredith envisioned in 1914. Employers should not be held responsible for diseases of ordinary life and conditions associated with aging, stress or chronic pain. It is our view that if the entitlement issue is resolved we would have a system with limited appeals, and certainly a less adversarial and controversial system, a system that future governments would have no need to intervene in.
1100
At page 3 of our presentation, on the definition of "accident," despite our support for the reform process, we are disappointed that the government did not redefine the definition of accident. We are cognizant of the government's concern that a new definition could cause greater uncertainty and generate litigation. The EAC remains resolute that the government may miss its opportunity to fix the system by failing to act on this issue.
The EAC proposes that section 2, subsections 1(a), (b) and (c), remain as proposed and that the following be added: "Benefits are payable where the employment is the predominant cause of injury or illness."
EAC proposes that chronic pain be redefined and included in the Workers' Compensation Act.
We further propose that the time restrictions be articulated within the act. The EAC supports the Nova Scotia model, and it's attached as an index to our presentation.
If the government sees fit to make work a predominant factor before WCB benefits are issued, then section 12(2), the presumption clause, could be eliminated.
As an aside, the EAC strongly supports section 12(4) on stress, the proposed changes in the act.
Just a couple more comments on chronic pain: The EAC proposes that chronic pain be defined and included in the act. We further propose that the Nova Scotia model be followed -- see appendix C -- regarding section 13(2): "Extent of entitlement; specified time periods. (2) The benefits to which the worker is entitled for chronic pain are subject to such limits, specified time periods and exclusions as may be prescribed."
It remains our opinion that chronic pain should not be compensated. We believe that pain that persists beyond normal healing times or extends to other sites of the body without any apparent reason is difficult to link to a workplace incident due to its multicausal nature.
To summarize the entitlement issue, the government should fix the system, and the major fix is the definition of accident, from which flows all other parts of the act. You fix the definition of accident, you tighten the whole system up and everybody knows the rules of the game. Right now somebody that you hire who is 50-plus years old comes to you with chronic disc degeneration. If they bend over to pick up a pencil and they have an onset of pain at work, this kind of claim is compensable, where the real problem is that the person has a disease of life, major disc degeneration of their back. Why should employers and the system pay for diseases of life?
Certainly, if you make work the predominant factor, the employers' request for second injury enhancement fund relief would fall significantly. That's where all the requests received come from, because the employers argue the injured worker had a pre-existing condition which was prominent, which was aggravated by the incident at work. If the accident definition is changed, the number of claims would drop, and certainly the number of appeals would drop. All those people such as myself who live off the system would also drop and disappear.
With a clear definition of accident there would be a simple decision tree; ie, does the medical show that it's a major pre-existing condition? Is it really a disease of life? There are cases where workers actually have had heart attacks at work and they've been compensated because the heart attacks came on at work. Certainly the employer wasn't responsible for hardening of the arteries or the preconditions the individuals had when they had their heart attacks at work. This is the kind of situation that runs up the unfunded liability and cost to the system.
If we're going to follow the private insurance model, certainly with a new definition of "accident," this would make the board operate more like an insurance company. The rules of the game would be clear to all stakeholders. They would know what is a claim, what isn't a claim and when to turn to WCB and when to turn to their private weekly indemnity or LTD programs.
The other issue I'd like to briefly talk upon, and I think it's absolutely important and major, is the board policies. We look at this draft act and everybody in this room can read the words and basically understand it, but as one of your presenters said this morning about the labour market re-entry plan, "What is it?" There's a whole bunch of things in our presentation, you'll see whole parts of the act -- the words are nice, the section is nice, but what does it mean? What it means is that the board will be putting policies in place that the stakeholders will have to follow. As of now, other than the chronic pain draft policy and the return-to-work form, there has been no consultation on the board policies.
With a complete rewrite of this act there's going to be a comprehensive reissuance of all kinds of board policies to go with the new language. I understand that in the back rooms on Front Street somebody may be working on these things in anticipation that the act passes. We have a real concern as employers but also as representatives on the other side for workers: How do you administer this act without the policies in place prior to implementation or proclamation January 1? January 1, 1998, is the date that we all want this on board; the government says, "We want it to go."
I would put to you that unless there's consultation on all the policies and the stakeholders -- the employers and the employees -- have a chance to look at the policies that are going to follow up the act, and secondly, that unless the adjudicators who are going to administer these comprehensive changes to the act have copies of it and have comprehensive in-house training on the application of the new policies, you're going to have a disaster come January 1998. If you think you've got a lot of appeals now, you're going to have a hell of a lot more from both sides of the fence unless the policies are out there and understood and the stakeholder parties have an opportunity to make submissions on them.
As an aside, in the draft Bill 99 there is no provision that allows the stakeholders to take improper or questionable policies to the board of directors. There is no mechanism to file a complaint with the board saying, "This policy on application of subsection 32(f) is really improperly drafted and doesn't recognize the main theme of that particular section."
In conclusion I would really like to say two things: The government may be missing the opportunity to fix the system, but really the number one thing is redefining the definition of "accident," or else you're going to have, even though there are limits put on WCAT under this bill, a continuing expansion of the definition of "accident," and you've got this moving playground here and that all the parties don't know where we're at, that what is allowed today is denied tomorrow. That really should be addressed, in my humble opinion. Also the policies should be consulted on significantly prior to implementation. I would be so bold as to say that if the policies aren't in place, if the NEL adjudicators, initial entitlement adjudicators, are not all trained up on the policies and we've had the opportunity to consult on them, I would say delay the proclamation of the act until the policies are in place, because how do you administer claims without the policies?
Thank you. Hopefully I've left time for some questions.
The Chair: Yes, you have done just that. Thank you. There are just over two minutes remaining per caucus; we'll begin with the government caucus.
1110
Mr Hastings: Thank you for coming in today. Under your submission, the part dealing with the labour market re-entry plan, I find the approach somewhat rigid in terms of how you define "cannot return to regular work as a result of the injury." I would like to know whether, in your proposal that the labour market re-entry plan be limited to 18 months, that's for every type of work, because a lot of work would require sequencing, to me. It suggests to me there's a great deal of rigidity here in terms of dealing with your alternatives, rather than flexibility, if you look back on what the Sudbury Construction Association had to say about the nature of the workplace from their perspective.
My final comment: You'd limit it inclusive on a one-time basis. Does that mean then that somebody who utilized it, went back to work in a different situation, same company, under your proposals and got reinjured in a separate, different accident, could not qualify ever again under this proposal? Because that's what it implies.
Mr Ker: Let me just say where this is coming from in the employer community. I've been involved as a consultant in claims administration for 25 years, from the employer perspective. What happens is that a worker gets injured legitimately, no argument. They go out for a period of time, rehab and whatever, and it's obvious they can't return to their regular work, so we retrain them. The worker says, "Okay, I want to be a locksmith," and that's agreeable with the WCB rehab, so they put him through locksmith school for nine months, six months. "I don't want to be a locksmith any more; I want to be a cake decorator or a baker." "Okay, we'll put you through that school for the next two years." "Oh, I don't like that. I think I'd like to be a computer operator." This is what has happened. You get two and three and four cracks. We're saying fine to labour market re-entry, but come together on what training you're going to do and you get one crack at it. You can't keep going from one to the other.
Mr Patten: Mr Ker, thank you for your presentation. You've done a fair amount of work in here and I look forward to actually going through it. You've only addressed a few points.
I agree with you that the legislation is not specific enough on its definition of "accident" and that there should be some further consultation. We strongly agree with you that there should be some further consultation, before the act is presented for third reading, on the policies that will guide the board itself.
I would like to ask you if you would agree with the thesis of the previous presenter, Mr Seguin, which he documented very strongly, that from the employer's point of view the case has been made that the Occupational Disease Panel has saved money and is in a position, over the long haul, to save us all money if we can identify what you identify as the root causes. If we can identify those root causes, everybody wins. Would you agree that therefore it's vitally important that that panel maintain the independence it has had heretofore?
Mr Ker: The EAC has a lot of employer groups. We canvass our members and we take direction from them. Certainly our membership in EAC strongly supports retaining an independent scientific ODP panel. There are chemicals that have been around for years, and employers recognize that over time God knows what can happen and what diseases flow from them. The problem is the famous cases where you have people who work in a bad environment who also smoke four packages of cigarettes a day and come up with lung cancer, and you get into that debate. We really feel that you need that kind of scientific panel to separate the habits of life and what could be the industrial causes of disease.
Mr Christopherson: I believe that was an endorsement of the ODP.
Mr Ker: Yes.
Mr Christopherson: I'm pleased to hear that. Some of your comments I don't agree with, but I think any voice from the employers' side that we can have added to the others that are there to support and defend the ODP is welcome.
I'd like to focus just a moment on your support of eliminating any kind of claim for work-related stress. We heard from the Canadian Mental Health Association during our hearings in Toronto, and they said very clearly:
"We believe strongly in the need for legislation that accepts that workplace stressors can and do cause psychological disability. As long as this concept is ignored, most people who suffer from psychological disability directly related to stressors in the workplace will be forced to rely on unemployment insurance, social assistance, long-term disability insurance or other government-funded, disability-related programs. The result is that costs are simply transferred from one compensation system to another."
I believe on the same day, or certainly the next, the Ontario Psychological Association said this: "In situations where workers have developed psychological disorders as a result of cumulative occupational stress, they should be treated the same way as those who develop medical conditions." Dr Ruth Berman is the executive director of the Ontario Psychological Association. I asked her very directly, "Is it scientifically and medically possible to distinguish between stress-related causes that are personal versus work-related?" She said absolutely clearly, and it's in the Hansard for anyone to look at, "Yes, that can be done." In light of that, sir, how can you maintain a position that says work-related stress ought not to be compensated for?
Mr Ker: When the stress first came up a couple of years ago, we did extensive research on the issue, as an employer group and with other employer groups. While you may have one doctor support that you can separate workplace stressors and family or outside stressors, there is a body of other psychologists and psychiatrists who say you can't. You're dealing with a very difficult issue that somebody is definitely stressed out. Is it a combination of work and family problems? Who's to tell? Who's going to play God and say 75% of your current mental health is due to your work and 25% is family-related or outside-related? It's a very difficult call. The science isn't there. As I say, our major theme is if the work is the predominant factor. Now, if someone can prove down the road that their mental breakdown was 90% related to their work, then you might get the employer to buy in. But it's very difficult. You can go to two different psychiatrists. The famous case is the guy who shot the President in the States. He had four psychologists who said he was nuts and four who said he was sane. It's a very difficult thing.
Mr Christopherson: Madam Chair: I think you're going to rule that my time has run out.
The Chair: Yes, time has expired.
Mr Christopherson: Then on a point of order, I would ask that in light of the fact that this presenter's evidence is different and conflicts with evidence we've had before from the Ontario Psychological Association, I'm sure my colleagues on the government side and on the opposition side would appreciate if you could table those bodies of work, because that does fly in the face of evidence that Dr Berman gave.
Mr Ker: We'll do that.
The Chair: Thank you very much for coming before us this morning.
1120
SUDBURY AND DISTRICT CHAMBER OF COMMERCE
The Chair: I now call upon representatives from the Sudbury and District Chamber of Commerce. Welcome and good morning.
Dr José Blanco: First of all good morning, ladies and gentlemen. My name is José Blanco. My colleague with me is Debbi Nicholson. We represent the Sudbury and District Chamber of Commerce, which has about 1,100 chamber members in this district. She is the executive director and I am a member of the board.
First of all, I'd like to commend you for the initiative to seek our input. I'd like to give you a bit of history and then make some suggestions.
We have been quite interested in issues related to workplace safety and workers' compensation because we believe throughout this time that workplace safety and workers' compensation are one of the vital signs of business and industry. When the vital signs of business falter, then our advanced industrial base may be at risk and our quality of life and work will be at risk with it.
The vital signs were not good in 1995 when we first made a presentation to the royal commission. At that time the anticipated deficit was about half a billion dollars and the unfunded liabilities were growing at an unusual rate.
We believe that Bill 99 includes key strategic objectives to restore workers' compensation to financial health, an essential one; to emphasize injury prevention; to speed the return of the injured employee to useful work and to set up proper working definitions and remove inequities; and finally, to encourage worker and employee self-reliance. Those are sound strategic objectives, and therefore we believe that on that basis Bill 99 should be a good basis to work from.
To be successful, however, workers' compensation, has to focus on removing perceived inequities and on improving the quality of the service it provides to employers and employees. Perceived inequities and distrust in the workplace will get in the way of the entire responsibility system. In the absence of solid working relationships, there is a risk of missing the point on decreasing the number of injuries and the severity of those injuries.
It is equally important for WC to improve the quality of the service it provides. It is important for employers and it is important for employees. It is essential that the workers' compensation staff know they are providing what is an essential service to the province and that they also have the tools they need to do that job.
The second part of our suggestions has to do with focus. Although improving the workplace injury and severity is a long-term endeavour, not a short-term initiative, there are ways to gain time. One of those ways is to focus on the activities, the areas, the groups, the specific areas that have the greatest problems. The workers' compensation has a good inventory of data by injury type, activity type, work sites, whatever.
It can be used in two ways. One is to provide the basis for sound statistical analysis that would enable focusing on the areas where the problems are the greatest. The second is to use those precise local experiences to tailor the initiatives that are supposed to provide the help that is required to make the improvements.
I want to also talk to you about one area that is of great concern to us, that is, the very small business, as compared to what normally gets defined in the province as small business. The very small businesses, which we arbitrarily label as those that employ one to 20 people, are very important to us in the north. There are, for example, in Sudbury about 70,000 people working, roughly. At most, about 25,000 are employed by large organizations in health care, education, hospitals, Inco, Falconbridge. That leaves about two thirds of the total employed by about 6,000 employers, which means an average of about seven employees per employer. It is indeed very small and it normally falls out of the provincial statistics.
This is consistent with the data the federal government obtains in terms of GST. About 80% of all GST registrants have less than $200,000 annual revenue, and that suggests that 80% of all those are indeed very small.
Because of their size and approach to business, they depend almost completely on workers' compensation. They need it working even more than the larger industries may need it. Unlike larger employers or organized labour, the smaller employers do not have the resources to deal with workers' compensation issues. In northern Ontario this is particularly important to us because, as you also know, resource industries cannot be taxed by our municipalities, which makes our communities almost completely dependent on the direct contribution of the small and very small businesses.
For a small business, a serious injury or illness could be devastating. One person out of 10 is 10%; one person out of five is 20%. No business can actually deal with a catastrophe such as 20% of the workforce finding themselves in dire need. This merely highlights the importance we give to proper health on the part of the workers' compensation system for small business.
Workers' compensation must find ways to help the very small and small enterprises to reduce the number and severity of injuries and to quickly restore the injured worker to full employment.
Our recommendations, in sum, would be that workers' compensation system adopt the explicit mandate to strengthen the internal responsibility system, especially for very small and small businesses and for their employees; that workers' compensation adopt internal targets and provide the training required for its employees to deliver quality service and customer satisfaction so that it becomes a responsive and effective insurance provider; that workers' compensation study the statistical injury and severity data available to them to better focus their activities; and that the workers' compensation use the actual incidents and the experience of the safety agencies to tailor the programs to work with the groups in greatest need.
We believe that adding our recommendations to your agenda will help workers' compensation to focus its initiatives where the need is greatest, to tailor its interventions so it becomes more effective, and in that way to make strides towards eliminating workplace injuries, improve return to work, remove inequities and impediments and foster employee and employer self-reliance.
We should learn to see safety incidents and workplace health-related issues as defective outcomes which are exceptions to the quality of performance in the workplace. By improving workplace safety, which is a vital sign, we will reduce suffering, reduce costs and improve quality.
Our submission includes the results of a recent focus session with members of the chamber. We have provided you that information, both as a list and as a map. We will be following your progress with great interest. We appreciate the opportunity to help you in this process, which is a very important process in the wellbeing of Ontario and Ontarians. We thank you for the opportunity to offer our comments and suggestions.
1130
The Chair: You persevered. I know your voice is quite sore. We appreciate this.
Dr Blanco: It'll be back tomorrow.
The Chair: We'll begin with the Liberal caucus, with Mr Patten.
Mr Patten: Thank you very much, Dr Blanco. It's a tough workplace here and I know it's not easy to communicate in it. The general message which I gather you're saying overall is that, first of all, if we can deal with the causes rather than the symptoms, over the long haul we will all be better off; and second, small business is very fragile; we know there are many bankruptcies in small business. By and large, it seems to me most of your members are small business. Is Inco a member of your force?
Dr Blanco: We depend on the large companies as well as the small ones.
Mr Patten: You have to represent all your members, and I can see that's somewhat reflected in your presentation, but you're suggesting there should be some prioritization of where the board will focus its analysis, on where the greatest frequencies of accidents are -- and we all know where they are -- and that there should be a concerted effort to bring that down by way of initiatives. The thing I haven't seen, because you just gave a summary of your presentation but I saw you had some specific points in the back, is where you would focus. You're really talking about health and safety in the workplace, that this should be strengthened. Where specifically would you see such initiatives happening and how would they happen?
Dr Blanco: I'm not sure I understand exactly what question you're asking me. I understand the words but not necessarily the question. If what you're talking about is which specific groups, activities or what have you would receive attention, I would say that the answer should be in the statistics, wherever the problems are in a statistically significant way, because it is not appropriate to take sudden decisions. The data can be scattered and lead one to the wrong decisions. One has to be extremely careful. But I suppose that wherever the data say the greatest consistent problems are is where one has to establish the appropriate relationships with the employees and the employers and work with them rather than at cross purposes from them.
Mr Patten: But I don't see in the legislation, unless you do -- the government continues to say its emphasis is on health and safety and prevention.
Dr Blanco: Yes.
Mr Patten: Do you see that in the legislation?
Dr Blanco: You're asking me to pass judgement on the specifics of the legislation?
Mr Patten: On the proposed legislation.
Dr Blanco: In the statement of intent, in the preamble, it's quite clearly stated that this was one of the cornerstones, and I believe prevention is the cornerstone of success.
Mr Patten: I'm asking you because I don't see it. What would you recommend be done or included to ensure this approach is taken? At the moment I don't see what you're recommending, and I agree with part of your recommendation.
Dr Blanco: I would recommend strongly that this is the cornerstone and should remain so. As to the specifics, how it's best done, I am not in the position to tell you. There was a second part to your question?
Mr Patten: It was going to be, "How?" That's okay.
Mr Laughren: Mr Blanco, welcome to the committee. I have a couple of points I'll throw out and ask you to respond to so we don't lose a lot of time in exchanges. One point has to do with your statement referred to by Mr Patten that Bill 99 shows a very strong emphasis on injury prevention. I am desperately trying to find that in this bill. Good wishes don't make it happen unless it's legislated. I wonder if you could be as specific as you can be as to where Bill 99 shows a strong emphasis on injury prevention.
Secondly, what's the link between that and the Occupational Disease Panel, which has been referred to earlier? If you're so concerned about prevention, would you not also be concerned about the folding in of the ODP into the WCB? Would you not want it to maintain its independence, with its scientific staff and so forth? That's the second question.
I don't know what the chamber's position is. We heard today what your former employer's position was, to their everlasting discredit, Inco's position on the ODP. I'm surprised by that and disappointed at Inco's position on that, because historically I thought they were moving forward on some of these issues, but on that one they're moving backwards, and I'd be interested in what you have to say on that.
Thirdly, I'd be interested to know whether or not you agree that the reduction in assessments on employers of 5% at the same time we're reducing benefits to workers is a contradiction in fairness, and also, if people are so concerned about the unfunded liability, why you would support a reduction in the assessments of employers at the same time. I'm puzzled. There are three things I wonder if you could address.
Dr Blanco: Those are all very good questions. I certainly do not wish to speak on behalf of any past employers I may have had. I'll leave that to them. If you don't mind, I need to summarize your questions. The first one is, where indeed within the bill? Perhaps, as you say, it is not as explicit as it should be, and therefore I reiterate the need from our perspective that it should be the cornerstone of whatever it is that eventually gets enacted. Our point is not as to what the letter of the law as proposed says but what we believe it ought to say. Yes, prevention should be the cornerstone.
You asked me a second question with regard to occupational health and illness. I really don't believe I am particularly qualified from where I look at it at this point to deal with that issue.
Mr Laughren: No, but does the chamber support what is happening to the ODP?
Dr Blanco: The chamber is not knowledgeable enough to pass judgements on such detail, so we abstain from saying anything other than what we need is the proper balance, that indeed in the end the total cost will depend on our ability to reduce the number of events, whether they be injuries or illnesses, that arise from the workplace.
Mr Laughren: The third was the reduction in assessments on employers.
Dr Blanco: As to the particular benefits or costs of a given financial decision, I think in the end, if I can repeat myself, if we were successful in reducing the number of incidents by something like 20%, then the net decrease in cost over time would be significant enough to wipe out any discrepancies that may arise instantaneously. I didn't think that particular point was a matter where our judgement would be of any consequence. We would rather focus on the necessity for reducing the number of injuries, for returning the worker to full employment as early as possible, for streamlining the operation of the WCB so that it provides service and is so regarded by all users. We believe that, as in any other aspect of business, such efficiencies in the end result in a better product, higher quality, more satisfied customers and lower costs. That's what we would like.
Mr Maves: Thank you both for coming forward with your presentation today. On similar lines, returning to your recommendations, you say, "That the workers' compensation adopt the explicit mandate to strengthen the internal responsibility system: foster cooperation, partnerships and coalitions to encourage very small and small business and their employees to decrease injuries, decrease severity and improve return to work and therefore decrease overall workers' compensation costs."
As you've alluded to, the very first thing that the purpose clause states is, "The purpose of this act is to accomplish the following in a financially responsible and accountable manner," which is one of your points. The very first point is, "To promote health and safety in workplaces and to prevent and reduce the occurrence of workplace injuries and occupational diseases." The purpose clause will guide the board on the rest of the act. There are three other purpose clauses about facilitating the re-entry into the labour market and so on. How much more explicit would you make that? To me, that's quite explicit, the purpose clause which guides the rest of the act, and the very first thing is to promote health and safety in workplaces. How would you make it a more explicit mandate for the board?
Dr Blanco: From the tone of the questions that I was asked in this brief interlude this morning, I suggest to you that across the table from you there are people who do not think it explicit enough. I'm not exactly sure what it is they would like to see. My point is that whatever it is, in the end it has to remain explicit and it has to be clear that that is what we're trying to do. That would be our recommendation.
Mr Maves: I think it's quite clear in that purpose clause, but I appreciate your comments.
I know the CFIB has done studies in surveys with their employers that are in the CFIB and one of the number one concerns is not only the costs of WCB but having to deal with the whole system all the time. Is that something you find also with the people in your organization?
1140
Dr Blanco: It is sort of an arcane business, not understood by the small employer who works out of a basement and has maybe two employees. We have many of those. It may be much better understood by the larger ones. I believe it is very important that the workers' compensation system and the safety and health systems become understandable not only to the large employers but to the small employers. To the extent that they are difficult to understand or difficult to work with or cause great delays or cause unnecessary trauma and anguish, there is an opportunity to improve. I believe it is essential that the service provided be regarded as effective, quick, on the spot; all of that. That requires the determination to do so; otherwise it's easy in a very large system to get lost.
The Chair: On behalf of the committee, we thank you for coming before us this morning with your suggestions.
ADVOCATE FOR INJURED WORKERS OF SAULT STE MARIE
The Chair: I'd like to now call upon the representative from the Advocate for Injured Workers of Sault Ste Marie, Ms Cranston.
Ms Judy Cranston: Good morning. I'm Judy Cranston. I'm president of the injured workers' advocate of the Sault. I represent quite a few injured workers -- well, lots of injured workers. I had prepared a speech but I forgot it, so I'll have to wing it.
The problems we have in Sault Ste Marie are problems that are going to affect most injured workers should this bill go through, because there are a lot of ethnic groups in the city of Sault Ste Marie. These people are unable to read or write English. The only English they know is the English they have picked up on their job site. Most of these people, if they come in with a trade as a bricklayer or something and they get hurt on the job, are not going to be able to fill out these forms that, according to this bill, they have to ask their employers for. They're going to be very intimidated. It is very intimidating asking for a job when you don't understand the language and the ways of the law anyway.
I am going to quote from one of my files. This was a Polish gentleman who was hurt on the job. He had a back injury. His claim was left sitting. It wasn't really denied but it wasn't accepted. They kept asking for more information and more information. His is not the only case, and a lot of cases are the same. This gentleman in turn was off work, so he went to UIC and they told him they could give him benefits under sick benefit time, which is 15 weeks. Fifteen weeks isn't very long, especially for a back injury, but this is how it works.
This gentleman went to approximately 48% of his wages. That's not very much money. He had a wife and two children. When his benefits ran out, he then had to go into his RRSPs, his savings and everything that he had. He still had a mortgage, I believe he was paying on a vehicle, and what other finer things in life that they had they were paying on because he is only in his mid-40s.
When these things ran out, he had to apply for social assistance, which is very degrading to somebody who has worked all his life and who has not expected somebody to pass things out to him for nothing. When he went to social assistance he was asked, "Do you have anything?" He said , No, I used up everything." "Do you have an insurance policy?" "Oh yes, I have a life insurance policy so if something happens to me, my wife will get X number of dollars." This gentleman had to cash his life insurance policy because it was an asset. This money had to be spent, then he got on social assistance.
This is not one case; this happens in many cases. WCB felt that he should be looking for some other type of work. Although he couldn't do the work he was doing, they felt he could do something like a parking lot attendant or desk security or something like this. Through his functional abilities evaluation, this is what they deemed he could do. If they had read further in this, this gentleman could walk for 10 minutes, he could sit for 10 minutes. Who in their right mind is going to hire a man who after 10 minutes walking or 10 minutes sitting has to rest for an hour or two hours or whatever? Or he has to be on medication and he is not able to function properly: it may make him groggy; it may mean that he can't do his job properly. Who's going to hire him? I'm sure that nobody in this room, if they are an employer, wants to take on somebody for 10 minutes' work, 20 minutes tops, then give them a rest. Who is going to do it? Are you going to pay them for 20 minutes or are you going to pay them for the full day?
This gentleman lost everything he had. His children's money that he had set aside for education had to be spent. He ended up with nothing. The bottom line was he committed suicide. Scary picture, eh?
Bill 99 is going to make it harder to get. You have to go to your employer -- another thing, you go to your employer, you have to ask for this form. How intimidating is it going to be? You're going to cost this company money because you're going on WCB benefit. It's just like asking for a raise; it's worse than asking for a raise because with a raise you may get a few cents and go on your way. This could cost them more money. How many employers are going to give up this paper willingly? How many people want to do it?
Medical treatment: WCB wants to decide what medical treatment you will get. Are they doctors up there? They have doctors up there, but are all adjudicators going to be doctors? Do all WCB people who are determining what this gentleman or woman should do have medical training? How do they know what you need? If you don't cooperate, you don't try and go to work, you don't go to the doctor that they decide, they're going to cut off your benefits. In other words, they're holding a knife over your head or to your throat or whatever. You have to do what they say when they say whether you agree with it or not because they're the ones who are holding the purse-strings. You are their employee now. They're your employer. You're still an employee. You still don't have rights.
WCB is going to determine when or how this employee gets back to work. Having worked with the WCB and injured workers, they put you through a means test and you go through this retraining and they decide what you're qualified for. Most people qualify under this one section. "Oh, you can be a desk clerk or a service clerk." How many desk clerks and service clerks are out there? How many jobs are out there for this one thing? How many injured workers on the job who have no education to do this can take this job? We send them to school. All right, that's fine. They want to go to school.
If they've come across to Canada with no education, they start at the bottom. Take a gentleman in his early 60s, late 50s, who's hurt on the job. He has to be retrained. He has to go back to school. He's going to start in the sandbox, right? He's going to start in the sandbox; he doesn't have any education. We educate this gentleman. We put him through school. It's very degrading to have a gentleman that age having to go and report to school. But they do. In order to keep your WCB benefits, you go to school. They're going to school. Then, all of a sudden, WCB says, "This gentleman is not going to make it. We'll give him his FEL award," which is 85% of the difference of what he could make if they thought he could be a desk clerk and what he was making before. He loses all his money, he loses his dignity. Where does he go from there?
1150
This bill is going to make it worse. The people here are going to have no say. It's terrible. Why does the government feel that they should be able to do this to the injured worker? Most people are discussing the unfunded liability. I often wonder why there is such a big to-do about it. What insurance company, what outfit is going to have to pay 100% of everything all at once to everybody? Is everybody going to collect the whole 100% the same day? That's just like saying that everybody insured with London Life dies the same day and their beneficiaries get the money. Who's going to say they have all that money? I'm sure they don't have it. They're going to have to call in moneys from someplace. WCB should have to do the same.
They've decided that there should be a snitch line because there are all kinds of people out there who are abusing the system. The amount of money they're putting out there for people supposedly abusing this system could be helping the people it should be helping.
I feel Bill 99 is not for the injured workers; it's for the guy at the top, the same guy who is getting rebates back because they're bringing back injured workers to sit in there and then laying them off, and then: "Sorry about your luck. You don't get anything. You were called back and there's no job for you."
I feel that if in all honesty this government thinks about the people who are putting the tax money to keep this country going all get hurt, where are they going to get it, who's going to run it? It's the people who are running this country now, who are keeping us surviving, who are the people they're trying to condemn.
Mr Christopherson: Judy, thank you very much for your presentation, and please don't be embarrassed by the tears. We've seen a lot of tears already, and I expect by the time we're done we're going to see a lot more.
I want to ask you about the forms being filled in and people feeling intimidated and also their ability to fill them out. On June 16, Gord Wilson, the president of the Ontario Federation of Labour, who by the way is in the audience today, said in his presentation: "I ask the government members..., how will the 24% of people who can neither read nor write at a grade 9 level cope with the form...? In how many languages will it be available? If the government's claim is that Bill 99 has been well thought out, then tell us today, how many languages will these forms be printed in.... Anyone here knows the consequences of making an error on a government form."
Just this morning we heard from Mr Copes, representing the Sudbury Community Legal Clinic, and he stated, "Given that many injured workers have limited literacy skills and also, due to their work-related injuries, may not be functioning as well as non-injured persons, it may be difficult for an injured worker to launch an appeal within time," that being the new 30-day limit where there didn't used to be one.
My question to you is this: It seems there are a whole lot of workers who for various reasons may have a great deal of difficulty with these forms. Looking at the concerns of new Canadians, it adds that much more concern about both their ability to fill in the forms properly and even at the outset to be able to ask for them without feeling intimidated by their employer. It seems to us in our caucus there are going to be literally tens of thousands of people who either can't fill out the form properly because they just don't have the skills or are going to be far too intimidated to even ask for the form in the first place. Would you agree that is that big a problem, or are we overstating it?
Ms Cranston: No, I think it's that big and it could be worse. There are a lot of injured workers' groups, but people don't realize that they're there to help and they think they have to pay for this. Most injured workers' groups or anyone under the Ontario Network of Injured Workers is a no-fee-for-service.
Because of limited funding, because of the work we do trying to help these people, a lot of people don't know that they can come to us, but we in turn cannot, as an injured workers' group, ask that employer. The employee's going to have to do it. I know that there are not going to be these forms put out in -- I have Lithuanian, I have Polish, I have Italian, I have native, all kinds in Sault Ste Marie. There's no way that these people are going to get across to their employer what they want.
They're going to be told, "Okay, this is what you do." They don't know how to fill it out, they can't be helped. At this point, the doctor helps fill it out, which is great, or the employers, if they sit down, and the forms are filled out, the worker fills out a form. But until they get that form and they find out about us, then maybe we can help them; but if they can't get the form or they don't know about us, they don't have a hope.
Mr Christopherson: If the 30 days go by, they're completely out of luck.
Ms Cranston: If the 30 days are gone, they have nothing. Our welfare system is going to be so bad. It has been cut down by this government by -- I'm not sure what it is -- some 20%, whatever. I believe a single person gets about $500. How they live on $500 I'll never know, but for the people who have been used to making big dollars and it comes down to that, there is going to be more crime, there are going to be more family breakups, there are going to be more suicides, all these problems. This country is headed for disaster.
Mr Christopherson: Of course, if they go on welfare instead of WCB, the stats will look good for the government because they'll claim that injuries are down. The reality is just that the injuries aren't being reported.
Ms Cranston: They have to right now, when they go on social services, when they're trying for their WCB. In the city of Sault Ste Marie last month, out of all the injured workers who had to go on that, there was only money paid back for 26 injured workers. Out of the thousands of injured workers up there, only money for 26 injured workers came back in to fill the coffers that had to be done. So out of thousands, 26 is what? Nothing.
Mr Joseph Spina (Brampton North): Thank you, Ms Cranston, for your presentation. It's important that we get your perspective and your feelings. I just want to clarify the record in reference to what Mr Christopherson said, that for a while now, a long time actually, I think since they were in government, the WCB forms have been available, as I understand, in almost 70 different languages. They don't have to go to the employer. As you know, they often most readily get the forms from doctors. When they go to a doctor and they're complaining about a pain, that often is where the worker gets the forms filled out because obviously they need the doctor's input on it.
What I want to ask you is, if you could help me on this, I'm looking at the lady who was here from Elliot Lake earlier and yourself, you're part of an advocate group. I wonder if you could clarify for us what the advocacy group does. Are you volunteer? Is there some funding from somewhere? It appears as if you are the group that helped the injured workers, and that's what we would like to know more about so that if we can enhance that, maybe that's something that's a consideration.
Ms Cranston: Our group is sponsored partly for our office space and the running of the office, no wages, nothing, because it's a volunteer organization on a no-fee-for-service basis by the OWA, the office of the worker adviser. We have to do funding, in other words, to keep other things going, like phone bills paid, whatever, office things.
Now at this time there may be that many forms and yes, the doctor can fill them out. But with your Bill 99, if it goes through, the doctor cannot fill out that form. You have to go to the employer for that form. This is why we say Bill 99 is not for the injured worker.
When someone comes to our office, and there are more coming in now -- this bill is scaring a lot of people and rightly it should -- they come in and they're hesitant to ask. They don't have any money any more because they've been off and workers' comp isn't coming in. The first thing they ask is, "I don't know how I can pay you." They don't have to pay us. We're there to help them fill out the form, whether it's WCB, whether it's a Canada pension form or whatever. We're there for them. Once they realize that, we have no problems.
1200
But the thing is, right now, with this bill going through -- and they have to go to their employer and they have to ask for this form -- a lot of people aren't even going to know what kind of form to ask for. If they don't bring it to someone who has worked with WCB and they try to do it on their own, we aren't even sure that they're going to get the right form. How can this government guarantee that the employer is going to give that injured worker the right form to fill out in the first place?
Mr Spina: Bill 99 does not restrict the use of forms from WCB; they're still available from doctors and other sources. Bill 99 is not perfect, we acknowledge that, but that's the purpose of the hearings, to hear back. But those forms will still be available from doctors from what we understand.
Ms Cranston: Under Bill 99, the injured worker must ask their employer for a specific form. It's in the bill under self-filing.
The Chair: We'll move to Mr Patten, please.
Mr Spina: That's not in the bill.
The Chair: Excuse me. Mr Patten.
Mr Patten: I think it may be the communication. We had raised this question earlier and we were told by the government side, the minister's office actually, that the form could be obtained through a doctor, so we'll see. Regardless, this should be clarified so that people know they have options and alternatives. We'll make a note of that and bring that up for amendment.
I imagine there are a lot of things, but at some point we will have to go through clause-by-clause debate and make specific recommendations to this legislation. I'm trying to be realistic here. I don't see the government turning this thing down, so we have to identify very specifically what we would like to see changed and why. Do you have some specific areas in your priority list as to where we would make those changes?
Ms Cranston: The 30-day limitation is top on the list. I really don't know. There are so many things, having worked with injured workers, having them come in, having them whatever -- I feel they should leave it alone. It's not a good system they have in WCB now, but it's better than what this government is proposing.
Mr Patten: On the 30-day limitation, it would be even more difficult for some people who are working in their second or third language, even if someone does help them fill out a form, their interpretation of what's being asked sometimes, so if they mess up on that then they've got to wait for a period of time and the decision is really out of whack with the intent and they have to go back to redo it. There's a lot of time in there in which the person is off work and is not compensated.
Ms Cranston: That's right. Not only that, but the majority of people think, "Oh, this guy got hurt today, he's on WCB tomorrow." That's a myth. It doesn't happen. It doesn't happen now and it certainly won't happen then. Now you have an adjudicator in Thunder Bay -- we deal out of Thunder Bay, you deal out of Sudbury, I guess -- maybe had a bad day, didn't sleep good last night, had problems getting to work, traffic was too heavy. The first guy who picks up the phone to talk to them that day, if they haven't had a coffee or got their head on straight, they've denied it. I don't care what. "Your form didn't come back in." "I sent the form two weeks ago." "I'm sorry, I didn't get it." In the meantime, it's sitting in a mailroom.
Right now, there are all kinds of ways around, stalling tactics from the WCB for any injured worker at this point. What they have to do is get a new system, treat these people as human. They throw them out like an old pair of shoes. Where some people would probably give those shoes a second chance because they've been pretty faithful and comfortable, the injured worker doesn't get that.
The Chair: Thank you very much for your presentation.
That concludes our presentations for this morning. We'll reconvene at 1:30 this afternoon.
The committee recessed from 1206 to 1333.
ADVOCATE FOR INJURED WORKERS OF SUDBURY
The Chair: Our first witness to come before us this afternoon is Mr Campeau, Advocate for Injured Workers of Sudbury. Good afternoon and welcome.
Mr Gilles Campeau: First of all, thank you for permitting me the time to make a presentation here. As opposed to a presentation concerning the pros and cons of the proposed new legislation, I intend to render a submission to you concerning what the new legislation does not address.
This new legislation does not address the real root cause as to the reason there are such atrocious expenditures at the Workers' Compensation Board. The root cause of these problems begins at the operating level of workers' compensation. The new legislation does not address the improprieties which have been committed through these many years at the Workers' Compensation Board concerning the improper adjudication of files.
Files have been adjudicated in such a fashion that misinterpretation of legislation has been used, misinterpretation of medical documentation has been used, misinterpretation of facts on files has been used, all designed to deprive the injured worker of his legislated rights to benefits. Proof of this lies in the fact that the Workers' Compensation Board has been and is still being swamped with appeals. WCAT is swamped with appeals to the point where it takes approximately a year and a half to even receive a decision from WCAT.
I have presented to you a letter I received from the general counsel at the Workers' Compensation Board, Mr Paul Holyoke, dated May 23, 1997, in which Mr Holyoke actually informs me that although the vetting of documentation on injured workers' files has been used by Workers' Compensation Board employees to deprive injured workers of their legislated rights, he intends to permit it to continue. Also, he informs me at the bottom of the letter that, "The opinions of staff members do not always coincide with those of the health care providers," meaning that unqualified personnel at the Workers' Compensation Board have been in the habit, and are in the habit as I speak, of overruling professional medical opinions and documentation on injured workers' files to deprive them of their legislated rights. As far as he's concerned, this will continue.
Until such time as the Workers' Compensation Board operating level is properly addressed, no matter what legislation is passed you will still have the problems of atrocious expenditures.
I have a case that I represented for an injured worker who was injured in 1980. That injured worker from 1980 to this date has received two decision reviews, two hearings at the hearing level with workers' compensation, one WCAT decision, which was rendered in her favour in 1985 and disregarded by the operating level. She's back at the hearing level once again in 1997 for the exact same decision that was rendered in 1980.
Multiply that by thousands and you will see the real reason why it is so costly to run the Workers' Compensation Board. Workers' Compensation Board problems are derived from the operating level on.
The problem is that most administrators at the Workers' Compensation Board are politically appointed. I have spoken to many of these administrators; 99.9% of these administrators have never had any knowledge concerning any legislation or policy procedure. They have all informed me that it was not their job to learn what their product is concerning injured workers or the employers in this province.
An injured worker who was injured in 1986 was on the Workers' Compensation Board for two years and after his second year of WCB he decided to return to work. He was permitted to return to work by his medical doctor. But he couldn't return to work because the company he was working for had gone under. Therefore, another employer in this city was kind enough to give him a job and he also was aware of the fact that this worker had previously been injured.
Three years after he worked for his new employer, he had a recurrence of injury. The operating level, instead of placing him back on the old claim, decided to issue a new claim and to charge the new employer. This is being done over and over again at the Workers' Compensation Board.
If you people want to know why it's costing so much money to the employers, all you've got to do is take an injured worker's file and read it. I don't think there are very many of you who have even read an injured worker's file to see if it was properly adjudicated by the Workers' Compensation Board employees, in accordance with the legislation or with policy procedure. Ninety-nine per cent of Workers' Compensation Board employees are totally and completely unfamiliar with the legislated act or with policy procedure, therefore rendering many improper decisions, I think it's safe to say, on all injured workers' files because of misinterpretations. This is what is costly. This is what is happening. These are the true facts.
Mr Maves: Thank you very much, Mr Campeau, for coming forward and making your presentation. You talked about the problem, the root cause of WCB at the operating level. You've had a lot of experience with not just your own claim, I guess -- I was unsure of that -- but others that you've helped to represent.
Mr Campeau: Yes. Unfortunately, I was injured in 1987 and at that time I was an employee of the Ministry of Housing. I am still an employee of the Ministry of Housing. I have been placed on an indefinite leave of absence. They pay for my benefits. Just to show you how bad it is over at the Workers' Compensation Board, they placed me on vocational rehab instead of giving me a wage loss. How could they place me on vocational rehab when I'm still employed?
1340
Mr Maves: You talked about administrators as politically appointed. To my knowledge that's not the case and anyone who's hired at the WCB is through a normal process of advertising for positions. They receive applications and it's not political at all. I'm just wondering where that came from.
Mr Campeau: Then I would dearly love someone to inform me why they are so unfamiliar with the legislation and policy procedure.
Mr Maves: They definitely, obviously, should be informed about the act itself and the policies of the WCB. I see you've been in contact with some of the people at WCB and I think you should make that quite clear.
Mr Campeau: I've been in contact with WCB personnel from the top down. They have even imposed an illegal restraining order on my person to try and prevent me from representing injured workers, because I win 99.9% of my claims. It's not difficult. All I do is correct the wrong.
Mr Maves: Right. I want to thank you for coming forward and making your presentation today and I would encourage you to continue to pass on your concerns to the management, the new board, at WCB about your concerns about their front-line employees.
Mr Campeau: They already know, and it won't make any difference. Another thing: This Bill 99 is already part and parcel of policy procedure, so how can it be part and parcel of policy procedure when it hasn't even had its third reading yet? That's what injured workers would like to know. Could you people explain that?
Mr Maves: It's actually not passed yet, so --
Mr Campeau: No, but it's still policy procedure at Workers' Compensation Board. It's being implemented as we speak.
Mr Maves: Actually, I can't speak for entirely what they're doing --
Mr Campeau: I can. I'm telling you. The facts are there.
Mr Maves: -- but there are some consultations taking place in anticipation of --
Mr Campeau: Is this just another political smokescreen, that they're trying to appease the --
Mr O'Toole: Madam Chair, on a point of order, I want to ask this gentleman: You've made an assertion I'd like you to substantiate. You're saying there's a specific policy in place today as a direct result of Bill 99, which is in second reading. Could you cite me a specific policy that has been changed so we would be able to substantiate your claim?
Mr Campeau: There are many, but I can't provide them for you --
Mr O'Toole: No, I don't want the general paintbrush answer. I want the specific policy. You've made an accusation here. I'd like you to forward to us a specific policy that has been changed as a result of Bill 99.
Mr Campeau: I don't have it in front if me right now.
Mr O'Toole: Well, send it to us.
Mr Campeau: I wasn't prepared to do that, but I will provide it for you.
Mr O'Toole: Thank you very much.
The Chair: Mr O'Toole, that's not actually a point of order, but it can be taken as a question from the government members.
Mr Campeau: I'm very willing to provide that for you any time. I'll send you all you want, providing you don't ignore it.
The Chair: We'll move now to Mr Patten.
Mr Patten: Mr Campeau, thank you for coming. I take it you might agree with calling this bill, not just Bill 99 but Bill 99.9%, Out of Whack. That would be a better name for it.
Mr Campeau: Correct, absolutely correct. The fallacy is that we are led to believe that this bill and this new legislation will prevent industrial accidents. Somebody's living in a fairyland. Industrial accidents will continue to happen. It's a fait accompli. As long as there are human beings on this earth, they will get hurt.
Mr Patten: So your view is that the people at the operational level are not competent, they're not knowledgeable, they're not aware of the legislation --
Mr Campeau: Correct.
Mr Patten: -- and therefore they're not adjudicating the cases in a fair or just way.
Mr Campeau: I can prove that this fact is being ignored by the Workers' Compensation Board administrators; also by politicians. I have here an injured worker's file. This file was ripped. This is a photocopy of a ripped file of an injured worker. This is fraud. It was done deliberately to deprive this injured worker of his legislated rights. They actually sent me photocopies of the ripped file, and they tried to inform me that this was improperly shredded in 1987 when they put it on microfiche. This is a lie, because this file was destroyed in 1981. It was ripped by hand. If they were going to destroy files in 1987 after placing them on microfiche, they would use a machine; they would not rip them by hand.
Mr Patten: Maybe the machine was broken.
Mr Campeau: I doubt it. If the machine was broken, WCB employees would do nothing; they would go home and get paid.
Mr Patten: What would be the solution, in your opinion? Do you suggest replacing everybody? Do you suggest training? Do you suggest orientation? What is your recommendation?
Mr Campeau: I suggest that politicians get off their butts and start investigating what's really going on at the Workers' Compensation Board, take these incompetent fools out of there and replace them with people who are prepared to do their jobs properly, fairly and impartially and in accordance with the legislation and in accordance with policy procedure only. That is my suggestion.
Until such time as you people do that, there will always be problems. The problems, as a matter of fact, with Bill 99 will get much worse, because what Bill 99 is actually doing is setting up a smokescreen and justifying improprieties that have been occurring since 1914 in the Workers' Compensation Board. Just by taking away, through Bill 99, the powers of an injured worker to be able to properly present himself through an appeal will not correct anything. The expenditures will still be there.
When the Workers' Compensation Board only spends 5% of its legislated responsibilities on injured workers and 12.5% on administration costs, where's the rest of the money? That's what we'd like to know. If there's so much expenditure and only 5% is going to injured workers, what are they going to do when the injured workers only receive 1%? What excuses will they have then? They can't blame injured workers any more for all the problems at the Workers' Compensation Board. Who will they blame then? The problem is that politicians think we're all a bunch of idiots. Well, we're not. We know what's going on. Thank you very much for your time.
The Chair: Mr Laughren, did you have a question?
Mr Laughren: Yes.
Mr Campeau: I'm sorry. I apologize.
Mr Laughren: It's very unusual. You may categorize me as one of the idiots, as a politician.
Mr Campeau: No. Listen, I'm sorry. I apologize. I should not have put all politicians in the same basket. There are some very good, excellent politicians.
Mr Laughren: Okay, because Mr Hastings and I are different.
Mr Campeau: I'm not a Conservative, by the way.
Mr Laughren: I need to say a couple of things, though. It's not usual for me to take issue with an injured workers' advocate, but there are some things I don't like to have on the record without being challenged, quite frankly. One is that I would never blame the workers at the WCB for being told to implement policies with which I disagree. They don't make the policies. They deliver the policies that are given to them by the board of directors of the WCB, with some guidance from the Ministry of Labour and committees like this. I wanted to say that very clearly, that the vast majority of workers at the board work very hard, do know what they're doing and are not appointed politically.
If you want to talk about the board of directors, all governments appoint political appointments to the board of directors, absolutely. We did it, the Liberals did it and the Conservatives did it.
Mr Campeau: Well, sure, it's a cash cow.
Mr Laughren: I understand that. It's not the workers there.
Secondly, I don't know what kind of relationship you have had traditionally in the war you're fighting on behalf of injured workers, but I don't find that doctors are always the ones who espouse the cause of the workers the best. I could give you some examples -- I won't -- where doctors' opinions were fundamentally mean and wrong and were overruled by people at WCB who saw this and overruled them. I don't disagree with that. I'm not saying I agree all the time, but I don't think doctors are the ones to adjudicate claims; I just don't.
Mr Campeau: That's news to me, Mr Laughren.
Mr Laughren: I think they have a role in it; absolutely they have a role in it.
Finally, the cost of running the WCB: I remember doing some number crunching on this. It was 10 years ago, but I suspect the number is even lower now. The cost of administering the WCB was less than half of what it costs to administer insurance companies and their claims, because they pay out huge amounts in commissions and have employees in different locations around the province and so forth. So the WCB is not inefficient in that sense. They are an efficient operation in terms of the total dollars they get and what they pay out to workers versus administration. I haven't said that. I don't like the WCB. I think their policies are wrongheaded and I think this bill is wrong. All I'm saying is I want to keep a focus on what's causing the problems and I don't think it's the workers at the WCB.
1350
Mr Campeau: Well, you're absolutely wrong. How many files of injured workers have you gone through, Mr Laughren, since 1987? I've gone through hundreds and hundreds. How many files have you gone through, Mr Laughren? Therefore, how can you make that kind of statement?
Mr Laughren: Because I don't think it's the fault of the individual worker at the board.
Mr Campeau: I can prove to you it's their fault. Come to my place and I'll show you. I'll show you fraudulent activity at the Workers' Compensation Board. I have never met since 1987, with the exception of maybe two people working at the Workers' Compensation Board -- that's in Toronto, Ottawa, Sudbury, you name it -- I've never met one competent WCB employee, not one who knew anything of what they were doing. If they know what they're doing, then they're deliberately committing illegal fraud.
Interjection.
Mr Campeau: That's a matter of opinion.
Mr Laughren: Yes, it is, absolutely.
Mr Campeau: But I can also prove that Workers' Compensation Board employees have deliberately reversed professional medical opinions of well-known surgeons etc. Injured workers, for crying out loud, have been committing suicide because of this. Don't you people have a heart concerning that? We never hear about these people committing suicide, but talk to some of these doctors at Sunnybrook who are sick and tired of losing their patients through suicide because of the improper administration of their claim files by WCB employees at the Workers' Compensation Board. It's nice to say to Mr O'Keefe: "I'll give you a nice cushy job at the Workers' Compensation Board. We'll start you off at $392,000 a year plus bonus but we'll give you a raise two months later to $700,000 and change." Isn't that the true facts?
The Chair: Mr Campeau, thank you for taking the time to bring your views before the committee today.
Mr Campeau: I want to thank you very much. I know it fell on deaf ears, but I tried anyway.
NORTH BAY AND AREA INJURED WORKERS ASSOCIATION
The Chair: Now I'd like to call on a representative from the North Bay and Area Injured Workers Association, Mr Dagenais, please. Welcome, sir.
Mr Roland Dagenais: I don't know if I can follow this up but I can give some background on what he said. First of all, before going into my presentation, I sat and listened here this morning to people discussing their problems and how to solve them. Well, I had a problem one time with the WCB, dated January 4, 1979:
"Dear Mrs Dagenais:
"Re: Claim...Roland Dagenais (Deceased)
"Legislative amendments to the Workmen's Compensation Act provide the following retroactive benefits:
"Pension adjustment re deceased:
"From: $450.00 per month,
"To: $499.50 from June 7, 1976, to September 7, 1976."
It gives the figures here. They gave her a cheque for $148.50 in arrears and she was going to get a pension of $450 a month for the rest of her life, and I wish in hell she had got it because it's more than I'm getting. It's more than what I get, and I haven't got an apology, nothing -- not a thing from the WCB. I've been fighting these sons of bitches 33 years and I'm tired of it.
I started up an advocacy group in North Bay. I have injured workers coming in to me, 18 and 20 years old, disabled probably at 50% and getting 15%. "What do I do? I can't go back to work." I said, "Fight the system like I do and join our group." What happens? They're scared to get cut off, and don't let anybody ever tell you that it doesn't happen, because it does happen.
I have a few other things I would like to mention here, one more that's kind of a backup to the gentleman before me. I'm a little upset here.
I have another letter here, November 18, 1988. This is by an adjudicator with the WCB.
"Following the hearing on October 18, 1988, I carried out an exhaustive search of our records and located the claim established for your accident in December 1964."
They called me a liar for 22 years. I went to WCAT, I went to hearings with WCB, I told them I had a claim and I was denied to give that information at all of these hearings. I was denied it. What do I get in return, after they find it? I got a nice letter telling me, "You're not entitled to anything under this claim." I had a swing-stage fall on my head, my back, my shoulders and my neck, but I'm entitled to nothing. Because they lost the file for 22 years, I'm the one to blame. Isn't that nice of them? We should have more people like this Mr Campeau.
I have a few answers in regard to some of the people who spoke to you today and were asked questions by the Tory representatives. Number one, the three-day injury: It's already being done. Where are you folks? You go to the city in North Bay, an employee gets hurt, cuts his finger, they don't send him home. They sit him in the corner, because when they put him on compensation, up goes their cost. Why do you think the North Bay situation -- which is Mike Harris's riding, which I'm from -- why do you think their compensation rates have gone down? They went down because they sit the people in the corner. They don't even bother.
I've had injured workers call me from the city: "What's this paper for, Roland? I don't understand it." No, they don't understand it because they're told to go and sit in the corner and do nothing and get paid for it so that the city can get a better compensation rate. What happens if they have a reinjury? You tell me. Don't want to have one of those. You're really in trouble.
Another thing is that I had asked -- and I spoke to Mr Maves about it -- the Minister of Labour, I heard her comment one day -- I'm sorry Mr Christopherson isn't here, but I asked her one day after hearing her on the parliamentary channel which I have watched for the past year, by the way. I know all you gentlemen quite well, especially Mr Hastings and Mr Maves.
So if you have any questions to ask me, after 33 years and still -- and here's an update report from a clinic that you are proposing to cut off. It was just picked up this afternoon.
I asked Mrs Witmer for a meeting when she said in Parliament, "I have never denied an injured workers association a meeting." Well, I'm still waiting for mine. He said he'd look into it.
I asked Mr Harris in January 1996. I had the privilege of sitting in front of him for two hours and 15 minutes. It didn't do me any good because he didn't even know who Mrs Witmer was, as far as I was concerned. I had to tell him she sits two seats over from him in Parliament. He didn't know anything about the changes in Bill 99.
So who are we going to talk to? Who do injured workers talk to? We can't talk to our own government. Either that or he's lying. My God, somebody should know something. I left him a list of 12 questions for Mrs Witmer and I'm still waiting, since January 1997.
1400
You talk about dealing with the Workers' Compensation Board. Well, I play a game with the kids at home. I've got two grandchildren. I have a hard time getting up and down off the floor and what not, but every once in a while they ask me to play 52 pickup. I'm sure you've played it. Well, that's just like dealing with the Workers' Compensation Board, because they toss you from that one to that one to that one.
I just went through this on June 26 when I was reassessed down here at the Sudbury office. I was assessed in 1978 for a right knee injury and then I developed problems with the left knee. I was on crutches for five years. I developed fibromyalgia. I got osteoarthritis. At times I can hardly move.
I went down for a review, to get reassessed for my left knee. So what did the doctor do? He comes in and interviews me, asks us questions. He didn't ask me if I had any. He never asked me. I went in and got assessed. He went down the hall and he sent some other guy in with me to do his dirty work.
The guy comes in and says, "Well, the doctor has decided to take 10% off your right leg and give you 5% for the left." I said, "That's kind of odd." After having a pension for over 22 years on my right leg, and it's still the same as it ever was -- it was a Macintosh implant at that time. It compares to a knee joint now. So lo and behold, this is what they're going to do. "If you don't like it, it's too bad." Simple.
I asked to speak to the doctor. He said, "You already spoke to him." I said: "No, I didn't. He talked to me; I didn't talk to him." How am I going to ask him about an assessment before he even gives it? Pretty hard to do. When I go to see my doctor, he sits there and he answers my questions. Not WCB doctors; they go and hide in the closet down the hall.
I don't call them doctors anyway. I can't figure out how a gynaecologist can be at the head of the medical department in Sudbury. That's what he took when he went to medical school. He was a gynaecologist and he knows everything about orthopaedic surgery, just like the one I've seen. He said: "Oh, I see you had a knee replacement, a new joint." I said, "No, I had a Macintosh implant. It was done back in 1974." He didn't know. He couldn't have read anything.
Mr Maves or one of you gentlemen mentioned about what has changed in the board recently that is in here. As president of the injured workers association, I hear it all the time. I've had people come and ask me: "What am I going to do now? I got a phone call from the WCB last Friday at 2 o'clock in the afternoon telling me my benefits are cut off." Three days later, in comes the mail, "You owe us $5,000"; some of them as high as $8,000. I believe that's in this policy.
I believe that nice bill they put in -- what do they call it? Bill 26, the omnibus bill. That's a beautiful bill. They're doing it to the unions, they're doing it to the health workers, the nurses in the public sector, under a nice little bill that's hidden, number 26.
I have one more statement before I get into the other, if I have time. WCB employees are governed by the board of directors of WCB, who are put in place by the government in power. Mr Campeau got into something like that. I won't get into it too seriously, but everybody knows you've got to pay off your election debts.
This fellow we have in there now as chairman of the board I never heard of in my life. I've never seen him make a speech. I heard one time -- I read it in the Toronto Star -- that he's putting in investigators, spending all this money on investigators. To what? The WCB in the past, according to the papers, investigated and found six people on WCB who were fraudulent. We're spending all this money to hire these 39 or so extra -- I can't believe it. What's happened to us?
My last question is -- and I hope I'm going to get an answer from somebody before I leave -- that before I go on with this I would like to know what is in this bill for injured workers. I heard what isn't in the bill all morning, but I'd like to know what's in it for me. I'm going to tell you what's in it for me. I'll go on to my presentation now.
I believe you know who I am, so good afternoon, ladies and gentlemen. I am pleased to be able to address the panel today on behalf of the North Bay and Area Injured Workers Association and injured workers as a whole. The government of Premier Mike Harris has finally agreed to public hearings. Although the hearings are being limited to the public so they can follow the policy of the Harris government, by ramming bills through -- and believe me, they do, because I've watched it -- so most of the voters in Ontario will be caught off guard, I can assure you this will not happen.
The government of Mike Harris chooses to lie to the voters of Ontario by his own statements during the pre-election. Mr Harris has met his agenda and most of the abovementioned, and lo and behold it's time to hit the injured workers -- it's time now, because it's summertime and we'll all have a good time -- so the wealthy can reap the benefits of Mr Harris's tax cuts to those who are not in need of any financial assistance.
I should remind you right here, I came here yesterday because I had to go to the clinic down the street. This report backs all my claims up, and will be refused, I can guarantee you. I don't make a lot of money. Over the years since 1969, I had to take commutations. I think I took three or four. It was never explained to me how they worked or what not. They said, "You're going to get this and your benefits are going to be cut back," and what not, but I had no choice.
I was going to lose my house. I was so badly in debt that I couldn't even turn around. I was scared to leave the house. I'm still no better off, because I've taken those commutations. I'm no better off. I'm still a poor person. I own my own house, thank God. That's why I got the commutation, to pay off my mortgage. By the way, I didn't get that through WCB; I got that through WCAT, because WCB refused it.
I came here yesterday. I'm not financially rich, and I'm not even average. I slept in the car last night -- it was a nice night to sleep in the car -- because I can't afford $60 to $80 a night for a room in the city. I can't do it. I slept in the car. I told my wife, "You pack me a pillow and two or three blankets, because I'm sleeping in the car." I can't afford it. The WCB had to find things for a 22-year pension, to cut it back.
Some of the comments include no cuts to the following: health care, education, the environment and social services. Those were Mr Harris's comments during the pre-election. He promised not to cut program services etc to the most vulnerable people in society: the disabled persons of Ontario. Mr Harris has met his agenda on most of the above-mentioned, and lo and behold it's time for the injured workers of this great province to again be humiliated and cast aside so the wealthy can reap the tax benefits. We all know they're going to get money. I didn't get anything. I paid $4 more in taxes with his great tax cut. I paid $4 more this year than I did the year before. Why? Because he's got me on the starving list.
1410
Some of their proposed changes in Bill 99 are not fit for a Third World country, let alone the province of Ontario. For instance, the Occupational Health and Safety Act is amended to eliminate the Workplace Health and Safety Agency and transfer its function to the Workplace Safety and Insurance Board. I don't know how to read that. All I can make out of it is what I said here. How you can amend an act that you are eliminating beats me. An act is there to be amended, but you amended it all right; you just threw it all out. That's the easy way.
The words "fair compensation" are eliminated. Why? The original act of 1914 called for fair compensation, and it's being eliminated, so one has to assume there will be no more fair compensation for injured workers. What else? Why would they take the word "fair" out? I guess we're just not going to get it. This is the whole idea. Help the employers; they're the ones that pay the shots come election time.
The Chair: Excuse me, Mr Dagenais. I just wanted to let you know you have about a minute left in your presentation.
Mr Dagenais: About a minute and a half, eh? I'd like to leave it open then to the floor. I have a lot. You can go ahead and read it. I'd like to answer a few questions. I'd be quite willing to, but I'd like to make one point, just one. Injured workers lose, employers gain: $8 billion in 5% cuts to premiums to employers; $10 billion to $20 billion in cuts to injured workers in indexing and in stress. So you tell me who is gaining by this beautiful bill.
The Chair: Thank you very much. There isn't enough time to do questions from each of the caucuses.
Mr Dagenais: I figured that. I haven't even started. Maybe you should consider Mr Christopherson's statement when they began this hearing and maybe hold some more so the person can tell you what exactly has happened at WCB. I'd be glad to. I've offered but they won't accept. I don't know why.
The Chair: Mr Dagenais, thank you for taking the time to bring your perspective before the committee members today.
INJURED WORKERS' ADVISORY SERVICES OF SAULT STE MARIE AND ALGOMA
The Chair: I now call the representative from the Injured Workers' Advisory Services of Sault Ste Marie and Algoma; Pat Jolin, I believe it is. Good afternoon, Mr Jolin, and welcome.
Mr Pat Jolin: A long, hard drive. It takes me five and a half hours to drive three, so I'm not in a very good sitting mood.
I'll just start out with the document that's being passed around. It's the print form of what my intention is. I'd like to start by saying that I've been attending these committees since 1980, and I'm sure you're all quite well aware that we hash out the same thing over and over again: changes to the act, changes to the governments, changes to WCB policy. All I'm going to do is read what's on this for the record, and if there are any questions afterwards, fine.
To the Legislative Assembly of Ontario concerning resources development on reform and Bill 99:
Good afternoon, ladies and gentlemen of the committee, the public, and the labour movement involved, as well as the injured workers' movement and the media. I wish to thank you for allowing me the time for representing myself and also the office of the Injured Workers' Advisory Services of Sault Ste Marie, Ontario, to speak about the dramatic changes which are being implemented by this government throughout the Workers' Compensation Board of Ontario and which affect my life and wellbeing as well as the rest of the injured workers in the province.
Could we have your attention, please, while you're sitting there talking? You're here to listen to us, are you not? Sorry.
It was not our fault in most cases that we got hurt on the job, but unfortunately as we stand here today and as our future looks dimmer, we stand for our rights of protection for a system which if governed properly would be for the benefit of the injured workers, the employer, the Workers' Compensation Board etc.
It is my view that in the past, and now the present, the unfounded changes which the WCB has taken to implement on its own and without the consent of the stakeholders at large and also, as throughout the past, having hearings such as this one here today are still implementing changes which benefit the government and the employers only, not the injured workers.
Under Bill 99 we are considered second-class workers in many respects. Those workers unfortunate enough to suffer from the wrong work-related injuries will become second-class injured workers with mental stress and chronic pain, and will be arbitrarily denied compensation or have their benefits severely limited without reference to the individual merits of their cases. Again, nothing in Bill 99 explicitly restores the right to sue to the workers who suffer from occupational stress and also chronic pain injuries in the province of Ontario.
Also, I believe the time limits that the WCB proposes will prompt more appeals. In order to protect the rights of the workers and the employers, they will file more appeals even if they are unsure of the merits of their case. I know for a fact, such as my own case, the appeal system is a double jeopardy -- I've been saying that for years -- and a waste of taxpayers' dollars because 90% of them are denied and are sent to be a substantial burden on the tribunal. Unfortunately, due to this Bill 99 proposal, there will be increased legal litigation in the courts. I myself find it very perturbing that the minister, whether through herself or through the Premier's office, will allow such profound changes to the WCB policy, which in total is a delay and denial for loss of workers' rights to appeal some board decisions at contemporary levels. I wish to add that Bill 99 is unconstitutional and a discrimination against injured workers, who will suffer further while their rights are pursued, and the government will expend precious dollars to defend its unjustified discrimination throughout the process.
Also, in brief, as of yesterday I am very upset about the discrimination towards documented work-related medical prescription requests by family doctors being delayed, to assist the injured workers through their pain and suffering ordeals.
Before I close with the bottom line, I'd like to say and again repeat that I know you've heard it all and you're hearing it again today, but I'm an injured worker. I've been injured since 1976. I helped form injured workers' groups in the province of Ontario throughout the years and I originated another one in Sault Ste Marie called the IWAS, which was at every hearing that's ever been attended in this province by other groups. I was forced to go against board policy again, because I'm denied all of my rights. That's why I keep on this discrimination thing. I'm denied my rights because if I can represent people, I could be a lawyer, a judge, a court clerk or a legal assistant or paralegal, yet I'm deemed, because I'm over 50 years old, that I can't do it. I think it's very important that the panel understand that.
Again, thank you very much for allowing me to make the presentation. I could go on for hours and hours, like I was saying earlier, on behalf of injured workers and labour, and even the employers as far as that goes, because I have many consultations with all of them, all sides. I don't discriminate. Right now everything from rehab to adjudicators is being very discriminatory in just about every manner that there is, and it's very unjustifiable. Please don't let the government that's in power today do these foolish things by just putting in Bill 99 without proper amendments from the stakeholders. Thank you.
The Chair: Thank you. There's just under four minutes per caucus.
Mr Patten: Thank you, Mr Jolin. We have some questions for you. Could you go over that last bit you mentioned in terms of being discriminated against, that you weren't permitted to represent people because you are over 50? I ask that for selfish reasons.
Mr Jolin: There's what we used to call a technical adviser. As you know, the board got rid of most of the technical advisers, supervisors, in the immediate offices. I had the unfortunate incident in our office in Sault Ste Marie that it's right on my file. I just had a hearing three weeks ago. I waited four years for a hearing in my own case to try and get entitlements which I believe are well overdue to me. I tried to get out of the injured workers' movement and pass it on down the line, but then there was so much backwater and hogwash that I was forced by hundreds coming knocking on my door to start another one over again. That's why I'm here today representing this new group.
1420
The constant thing about it is it's in my file on a regular case by the technical adviser. Even the girls on the switchboard notify them, "Pat Jolin called here 10 times today about people's files." We have requisitions of requests through the access department for 100 files a week through the office, but it's not the office name that's on it, it's my particular name, and it shows in my files.
Harry Malneck, who was a technical adviser, said himself, throughout the part of my rehab program when I was forced to quit the final job that I tried in 1989, that I wasn't cooperating with the board, but that isn't the way he told me face to face; I'm just too old and all this and that. That part's in my file. I taped the session. I let Bob Rae, I let Odoardo Di Santo, I let so many ministers listen to it, it's not funny. I can't use it, but right there, face to face on a tape recorder, he said if I can represent injured workers and attend at the office, there's nothing he can do for me.
Instead of being recommended for 147.4 and 165 and other entitlements for reassessment and stuff that I'm well overdue, I was literally cut off and denied. It took me four years. Like I say, I just had a hearing three weeks ago and I was denied, the results of that hearing.
I take chiropractic treatment two, three times a day just to keep walking and keep myself motivated. I have a full lumbar support brace, plus I wear a full-form moulded neck collar. I wore it all the way here, so I wasn't going to try and wear it in because I wouldn't be able to talk; I can't move my jaw. I get an hour and a half sleep at night, and that's been for about 12 years.
Mr Patten: What was the nature of your injury?
Mr Jolin: I just left Sudbury hospital here last week and I've got spinal stenosis, spinal meningitis right through my cervical. I've got no feeling at all in my hands and my legs. I won't use a cane or a crutch until I have to. As a matter of fact, even these specialists' reports in my file are being denied and I've got to appeal it. They won't even pay me transportation. I had to come down on my own for these specialists. It's throughout my file in several places about the discriminatory behaviour of WCB employees because I'm helping other people.
Mr Patten: As well as saying there is discrimination that you experience, you also said that Bill 99 is unconstitutional.
Mr Jolin: Yes, I believe it is unconstitutional. The simple reason is that there's discrimination in parts of the bill itself, plus the updates that are being proposed. It's still discriminatory to the injured workers because what's going to happen, as you know, is that you've got to go to the employer and say, "Okay, I got hurt on the job," under this new one. We see it every day that they're scared to go to the employer. They won't because they're going to lose their job: "Go home and we'll keep paying you," and after two weeks, "Sorry, you're laid off," and they can't go back. There's a six-month time period for WCB. I've seen already that it's happening. They're provoking it and the employers are getting away with it.
I was a self-employed employer myself for many years. I see both sides of the fence, plus I help injured workers every day whether I'm flat on a hospital bed or if I'm at home. I can't hold a phone very long but I do the best I can.
Mr Laughren: Mr Jolin, thank you for coming here. About a third of the way down you say, "after having hearings such as this one today, still implementing changes which benefit the government and the employer solely." We've been trying to get from the government members in these hearings how this bill benefits the injured workers. We can't find anything. We see how it benefits the employers because they get a 5% reduction in their assessment rates to start with.
Mr Jolin: That's right. I agree totally.
Mr Laughren: I keep waiting for the government members to jump in and put on the record how this bill is good for injured workers.
The other thing I wanted to ask you about is you say you believe the time limits the WCB proposes will prompt more appeals. I was just checking section 114 of the bill, which deals with time limits. Is that what you meant, that because of the time limit of 30 days for anything dealing with return to work, including voc rehab, it's 30 days and everything else is six months? Is that what you're referring to?
Mr Jolin: We see it already through the board process what they're trying to do. The government already, as of today, is trying to get the board personnel to implement that, and they can deem, just by the amount of volume and words, talking to an injured worker who is going to school for upgrading -- they've got to travel so many miles. There are people from Elliot Lake right now and Blind River who are travelling to the Sault to go to Sault College or going to Lake State University, which is a dramatic drive. If they don't find lodging at their own expense and then the board reimburses, they're deemed to the point -- right now they're being pushed by the rehab counsellor and by the managers of the offices: "Well, too bad. You take it or you leave it." If they say, "I can't afford it. I can't afford to live here and raise my family down there," that is called deemed, as you know, and it's deeming that they're uncooperative. What they're doing now is implementing Bill 99 to say, "Okay, they won't go back to work for the same employer or a new employer because that employer has to know what they're doing," so they still don't benefit from it.
Mr Laughren: It seems to me that if I was the injured worker and I had those time limits, I'd appeal. I'd virtually automatically appeal because of the time limit. I'm not going to take the chance of leaving it too long while I try and build my case.
Mr Jolin: Just as an example, I was rushed by the hearing department when I had my hearing a few weeks ago. I was told literally by the person on the other end of the phone in Toronto that I was being squeezed between two other hearings at the Sault office at the Holiday Inn and that I was going to have 15 to 20 minutes to present my case. I went in prepared to present it in 15 or 20 minutes. The hearings officer said, "Oh no, you can have the whole afternoon." I said, "Excuse me?" She said, "Yes, you can have the whole afternoon; I'm prepared to listen to your whole case." I said, "I've got it all ready in two pages for you because I was told I had 15 minutes and then five minutes for questions."
Mr Stewart: Thank you, sir. The gentleman before you said he had been involved for 33 years. As I make it, you have been involved with this problem for 21 years, correct?
Mr Jolin: Since 1976.
Mr Stewart: Does that not say that we should start to look at some changes to it?
Mr Jolin: As I stated earlier, I do believe there are changes that should be made, yes. I'm for changes to be made to the board on all sides, really. But what I don't believe is -- I'll just give you a couple of examples to your question. In Algoma Steel and in the ironworkers, the boilermakers, the tradespeople, they are getting more of a pension than what I'm getting, and yet I can show you papers until they're coming out of your ears that I want to go back. I went back to work five times in a body cast right from my bellybutton to my chin, with my arms spread out, just so I could get back on the payroll over the years. But turn around and now I'm deemed and I'm degraded to getting nothing. These guys are back to work, and some of them are my best friends, but that's besides the point. If they're back to work and they're making the full dollar and they never lost anything over the years, then I don't believe they should be qualified for pension rights until they can't work any more. Then they should be put on that pension, reassessed and put on pension. I've been telling the government of the day that for years, the different governments.
Mr Stewart: It's interesting to note that no governments were listening to you, I guess. I don't mean that facetiously.
Mr Jolin: Unfortunately, that's right.
Mr Stewart: My concern is that I've listened here this morning to a lot of presentations and the presentations are regarding one thing only: "No." I guess where I get turned on with what you just said a few minutes ago is when somebody comes up to me and says, "We don't like what's there, but here are some recommendations that you would do." I think that's where most people miss the boat. It's come out and criticize everything without an alternative, and I'm talking about constructive criticism. I appreciate what you just said, because I think that's what we have to do. Do I have any time left?
The Chair: Yes, you do, a little bit.
Mr Jolin: Just one more thing on your question, though, if I might. Again, like I said at the start, I've attended many of these type of hearings. What happens is the hearing isn't long enough. Why should myself and other people have to travel all the way from Sault Ste Marie or Wawa or other places? This hearing could have been held in Sault Ste Marie as well because there are at least 800 or 900 injured workers right now on benefits there.
Mr Stewart: But you've got to realize that it's not only the government that decides how many days of hearings and all these things. It's all three parties that do that, and they do an agreement on the way it is.
Ms Martel: We've asked for them to be extended. Come on, Gary.
The Chair: Order.
Mr Stewart: It's part of everybody involved in this.
Mr Jolin: Without being misleading to the question, with my right foot forward, I'm trying to say that if the hearings were held, in my view, in a proper area -- sure, I've got it all right here because I was told I had 10 minutes and then 10 minutes of questions. But that isn't fair. If the government, no difference what party, wants to take time to listen to injured workers and listen to the employers and talk about it, then that's fair, but not when you're allowed 10 minutes and you've got to drive for five and a half hours to attend something like this. Right now I don't even feel like sitting here, but I make my point by being here --
Mr Stewart: I appreciate that.
Mr Jolin: -- and appropriately, I believe, representing the people in Sault Ste Marie as I always have. With all due respect, when this hearing is over you're still not going to hear the whole story from everybody. You still have to make a judgement on your own decision.
Mr Stewart: Which there is still the possibility to do, though, but at least you hear the stories that are related to what we're doing here.
The Chair: Now the time is up. Thank you very much for bringing your perspective to the committee this afternoon. We appreciate it.
1430
Mr Christopherson: Point of order, Madam Chair: I was just advised that one of the government members suggested there was all-party agreement with regard to limiting the hearings. Is that correct?
The Chair: No, I don't think that's exactly what was said. My understanding of what was said is that the three parties are involved in the decision-making.
Mr Christopherson: That's not the case, because both opposition parties wanted longer hearings. I'm still prepared to put a motion before us now, if you'll agree to unanimous consent, so we can let people hear the truth about what this bill is about.
The Chair: It's not a point of order, though. It may be a disagreement of opinion, but it's really not a point of order.
CRISIS CENTRE OF NORTH BAY
The Chair: We'll move on to our next presenter, Ms Vlach from the Crisis Centre North Bay. Welcome.
Ms Kerri Vlach: I've asked Kevin Conley to sit with me. I thank you for the opportunity to appear before the standing committee. I am Kerri Vlach. I am a worker and I'm a Steelworker. The Steelworkers have accessible education, keeping every worker up to date on current relevant information, and the union representatives treat all the workers with respect in a democratic way. Every worker has the right to make his or her voice heard. We learn from each other and all of us contribute to changes that affect our rights as workers and union members.
I am also vice-president of the North Bay and District Labour Council. I work together with all the affiliates to maintain and protect the rights of workers. The OFL and the CLC keep me informed and aware of how changes in legislation will affect my rights as a worker and they provide suggestions and resolutions for how to protect my right.
I have serious concerns for the non-unionized workers, who do not have any margin of protection or representation looking out for their interests. If legislation is the non-unionized workers' only recourse, what hope do they have of protecting their rights as workers?
I get the impression from this government that the representatives are just going through the processes, such as standing committees, not because they want to hear what the people of Ontario have to contribute to changes in the proposed legislation that affect their lives but only because this democratic procedure was in place before the Conservatives were elected to office. I get the impression from recent bills that have been enacted against the wishes of the majority of the people that what I'm doing right now is just an exercise in futility. If you truly believe in democracy, you will listen to my remarks carefully and respectfully.
I'm not an expert on WCB or deciphering Bill 99, but I have access to representation that can and shall speak on my behalf when called upon. Why should I be concerned about Bill 99 when I belong to an organization that has representation qualified and educated on issues that affect workers and their rights? Why? Because this Harris government refuses to acknowledge or listen to the people I and many others have chosen to represent me on matters of labour. In the 17 months that this government took to create Bill 99, not once were the people who represent the workers consulted. Those consulted were employers, academics and bureaucrats.
This bill was supposed to streamline the 151 sections of the existing act, yet Bill 99 has 178 sections. I find it fascinating that this government changes the definition of words to suit its needs. I want to know how a government goes from streamlining to changing the entire purpose of an act.
Originally the purpose of the WCB was to protect the incomes of women and men whose lives were damaged and who in many cases ended their ability to work and earn a living. This system was designed to protect the worker by having those responsible for employment responsible for how the work is done compensate for damage done. Therefore, those held financially responsible had a definite interest in the prevention of injury.
I have learned that WCB is a right that was achieved by trading other rights away. This is known as the historical tradeoff. Workers gave up their right to sue their employer in exchange for the establishment of workers' compensation.
Hypothetically, Bill 99 changes the intent of the WCA. The purpose intended is to make Ontario the safest place on earth to work, but only statistically, reduce the claims submitted but not the injuries. Money appears to count more than people. There is more emphasis on programs, such as the board's current rating program, in which the reported accident frequency and claims costs have a direct effect on the financial kickback employers received from the board each year. Experience rating is designed to distort accident statistics through the suppression of claims. Not the prevention of injury but the reduction of employers' costs will be the primary concerns of the board of directors, which will be dominated by employers.
I see throughout this bill over and over again workers you represent being forgotten, being left unprotected by the proposed changes. For instance, the requirement for workers to file their claims with the board rather than automatically occurring through the treating physician doesn't account for the people who may have difficulty filling out the form. The time of six months to apply for compensation does not make allowance for those workers who know they are sick or injured but do not realize the connection between the sickness or injury until years later. There is no provision or requirement for employers to provide a copy of their report of the accident to the worker; any misinformation or misinterpretation on the employer's form will go uncontested for months or years. Occupational stress is not recognized unless it is traumatic stress. How this government can ignore the research and the literature on work-related stress is inconceivable.
I work in the broader public sector and have witnessed the damage done by stress related to work. The definition of "stress" I have learned from the Workers' Health and Safety Centre is: "Our experience of demands and uncertainty placed upon us that we cannot control. This leads to physical and emotional disease."
I can see clearly that it makes good cost-saving sense to exclude stress-related damage as it is this government that is greatly responsible for our work-related stress. For example, we have demands placed upon us: more clients, higher-risk clients and less staff; uncertainty to restructuring -- we do not know how long or when the job will be gone; loss of control -- our workers' and our clients' futures lie in the hands of this government. This is stress. You may change the definition of the word "stress," but you cannot change the physical and emotional damage that is experienced.
When I look at the remodelling of Bill 99, I see an uncaring, cost-cutting business making arbitrary decisions to which there is no recourse. Instead of learning from the weakness and failings in the system and improving the act, this piece of legislation will weaken the system further.
My recommendation to you, as representatives of the people, is to start representing all the people affected by this bill. Every worker is one day away from a work-related injury. It potentially affects us all. If your purpose was to design employer safety and insurance against compensating workers for injury, then this bill achieves just that. If your intent was to truly streamline the WCA, then I recommend that you meet, consult and learn from the people who represent workers' best interests: workers' health and safety representatives, the Occupational Disease Panel representatives and labour representatives, which includes the CLC, the OFL and the leaders of the unions.
I hope you seriously consider my recommendations. I work with young offenders, and in my job as an adolescent worker I try to get the message out that one has to take responsibility for one's own actions. Every action has a consequence. If this bill is passed, are you going to take responsibility for the people who will not be protected, nor compensated for damage, injury or death? Are you going to take responsibility for the consequences if Bill 99 is passed?
The Chair: Thank you very much. We have just over three minutes per caucus. We'll begin with the NDP.
1440
Mr Christopherson: Thank you very much for your presentation. I want to focus a bit on the part of your presentation, I believe it's on page 2, where you say: "In the 17 months that this government took to create Bill 99, not once were the people who represent the workers consulted. Those consulted were employers, academics and bureaucrats."
I'm sure you know this government likes to throw -- especially the Minister of Labour has a fondness for the word "fair." Unfortunately that fondness doesn't extend to implementing the reality of fairness.
You may know that the Ontario Labour Relations Act, this government's new one, as well as Bill 99, removed the word "fair" from their purpose clauses. I'd like to ask you first of all, how do you feel about the fairness of only one side of an equation, that being in this case the business community and this government's friends and not labour? Secondly, are you aware of anyone at all from the north here -- as vice-president of the labour council you would be aware of these things -- who was consulted at the local level by a local Tory MPP -- a major labour leader, anybody at all who had any input into this bill before it was tabled?
Mr Kevin Conley: First of all on your second question: Nobody from the north from the labour side was consulted, no one at all. I can speak a little bit for southern Ontario. General meetings with the president of the OFL, the government chose to take that to be consultation. General meetings aren't consultation. From our point of view, labour was not addressed; it was all one-sided.
Mr Christopherson: Just for the record, how do you feel about that in terms of all this fairness the Minister of Labour likes to say she's sprinkling around Ontario?
Mr Conley: It reminds me of living in Europe, actually.
Mr Christopherson: I would also point out that after pressuring the minister for months to make sure we have province-wide hearings, the best we got was six measly days, which is not nearly enough, given the number of people who are consulted. You may also know that Bill 7, the Ontario Labour Relations Act, the new one, didn't get one minute of public hearings. So not only was there no consultation; there weren't even any public hearings around that, not even a charade of public hearings, and yet we still have a Minister of Labour who wants to talk about fairness and balance.
Mr Conley: There's no fairness, there's no balance, none at all. I can truly say that. I can remember, when the Conservatives were in power years ago, we had more action from that party even though they weren't our friends. This government today truly ignores us. They don't want anything to do with us and that's quite clear. If you want me to rhyme off some examples, I can do that.
For instance, Mr Stewart, you asked a question of the previous speaker, that people come here and they don't give you suggestions of how to correct or amend your Bill 99. Well, you had that opportunity, sir. You had the opportunity with the royal commission and you chose to dissolve that royal commission. The second part is that you haven't approached labour. You have not approached organized labour for true consultations.
Mr Stewart: What do you think we're doing now?
Mr Conley: Let me tell you something.
Mr Stewart: The bill hasn't been passed. Give us your recommendations.
Mr Conley: Mr Stewart, do you want me to answer your question? You can throw it back and forth and try to be argumentative. In 20 minutes you can't possibly make recommendations.
Interjection.
Mr Conley: I'll make some recommendations in mine.
The Chair: Let Mr Maves have a question, please.
Mr Christopherson: And six communities doesn't constitute decent consultation on a bill like this either, Gary, and you know that.
Mr Maves: I have a couple of things. On page 1 it says, "I get the impression from this government that the representatives are just going through the processes," but I can assure you that in every bill I've been on that had public hearings, amendments were made. Government members and members from the opposition listen to amendments that are put forward out on the road, and the rationale for them, and often put them forward in clause-by-clause and bills are amended. I just wanted to make that clear. The other thing is --
Mr Conley: The task force on rehabilitation, what happened to it, sir? It was shelved.
Mr Maves: That information is still there to be used.
Mr Conley: What about Bill 62, sir? Our amendments weren't taken in. The opposition looks at labour and the first thing they say is, "Jeez, if labour is opposing it, it must be really good."
Mr Maves: On page 4, "The time limit of six months to apply for compensation does not make allowance for those workers who know they are sick or injured, but do not realize the connection between the sickness or injury until years later." Actually, subsections 21(1) and 21(3) both say that you get more than six months "in the case of an occupational disease, after the worker learns that he or she suffers from the disease." Subsection 21(3) also extends more leeway to the board in permitting people if they find out later on. So there are provisions in the bill.
Mr Conley: There are provisions there, but on average most workers, after they've been diagnosed, 20 years later don't understand or don't realize that it could have been their workplace. Mr Christopherson mentioned the ODP. Generally speaking, without the ODP -- you have to identify the disease. You have to find out if it's caused by the workplace. Without the ODP or --
Mr Maves: We're going to be spending more money on research into that area. It's already been announced, actually.
Mr Conley: I realize that.
Mr Patten: Thank you very much for coming out today. I would have to agree with a number of your observations.
This morning, by the way, there was a Terry Copes from the Sudbury Community Legal Clinic. I don't know if you heard him, but he said: "Bill 99 represents a major change in emphasis and purpose of the system. The system is no longer a workers' compensation system. The emphasis is no longer on compensating injured workers.... Instead, it is obvious that the change has been to making the act a workplace insurance scheme. Thus the purpose of the act becomes insuring employers for workplace accidents rather than compensating injured workers for those accidents."
I think you're saying the same thing. A number of people have brought that up and I think your observation is correct, that there is essentially a value shift in the original purpose of the act, which was a compensation no-fault scheme for injured workers. That was the primary reason. It is no longer that, in my opinion.
I suggest that in almost every area of legislation there is one area where I find people don't participate, and it's in the clause-by-clause. Clause-by-clause is the final step in the committee before it goes back to the House. That's where you hammer out all of those recommended amendments. The government side has their recommended amendments, each party has their recommended amendments, and the attempt is, having heard what people have said, to help rewrite the legislation.
You can see how many of the recommendations from the opposition stick. For every 10, if there are that many, from the government side, you'll be lucky to get one. Sometimes they are even friendly amendments. So it would be an enlightening stage to come to that particular stage and see it, because it's very difficult to move.
The problem isn't with the members here today. It's not with them. The people who make the decisions are not even here today; not the minister's office or the minister or the Premier's office. That's part of the problem. They should be with us, hearing your comments.
I also liked your redefinition of the title of the act. I thought that was perhaps most appropriate.
If you have additional recommendations or thoughts, share them with us. We'll incorporate them into our recommendations for changes.
Mr Conley: May I make one more suggestion concerning extending public hearings? I don't see a need for us to be meeting in a hotel. There are a number of government boardrooms sitting idle today. Here in the city of Sudbury we have a nice stainless steel building that's empty. We have schools that are empty. Perhaps if the public hearings are that great an expense, you could have used those boardrooms that are sitting idle today.
The Chair: Thank you very much. I appreciate your taking the time this afternoon.
1450
ONTARIO MINING ASSOCIATION
The Chair: I now call upon representatives from the Ontario Mining Association. Good afternoon, gentlemen, and welcome.
Mr John Blogg: My name is John Blogg and I'm secretary and manager of industrial relations for the Ontario Mining Association. With me today are Gary Hughes, who is general foreman, workers' compensation for Inco and chairman of the our workers' compensation occupational health committee, and Mr Larry Watkinson, who is the health and safety consultant for BLM Mining Inc. Gary is going to read our submission. It's about 12 to 15 minutes, after which time we'd be happy to answer questions related to our recommendations.
Mr Gary Hughes: Good afternoon, ladies and gentlemen. Let me begin by sharing with you that, with the exception of Mr Blogg, who is employed by the Ontario Mining Association, the others gathered here with me today not only at the table but in the audience are representative of not only the OMA but also various employers, including Bharti Laamanen Mining Inc, Falconbridge Ltd and Inco Ltd. Rather than deplete precious time before the standing committee, we are present today to demonstrate our support and endorsement of the submission of the OMA.
The Ontario Mining Association appreciates the opportunity to participate in the discussions on Bill 99 as this legislation represents a major change in the workers' compensation and occupational health and safety systems in Ontario. In fact Bill 99 provides for a new era for many Ontarians and a back-to-basics concept for those of us old enough to remember what the original intent was of workers' compensation and health and safety education.
The members of the OMA applaud the Minister of Labour, the Honourable Elizabeth Witmer, and the government for having the vision and courage to restore the workers' compensation system's insurance principles and recognize the need for workplace cooperation in the prevention of injury and illness as well as the earliest possible rehabilitation of workers who are hurt or become ill. We are also pleased to see real reform in the area of workers' compensation financial accountability and responsibility.
We remind the committee that the mining industry first expressed its concerns about the workers' compensation system financial difficulty in 1984 when the unfunded liability was about $8 million. As we know, that warning was unheeded by all ministers of labour and governments since, with the result being an unfunded liability in excess of $11 billion in 1995.
I would also like to remind the committee that during this same period of time the mining industry reduced its lost-time injury frequency from about five injuries per 200,000 man-hours to 1.3. For the past decade, our industry has been among the three safest industries in the province and the safest mining jurisdiction in Canada.
The industry's training programs have been copied for years by jurisdictions around the world as have the industry's safe mining methods and leading-edge technological advances. Despite all of these leading indicators, Ontario's mining industry has continued to be burdened by a Workers' Compensation Board which has shown little desire to control its spending or address the inequities inherent in the system. Consequently, despite the mining industry's record of accident prevention, safety education and mining process improvements, it has not been rewarded with lower WCB costs. In fact the opposite has occurred, with our industry's costs increasing from about $58 million in 1984 to $142 million in 1995.
As such, it should come as no surprise that the OMA continues to be an advocate of major reform to the workers' compensation system and supports many of the changes to the compensation system proposed in Bill 99. We believe Bill 99 is needed for the province to eliminate the unfunded liability, control the occasions of employer-employee abuse of the system and also attract investment into this province.
However, Bill 99 does fall short in areas, specifically, in areas which drive the costs of the system for our members and those which have created unnecessary debate between employers and employees over the years; as an example, the failure to address the definition of "accident."
Our presentation will focus on those areas we believe require reconsideration by the minister before enacting Bill 99. We believe we have provided alternatives which will improve the bill and thereby the compensation system in this province.
The Ontario Mining Association welcomes the opportunity to respond to Bill 99, An Act to amend the Workers' Compensation Act and Occupational Health and Safety Act.
The OMA represents the collective interests of the mining companies in Ontario and many of its suppliers of services. The mining association was founded in 1920 to provide governments and the public with the views of the industry on issues which affect the economy and wellbeing of the province and its citizens.
Ontario's mining industry has served as a model to government and other business sectors on how to fairly and effectively comply with the intent of the workers' compensation system in the province. We have a history of treating our workers fairly and compassionately whenever they experience the unfortunate consequences of a workplace injury. Our members engage their workers in attempts to return them to full recovery and employment as quickly as is medically feasible and attempt to resolve their problems with the Workers' Compensation Board whenever warranted.
The Ontario Mining Association acknowledges that the reforming of the workers' compensation system is long overdue, as the system has clearly lost its focus. This has become expressly apparent during the past 10 to 15 years when the system became more of a social safety net than a wage loss insurance program. Consequently, it has become difficult for our members to continue to support some claims by its employees as too often they are for injuries or diseases of ordinary life. Also, we believe the system's benefit level has become a deterrent to people wanting to return to work as quickly as medically feasible. This has negative repercussions on workers and company-initiated programs designed to assist the rehabilitation of injured employees.
The Ontario Mining Association has attempted in this submission to provide the government with reasoned comments and recommendations to the proposed reforms of Bill 99. For example, we continue to promote changes to the definition of "accident," even if it is merely changing the phrase "accident includes" to "accident means."
We were disappointed at the minister's decision to not include her promise of a three-day waiting period for benefits. We understand the concern which caused the minister not to include it in the bill. However, we believe that the decision was based on misinformation about the New Brunswick waiting period and have included in our submission a letter of explanation from its chairperson. In addition, we are proposing that injuries involving serious injury or death have any waiting period waived.
The removal of future economic awards is a welcome change as they were mismanaged from their beginning, with inconsistent application which often treated workers and employers unfairly.
We support the amendment of the benefit level from 90% to 85% of net as this will reduce much of the unintended overcompensation of workers whose disability was less than six months while still ensuring a fair level of wage loss for workers during their recovery period.
With respect to appeals, we welcome changes to the authority of the Workers' Compensation Appeals Tribunal. However, we believe that the minister needs to reconsider some of those changes and have made some recommendations in this area. For example, we question the minister's intent in limiting employers' right to appeal as it appears to create an injustice which the minister may not have intended.
We are pleased that the minister has placed a premium on the safety of workers and moved the responsibility for accident prevention inside the Workplace Safety and Insurance Board. We believe that the relationship between good accident prevention management and workers' compensation performance is indisputable.
1500
We also agree with the need for objective scientific research and administration of disease claims. The minister's decision to move the function of the Occupational Disease Panel inside the new Workplace Safety and Insurance Board we believe will produce more fact-based, objective and scientifically valid research into the causes of diseases experienced by workers. We are confident that workers, employers and the public will be better served by this process and look forward to assisting the Workplace Safety and Insurance Board in its research of diseases involving miners to ensure that good science, valid conclusions and fair treatment of workers is the result.
The Ontario Mining Association thanks the Ministry of Labour for its efforts in the drafting of the Bill 99 amendments to the Workers' Compensation Act, which we believe attempt to ensure fairness and equity in the treatment of injured workers and for the employers who fund the system. We trust that you will find our comments and recommendations helpful.
At this time I would like to just take a few minutes longer to briefly summarize our recommendations. The Ontario Mining Association recommends the following:
(1) That the definition of "accident" be amended by deleting "accident includes" and adding "accident means."
(2) That the government review section 4, the functions of the board, with respect to the use of these powers with federally regulated employers.
(3) That the minister designate the sectors for representation on the health and safety advisory council, section 5.
(4) That mental stress be compensable where it is an acute reaction to a traumatic event where employment has been established as the predominant cause.
(5) That mental stress should not be compensable when (a) the work is not the predominant cause, (b) normal personnel activities are involved, or (c) the condition cannot be described as an Axis I mental disorder under DMS-IIIR psychiatric classification criteria.
(6) That Bill 99 require scientific and medical validation of workplace causation for claims for occupational disease and that there be a change in the pricing model of the WCB for occupational disease.
(7) That because the "functional abilities" information is critical to Bill 99 and also to successful return-to-work programs, it must be provided as section 21 is currently drafted.
(8) That the minister amend section 22 to ensure the board has the responsibility to consider all income of a worker prior to making a determination of their real wage loss.
(9) That section 42(5) be amended to require the board to consult with the employer and health care practitioner when developing a labour market re-entry plan.
(10) That Bill 99 ensures workers who cooperate with their employer and the board's labour market re-entry plan are not disadvantaged because the LMR was the wrong plan for effectively addressing the needs of their specific disability.
(11) That the minister amend section 44 to permit the board to re-examine an award when there is evidence that clearly demonstrates a change in the worker's earnings profile from that at the time of the 72-month review.
(12) That the minister amend the drafting error in section 46(2).
(13) That the minister reconsider section 61(2), as it has the potential of adding people to the welfare rolls.
(14) That Bill 99, section 80, be amended to permit the tribunal to hear section 80 appeals.
(15) That the minister repeal section 84, as the penalties for failure are adequately addressed in section 40.
(16) That the minister amend section 86(5) by deleting "as a penalty, shall pay the amount again to the board."
(17) That the minister repeal section 86(6).
(18) That the minister amend section 95 by providing legislative language which puts the second injury and enhancement fund into the act.
(19) That the minister amend section 116 to ensure that the current mediation process of the board is changed to an interest-based model or, alternatively, that the board mediation process be discontinued.
(20) That the minister accept the position of the Employers' Council on Workers' Compensation with respect to amending section 118 and the role of the appeals tribunal. In particular, the Ontario Mining Association endorses all 10 principles of the model proposed to the standing committee by both the ECWC and Mr Les Liversidge.
Thank you, ladies and gentlemen. At this time we would gladly entertain any questions you may have.
The Chair: There are six minutes remaining for questions, two minutes per caucus. That means short answers and short questions. We'll begin with the government caucus.
Mr Maves: Thank you for your lengthy and detailed presentation. Out of all this, one question. I think we should clarify something that came up today. An earlier presenter said that the OMA, your group, supports keeping the independent ODP, and in here you don't seem to agree with that assertion. I wonder if you can clarify your position on that and your position on ODP research.
Mr Blogg: I'll respond to that one. The Ontario Mining Association has for some time been unhappy with the Occupational Disease Panel. We do not believe that as a bipartite organization and with the results of their work, specifically IDSP reports 12 and 16, and there are a couple other papers they've put out, that their research is of a high quality. In fact IDSP 12 and 16 have been highly criticized by independent medical and scientific authorities outside Ontario, let alone within the province, people who are recognized internationally as experts in epidemiology.
As a consequence of that and because we believe, and have for some time, that disease is really going to be the driver for all sectors -- the mining industry was caught first -- disease research needs to be done and done well. The perspectives must be based on scientific norms so that when you get the results there isn't the kind of acrimony we've seen around the past ODP reports which have been found to be flawed in their scientific process and in their conclusions.
The scientific evaluator of a couple of them for us was a former member of the IDSP and a PhD, and he was critical of his former employer. We are very uncomfortable with the ODP as it currently is structured as a bipartite organization with non-scientific people on the panel.
I think that moving the research function inside the board will be better. We applaud the minister's commitment to putting more research into occupational disease, and I think in the long term when it comes to workers who suffer from occupational diseases, such as our nickel sinter and smelter workers who had nasal and larynx cancer, where our industry accepted the science was valid, accepted our responsibility and agreed to have those paid, we believe that kind of good-quality research will come out of this change in the bill.
Mr Maves: Thank you for that clarification.
Mr Patten: I'd like to follow on the same question. We had some information shared this morning which showed that both Inco and your association used to be supporters of the ODP in terms of its degree of independence. It can never be off the wall and totally unrelated to it, so we're talking about to what degree.
The worry is that it may be in a position where it can be compromised if it is prepared to look at or feels it should be looking at workplace diseases that are of concern and it has a lead on certain possible insights. Your submission a year ago said you supported its independence; two and a half years ago, Inco did as well. Now all of a sudden there seems to be a change. Is it in the substance of what they do? I wonder if you would both address the issue of the independence of the ODP.
Mr Blogg: At the time -- and that was probably a March submission of ours with respect to the Cam Jackson report -- we had felt that an independent body with good research criteria would probably serve the interests of everybody quite well. But since that time the ODP has put out a number of reports, most of which have been found by the international scientific community to be flawed. We therefore, after discussion within our industry and with people outside our industry, said that if you put the right parameters around the board's research, that is, a prospectus goes out and you go out to the scientific community and not keep it necessarily in-house, but the board is the one that lets the scientific research contract out, much as today they ask the ODP to do research, they would do the same thing, but they would have the research let out to professional researchers at universities; for example, people like Dr Muir. Then that would be equal, in our view, to the independents we talked about in our Cam Jackson report.
1510
Ms Martel:, I think you do a disservice to the members of the panel by suggesting that their research is flawed and that there are not enough scientists on it. We heard a remarkable presentation this morning from Homer Seguin, whose credentials are impeccable, who listed any number of people internationally who had any number of qualifications who support the continuation of this panel.
Let me just remind you of how industrial diseases were compensated when the board dealt with industrial disease, which is obviously the scenario you wish to refer to or return to. In its 11 years of existence the ODP has exposed more occupational diseases and their causes than the WCB did in 70 years, and that will be the track record we will see in Ontario when the ODP goes back into the WCB.
Your position as an association has changed dramatically in a single year when you made a presentation to the Jackson committee. I want to ask you if that is not because Inco and Falconbridge have decided they don't want to pay for industrial diseases for people who have suffered and whose widows are now left. Isn't that the real reason we're seeing the change in attitude from the OMA today?
Mr Blogg: Ms Martel, you'd be amazed how science has progressed over the last seven years. The reality is that because --
Ms Martel: The board sure hasn't; nor will they.
Mr Blogg: The board was a far cry from what it's going to be under your government as well. I can tell you that the reason diseases are found now and the reason Inco in fact has been involved in doing a lot of research into occupational disease is because the technology and the science have evolved to the point where we can now get more concrete evidence and we have the cohorts now to do the kind of science that couldn't be done seven or 10 years ago.
Our position on the ODP hasn't changed in substance. We still don't believe the current ODP as a bipartite structure with people representing constituencies and private agendas can possibly be as good as a WCB which is funded and supported by --
Ms Martel: Funded by employers.
Mr Blogg: It's supported and it's meant to improve the lot of the stakeholders, who are the workers, the employers and the citizens of this province.
The Chair: Thank you very much. That concludes the presentation time. We appreciate --
Mr Hastings: Point of order, Madam Chair: I'd like to request that Mr Blogg submit to this standing committee the letter from the PhD who used to work for the IDSP questioning some of their standards in terms of the decisions they made on some of the cancers, and also any of the ODP papers that have been questioned substantially by the international authorities, epidemiologists particularly, questioning some of the techniques used by the IDSP, especially back when they started in 1977 on laryngeal cancer in the mining industry. Could you do that, Mr Blogg?
Mr Blogg: We can give you our submission we submitted on IDSP-12.
Mr Hastings: Thank you. I'd appreciate that, and the letter as well if that's available.
Mr Blogg: He was one of the researchers. It's in that document.
Ms Martel: Point of order, Madam Chair.
The Chair: Excuse me just one moment, please. That's actually not needed as a point of order. It can be just asked for as a point of information.
Mr Hastings: I just wanted to make sure the researcher gets that.
Ms Martel: I would like to request that research then also, on behalf of the committee, get the documentation from all of those 1,500, I assume -- it was said this morning in the brief -- supporters of the ODP, many of them, we saw from the presentation this morning, international experts in research both at the university and health sciences level, see their credentials as well and what they have to say about the ODP. I request that the committee also ask for that information.
The Chair: Duly noted. Gentlemen, thank you very much for your presentation.
UNITED STEELWORKERS OF AMERICA, LOCAL 6500
The Chair: I now call upon representatives from the United Steelworkers of America, Local 6500, Mr Fraser and Mr Conley. Welcome again.
Mr Kevin Conley: I bring Mr Fraser's regrets. He was unable to attend today, so Denis Dallaire will be sitting in with me.
I'd just like to make one general comment. In all my years of working in compensation -- not as many as Mr Seguin but getting there -- in all these years of round tables, royal commissions, task forces, public hearings, I've never seen the need for, or I've never seen, policemen at the door or sitting in the audience. That really concerns me, that the government of Ontario has to have policemen at a public hearing. It's almost like we're in the US now. This government certainly has taken us down a different path.
Saying that, I'd like to start on a positive note. I think we all agree that the Workers' Compensation Act needs change. However, there's a big difference between change and reform. This Bill 99 reforms every section of the act and not to benefit injured workers. Historically, the Workers' Compensation Act was designed to meet the needs of injured workers and eliminate injured workers having to sue their accident employer for fair compensation.
This Bill 99 is pro-employer, anti-worker legislation.
On February 17, 1997, Elizabeth Witmer confirms this from my interpretation, and I quote her: "These are key themes of our reform proposals. The changes to the workers' compensation system promote economic growth and job creation" -- she goes on to say, however -- "while at the same time ensuring that Ontario workplaces are among the safest in the world." A pretty powerful statement.
Consultation: Too many times governments amend legislation and charge the bureaucrats with this task. The sad result is many times government doesn't understand or foresee the results of its own amendments, and I give you an example: On February 17, 1997, a letter to me from Elizabeth Witmer refers to functional abilities evaluation access to employers, and that it is not considered medical and how important the FAE is for the accident employer regarding return to work. Well, this is very true. However, employers have this access without Bill 99 already. The minister really does not address my concerns of November 15, 1996. This reinforces my opinion that the minister doesn't know the current act. I ask you, how can one promote change without knowing the current act?
True consultation must be in a committee format. The committee must be made up of experienced stakeholders concerning the act.
Prevention: The Minister of Labour, Elizabeth Witmer, has relayed over and over again that the primary focus of these reforms is to promote prevention. It's clear to me and many others that Bill 99 can't deliver this goal. Reducing benefit levels, changing the name of the Workers' Compensation Board and the Workers' Compensation Appeals Tribunal, bringing the Occupational Disease Panel and WCAT under the umbrella of the board, outlawing stress-related claims and so on do not prevent accidents. What it does is it hides accidents and intimidates injured workers, especially in the non-organized workplaces.
1520
The Ontario fact sheet of June 18, 1997, I think confirms my opinion that Bill 99 can't deliver prevention, and I quote: "The ultimate responsibility in individual workplaces rests on the workplace parties -- employers, workers and unions. This is known as the internal responsibility." All these references I make are in an appendix at the back of the transcript.
One must wonder if the act is to prevent accidents. The fact sheet admits that the amendments must be flawed because now it's shifting the intent of the reform back to the employer and the worker.
In the present legislation, the Occupational Disease Panel has a clearly defined role to play in investigating possible occupational disease. Subsection 95(8):
"(a) to investigate possible occupational diseases;
"(b) to make findings as to whether a probable connection exists between a disease and an industrial process, trade or occupation in Ontario;
"(c) to create, develop and revise criteria for the evaluation of claims respecting occupational diseases; and
"(d) to advise on eligibility rules regarding compensation for claims respecting occupational diseases."
Subsection 95(11) says, "The panel shall report its findings to the board."
In the present legislation the board has an obligation to publish the findings of the ODP and allow for public comments before making a decision on any findings or recommendations of the ODP. This allows workers, employers, health and safety professionals and other researchers the opportunity to provide input into occupational disease issues going before the board.
Bill 99 deletes section 95 of the current legislation and makes no mention of the ODP under the proposed legislation. Clearly, the ODP loses its independence and eventually will be dissolved. Elizabeth Witmer feels that the board and stakeholders will be better served if the ODP is integrated into the WCB. That's in appendix 3. However, I differ from the minister's opinion. How can we trust the board when they recently delayed adjudication of lung cancer claims for hardrock miners under this government's direction? It is unjust to these workers and survivors that we had to begin a lawsuit against the WCB in order just to rule on entitlement after two years of delays. To add insult to injury, only two adjudicators were assigned to the lung cancer claims on top of their regular caseloads.
I find this interesting. It's not in my report, but I'm going to make this comment anyway. The Ontario Mining Association's representative who used to chair their safety and health committee, who sat on the ODP and still sits on the ODP, fully supported report 12 which said that there was a causal relationship between lung cancer and hardrock mining. Guess what, folks? He doesn't work for Inco any more. I wonder why.
WCAT in a number of cases has granted entitlement for these miners with cancer. In decisions 192/95 and 286/95 -- that's only a couple; I didn't want to fill the whole back of the transcript with decisions -- the tribunal makes reference to the board's inability to schedule and/or provide policy for these claims where there is overwhelming scientific evidence to support these claims. I wonder why WCAT is being moved under the board's structure.
WCAT: Taking the tribunal's independence away is another means of control. The new proposed legislation limits the tribunal's ability to make decisions and will become another rubber stamp in the future.
Bill 99 severely limits the tribunal; scientific evidence, benefit of doubt judging on its own merit, outlawed diseases will no longer play a role in their decision-making. Taking the tribunal's independence away would be comparable to the federal government dissolving the Supreme Court of Canada when their decisions are not in favour of our federal government. The government, in a true sense, is taking the cornerstone out of our democratic way of life by limiting the appeal process.
Privatization: While Mike Harris was in opposition he criticized daily the actions and the workings of the WCB. I watch that channel too, by the way. If the previous government had spent millions and millions of dollars on changing the name of the WCB and WCAT, Mr Harris would have been outraged.
Changing the name of the WCB and WCAT clearly indicates this government's true agenda, and that is to privatize the board. This process has begun. The previous speaker said there were some changes being implemented without the bill being passed. Well, there have been, and the health care department is now being administered by Rx Plus, a private insurance company. The restructuring plan of the board has no vocational rehabilitation services. Guess where that's going. The new plan is in appendix 6, an official board document.
From personal experience I can truly say that if you think vocational rehabilitation within the board is not working, wait until insurance companies take over. Insurance or private companies will not look out for the injured worker's best interest, only to place the injured worker back in the workforce whether the work is suitable or not. Their goal is purely financial.
In closing, I wish I had the time to go through the proposed legislation with you section by section. Unfortunately, there's not enough time in 20 minutes. I urge you that when you're preparing your report to the government from these hearings you strongly suggest scrapping Bill 99. The current legislation just requires some fine-tuning.
Mr Patten: We don't have much time. We've talked a little bit about the ODP. I want to ask you a question about the appeals tribunal. If indeed its function before was to identify what was out of whack with the board's procedures and advise it, and therefore adjust it as a growing and changing organization to changing realities, if it's going to be in a fixed position, does that suggest there will be more and more litigation, do you think?
Mr Conley: I thought of that, but I can't agree with you because I think Bill 99 affects the charter, when you have legislation that says, for instance, on workplace stress: "We're not going to cover it. However, you can't take it to court."
Mr Patten: That could be challenged.
Mr Conley: I think that's got to be challenged under the charter. You're telling the people of Ontario: "We're not going to cover it. However, you can't sue your employer either." So yes, I think that will be challenged under the charter. There will be a number of things that will be challenged under the charter, I believe.
Just to expand on that, the average charge -- I don't know if any of you are familiar. Maybe Mr O'Toole is familiar with the charge for a fatality. Lord knows, we've been through a lot of fatalities in this community. It's $450,000.
I'll tell you a little story about Manitoulin Island. A young fellow was swimming or was at a pool party and had a few drinks. The owner of the camp told him to quit diving off the roof into the swimming pool. He didn't listen. However, he kept on diving and as a result he's now a paraplegic. He sued his friend. He received millions of dollars, over $3 million in a lawsuit. He was intoxicated, so that's wilful. He didn't listen to the owner of the establishment and yet the owner of the establishment still had to pay.
Now if you think, and if the employers think, that $450,000 is too much money to pay for a fatality, let me tell you, we'd be quite willing to challenge that in court. Let us have the tort system if you're going to take away our rights, because I'll tell you on thing: $3 million adds up pretty quickly, especially in this community with the number of mining fatalities and diseases we have.
1530
Ms Martel: Mr Conley, you've been doing workers' compensation for Local 6500 for a number of years now, and your local as well has dealt with a number of industrial diseases that have been caused by the workplace, in cooperations. Can you tell me what you think will happen with respect to industrial diseases and compensation of the same when the functions of the ODP are put in under the board again?
Mr Conley: I sat as the labour member on the nickel consulting process. It was mentioned by the Ontario Mining Association that we scheduled nasal cancers for sintering plant employees. Much to my amazement, I found through those proceedings -- it took us a year to do that, something very simple: one year to schedule that. The board told me that they had all this information for years. They knew about the nasal cancers. Sixty out of 65 workers contracted nasal cancer within two years, a two-year latency. I'm not talking about exposure. Within two years of working there, they contracted lung cancer. You don't get lung cancer from smoking in two years.
They had all that information. It took us years and years to find out, and it wasn't until we had a round-table discussion that we found that out. If you think bringing the ODP under the umbrella of the WCB is going to streamline it and you're going to get better research, you're sadly mistaken. The people who sit on the ODP now -- there are medical people on there, there are epidemiologists, there are lots of qualified people. If you look at their credentials, they're well established within the medical community.
It's not what the Ontario Mining Association would have you believe, that it's all laypeople who sit on the ODP. The laypeople who sit on the ODP only bring the common sense to the table.
Mr Hastings: I'm wondering if you could recall what Local 6500's reaction was when the previous regime and minister for the WCB removed the initiative -- I guess it was called a task force on workplace stressors -- that was established approximately in January 1993. Despite all the fiscal crisis that was going on, there were maybe three to four hearing dates held and then they withdrew the initiative.
Mr Conley: Yes, sir, they certainly did.
Mr Hastings: Why?
Mr Conley: Mainly on the part of labour, because we couldn't come to an agreement. The employers had their submissions -- there were a number of submissions -- and we made submissions. The saw-off, we felt, wasn't favourable, so we agreed at that time that we should go back and have further discussions. So it wasn't thrown off the table, and we still had the right to go to WCAT if we felt our cases were strong enough.
There were six claims allowed in Ontario for stress, if I'm not mistaken. I represented one of those claims, and I brought that individual to the public hearings. What was quite interesting is there wasn't a dry eye on the panel or in the audience after he spoke. Right after that, there were no more injured workers allowed to come.
The other point I'd like to make about the stress factor is that we still had the right to go to WCAT, and your government has taken that right away from us. So there are no more real merits in the case. I'm not going to sit here in front of you and say, "Yes, every stress case should be compensated," but there was another time the WCB came to Sudbury for a round-table conference, and it was about workplace stress, because that was a spinoff from those public hearings. I don't know if you were aware of that. They travelled the province also.
It was amazing. One employer said to me, "People come to work for us and they know that it's very stressful, so they should know that they may get sick, but we shouldn't be compensating those people because they knew they may get sick from coming to work with us." That's on record, sir, within the board. We know, miners know, when they come to work that they may be killed tomorrow. Policemen know that when they go on the job, they may be killed that day. So what do we do, stop compensating them because we know we run that risk?
The Chair: Mr Conley, our time has expired. Thank you very much for your input this afternoon. We appreciate it.
Mr Conley: Madam Chair, could I make one quick comment for Mr Stewart's behalf? My recommendation is to leave the ODP independent and the tribunal independent in order to have fair compensation for injured workers.
The Chair: Duly noted.
SUDBURY AND DISTRICT LABOUR COUNCIL
The Chair: Mr Filo, please, from the Sudbury and District Labour Council. Good afternoon, sir.
Mr John Filo: I'd like to present you with this cap as a souvenir of the hearings here in Sudbury. I think, looking back on it years from now, it'll be something of a reminder of this session.
The Chair: Thank you. Welcome.
Mr Filo: Thanks very much. I want to welcome you to Sudbury, especially some of the members of your caucus, because I think Sudbury's a very important part of our community. We want you up here so you can talk to the grass-roots people. But I'm also a little perplexed with what I've read. One of the local reporters, a journalist, has quoted Bart Maves as saying, "These hearings, 30% of the seats go to us, 30% to the Liberals and 30% to the NDP." He said, "Quite frankly, most of the comments are partisan and not very helpful."
We've heard a lot of partisan comments here, especially from your caucus. When a minority report from a member of the ODP suddenly finds such great significance, when the minority of the Liberals and the minority of the NDP submissions are cast aside so casually by Bart, it seems to me there's no symmetry there. We're all partisan, but we all subscribe to a certain code of decency, fair play, responsibility and accountability. That's why we're here.
My background in workers' compensation is that I sat on a task force, the chairman's task force of the WCB that dealt with vocational rehabilitation. I was a member of the regional advisory group. It had some effect. We had a local director here who ran the local office of WCB very badly, and as a result of our report he went on to pursue other career interests.
I find that your government is becoming very constructionist, legalistic and very ideological. My presentation today is actually an appeal to your sense of history. My colleagues have already remarked, and will continue to do so, how Bill 99 encourages employers to suppress WCB claims, giving employers unprecedented power over injured workers. In fact, in our fraternity, people have jokingly referred to Bill 99 as the "Employers' Compensation Act."
My colleagues will argue that Bill 99 forces an injured worker's physician to provide medical information to the worker's employer. We've certainly come a long way from the sacred confidential regard in which medical information has been traditionally held. Some of you served in the Legislature and witnessed the resignations of several ministers who had breached the confidentiality of such material. This bill, however, grants a special dispensation to an employer by virtue of his socioeconomic status. Privileged communications between an injured worker and his priest and/or his lawyer, I expect, will be targeted if Mike Harris is re-elected in 1998.
1540
My colleagues maintain that this bill introduces new measures to assist employers in hiding their real accident statistics and costs. My colleague the world-renowned work-related disease authority Homer Seguin will mourn the cessation of independent research on occupational disease. My colleagues decry the fact that inflation protection is cut by 75% for most unemployed workers with disabilities and that employers will force injured workers back to work, further endangering their wellbeing. Every worker knows that stress is present in the workplace, but especially so in the workplaces of the worst employers, yet there will be no compensation for it. And for what has been a cornerstone representing justice in our society, there will be no right of independent appeal of WCB decisions: no justice, no peace. We in the trade union movement have become very sceptical and I believe distrustful of the government's efforts in the labour-management sphere and its general approach to our societal problems.
What this government has done to the homeless, as personified by Irwin Anderson, Eugene Upper, Mirsalah-Aldin Kompani, Richard Roy, Garland Sheppard and William Hunta, real people who died on the streets of Toronto, what this government has done to our aboriginal people as exemplified by Dudley George, what this government has done and is doing in Metro Toronto despite the wishes of the people, and what this government has done to our environment, it now is intent on doing to injured workers through Bill 99.
To a unionist, for example, "flexible" means the playing field is tilted towards the employer. "Minor housekeeping" means that some of the rights and privileges that our grandfathers and grandmothers and fathers and mothers fought and bled for on picket lines half a century ago are about to be scrapped.
The UN Human Development Report for 1996 ranks us first among 174 nations, beating out top contenders like the United States and Japan for the fourth time. I submit that the overriding reason for this is because of the manner in which our society in Canada, and particularly in Ontario, has determined an appropriate balance between employers' rights and workers' rights, influenced by the demands of the trade union movement.
As school children, we all cheered upon learning how the barons in 1215 exacted some power from King John in the signing of the Magna Carta at Runnymede, thus limiting to a slight degree his penchant for arbitrariness.
That unions are an essential fact in a democracy was aptly illustrated by the insistence of the Allies at the end of the Second World War that trade unions and collective bargaining be recognized in the constitutions of Germany and Japan. What better guarantee that tyranny and totalitarianism would not return to those countries? We don't have that in our own Constitution.
Before I settled in as a professor in a community college, I earned my living as a mineral exploration geophysicist. I have lived, worked in and visited every continent with the exception of Australia and Antarctica. I regret to say that of the 170-plus countries in the world, the only ones worth living in can be counted on the fingers of both hands. The quality of life that we enjoy in Ontario did not happen by accident. And no, it is not our vast natural resources that are the most important factor in this. It is our acceptance of the work ethic, a positive attitude which incorporates the honour system in dealings we have with one another and the government, the high average level of education and training of our citizenry, and a recognition of the balance required between capital and labour.
It has been established by objective social scientists and economists that a society that has adopted mechanisms which result in a more equitable distribution of wealth and resources actually has a stronger economy. This is not to say that a strong economy is evidence that such mechanisms are necessary, or for that matter that democracy is necessary for a strong economy, but we in Ontario have chosen a tradition where individual and collective rights are exercised in the context of a democracy that is almost universally admired and envied. Unions have engendered the evolution of this society. More than 100 years ago, for example, unions campaigned for health care, unemployment insurance, pensions, free public education and just compensation for injured workers.
The usual perspective offered in the case of employers is that injured workers, because of the discipline of the marketplace and the requirement to be competitive, must pose the least possible burden to the enterprise. But we know that there is no such thing as a self-regulating, free and neutral private marketplace.
My colleague Neil Brooks of Osgoode Hall has opined that its proponents assert that any interference by government regulation or taxation to the property rights acquired in this marketplace is unjustified interference in the nature of things. In fact, this free market is comprised of commercial exchanges that are regulated by countless detailed and complex rules of property and contract law. None of these rules sprang from nature or were ordained by God. They're the result of legislative outputs shaped by the political process, and as anyone with a passing knowledge of legal history knows, the rules, including Bill 99, were largely fashioned to protect and further the private interests of the wealthy and the economically powerful. The labour movement believes that injured workers are entitled to just treatment as a fundamental right, implicit in the democratic system. The ideology that preaches that bigness is only appropriate for the employer and that establishes rules that favour the employer does not recognize the need for balance in our institutions.
In the workplace, there is no level playing field. Some of the presenters have pointed out to you the imbalance that exists between a worker and his employer. The control exercised by the powerful cannot be absolute but must be subjected to checks and balances. Bill 99 for injured workers removes virtually all those checks and balances.
So I'm here to appeal to you, as I started out by appealing to your sense of decency, fair play, responsibility and accountability. Let's not make this an employers' compensation act. Let's get back to basic principles; let's look after the injured workers. Thank you.
The Chair: There are slightly under two minutes remaining per caucus.
Mr Laughren: John, welcome to the committee. Your report is different than most we've received because it is somewhat philosophical in its approach. I appreciate the way you stand back and take a look at it.
Maybe you could help me out here, because I've always thought that traditionally Tories were very strong proponents of the work ethic. They always said that they supported the work ethic, certainly more than the NDP. That's what they always said. What puzzles me here, and maybe you can help me as an academic -- you, not me -- is why workers would be penalized for carrying out their belief in the work ethic by going to work every day, and how it is that you justify penalizing people who have carried out that commitment to the work ethic by going to work every day. I don't know how you justify that by what you're doing in this bill. It puzzles me, and I need help from an academic.
Mr Filo: I'll tell you that years from now, when we look back at the Harris government, there will be a lot of questions that not even the people who are participants in the government can answer. For a party that believes in small, non-interventionist government, it has been the most blatantly interventionist government in the history of Ontario. It has virtually ignored the wishes of great numbers of people. As I mentioned earlier, in the Metro Toronto case the referendum was quite conclusive, and yet they have their minds made up; they don't want to be bothered with facts.
Your question's a tough one. It's going to be up to historians to look back and see why this anti-worker movement took place here in the late 1990s just as the millennium was approaching, because there seems to be no rhyme or reason to it. We've carved out a very caring, compassionate society in Ontario. We've come to the conclusion that we have to look after the vulnerable in our society, yet along comes a government that said: "Vulnerable, schmulnerable. We're going to cater to the multinationals. We're going to cater to the powerful." It's up to historians to analyse that situation and hopefully, Floyd, to provide you with an answer.
1550
Mr O'Toole: Thank you for your presentation, John. I've heard you present before at one other hearing here in Sudbury so I'm really familiar with your line of thinking. I mean that as a compliment. You mentioned here, just to get to know you a little bit, you're a professor at a community college. What particular area?
Mr Filo: I'm a mineral exploration geophysicist.
Mr O'Toole: That's what you teach at college.
Mr Filo: Yes, I search for minerals.
Mr O'Toole: Metals and things, yes. Thank you for that. You made a point there where you say, "It has been established by objective social scientists and economists that a society that has adopted mechanisms which result in a more equitable distribution" -- sort of a socialist view. Why equitable distribution of wealth? What's that about?
Mr Filo: You say, "Sort of a socialist point of view."
Mr O'Toole: I'm just trying to discover where you come from.
Mr Filo: These are people who are legitimate social scientists who have established that. Yes, it may be a socialist view, but it's not written by a socialist economist.
Mr O'Toole: Sort of like eastern Europe.
Mr Filo: No, not eastern Europe. That, Mr O'Toole, is an obscenity, to say that eastern Europe was socialism.
Mr O'Toole: Well, equitable distribution.
Mr Filo: Where do you learn your politics? You were here earlier and you challenged somebody by saying that the big OPSEU union, the Goliath union is challenging the David of the Harris government. Where do you come from with that sort of perception? Who makes these laws, the unions or the government?
Mr O'Toole: I think they're fairly well resourced.
Mr Filo: The government is much more resourced than anybody, and you guys have been wielding that power in a very blatant, abusive way.
Mr Patten: Thank you, Mr Filo. I appreciate your document as well, and your thoughts. I'm not a socialist, but I'm a Liberal, and I'll tell you, I have no trouble with your statement at all, that in observations, having travelled 65 countries of the world, the societies that have a fair distribution have a stronger society, I believe, leading to a stronger economy. I have no trouble with that.
By the way, as to your comment at the beginning, just for the record, lest some people who aren't aware feel that the committee is divided up 30%, 30%, 30% by the three different parties, it's actually a majority of government members; the opposition members are in a minority. That has a big impact on decision-making. When decisions happen, believe me, while it may be by the whole committee through a majority vote, it is not by way of consensus and agreement.
Mr Filo: The comment was on the presentations; in fact the 30% of course is an obvious error because it should be 331/3%, but I didn't want to be picky with Bart the way he is with us.
Mr Patten: On the presentations, yes.
Mr Filo: The presentations.
Mr Patten: All right. I thought it was in terms of other things. I wonder if you might elaborate on your final comment for us, that is, that Bill 99 removes virtually all of the checks and balances. Which are the ones that are the most pronounced? They have been identified, but I'd like to hear your comments.
Mr Filo: If you look at what characterizes the profile of many of the bills that this present government is passing, one of the features in it is that there is no appeal procedure. This is a fundamental right. People have died in wars to have an appeal procedure. If you've ever lived in some of these other countries -- and you say you've travelled in them -- you know we have a really good thing here. Why a government should want to take away an appeal procedure is beyond me. That's what's happening in this WCB. It's becoming overly bureaucratized. The regulations are going to be written virtually by political appointees.
The Chair: Thank you, Mr Filo. That concludes our time. We appreciate your advice this afternoon.
Mr Filo: Thanks again for coming to Sudbury.
MINE MILL LOCAL 598/CAW
The Chair: I'd now like to call upon Mr Hrytsak from the Canadian Auto Workers, please. Good afternoon. Welcome. Please begin.
Mr Gary Hrytsak: Good afternoon, Madam Chair. Thank you for having us here today. Those of you who have the brief in front of you will notice on the facing page, if you've got it, it actually says, "Presentation on Bill 99 to the Mayor and City Council of the City of Sudbury." Maybe it would be advantageous if it was passed out, because this is part of the reason we're here. I didn't feel it was appropriate to have to write a particular brief directly for this gathering because this and the Canadian Auto Workers' brief that was put forward in Toronto to this panel contain all of the elements that are necessary. But I wanted you to see the brief we put forward to the city of Sudbury in regard to Bill 99, and then I'll read to you the results of that brief as passed by the city of Sudbury unanimously. It is in two parts, and I'm not going to go through the whole thing.
My colleagues who have come before me have spelled out all of the major issues labour has. But on a personal note, having been in the system for well over a decade and having been part of the industrial disease process at the board, but more importantly as an advocate for injured workers, I have to say I sympathize with the employees of the Workers' Compensation Board today. I find many of them are hardworking, conscientious individuals. But that is thwarted by bureaucratic political intent, and particularly by this government's intent with Bill 99, to reward their benefactors in the industrial sector and thank them for, no doubt, some very generous assistance during the last campaign. I'm not here to damage any individual within the board's structure; they simply have to work with, sometimes, the garbage that's given to them by politicians.
The result of this particular brief is this document. This document is a proclamation. In fact, it was presented by Mayor Gordon, who himself is a Conservative and could not stand the thought of the reforming of the Workers' Compensation Act by this government.
Interjection: Former MPP.
Mr Hrytsak: He was also a former MPP, absolutely. He's a man of integrity, and he cannot stand the reforming of this particular act in Ontario.
It says:
"Whereas the Ontario government has introduced Bill 99, legislation which completely rewrites the Workers' Compensation Act; and
"Whereas Bill 99 limits or outlaws compensation for certain disabilities compensated under the current act; and
"Whereas traditional sickness and accident insurance programs view these disabilities as work related and are not likely to take responsibility for compensating the disabled worker for them; and
"Whereas our health care system and social assistance programs will be expected to provide care and income for workers whose work-related disabilities are not recognized by the workers' compensation and private insurance system,
"Therefore be it resolved that before any changes to the workers' compensation legislation are enacted the provincial government will commission a comprehensive study to examine the impact on municipal expenditures and guarantee to provide local government with the necessary funding to cover all expenses which may be downloaded to the municipality.
"Be it further resolved that public hearings on Bill 99 be held throughout the province in order that all of our citizens and organizations who have an interest in these important changes have an opportunity to be heard; and that a copy of this resolution be sent to the Minister of Labour, Elizabeth Witmer."
1600
With that in mind, the Canadian Union of Public Employees here in Sudbury, who are some 5,000-plus members strong, was denied standing at this particular set of hearings, as were many others across this province, and that inequity is totally wrong and it leads this government into discredit.
We brought bulrushes before you this morning and presented them to your Chairman in the hope that you would understand that injured workers and workers of Ontario will rise above this swamp that's being created by the Harris government and by the reforming of Ontario.
I'll start on my brief at this point, having satisfied that the city of Sudbury condemned Bill 99 for what it really is, an attack on workers and a downloading of injured responsibilities from the workplace parties to the private purse of Ontario and their taxpayers.
Bill 99 can only be viewed as the most devastating act to the human soul, a final blow to the character of a worker who's already hurt and demoralized. Briefly, Bill 99 becomes the Workplace Safety and Insurance Board.
For employers it doesn't get much better than this. As a group, Ontario's employers enjoy WCB premiums in the bottom third of North American employers, less than 2% of the payroll; in 1994 rebates paid to employers totalled $359 million as compared to $337 million paid to injured workers with temporary disability. Some employers are refunded 80% of their premiums.
The Ontario WCB is one of the top 10 profit-making corporations in Canada. In 1995 the WCB made a profit of $510 million. The WCB has never borrowed a dime and has over $8 billion in assets. In 1994 the uncollected employer bad debts were $173 million. The WCB's unfunded liability is projected to be completely paid off before 2014, without any changes to the Workers' Compensation Act. New claim costs have dropped from $2 per $100 payroll in 1993 to $1.68 in 1995. This is due to a lot of the initiatives that were just started by the NDP government. The WCB's administrative costs have dropped 8.3% in only two years, from 1993 to 1995.
About 6,000 workers die from occupational diseases annually and receive no compensation from the Workers' Compensation Board. Over 8,000 unemployed workers with disabilities receive WCB benefits that are so low they must turn to social assistance to live. The Harris government's Bill 99 will force doctors to provide employers of injured workers with medical information without the workers' proper consent.
The new legislation severely weakens the historic compromise made by workers in 1914 when the right to sue their employer for work-related injuries was given up for a system which compensates workers for injuries suffered because of work. It puts injured workers into frightening situations as their employers force them back to work, and that will be with the help of this bill.
It eliminates independent research on occupational disease. The Occupational Disease Panel, ladies and gentlemen, is a very interesting and integral part of workplace safety. I have a lot of respect for the Occupational Disease Panel and the members who were on there and the research they have done. I was part of a lot of the research that occurred, as I've been part of the protocol set up by the Workers' Compensation Board for industrial disease, particularly in the mining industry.
I'm very well aware that we had one individual sit up here this morning and blame cigarette smoking as the primary cause of lung cancer. I'll have you know that underground we have diesel and we have oil mist. Diesel contains a quotient called benzoate pyrene, the exact quantity in the diesel and the cigarette smoke which was shown by Hope, California researchers as being the primary cause of lung cancer in humans. That explains the excess of cancers in our working population underground.
You've got to look at it this way: If you take a look at the people in the workforce, you have those who have smoked. You'll find that the majority of the lung cancers will occur there, but they're way above the average in the general population. Second, there's a group who don't smoke at all, but those cancers are tremendously advanced. Why? Benzoate pyrene may be one of the answers. Brother Seguin and I both adhere to the chemical soup theory of what we are ingesting underground with the diesel and the oil misting.
What we're really saying to you is, don't be sidetracked in regard to cigarette smoke as being the causal agent only of lung cancer in our workforce, because if you look across the spectrum of our workforce, you'll find that all the cancers are elevated: laryngeal, nasal, prostate, lung, kidney, lymphatic system, brain cancers. All of them are elevated over the general population, yet this government is proposing to outlaw those things. Guess where they'll go? These people have to then go to the public purse for appropriate compensation for an industrial disease that has been shown categorically by the ODP and supported by international research as coming from the workplaces from diesel and oil mist.
The diesel emission evaluation project -- I am one of the individuals who is there. I sit there. I'm also the voting member for the Mining Legislative Review Committee, which works with the Mining Act. I'm with the Canadian diesel ad hoc committee; I'm the longest-sitting labour member there. All these things are looking at underground diseases and surface diseases in mills and smelters and we have yet to satisfy ourselves that we only have a non-industrial cause. We find there is definitely an industrial cause and that our percentages are somewhere between 10% and 20% higher, depending upon category of cancer, related directly to that industry than in the general population.
As I said, the new legislation severely weakens the historic compromise made by workers in 1914, when the right to sue their employers for workplace injuries was given up for a system which compensates workers for injuries suffered because of work. It puts injured workers into frightening situations, as their employers force them back to work; eliminates the independent research on occupational disease; cuts indexing by 75% for most unemployed workers with disabilities; outlaws compensation for workplace stress and kills the right to an independent appeal about WCB decisions.
The costs of WCB claims that are no longer recognized by the board will be transferred to the social services and health care systems, offloading the employers' responsibility to the taxpayer. This government has reformed those particular sets of safety nets for people in this province and they've reformed them to the point where there's no longer a recognizable safety net in Ontario. In fact, it's more like a web of holes which everyone who has a need is encouraged to fall through.
Quite simply, Bill 99 is a facilitation. No wonder it's supported by the Ontario Mining Association, as it's a facilitation for them to shed their financial responsibility for the damage they are doing to workers. In fact, we, through the Auto Workers, for the first time in a collective agreement have oil mists within the automotive section. We're attempting to do the same with Falconbridge Ltd. They've told us to stick it. Why? Because they know the bill is theirs. They won't even give us cancer insurance, for Pete's sake. They want to shirk their responsibilities that bad. It gets to the point where it's ludicrous.
You can't keep hiding the facts under a false premise of getting rid of the ODP, getting rid of the things that are real. Don't keep on nailing people because they like to barbecue. By the way, up here, up north, you can only barbecue a couple of months of the year; otherwise, the black flies get you, the mosquitoes get you or you get frostbite. Then again, frostbite is compensable if it's on the job, but maybe you did it while you were barbecuing; I don't know. That's the convoluted logic that we're up against.
Quite simply, what we're trying to say to you is, don't allow this type of legislation in Bill 99 to go forward in its present form. We need vocational rehabilitation in the worst way. We don't need to farm it out or contract it out. They've already done that to Rx Plus. Our understanding is that the Aetna group, which is an insurance company in Toronto now training the WCB people -- we understand Liberty Mutual is poised to take over the whole system as a privatized set of circumstances. Yes, I know, you're saying, "Where in the hell is he getting that crap?" Simple. We're getting it right out of your offices, so we know that.
1610
Mr Hastings: That's your imagination.
Mr Hrytsak: My imagination? I can tell you about imagination, my friend. The people who wrote 99 have one tremendously great imagination.
I don't think it's necessary for me to pound on this piece of legislation except to say that I am disappointed with the Ontario Mining Association's position. We thought Patrick Reid finally had his shot at labour when he used a documentary in regard to a lung cancer victim who has now passed away. When we accused the Ontario Mining Association -- I shouldn't say "accused." We just kind of pointed out that their whole situation is a black bottom line and that everything they do is in regard to a dollar. I understand he used that particular documentary as reason to ask for the privatization of TVOntario, and if that be the case, then that's just another excuse for the Ontario Mining Association to dig its heels in and help to reform Ontario along with this government.
But one thing I heard from the Ontario Mining Association that they enjoyed David Muir. Dr David Muir wrote the Muir-Julian report along with Dr Julian. Dr Muir is now retiring. In fact, he has cancelled his contract with Inco and has decided no longer to work for them and that contract will be relet to another individual.
Quite clearly, if you're saying that the Julian-Muir report is biased and that Inco is saying it's biased, it was written by the person they hired. I find it very difficult to absorb that this is such a terrible report when it's Inco's money, in the majority, that paid for it, because they hired Muir to look after the Ontario miners' file for over 20 years.
Quite simply, ladies and gentlemen, the convoluted logic that came out here from the Ontario Mining Association simply can't hold water. If you buy that, I then know why you're buying it: because it helps to win campaigns. I thank you very much. That's my presentation on behalf of Mine Mill and Canadian Auto Workers Local 598.
The Vice-Chair (Mr Jerry J. Ouellette): I'm afraid we only have enough time for one question -- we have about a minute and a half left -- and it's the government members' turn.
Mr O'Toole: Thank you very much, Mr Hrytsak. I just want to clarify for the record: I'm clear in understanding that you are with the CAW, not the UAW. I made that mistake when I was in Toronto and out of respect I clarify the record.
Just one question: You mentioned at the very beginning, in the preamble, that the presentation made by the CAW in Toronto covered all the germane points.
Mr Hrytsak: Yes.
Mr O'Toole: You have included for us a copy of that with your presentation.
Mr Hrytsak: That's correct, and I apologize for page 8. It got scrambled in our machine, I noticed after.
Mr O'Toole: That's good, but the main points of the CAW have been made and established.
Mr Hrytsak: That's correct.
Mr O'Toole: And very well put in that report. What was the position of the CAW in the public hearings on Bill 165? They were in 1994. I'm not sure if you took part in those.
Mr Hrytsak: Yes, I did.
Mr O'Toole: What was the position of the CAW when they were looking at significant changes to the Friedland formula and other aspects? At that time, needing and recognizing that reform was required, what was your position at that time?
Mr Hrytsak: The position of the Canadian Auto Workers at that time and the position of the Sudbury Mine, Mill and Smelter Workers Local 598 was the same. We decried the Friedland formula changes and the reduction in benefits to workers. We still say that is takeaway, we still say that is wrong and we still say that it should not be there, that you cannot finance industry, you cannot finance anyone on the back of injured workers by reducing their benefits, by having a cap at some fictitious level.
Mr O'Toole: There was some $13 million to $30 million being removed from the entitlements, if you will, by the previous government.
Mr Hrytsak: That's correct and our understanding is that went to employers in rebates through NEER and CAD-7.
The Vice-Chair: Thank you very much for your presentation.
We call our next group to the table, the Sudbury and District Hotel and Motel Association. Are there any representatives from the Sudbury and District Hotel and Motel Association here?
NORTHEASTERN ONTARIO BUILDING AND CONSTRUCTION TRADES COUNCIL
The Vice-Chair: We'll move on to the next presenter, the Northeastern Ontario Building and Construction Trades Council. Thank you very much, Mr Holder. I believe you know you have 20 minutes to use as you see fit.
Mr Andy Holder: I won't take that much time. As you know, I represent the northeastern Ontario building trades. We are a branch of the umbrella of the provincial building trades. The provincial building trades have already made quite a lengthy presentation to the standing committee. I would just like to touch on a couple of subjects that we in Sudbury believe affect us.
We're made up of a number of building trades, 14 to be exact. Construction is a unique part of labour, part and parcel with all the other different parts of labour that make it up. Each has some critical subjects to bring up.
Construction is characterized by short-term employment -- even at the best of times -- heavy physical labour, temporary job sites and numerous small employers. Unfortunately, these key aspects which make construction unique have been virtually ignored in terms of workers' compensation legislation. It is our hope that these oversights of the past will not continue with the present provincial government.
There are a number of key aspects of Bill 99 which adversely affect the construction industry. I'd just like to highlight a couple today.
One of the great concerns facing injured workers in the construction industry is the issue surrounding the establishment of average earnings. Section 53 of Bill 99 has the potential to severely restrict fair compensation being paid to an injured construction worker. Given the cyclical nature of construction, it is our contention that the hourly wage rate be used when determining the average earnings for injured construction workers.
One problem with the wording of section 53(1) is that a construction worker may have many different employers during the course of a year. Even though a person may have had steady employment, if he or she were to become injured shortly after changing employers, the employer may make the case that the injured worker's average earnings should be based on what he or she earned with the current employer. Obviously this is not fair and the legislation should be rewritten to reflect this. This exact problem was evident in the prior act, in clause 40(1)(b).
I would like to expand on how this section, in conjunction with actions being taken by the federal government, could have serious long-term implications for the construction industry. As stated previously, much of the work in the construction industry is cyclical in nature. Changes to the employment insurance system have increased the financial risk of becoming a construction worker. One no longer is covered by EI for the first two weeks of the school portion of one's apprenticeship. It takes longer to qualify for greatly reduced benefits. Frequent users are penalized and the clawback penalties are severe. So now we have a situation where if you are healthy, your annual income as a construction worker will suffer, and if you get hurt, you aren't likely to get much in the way of workers' compensation benefits.
We are in the just-in-time business of delivering highly skilled tradespersons on an as-needed basis. If we can't attract sufficient numbers of good people to the trades, the economy of Ontario will suffer. I bring your attention to the attached graph, which indicates reasons for leaving the construction industry. The number one reason for leaving the industry is job security. Certainly the factors which I have just mentioned will not only cause a greater increase in people leaving the industry but will make it much more difficult to attract new people. We would ask the committee to seriously consider this section on Bill 99 during their deliberations.
Return to work: Most construction workers are denied return-to-work rights as a result of the thresholds which have been placed on this principle. Bill 99 continues this unfair pattern of discrimination in subsections 41(1) and 41(2). The construction industry is characterized by numerous small employers. The average construction company employs five to 10 persons. As a result, very few construction employers meet the 20-employee threshold. Further, construction workers, as the nature of the industry dictates, are highly mobile and work for different employers in a year.
1620
Thus, most construction workers do not qualify for return to work. Both the Provincial Building and Construction Trades Council of Ontario and COCA, the Council of Ontario Construction Associations, representing employers, agree the thresholds should not apply to the construction industry. We recommend that subsection 41(8) be amended to read: "Employers engaged primarily in construction shall comply with such requirements as may be prescribed concerning the re-employment of workers who perform construction work. Subsections (1), (2), (4) to (7) do not apply with respect to those workers."
On a more positive note, Bill 99 does acknowledge the uniqueness of the construction industry in subsection 40(3). In discussions with COCA, the Provincial Building and Construction Trades Council of Ontario agrees that the Minister of Labour should form a committee with the chairperson from the Workers' Compensation Board to write the regulations required for this section of the act.
As you have heard from the Provincial Building and Construction Trades Council of Ontario in their brief to you last month, there are a number of serious issues which need to be addressed for the construction industry. I have only tried to explain two of these to you today, and I thank you for the opportunity to speak to you and welcome any questions you have.
I'd also like you to keep in mind that you have probably heard the following message quite repeatedly. It's a very important one for all members now more than ever. We should reflect upon the underlying principles which have led to the concept of workers' compensation: (1) Workers must be compensated for lost earnings as a result of work-related injuries and diseases; (2) workers would relinquish the right to sue for workplace injuries if employers would fund a no-fault compensation system; and (3) funding should be on a collective liability basis to protect small employers from the ruinous costs of an anomalous, single serious accident. It is important to keep these underlying principles in mind in view of the worker's compensation system in this province.
The Vice-Chair: Thank you, Mr Holder. You've left approximately four minutes per caucus. We begin with the official opposition.
Mr Patten: You were saying that the chief reason for people leaving the construction industry was because of job security. What is the turnover? Do you have any stats on the turnover in the industry?
Mr Holder: No, I don't have the stats for that. Those I could probably get.
Mr Patten: What would be your prevailing view? Is it high?
Mr Holder: It's high. The construction industry, like we said, is cyclical and it's adaptability to the economy is more harsh than other ones. It may be the last part of the economy to finally pick up, but it'll be the first part of the economy to be destructed as construction and economics cease. So when you have problems with compensation -- and these are only problems with compensation with the act. There are far more problems with compensation in the running of the system itself, which is far more traumatic on some of the members who are injured. But this, combined with unemployment insurance -- federal legislation -- makes construction not what it used to be and it makes it less attractive to people to participate in, and therefore creates an older, aging construction force in Ontario.
Mr Patten: You have also said in your paper here that, "The construction industry is characterized by" -- I think we all know that -- "numerous small employers" and being less than the threshold. Would you suggest any threshold? Even if someone had a partner and there were two employees, would that still apply, or do you think there should be some threshold and it should just be dropped?
Mr Holder: I think it should be dropped.
Mr Patten: To what level?
Mr Holder: Based on the perception of what the construction industry is. You may have a contractor that's from southern Ontario who's working up here, the person's on a three- or four-week job, the man gets injured, the job is finished, the contractor is no longer a resident employer of northern Ontario and therefore it would deem it uneconomical for this person to rehire this person down in southern Ontario where he would be of no use to them.
Mr Patten: Is there any magic about 20 employees or is that an arbitrary number when that was --
Mr Holder: I believe that's a number that's there now as a number. Not being an expert on the compensation act --
Mr Patten: Me neither.
Mr Holder: -- as the building trades would see it with their constructors, that seems to be a number that is not a fit right now.
Mr Laughren: If you could help me out here, on the first page of your brief you talk about -- I understand part of it -- how an injured worker could have worked steadily all year, maybe for four, five or six employers, and then, when he gets hurt, you say that the employer could "make the case that the injured worker's average earnings should be based on what he/she earned with the current employer." Who has the say in that? Can the employer just say that or does the board make a determination that it's an average over a certain period of time? Do you know?
Mr Holder: I don't exactly know how it's put together, but based on some of the ones that I've dealt with, some of my members, the person, as he works -- he may have worked steadily, but the company he was injured for is the one they're going to base his most recent earnings on and then protract it over. Sometimes it works to their better where they'll go back a lot further to base --
Mr Laughren: Yes, it could work out that the last employer he earned the most money at too, couldn't it?
Mr Holder: It's highly unlikely if he had been working for a year, but the point is raised that he could have made a considerable amount of money, if he was on a shutdown or something, and worked seven days a week, 12 hours a day.
Mr Laughren: I think this does point out the uniqueness of the construction industry and the need to deal with it separately, because most of us are not experts in understanding all of the differences with construction.
Mr Holder: The hardest part is if you can get away from the fact of considering that construction work is a full-time job, 52 weeks a year. Once you get into that mindset and realize that these are tradespeople who are working in the construction industry who can only work when the economy is booming for new construction; otherwise they're repairing or replacing, things like this. These people work for long lengths of time at certain companies. But they may work for 20 different employers in a year. It's very hard to take that mindset and put it into where you're working with the same employer all your life. They work in different plants. They work in different conditions. They could work at Inco and then they could work at Kidd Creek, they could work in an automotive plant, then work in a nuclear facility, and then be working in an oil refinery. They're very highly skilled and mobile and used for construction purposes. So when calculating their average benefits, it's quite an exact --
Mr Laughren: The only other point is to commend you for reminding us again of those five underlying principles of the compensation system, because I don't think we hear them enough.
Mr Holder: No, in the provincial building trades' presentation they expound more on some of them, but those are the things that we must keep in mind as to why the compensation was set up in the first place.
Mr Maves: I know the minister understands that there's a meeting of the minds between the provincial trades councils and COCA. I think that is the intention of subsection 40(3), to discuss those things with both and try to get an agreement with both that is acceptable to each. I've had a supplementary meeting with gentlemen from the Sheet Metal Workers' Union, and subsection 41(8) is something we're also considering. I wanted to let you know that we understand the difference with the construction industry and other industries and we're taking that under consideration and talking with COCA and the provincial trades council about that.
1630
Mr Hastings: A good presentation, Mr Holder. My question relates to return to work, which is pretty limited and modest, given the nature of the construction industry. Some people from the Sudbury Construction Association this morning suggested that -- I guess this will come about through COCA, perhaps -- when an injured worker gets the costs allocated for his or her accident to that particular accident employer, the costs are extremely high. Not only that; under the present arrangement it would appear as if the return-to-work provisions under the old act or even in this new approach would be limited to trying to get that particular worker back in that company, ie, the accident employer. The rep from the construction association suggested that there needs to be a more financially pooled, multipronged approach to getting those folks back to work because of all the fragmentation, the small number of companies etc. There sometimes is the odd bigger player.
What would your reaction be to his or her -- I think it was a gentleman -- his thinking that you look at a pooled approach and a multiapproach from all the employers for those folks who are injured on the job for getting them back to work, rather than the more traditional approach we have in other industries, particularly the service sector?
Mr Holder: Again, because of the uniqueness of construction, that would probably be a more logical way to do things than to have a person who's working with a contractor or an employer who is no longer even part of the area -- some of them are transient employers and are based in southern Ontario. They're here for a short time, do a short job, and if somebody happens to get hurt, how would they employ that person in another region of Ontario? Basically, to put him to work down there, there would be a lot more financial obligations like subsistence allowance and living away from home and things like this. Realistically, that's not the proper way to do it. There has to be a different approach.
I'm sure the door wouldn't be closed on any pronged approach where there's a pool to help the person get back. Anybody thinking that a person would rather be on compensable insurance than back earning a regular wage, I think that has to be cast down. It's hard enough getting by nowadays on a regular wage without trying to get by on a reduced wage or a severely reduced wage, because there's a lot more involved in a person's life than just his return to work to earn a living. They do have a family and these kinds of things. I think any new approach would be realistically looked at and viewed as important.
The Vice-Chair: Thank you very much for your presentation.
PETER HUDYMAN
The Vice-Chair: We have another presenter coming forward, Mr Peter Hudyman, or is it Anderson? Sorry. It's just that we have two different spellings here. If you could just say your name for Hansard, please.
Mr Peter Hudyman: For the record, my name is Peter Hudyman. You'll have to excuse me; I haven't had much sleep. A friend of mine broke his foot last night, just to let you know I'm going to be a little tired.
Interjection: Compensable?
Mr Hudyman: He's actually an injured worker himself. He injured his back, but I won't go into it. I'd just like to say hello, greetings.
Just to let you know where I'm coming from, I'm an injured worker. I was diagnosed with carpal tunnel in 1994 from construction work, so I can understand what Mr Holder from the building trades council was talking about, about how they devalue your income. My TT rate was decided by averaging out three employers working only three and a half months of the year. I know exactly what he's talking about. I know the section of the act they use to define that and to limit your income to where you are, so I'm living on a relatively meagre WCB income and have yet to have voc rehab.
I have also, having been trained through the OFL to do representation, represented workers at WCB, I've represented workers at UI, at CPP and disability, just to let you know I've done that and I'm familiar with the act and I've been before hearing panels too. I'd be willing to speak on any issue with respect to the act, but I'll get into that at the end of my presentation.
One thing I want to say at the beginning is that I was pretty appalled to see that labour, the people who are the real stakeholders here in terms of workplace safety and in terms of compensation, weren't part of any drafting, any reconsideration of the act. They weren't there. Injured workers weren't at the table. Labour wasn't really at the table. This whole bill was drafted with an employer agenda and with an employer board. That's appalling. The people who experience the health and safety, the ones who get hurt on the job, are not even at the table discussing this question, so from the beginning you're getting a biased approach. I wanted to make that point.
If you truly wanted to promote workplace health and safety -- I've invoked health and safety act protection on right to refuse numerous times, and been fired for it. There is no need to replace or rewrite the Occupational Health and Safety Act. The act itself is pretty good. All you need to do is enforce it, at a time when over the last several years we've seen the Ministry of Labour lay off inspector after inspector, not do the inspections and let employers get away with violation after violation of the act. It's amazing. There's no reason to rewrite the act; there's no reason to water down the right to refuse unsafe work provisions, to make it -- what is the wording they use again? -- imminent danger; that's the wording. Only when the steel is right over your head, then you can refuse work, and two seconds later you're dead. It's ridiculous. There's no reason to rewrite it; just enforce the act.
I can't even understand the rationale for eliminating the Occupational Disease Panel. Why would anybody do that? This helps everybody understand how people get diseases from an innocent standpoint. You can find out whether or not it's work-related from the research the panel has done over the years.
Labour market re-entry -- I'm going to talk about a specific section of your proposed Bill 99. I can already see the general trend in representing workers. Let me describe one scenario I have going on at this point with one particular worker. One medical opinion in this worker's case says that this worker can return to work and do modified work. The employer goes to an employer-biased server who does FAE assessments and gets another opinion that says: "Oh yes, we've assessed this person. This person can do the job." I don't have the name of the FAE assessor. They're already known in town, actually; they've come out in the press. Rehab works. They've said, "Our whole goal is to reduce costs for employers." Where's the consideration of the workers' compensation or any kind of objective ability to assess the worker at that point? That's amazing.
We're given those two opinions, so one opinion says this worker can't do anything, that her back is gone; she can't lift, she can't push. The other medical opinion, which is of dubious character, says she can. So where does the WCB fall at that point? The adjudicator or the case worker says, "I'm going to fall on the side of the dubious-character, questionable one and say okay, you can go back to work." The worker tries it and fails. She can't handle it. So what happens there? That's where I see your labour market re-entry, section 42, going. It's going to get worse, and workers are going to be in danger. Workers are going to have no choice but to either invoke the right to refuse unsafe work at that point or injure themselves far worse. It's amazing. It boggles the mind; it really does.
I can't think of more of a joke of a term than "labour market re-entry." That's a joke of a term. It's more like "injure-your-back re-entry."
Tightening up qualifications, which is generally what this act is doing, reducing benefits, de-indexing benefits and all of the other proposed changes, will do nothing more than create more poverty among injured workers. We have already lost 30% of our gross income. We're down to net now. We've lost that gross income. We have no way to get that back, aside from construction workers like me who are at the bottom end of the pecking order that Mr Holder was talking about earlier. This is unbelievable.
1640
But we've got to take more cuts. We've got to be de-indexed to put more money back in the pockets of employers. Employers have abrogated their responsibility to clean up their workplaces. It is readily apparent now that they want to discard their responsibility to provide decent compensation to workers. It boggles the mind. If they took care of their workplaces, and I've been there -- employers will intimidate workers not to file claims, will sit there in the trailer shack, "We'll pay you for a week; don't worry about it; don't file a claim." Next week they're down the road. No claim; they're on the street. Even if they raise an objection to refuse unsafe work, they are made a pariah throughout the industry.
This government has more than demonstrated with this proposed draconian legislation that workers are nothing more than commodities to be discarded once damaged or worked almost to death. We've got half the country working to death on overtime at Falconbridge, at Inco; we've got the other half on waivers. It's a ridiculous agenda. This legislation is an insult to every worker in this province. Those who produce the wealth in this province deserve first consideration when they are injured, not be the last to receive consideration.
I urge you in the most strong terms to scrap this bill in its entirety because: (1) accidents and deaths will rise as fiscal responsibility takes precedence over real health and safety; (2) workers will become impoverished. You will see workers fall between the cracks. You will see them on welfare. They will fall to social agencies and be forced to sell their homes, it'll be amazing, just because they got injured through no fault of their own on the job, working for a living. It's utterly insane.
If you pass this bill in its present form, I'm telling you you'll have blood on your hands. I thank you for my ability to present to you today.
The Vice-Chair: Thank you very much for your presentation. That leaves us just over four minutes per caucus, and we begin with the NDP.
Mr Christopherson: Thank you for your presentation. A couple of thoughts on your presentation, one around the ODP, and I'd appreciate your response to this: It's interesting that the government says that the reason -- I've watched the reaction of some of the government backbenchers on this committee when people come forward and talk about the damage this government is doing to the ODP by killing its independence and folding it back into WCB. They sort of recoil as if that's some kind of horrific lie that all the people who say that are conspiring to spread around.
It's interesting that if the government really believed they want to make it better, which is what they say, and the parliamentary assistant will brag about how they're going to put new money into it and, "We're going to make it better, better, better," politically one has trouble understanding why, if they want to do something that would make injured workers happy and they want to do the right thing, they both converge at the point where they leave the ODP in place as it is. I just fail to understand where the political logic is, where the worker-concern logic is; it just completely escapes me. The only thing left is the fact that it's just another one of the big lies.
It is like the way they're changing the names of things when they say they're improving the environmental protections of the province and the reality is that they're stripping them --
Interjection.
Mr Christopherson: See? They still react the same way. The only conclusion I can come up with is that some of them have bought in. That's the interesting fact, that some of them believe this garbage and they've bought into the big lie. They actually go home at night believing they're going to make the workplace safer for injured workers, that all of this really is about that. However, I suspect there are enough bright lights in their cus, one would assume, who know bloody well what's going on. Some of them are even ashamed of it but they don't say so publicly.
Mr Laughren: Name names.
Mr Christopherson: My colleague from Nickel Belt wants me to name names.
Mr Laughren: The bright lights thing.
Mr Christopherson: Oh, the bright lights thing. Because you have so much trouble believing they're there?
The other thing is unrelated to what you spoke to, but I wanted to get your reaction. I wanted to raise it at least once in each community, and that is the issue that injured workers will no longer have control over their own medical information. You've probably seen the form. The government says it's innocuous, that it only talks about functional performance and things like that, yet you and I know the kind of reaction ordinary people have to giving away the privacy of their medical information. So just on those two topics, some of your thoughts, please.
Mr Hudyman: Sure. I remember seeing claims where workers worked 20 years doing heavy work with their hands and got carpal tunnel and the board said, "Oh, it's because you had a pregnancy," but the pregnancy was over a year ago. It's ridiculous. The reason they want access to that is to say, "The reason why you injured your back wasn't because you were lifting 200 pounds of steel; it's because you're getting older and your bones are becoming whatever." It's utterly ridiculous.
I've had appeals particularly on this question that prove it, but I know with these proposed changes it's going to get far worse, with an employer-dominated board sitting there deciding the utterly ambiguous sections of this act that could be interpreted either way by an employer-dominated panel. There are so many ambiguous sections here, and which way it's going to go in terms of interpretation is going to be up to a bunch of people who are not workers, who are not the people who have actually suffered. It doesn't have any labour representation or injured worker representation. It's mind-boggling. There's no fairness.
Mr Laughren: Peter, welcome to the committee. You indicated at the end of your presentation, I think, that you were concerned there would be violence if this bill is passed in its present form. Do you think we're going back to the old days, when there was violence? Is that what you are finding?
Mr Hudyman: Yes. It's obviously part of the agenda to level the playing field in terms of removing any kinds of impediments. It will be like the turn of the century. We're talking about going back to the 1900s, where if a worker lost an arm or a leg he would starve, and it was left to his co-workers and his community to keep the family alive. We're talking about a time when there was no compensation. It's unbelievable.
Mr Maves: I just wanted to make a comment about inspections to correct the record. In actual fact we've filled 20 inspector positions that had gone unfilled by the previous government and we're hiring 20 more. Inspections are up 46%; total field visits are up 31%; the number of orders has increased again 46%; and 128 convictions were obtained, resulting in total fines of $2.3 million, which is a 44% increase. I just wanted to put your mind at ease about inspections and inspectors. Both are increasing under this government and the facts are there and on the record.
Mr Hudyman: Until just a few years ago I was in the workplace, and when you did see an inspector it was a rare moment. When he was there he was listening to the supervisors and not even talking to the workers. If you want to talk about quality of inspection, that's entirely another issue. These inspectors, in terms of whom you're hiring, are by and large supervisors. There are really no workers who have come from the rank and file, who understand working issues or even consider the workers. They come with a biased agenda because they came from supervision. They came from the company side.
Mr Maves: Actually, I hear the exact opposite, obviously from the other side.
Mr Hudyman: I know from experience and I know at least from the Sudbury office of the Ministry of Labour that they're just not there. There are no real worker inspectors who come from the rank and file there. I've got stats at home -- I didn't bring them; they're a few years old -- that show how inspections have radically declined.
Mr Maves: If they were so biased in favour of the employer, though, why would orders be so far up and convictions be so far up?
Mr Hudyman: Orders against workers have been up.
Mr Maves: No, employers.
Mr Hudyman: Orders against employers have been down. I'm sorry, I've seen those stats and I can fax them to you if you give me your fax number. I've got them.
Mr Maves: I've got them too. Thank you.
Mr O'Toole: Thank you very much for your presentation. I don't want you to go away with the impression that someone here at this table, on either side, wouldn't have the greatest sympathy for an injured worker.
Mr Hudyman: You're certainly not showing it in terms of this proposed legislation.
Mr O'Toole: It's about improving a system that has been recognized since about 1980 to be in need of reform. Each of the last three governments has tried to reform it. Are you aware of that? Are you aware of some of the changes in the previous government's Bill 165? In fact the ODP they talk about -- their first draft of the bill was to also be included with the WCB. Do you know that?
1650
Mr Hudyman: I'm fully aware of Bill 165. I'm fully aware of what was in it. I was in the press speaking against that bill at that time too. I was against the cuts in the proposed agenda in that bill and I'm against this one too.
Mr O'Toole: Medical opinion conflict is not new, as well. There are already independent medical opinions today of conflict between diagnostics. That's not new and it's not particular to any government. I think it's important that the language be clear and the regulations be clear.
I have one specific question that I might want a response on from you. You mentioned in your thing that Inco and Falconbridge and all the rest are working massive amounts of overtime, yet at the same time I read that there's an unacceptable amount of unemployment in Canada; perhaps it's improving in Ontario. Do unions have a role in this overtime? You mentioned you're with OFL or something.
Mr Hudyman: If memory serves me -- I've worked with the OFL on questions -- if you look at the mine-mill strike right now, they're actually striking over the four-shift schedule, which involves seven days of 12 hour shifts, and that's one of their major issues. They're striking on that issue. They're saying, "The shifts are killing us; they should spread out the work," and they've always taken that stance. It's just a simple fact that the employer regulates the working hours and has sole control over what it's going to do with its workers in terms of scheduling.
Mr O'Toole: So four eight-hour shifts, is that the way it is? How many hours a week?
Mr Hudyman: The Falconbridge shift, from what I understand, is seven days at 12 hours and they're off for two days and they go back for another --
Mr O'Toole: Do you have any recommendations on how to get into work sharing of some sort? You make a point that there's a massive amount of overtime by one group and then high unemployment that's being quoted. You're out there. What do you think should be done? Don't you think both sides should sit down --
Mr Hudyman: I think there should be a 32-hour week with no loss in pay. There's no reason why it can't be done.
Mr O'Toole: No loss in pay; that means a 30% or 28% increase in pay.
Mr Hudyman: Yes. There's no reason it can't happen. They are already making plenty of money as it is.
Mr O'Toole: It's a little off topic, but thanks.
Mr Patten: Thank you for your presentation, especially seeing that you overextended yourself to join us. An implication of what you said today suggests, and a lot of people have suggested this, that Bill 99 is really employer-biased, that it doesn't have the balance that the government proclaims. It's also been suggested that a number of moves have already been made by Mr O'Keefe prior to the legislation being passed that are totally in sync with direction of Bill 99.
It struck me as kind of odd or symbolic that about six or eight weeks ago the WCB announced they were going to invest $10 million for investigators to investigate claimants and recipients of various programs. When you looked at the statistics of it they were very tiny indeed, given the hundreds of thousands of workers who are compensated each year, but this was going to be another snitch line, another set of investigations. It seems to me there's an attitude that the workers, the welfare people are all somehow massive abusers of the system. I suppose it's fair to say that in any big system you will get some, but the research suggests that it's pretty minor especially in this particular area.
Then I read, by Gary Hrytsak this afternoon, that in 1994 employers defaulted on $173 million or $174 million and I didn't hear any comparable effort. I don't know whether that's high or low; over the years how many defaults there are; how many are concurrent with true out-and-out companies going out of business, but that's a lot of money. That's an incredible amount of money.
Mr Hudyman: It amazes me -- I get your point exactly and I think the government should too -- why you would sit there and penalize them. Why not go after the money that's deferred? In 1994 I remember appearing on Bill 165 and the amounts -- they were in the Toronto Star -- were $200 million and something in unpaid assessments and everything else. As I understand it, employers also get rebates more and more now from WCB. It's incredibly insane to sit there and penalize the lowest guy on the totem pole.
There's corruption within the corporate world. They get tax breaks beyond everything else and every working man's tax dollar goes to -- yet they don't pay a cent and they get tax deferrals up the wazoo. It never ceases to amaze me. But of course the guy on the bottom is somehow cheating the system, so we've got to go after him, who's been injured and now is living on a reduced income -- it boggles the mind -- if he does qualify for a claim.
Mr Patten: My final question: Mr Filo mentioned this afternoon that all the appeal mechanisms for workers were shut down and that this was another example of the bias of the legislation. Do you agree with that?
Mr Hudyman: Yes. They make an arbitrary decision you have no right to question. You have no avenue to go. The worker is left out of the loop. It's amazing.
Mr Patten: It's been suggested by a number of legal clinic representatives that it really will move the bill along the direction of increased litigation that will be more costly for everybody. Would that be your observation as well?
Mr Hudyman: Yes. What's going to happen is that in the levelling of the playing field workers are going to have to hire lawyers and consultants up the wazoo just to try and get their claim through. The employers are already doing it on a massive scale and getting consultants to prepare their labour market re-entry programs. It's just going to be insane and they're going to go through a smaller loop.
The Vice-Chair: That concludes your presentation. Thank you very much.
Mr Hudyman: Thank you for letting me present.
The Vice-Chair: That concludes our hearings for today. We reconvene tomorrow at 9 am. Thank you very much.
The committee adjourned at 1657