Monday 11 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
Service Employees International Union
Mr Peter Giudice
Injured Workers' Action Committee
Mr Allan Godin
Mr Mike Lawson
Mr Karl Crevar
United Injured Workers Group
Ms Eunice Lucas-Logan
Workers' Compensation Board Health and Safety Fightback
Mr Rolly Marentette
Mr Tom Noble
Mr Mike Lawson
Ms Sherri Ladouceur
Ontario English Catholic Teachers' Association, Essex Secondary Unit
Mr Rick Meloche
Mr Richard Prophet
Ms Vikki Hannah
Employers' Advocacy Council, Windsor chapter
Mr Eric Bialkowski
Legal Assistance of Windsor; Legal Clinic Bilingual
Ms Marion Overholt
Mr Aaron Atkinson
Occupational Health Clinic for Ontario Workers (Windsor)
Mr Jim Brophy
Windsor and District Chamber of Commerce
Ms Loretta Stoyka
Mr David Law
Labourers' International Union, Local 625
Mr Wally Dunn
Greater Windsor Home Builders' Association
Mr Albert Schepers
London Home Builders' Association
Mr Ian Low
London Chamber of Commerce
Mr Gary Blazak
Ms Catherine Landgren
London Regional Advocates Group
Ms Sue Green
Ms Jody Jones
London Labour Council; London District Building and Construction Trades Council
Mr Joe Zsoldos
Mr Terry O'Neil
Registered Nurses Association of Ontario
Ms Jacqueline Choiniere
Dr Jan Kainer
Ms Kelly Waddingham
Brewery, General and Professional Workers' Union
Mr George Redmond
Ontario Kinesiology Association
Mr Greg Gillam
Stevenson and Hunt Associates
Mr Edwin Holder
London Occupational Safety and Health Information Service
Mr Michael Klug
Ms Melanie Purres
Employers' Advocacy Council, London chapter
Mr Don Whiteford
Ms Jo-Ann Zomer
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
Mrs Marion Boyd (London Centre ND)
Mr Jack Carroll (Chatham-Kent PC)
Mr R. Gary Stewart (Peterborough PC)
Clerk / Greffière
Ms Donna Bryce
Staff / Personnel
Ms Lorraine Luski, research officer,
Legislative Research Service
The committee met at 0835 in the Ramada Inn, Windsor.
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, Ladies and gentlemen. We are pleased to be here in Windsor, members of the standing committee on resources development, listening to presentations on Bill 99. We are particularly pleased to have Mrs Boyd and Mr Hoy join us this morning.
Mr David Christopherson (Hamilton Centre): On a point of order, Madam Chair: In light of the fact that once again we see an overflow crowd of people -- we've had more than 250 submissions from individuals and groups requesting an opportunity to come before these hearings -- and given the fact that the government didn't even want to come to Windsor and that the only way we could get into two communities in southwestern Ontario was a measly half a day in Windsor and a half a day in London, I would like to move that this committee recommend to the House leaders that the hearings be extended so that this committee can return to Windsor and hold the proper kind of hearings that injured workers deserve.
The Chair: I think, as you know, that motion is out of order and unanimous consent would be required.
The Chair: Order, please.
Mr Christopherson: In light of your ruling, I would then seek unanimous consent, which would allow this committee to accept my motion and we can vote on it. I would seek unanimous consent to allow my motion to be placed, that we return to Windsor to hold proper hearings here.
The Chair: Is there unanimous consent? I am sorry, there is not unanimous consent.
Mr Christopherson: May I ask who's opposed.
The Chair: There are a number opposed.
Mr Christopherson: And they're all on that side.
The Chair: Sorry, there is not unanimous consent.
The Chair: Ladies and gentlemen, you are very welcome to join us here this morning, but this time is for presenters.
SERVICE EMPLOYEES' INTERNATIONAL UNION
The Chair: We'd now like to call our first presenter, Mr Brown. On behalf of the members of the committee, we welcome you. You have 20 minutes in which to make your presentation. You may use that all for presentation time or you may allow time for questions and answers.
Mr Peter Giudice: Good morning. I'm not Ken Brown. I've come here on his behalf. He's been ill for the last little while. My name is Peter Giudice. I'm an independent workers' compensation consultant. I have been asked to appear in place of Ken Brown, international vice-president of Service Employees' International Union.
Let me begin my discussion by stating that we are all here to talk about the sweeping changes to the Workers' Compensation Act that have been proposed under Bill 99. I believe everyone in this room has much to say about Bill 99 because it deals with an issue that has the potential to affect almost any one of us; that is, the issue of workplace injuries.
Let's be clear. The hardworking people who come from the various labour organizations, advocacy groups and injured worker organizations who are gathered in this room are not exclusively altruistic. It is true that we all care about injured workers and their families, and what happens to them following workplace injuries; that goes without saying. However, I believe everyone in this room also cares about themselves and their own families and I know that we are all uncomfortably aware that at any moment a life-changing workplace injury can happen to any one of us. So how injured workers are treated and compensated for their injuries is of great personal interest to all working people.
It is unfortunate there are so many people here with so much to say about a piece of legislation that is about to be repealed and replaced by a complex new act, and yet these individuals are afforded a minimal opportunity to be heard. The reality is that this committee is only in town for a few hours and we have much more than a few hours of discussion to engage in. By the time you leave you will have heard only a fraction of our concerns. In the time we have been allotted -- we have been asked to speak for 10 minutes and then reserve 10 minutes for questions -- it will be impossible to engage in a meaningful dialogue.
In preparing for this presentation then, I was left with a choice: either attempt to skim over the changes that trouble us the most, without going into any detail whatsoever, or attempt to have a reasonable discussion regarding one specific issue. I have chosen the latter option. In my presentation I will focus on a brief analysis of section 40 of the new Workplace Safety and Insurance Act and attempt to draw your attention to some serious flaws. Incidentally, section 40 belongs to the area of the new act that deals with the process of returning to work.
It is clear that one of the fundamental principles which underlies Bill 99 is a laissez-faire approach to the management of workplace injuries. This is best reflected in the return-to-work part of the legislation. Under section 40 it is clear that the Workplace Safety and Insurance Board will have very limited involvement in facilitating an injured party's return to work in most cases.
There is a provision for mandatory contact between an employer and worker to discuss arrangements for suitable work, but there is no similar mandatory requirement for the Workplace Safety and Insurance Board to become involved. The only situation which will compel the agency to become involved is when a dispute arises. Therefore, employers and injured workers will generally be left on their own to negotiate a re-entry into the workforce.
This section of the legislation is based on the erroneous assumption that the only time there will be problems with the return-to-work phase of a claim is when someone advises the Workplace Safety and Insurance Board of a dispute. Nothing could be further from the truth. I predict that this reactive approach, adopted by this legislation, will give rise to an underground of unreported, unquantifiable problems. There will be an abundance of disputes and problems that this new board will never hear about.
This section is also based on the erroneous assumption that the process of identifying suitable work is one that does not require any particular expertise; that is, the average employer and injured worker will have enough knowledge about the law, the particular injury, ergonomics and accommodating the workplace to ensure a safe and long-lasting re-entry into the workforce.
The laissez-faire scenario contemplated under this section is not appropriate, because typically there is an uneven distribution of power between the injured worker and the employer. This uneven distribution of power can lead to perverse outcomes. The legislation leaves this very important negotiation regarding return to work, in many cases, up to the injured worker and the employer, which means that an unscrupulous employer can use intimidation to persuade injured workers to accept work that may not be physically appropriate.
We must have concern for the more timid workers who may fear repercussions if they file a complaint with the Workplace Safety and Insurance Board, or advise the board that there is a dispute. We must also have great concern for those injured workers who are not fully aware of their rights under the new system. We know that in the past there has already been ample experimentation in dealing with claims by using limited involvement by the Workers' Compensation Board.
We all know that in many cases leaving the negotiation regarding return to work between the worker and employer resulted in injured workers sitting in lunchrooms for weeks on end in order to prevent a workers' compensation cost. Then several years later when the individual attempted to prove that he or she had sustained a significant injury from the workplace accident, the records show the person only lost two days from work. It is irresponsible to withhold the valuable resources of the Workers' Compensation Board, an independent, neutral party with great expertise in the evaluation of suitable work and the development of safe return-to-work programs.
Under the new system everyone loses. First, the injured worker loses because her rights, safety and wellbeing are left up to her own ability to negotiate with her employer and her own knowledge of the law. The employer loses because often even a well-intentioned employer may be an exceptional business person, but a lousy ergonomist, simply because the employer may lack experience. We all know that when an injured worker is sent back to inappropriate work the employer is at financial risk for a recurrence.
It appears there is a provision in the new act for involvement by board staff to offer assistance with the preparation of a labour market re-entry plan, but this will only be in selected circumstances. Also, this involvement will not be by a vocational rehabilitation case worker. We are not sure exactly who will become involved on behalf of the board. It is most important to note that the board's involvement will be in the form of a reaction to a negative set of events rather than a proactive approach to prevent many of the negative circumstances from arising in the first place.
It is our position that the new Workplace Safety and Insurance Board should continue with the Workers' Compensation Board's approach to vocational rehabilitation, particularly the emphasis on early intervention. The new board should continue to automatically offer the assistance of vocational rehabilitation case workers and ergonomists, as well as other professionals, whenever possible. This will ensure that, following an injury, workers will be assisted in returning to meaningful, safe employment. That's what I have to say.
The Chair: We have about four minutes of questioning per caucus. We'll begin with the government caucus.
Mr Bart Maves (Niagara Falls): Thank you very much for your presentation. The first part I want to ask you about is, you mentioned that employers, especially smaller employers, may not have an understanding of ergonomics and return to work could be difficult, because they would be putting somebody back in a job they couldn't physically do.
Mr Giudice: I wasn't really only saying small employers.
Mr Maves: Okay. I wonder if you've had an opportunity to see the functional abilities form that has been put out by the WCB for stakeholder input. I wonder if you think that will help the workplace parties agree on acceptable work.
Mr Giudice: I think one of the fundamental problems is that often, even when the board is involved in negotiating a return to work, very often a concern arises about the clarity of the restrictions. If there's a board staff person in the middle, at least you have a person with some type of authority who can resolve the issue and can talk about whether this job is repetitive or this job isn't repetitive. But when there's no involvement by a neutral party, it becomes a tug of war and whoever has the most power will determine whether that job is repetitive or not.
I guess in some cases injured workers will have enough knowledge and resources to go ahead and contest, but in a lot of cases I think the injured worker will simply agree to what the employer's proposing and get on with it. That's what our concern is.
Mr Maves: On that note then, as you rightly point out, in the case of a dispute the board comes in and mediates between the worker and employer under section 46 and 47. But above that, in subsection 40(5) it says, "The board may contact the employer and the worker to monitor their progress on returning the worker to work, to determine whether they are fulfilling their obligations...." Should that read "the board shall contact the employer"?
Mr Giudice: Yes, because I think that's very distinguishable by the way the system is in place today, where there are provisions for mandatory contact and mandatory involvement of the case worker at specific case points, as opposed to just telephone contact. In this case, it sounds like they're saying there may or may not be contact, and I am assuming that if there is contact, it will probably be over the telephone, a 30-second phone conversation and that will be the end of it.
Mr Maves: In many instances, especially in larger workforces -- we met with one the other day in Thunder Bay. The paperworkers' union at Avenor have their own return-to-work program which has been extremely successful. They have their own functional abilities form and so on and so forth.
If we had "shall" in there, would workers' compensation be interfering with the program that's been successful between the paperworkers' union and their employers?
Mr Giudice: I think the Workers' Compensation Act has to be written in a format that would apply to the majority of circumstances, as opposed to the exceptions. If that's an exceptional workplace, I'm sure a telephone call from the Workers' Compensation Board, or perhaps even a visit by a case worker, isn't going to disrupt their whole program.
Mr Maves: Thank you very much, Peter.
Mr Richard Patten (Ottawa Centre): Good morning. I agree with your opening comment that there certainly wasn't enough time. By the way, if you do have anything in writing you can still submit that to the committee.
Mr Patten: Yes, I will read it.
There are 106 pages in this piece of legislation, and it certainly isn't enough time to give it considered thought, as I am sure you have.
Mr Patten: I do support Dave's resolution; in every place he's made that resolution we've supported him. We think it should have had more time, not only for presentations, but in each area.
My question to you on return to work: Do you feel that the new bill changes the balance of power between the workers and the employers in terms of return to work?
Mr Giudice: It doesn't necessarily change the balance, because that difference in power will always exist, but it exploits that difference in power. That's what I think injured workers should be concerned about.
Mr Patten: You implied that the incentive would not be there for the employer -- let's say for an employer who didn't have the same sense of responsibility that hopefully one might, there are probably incentives to avoid filing a claim or encouraging a claim to be filed.
Mr Giudice: Yes, I think there are incentives to avoid filing a claim, and once a claim is filed, there are also incentives to bring people back to work in haphazard ways that may or may not be appropriate.
Mr Patten: As you see it, you'd use the term "laissez-faire." You feel it's too loose and that there should be something in writing in the legislation that provides for an intervention of the board itself.
Mr Giudice: Yes. Many times there's already conflict between the injured worker and the employer following an injury. To just say, "Go at it on your own" isn't appropriate. I think somebody needs to be in the middle, especially in a potentially conflicting situation such as this.
Mr Patten: Let's say someone is injured; they're sitting around doing nothing, and then finally the injury is considered to be more serious later on. That worker may have jeopardized his position to seek compensation based on having supposedly continued working, when in fact it was a fraud to begin with.
Mr Giudice: You're speaking about when it appears that there is no lost time?
Mr Patten: Yes.
Mr Giudice: We get into it a lot when people try to establish -- in 1997 they find out that they could have gotten a pension for the injury they sustained in 1985, and then you go back and try to dig up the records. First, the Workers' Compensation Board file shows that the person returned to work two days following their injury. The injured worker insists that he returned to work, yes, but for three months he did absolutely nothing; he sat in the lunchroom. Then when you approach the employer there is absolutely no documentation to support that. Fifteen years following an injury -- the evidence that would be necessary to establish such a claim is pretty substantial and usually in such a situation the worker would have a tough time proving his case. If the board's not involved, you get into the problem of a lack of proper documentation.
Mr Christopherson: Peter, thank you very much for your presentation. I appreciate that you brought a few friends along with you. As you know, you are very fortunate as one of the few who got an opportunity to make a presentation, given the hundreds of other people and organizations that have been denied an opportunity to have their democratic say. Thank you again for representing them as well as your own members.
Mr Christopherson: We get so very little time, let's not blow it.
Mr Giudice: I thought you were discharging me.
Mr Christopherson: No, no. The parliamentary assistant to the labour minister raised the issue of the functional ability form. I want to spend a second talking about that. I don't know if you've had a chance to see a copy of the draft that's been sent out to stakeholders, but I'm sure you're aware of the fact that under the new Bill 99 workers will not have any choice but to have this medical information released, without their consent if need be. We're having a great deal of difficulty getting through to the government, making them understand how working people feel about being forced to give out private medical information so they can receive an entitlement to which they are otherwise properly entitled, meaning WCB. Could you tell us how you feel about having to fill this form out?
Mr Giudice: One of the concerns injured workers would have in filling out such a form or having their doctors do so is, what will happen with this form once it's filled out? A lot of people's experience is that when they bring in a note from their doctor with restrictions, often that note goes by the wayside or it's contested or the Workers' Compensation Board will come in and say something different.
Perhaps doctors and workers alike are frustrated by the idea that they go through considerable attempts to provide information to assist in their return-to-work process that gets shrugged aside. I think any injured worker would agree that they should help with the return-to-work process, but to go through the time and effort of getting all kinds of information that ultimately won't be used is a problem.
Mr Christopherson: I think it's also fair to say it's a problem, given the fact that people have to have this medical information released. At this point, I still haven't heard it clarified from the government that the information released is limited to just the work injury. If you accept that there has to be such a form and there are other medical conditions that may show themselves that could affect their employment, there's a real concern about that.
The other point you raised -- I wrote down the phrase you used: "uneven distribution of power." Those of us who have been in the workplace for a lot of years clearly understand that and don't need to have it explained. But for the benefit of some of the government backbenchers, would you give an example in some detail of a scenario where an injured worker, without benefit of a union -- that's the way this government would like the province to be, union-free, because they don't like unions -- because of that uneven distribution of power is coerced or feels they don't have the ability to fight for their own rights when they're dealing with them. Could you explain that a little bit more, and the fact this is being done in the absence of the WCB being involved?
Mr Giudice: I can think of a situation where perhaps an individual working for a mid-sized company has an injury, and I can envision this in my own mind: He gets called into a meeting with probably four or five of the management people and they start talking about what he or she can and can't do. He'll start saying, "I'm having a hard time with too much standing and too much sitting." The employer would then say: "I don't think your job involves a whole lot of standing or a whole lot of sitting anyway. Let's think about this." They'll go into the employer's perception of what the physical demands involve and probably downplay the effects of the injury. At the end of the day, after the person is overwhelmed in a meeting room with four or five management people, he agrees to go back to the job.
Mr Christopherson: Is it fair to say too that, especially without a union and without a collective agreement, they're worried about their job in the future? If they give this employer too much of a hard time, they may not get a job posting they were looking for, they may not get the shifts they're looking for; in fact, the employer may start a process to start slowly easing them out of the job entirely. Is that not fair to say in some workplaces?
Mr Giudice: I wouldn't want to have an injury on my fifth day on the job with such an employer. That would clearly be the beginning of the end of that person's employment in a lot of cases.
The Chair: Thank you very much. We appreciate your taking the time to come to the committee this morning.
INJURED WORKERS' ACTION COMMITTEE
The Chair: Could I have a representative from the Injured Workers' Action Committee, please. Good morning, gentlemen. Please introduce yourselves for Hansard. You have 20 minutes for a presentation; that may be all presentation or you may allow time for questions.
Mr Al Godin: I'll start off by saying good morning to the panel. My name is Al Godin and I am an injured worker. I'm also a member and the president of IWAC, the Injured Workers' Action Committee, Essex and Kent counties. IWAC is an affiliated member of the Ontario Network of Injured Workers Groups out of Toronto. Mr Karl Crevar is the president, and he is seated with us here at the table. Also seated here with us is Mike Lawson, who is also an injured worker.
IWAC was formed back in May 1992 by Pat Hayes, past MPP for Essex and Kent counties. Pat Hayes is a person who cares for others and worked for the betterment of his constituents, not like the present-day government, which wants to make life more difficult for the not-so-fortunate living here in Ontario.
As I said in the beginning, I am an injured worker. I am not happy about being injured any bit at all. I tell you here and now, I'm glad I was injured before Bill 99 takes effect. It's going to make life a living hell for workers in this province who become injured after Bill 99. I say to you, we are real people and our injuries are real injuries.
Being involved with injured workers, I have become more aware of many horror stories that are a result of unrealistic goals forced upon them by the system. This system is not perfect, but it is much better than the proposed changes in Bill 99. Bill 99 will cause even more pain and suffering, not only to the injured workers but to their families as well, for an injury to one is an injury to all family members. Our families also suffer from our injuries. Our loved ones become tormented at times by mom or dad having a difficult day coping with their injuries. Our loved ones do not deserve the anguish of this injury. Many families separate and divorce because of an injury. It puts an unbelievable strain on a relationship between spouses. The rate of divorce is high and suicide among injured workers is also on the rise.
Because of my injury I became so depressed, I had to seek counselling for three years. I got so bad, I contemplated suicide on several occasions. My injury was lower back and it's become a nightmare ever since for me and my family. We went from $50,000 per year income to $12,000 on welfare.
My claim was approved and it was going okay till my adjudicator wanted me to return to my workplace employer for a trial work period. My doctor and I agreed we should try it, but I was to stop if anything went wrong. Well, it did. I worked for four days in that trial period and only 12 hours total in those four days. On the fifth day, I was admitted to hospital due to severe back pains. My doctor and wife notified compensation of the findings, that I would not be able to continue at this work trial. My adjudicator said, "Fine, but I find it a medically fit job and you will be cut off in 14 days."
Well, we were cut off. We had to live in a two-room motel apartment because we could no longer afford our home. I appealed her decision and won my appeal 14 months later, but I was only granted 50% temporary total. I then appealed this decision, which I again won. The decision review officer at the WCB said I should never have been cut off and I should have been assessed for a permanent pension two years prior to his decision.
It took me and my family five years to get some sort of dignity back into our lives. Without the love and support of my wife, Beth, and my son, Edmund, I would not be here today speaking to you. I love and respect my wife with all my heart; she and Edmund helped me turn my life around. She has since graduated from nursing school, in 1991, and works in a hospital in Detroit, Michigan. She gives me my injections at home nightly to save me from sitting in a waiting room in a hospital for five hours for a shot. I thank you for that.
I need help many days with the everyday tasks that many people take for granted. She helps me with my personal hygiene, for on many days I am not able to bend and do certain things we all take for granted. My 12-year-old son, Edmund, helps me put on my socks and shoes on most occasions. It is very hard to accept that I must rely on others for the simplest things in life, things even you take for granted. I am truly blessed to have them in my life.
You see, I am a real person and my life has been affected severely by being an injured worker. We never asked to become injured workers. We only ask for fair compensation for our injuries.
This government says they are doing these changes to focus on prevention, to make the system safer for all concerned. This is so far from the truth. The government is hell-bound on making this system better for the employers in this province by taking away the rights of workers here in Ontario. I say shame on you.
By taking away the Occupational Disease Panel, you have taken away a system that has recognized many workplace hazards and is seen by other countries around this world as a leader in occupational disease research and findings. By the ODP's work in this field, we have not only saved injury to future workers but we have saved many lives by their findings. Now you want to place it back within the WCB. My friends, this is like telling the fox to guard the hen house -- not a good idea.
Having the workers now ask their employers for the forms to start an injury claim puts undue pressures and intimidation by employers to their workers. Telling injured workers they must sign a paper to allow employers to have access to their medical files is sheer ignorance by this government. If we demand you to release your medical records to us, the constituents in your ridings, before we allow you to run for office, do you think this is right? No, it's not. Even I will say it's not right. And it's not right for you to demand that we as injured workers sign a release form of our medical records to be given to our employers. You must strike this totally from the bill.
As a matter of fact, the entire Bill 99 should be scrapped and sent to a real committee that can come up with a fair and just system for all the people here in Ontario, not just the wealthy. If there was a time, God forbid, when we the people of Ontario had to thank you for something, it most certainly would not be for what you have done for us but rather what you have done to us.
There are a few members on the panel who do fight for the working people, and they know who they are. They are to be commended for their efforts. But I'd like to personally thank Dave Christopherson for his undying efforts to help all workers and the people of Ontario. It is people like Mr Christopherson who put dignity back into our lives. He is not only an asset to Ontario's Parliament as an MPP, but is a great asset to mankind all over Ontario and Canada. I thank you, Mr Christopherson, for all injured workers in this region, as well as the entire province, for your never-ending dedication to make our lives better.
In closing, I say to you, remember, it only takes a moment in time to change an entire lifetime. You are only a moment away from a life as an injured worker. Think about it. You yourself or your children -- and that's important -- your children and our children may become an injured worker through no fault of their own.
I now turn the chair over to my friend, as well as a fellow injured worker, Mike Lawson.
Mr Mike Lawson: Thanks, Al. I'd like to make my presentation on behalf of the injured workers who were denied the right to speak to this committee. We didn't go to work to get injured. We didn't ask for the pain, the disruption of life, the uncertainty of our future, the social insensitivity directed towards us by a government that shuts us out of the decision-making processes and further victimizes injured workers and their families.
A previous government started a royal commission to listen to all the stakeholders and to summarize a report. Most important, many injured workers had the chance to speak to that commission about how their lives had been destroyed. Driving back to Windsor from many of these hearings, I was often filled with emotion as I recalled what was said at those hearings: the employer rhetoric about slashing benefits, denying entitlement to injuries and occupational diseases, the stereotype of injured workers being lazy and abusing the system; then the injured workers' accounts of how their lives had been affected would hit me like a slap in the face.
Do you have any idea how hard it is to get up in a roomful of people and open up your life and your soul, knowing that your own brothers and sisters are talking about you and why they think you don't come forward? I admit many injured workers from across this province. I feel their pain, their anguish of body and mind, the constant reminder of their injuries and diseases, the feelings of uselessness and abandonment from society, all because they became injured or suffer from an occupational disease.
I have spoken to family members who suffer right along with the injured worker, and suffer in silence. We are telling you and the public that Bill 99 is a result of employers disregarding the responsibility to their workforce once they have suffered an injury or an occupational disease.
"I personally believe that workers' compensation needs to focus more on prevention of accidents and illnesses," says Labour Minister Elizabeth Witmer. If this statement means anything, then why is the Occupational Disease Panel being eliminated? Why are the occupational clinics for workers being threatened with closure? Why is the Workplace Health and Safety Agency being rolled into the same body as the compensation function? At one point this agency was moved out of the WCB because accident prevention was not getting the attention it deserved.
You may think that the public is impressed by these so-called new directions Bill 99 will provide. You have eliminated worker input in the decision-making processes. You have eliminated agencies that are proven in reduction and recognition of injuries and diseases. You have denied entitlement to injuries and occupational diseases. You have taken the basic right to a fair and just hearing at the Workers' Compensation Appeals Tribunal. You are not fooling us with your lies and refusal to hear from injured workers. We demand that you withdraw Bill 99 and listen to the real stakeholders and design a system that will provide fair and just compensation for all workers in this province.
Further, why are you not listening to us? Are you afraid of what we have to say? Are you embarrassed that a system that was supposed to assist and support workers who have become injured or suffer from an occupational disease has for the most part failed? Does the truth scare you? Or could you care less that another human being is suffering and is trying to tell you that this bill will cause devastation and untold hardships to the body and soul of those who will be injured in the future?
Do you agree that workers are nothing more than commodities, that once they are defective and used up, they are to be thrown on to some scrap heap and more workers brought in to take their place, only to be discarded once they become injured or suffer from an occupational disease? Workers know that employers must continue to prosper. After all, isn't this what assures jobs, purpose and meaning in our lives?
Workers know when their employers, and governments that only listen to employers, are perpetuating myths about so-called unfunded liabilities and the high costs that are killing them. The killing and maiming is being done in the workplace by irresponsible and negligent employers who have succeeded in conning this government, with Bill 99, into the denial of entitlement of injuries and diseases suffered in their own workplaces; the fear and intimidation when injured workers who are in pain and uncertain about the cause of their injury or disease must initiate their claim and sign a waiver to release medical information before they themselves know what is wrong.
Under the guise of prevention being the board's new focus, you have left us to wonder whether decisions will be based on science or on the dollar value to be put out. You have done nothing to improve the system or consult with the people directly affected. Instead, you have put up barriers and labelled us as special interest groups or another labour group making noise again.
We do have special interests. We don't want to see people fall into cracks in the system and have their lives crushed. We don't want to see families fall apart. We want safer and healthier workplaces. We are all workers in many different workplaces. We have at least that in common.
The only way effective change in society will take place is when we can all sit together and make changes that are fair and reasonable for those affected.
Mr Karl Crevar: Good morning. My name is Karl Crevar. Let me start off by expressing to you my anger again, Madam Chair, when in a free and democratic society workers in this province want to come to you and your committee has had the security brought in. We're not a violent mob. All we want is to be heard. This is not the first location; I have expressed that concern to you before. As you can see here, my presentations have been made early in the morning. People want the right to express their views. This is still, as far as I know, a democratic society. Democracy is very difficult, but I can assure you that if you continue this process, we will fight to keep the doors of democracy open.
I want to take this opportunity to set the record straight about Mr Hastings's comments in Thunder Bay and his concerns about the differences in the unfunded liability. It is true, Mr Hastings. You stated that the WCB has about $9 billion in assets in the bank and that there is still about a $10-billion liability out there. But what you alluded to -- when you come out you should tell the people the truth -- Bill 99 is taking $15 billion out of the pockets of injured workers to pay for that $10 billion. The other part is that the employers already enjoy that 5% reduction in assessment rates effective this year.
The other point you alluded to was the fact that employers continue to receive rebates in the course of half a billion dollars a year. So who is paying in your Bill 99? It's the workers. That's not fair. You've heard the presentations from my colleagues here. I say to you, shame on you when we workers in our middle age have to come to you and plead in tears about what's happened to our families. All we're asking you to do is to expand the hearings so that we have the right to be heard, so that we can express to you what's happened to us. You've refused to do that.
I just want to conclude and say that we were in Thunder Bay, as you well know. When I came back from the hearings in Thunder Bay I opened my mail on Saturday. I'd received a letter from an injured worker in Niagara Falls. I forgot to bring the letter with me but I will most certainly share with you, because I talked to the injured worker and she gave me permission, if necessary, to release her name and any information pertaining to it.
She had written to the Premier of Ontario; she had written to John Quince at the Workers' Compensation Board who, I might add, she was told by someone from the board was the chair of the compensation board. She requested information and that was misinformation, that was misdirected.
The only response she received was from the other organization she contacted: the Canadian Labour Congress. She had sent out numerous letters seeking assistance and through that course she contacted me. She'd had one response to all her requests to talk to her and her family about her concerns, one response, and that was from the Canadian Labour Congress -- not from the board, not from the Premier of Ontario. I understand how it works. The Premier would ensure that the communication was put to the appropriate department, which is the Ministry of Labour, and that accordingly would have been put down the line -- no response from Mr Quince from the Workers' Compensation Board. I might add, Mr Maves, she's one of your constituents and she had also contacted your office and got no response. I will share that information with you, Bart.
In conclusion, what I found very appalling is the impact and what this woman, who has a 14-year-old daughter and an 11-year-old son, was going through, how that has impacted on her life. She closed by saying, "I beg you, please help me, whatever you can do." I talked to her yesterday and assured her that I would raise the issue with Mr Maves and with the committee here.
This is what injured workers are going through. Give us the opportunity. Do the right thing. You have the opportunity to take back to the Minister of Labour, to the leaders of the House, the request to extend the hearings so that people can express to you their real concerns. You have the opportunity, Mr Maves. You have the correspondence from the Minister of Labour. You know it; I know it. You have that opportunity. Do the right thing. If you're not going to do anything else, at least do that. The least thing you can do is to extend the hearings. But we ask you and urge you again: Withdraw Bill 99.
The Chair: Thank you very much. That concludes the presentation.
UNITED INJURED WORKERS GROUP
The Chair: I'd like to call now upon representatives from the United Injured Workers Group, please.
Ms Eunice Lucas-Logan: Hear ye, hear ye.
The year is 1914 and man is now entering the fastest industrial era that man has ever known.
Poverty is out of control in the working class. Labourers are getting injured and dying in sweatshops. The common folk are suing the employers for their injuries or spousal death.
Businesses are going bankrupt because they cannot afford to pay the lawsuits awarded to them by the courts.
We, the government, a Progressive Conservative government, have to do something to protect our working-class people and our businesses for this province to survive.
I, Sir William Meredith, a Progressive Conservative, will conduct a royal commission to see what the people in the province of Ontario and the businesses of Ontario think should be done.
A year later: It is now January 2, 1915. The Progressive Conservative government is signing the first-ever protection for businesses and the labour force called the Workmen's Compensation Act. This bill will go down in history as the historical tradeoff. Workers injured on the job could no longer sue their employers, and in return injured workers were guaranteed an income after their injury. Businesses boomed and the province of Ontario prospered and became one of the richest provinces in Canada.
The only change that has ever taken place was the name of the act, when it was recognized that women too had a major role in the workplace. The name was thus changed to Workers' Compensation Act.
The Chair: Excuse me. Just so you know, your voice isn't being picked up by the mikes.
Ms Lucas-Logan: That's okay. Hansard can get a copy of what I'm saying.
The Chair: All right. Just so you know, though, it will be submitted as a document but it won't actually be in Hansard.
Ms Lucas-Logan: That's okay.
The name was thus changed to Workers' Compensation Act in recognition of women's contribution to the growth of the province's economy.
As labour changed, the rights of injured workers changed to where today they are not automatically pensioned off but are sent back to school, given a job or job training and are put back in the workforce as productive people in society.
Along comes Mr Harris, another Progressive Conservative. Please note he is not a businessman. He is a professional golfer. He has never run a business to find out what the employer or employee faces on a day-to-day basis. Mr Harris has a work-related injury called tennis elbow. According to a reliable source, it has been noted that he has quit shaking hands because the movement of his arm bothers his elbow. I pose the question to Mr Harris: What are you going to do when you are no longer in office and you have to return to your golfing for a living? Are you then going to go to the Workers' Compensation Board, which you have set up under the privatized insurance plan, to try to get retraining? If you speak up for yourself, Mr Harris, and say that your arm is in a lot of pain, you will be deemed uncooperative. Your benefits will be cut or eliminated completely.
Mr Harris, this is the perfect opportunity for you to continue the protection of the bottom line that all businesses so enjoy by ensuring that the principles Sir William Meredith established in 1915 are continued. In your effort to dismantle everything the Liberals and New Democratic Party have done, you're also dismantling one of the very fundamental concepts: to protect all injured workers and businesses from undue hardship. Remember, this concept was set up by a Progressive Conservative government.
Injured workers should not be used as scapegoats for the just-in-time policies of businesses today. If your concern is abuse, statistics have shown there is 13% employer abuse of the system, compared to 3.5% employee abuse. It may be time to re-educate some of the province's employers.
In Alberta, Liberty Mutual, one of the leading underwriters of workers' compensation in the United States, conducted a study comparing private insurance versus the current employer-funded system. Liberty concluded that dollar for dollar, benefit for benefit, our system far outweighs the private system. In Alberta today they are focusing on the problems of the system, ie, making case workers responsible for their actions instead of protecting them under the act in three separate sections, as in the law in Ontario. Alberta is also focusing on proper retraining for the injured worker, taking into account their restrictions and disabilities, instead of the attitude of Ontario of, "Get rid of injured workers as fast as possible and put them on the welfare roll."
Remember the injured worker was not lying watching Oprah or Bart Simpson. He or she was a producing person in society and still has a strong desire to remain so if given the opportunity. The proposed changes to the Workers' Compensation Act assume that injured workers no longer deserve the right to work and contribute to society but want to stay at home on the welfare roll.
I think you've already the WCB versus private insurance. I highlighted some of the things I would like you to take a look at. It was put out by Alberta. First under "Study Limitations: WCB legislation provides employers with freedom from suit by employees who are injured during the course of their work-related duties. However, no attempt was made to factor this freedom from suit into either the cost or value comparisons which form the basis of this study." When you read through these, please keep in mind that they do not take into consideration that if you go to private insurance, you will then be able to go and sue your employer.
"When all benefits provided by WCB are taken into consideration, the grand aggregate rating was 0.76." This means comparable private insurance benefits are 24% less valuable than those provided by WCB.
On the next two pages I highlighted information they gathered from the States. There are one or two that say it's higher, but you also want to note that the very last line says it does not include small businesses down in the States, which are not allowed to get private insurance.
The last thing I want to bring to your attention in this is:
"One might assume that if the private insurance sector were able to compete head on with the WCB, the end result would be a reduced cost for compensation coverage. However, a cursory examination of compensation costs in American states which have competing private and public plans does not show this to be the case." They prove right there that private insurance doesn't work.
The last thing I want to bring to your attention is a little story. Everybody has a different story so you have something to talk about in the car to London, but the numbers are the same. When you're working you've got $2,500 a month; because of your disability you've either been deemed uncooperative or you've been retrained successfully. After you read your little story you'll understand.
"Detailed Tax Calculation:" Everybody turn to that page and we'll do your tax calculation for you; you're an injured worker. The amount of your monthly WCB cheque -- it will be on your first page, -- is $600. Write in $600 for me. You now get section 147.4 -- it's on your front page again -- as long as you're under age 65. For some reason, WCB thinks you're dead and gone; when you're 65 years old you no longer exist. Put $200 in there; you'd have been allowed that. Now subtract the $200 and you come up with $400.
"Amount of your lifetime benefits," from line 102. A lifetime benefit is $400. On the very last page you'll find a column; everybody is a different age so I can't give you the answer to this one. You have to figure it out yourself. It's the multiplier of your age, in column A of the multiplier table. You have to look up your age as of today, column A, and put down the multiplier on line 104. This is where a calculator would come in handy. Does anybody have any more calculators out here? Multiply line 103 by 104. For you guys in the audience, I came up with $57,200. This is the tax on the lifetime portion of your benefits based on your loss of buying power at age 75. Boy, talk about your life on the line: I'm 42 years old; from 42 to 75 I am going to lose $57,200 in buying power. Remember, Mike Harris said he's not going to touch injured workers or disabled people or underprivileged people.
Part B: The amount of supplement from line 101 is $200. Then multiply your age in column B. You go to the same column you had before, column B, and stick it down. For you guys out here, I came up with $15,120. This is the tax on section 147.4 -- remember, when WCB deems you unable to go back to work, you get that -- based on your loss of buying power at age 65. So when I get to 65, I've lost $15,120. Your total: You have to add up lines 105 and 108. By the time I'm 75, I'm going to lose $75,320 in buying power.
We want to go back one page. I apologize for not doing it right; it was too late when I was doing it.
The escalating poverty instalment plan: The first year you get your cheques you're okay. You're given the 2.3% and all that kind of stuff. Through the Friedland formula, this is the money you're going to lose, because inflation doesn't stay the same. The amount of your monthly cheque is $600. That's on your front page, that's what you're given. Multiplier of your age in column C; again you've got to go back to the last page. Mine is 0.75. You multiply those two together and it comes out to $310.20. This will be the buying power of your monthly WCB cheque, just before you turn 65 and lose your pension supplement, in 1996 dollars. So from $600 I'm going to drop to $310 when I'm 65, a drop in old age.
We're on to Part 2: Amount of your lifetime benefits, $200. The multiplier for your age from column C. Mine is 0.517. You multiply the two lines together and it comes out $206.80.
Part 3: Amount of your lifetime benefits from line 102 is $400. The multiplier for your age from column D. Multiply the two together and you come up with $154.40. This will be the buying power of your monthly WCB cheque when you turn 75. When I'm 75 years old, the $600 I'm receiving today will only be worth $154.40. The majority of people in my household live until they're almost 100, like 92 or 93.
The last thing I want you to do is the Mike Harris Faker Index. If you do nothing else, the last page I want you to do. Line 301, the amount of your supplement; that's $200. Your age from 65, enter here. Mine is 23 years. Multiply the two lines. Mine comes out to $4,600. The amount of your lifetime benefits, $400; it's given on your first page. Your age from 75; mine is 33. Multiply 304 and 305 together; it comes to $13,200 in my case. Now you add lines 303 and 306 and you come up with $17,800. The multiplier of your age in column E of the multiplier table; mine is 27.4. You have to look up your own. Multiply 308 by 309. Mine comes out to $126,040. You guys can figure it out.
When you're finished, you divide line 315 by 316, and this is the percentage of purchasing power that the Harris injured workers' tax will extract from your benefits over your lifetime, based on government projections of inflation and life expectancy.
On the bottom, your rating chart: 0%, you are truly disabled; 1% to 20%, everyone must tighten their belts, especially you; if you have 21% and up, get a job, welfare bum. I got 34%.
Mr Christopherson, I have some letters for you to give to Mr Harris for me. I have some out in the car, all signed. Just deliver them to Mr Harris, please.
Mr Christopherson: I'll be pleased to. Thanks very much.
Ms Lucas-Logan: Since I'm an injured worker, I deserve to wear the glove. Who would like my glove? Nobody wants my glove.
The Chair: That concludes all of the presentation time. Thank you very much.
WORKERS' COMPENSATION BOARD HEALTH AND SAFETY FIGHTBACK
The Chair: I now call representatives from the Workers' Compensation Board Health and Safety Fightback.
Mr Rolly Marentette: My name is Rolly Marentette. I'm the chairperson for the OFL's WCB fightback committee for the Windsor and area region. I'm not going to be the only one making that presentation today. I'd like to start off by thanking you for giving me this opportunity, but I'm not going to do that, because I don't think you deserve it. Out of 122 people that asked for standing to make presentation on Bill 99, for the few of us who got this opportunity it is not something we cherish. We don't think we're fortunate at all. As a matter of fact, I find it personally disgusting that you have not given an opportunity to people to have a say in something that's going to affect as many lives as this is going to do. This is going to change the future of workers in this province forever.
That's something very important that maybe this committee should start to understand. An injury is not just a personal thing. I can tell you that because I speak from experience, not because I am an injured worker but because my background is in health and safety. I'm a full-time health and safety instructor at the Chrysler Corp. I train other workers in trying to raise the awareness of how important an issue it really is. That's very important, because most people just go through life -- it's almost like driving down the 401; you never think this is going to happen to you. I take it very personally because I have to do an awful lot of the research so that I'm capable of getting that message across. That's very important, for people to understand just how big an issue it is.
Last year alone in this province, 227 people died. They never went home that night, and I'm sure none of them left that morning to go to work with that thought in mind. Almost 400,000 people suffered workplace injuries, and maybe a third of them were fortunate enough to get WCB. WCB is not my background; health and safety are, though. This was a hard thing for me to get my head around last August, when I was given the responsibility to try to put together a committee to raise this awareness in the community. It was a hell of a learning experience for me.
I have a hard time understanding how you people in this very short period of time can look over legislation -- and we're not talking about amendments; we're talking about from the first line to the last line and how this is going to affect working people. In this very short time you're going to be sitting there going through your copies of the act, explain to me, if I've been working full-time, eating and sleeping and breathing this issue since last August, almost a year now, and I still don't know everything that's in there, how in the hell are you people going to be able to make any kind of recommendation or any decision on something that's so important for so many people in this community.
In my classes, I raise the name of a young man, 16 years old, every day I get a chance, to make people understand the feeling that's behind this. A young man by the name of Louis Schoonha, a 16-year-old worker at a Bay store in 1992, got his head crushed in a baling machine in Toronto. I can only ask you to imagine what kind of impact it had on his parents to understand just exactly what the hell we're talking about here. We're talking about human lives.
I've got a 19-year-old son that I cherish beyond anything. I can only imagine what effect it had on Louis Schoonha's parents when they got that phone call that said, "Mr and Mrs Schoonha, your son's not coming home tonight." I think about this young man constantly because I can't forget about him. If I forget about Louis Schoonha and the other Louis Schoonhas we've got, the young 16-year-old workers that are exposed to these hazards of the workplace -- and they're not accidents. We shouldn't call them accidents, because most of the time, employers know ahead of time that there have been problems on these things and they refuse to listen or they have the same attitude a lot people do: "Don't worry about it. It's not going to happen to me; it's going to happen to another employer." A lot of employers probably hang their head in shame after something happens.
The compensation act, the health and safety act, is reactionary. They only do things in this government when something happens. A lot of employers only do things after something happens. So what do we do?
We see the body count go up. We've seen, in this province, an average of 300 workers die every year, just in this province alone. That's not acceptable. We should have zero tolerance.
In the other part of the bill, they're talking about delisting repetitive strain injuries. That's going to make you all look real good statistically, because 50% of your claims at WCB are no longer going to be recognized. Instead of that 400,000, you've already come ahead 50%. You're going to eliminate 200,000 claims on WCB because they're no longer going to be recognized.
The first presentation talked about ergonomics. I'll tell you something, if you don't have to worry about repetitive strain injuries, you don't have to worry about ergonomics. Some employers are going to take it very seriously and are going to look at things like ergonomics. But that's only a very short-term proposition, because what's going to happen now is that for the bad actors in the system, the ones that don't care about workers, that only look at the profit coming out at the end of the day, there's no incentive there for them to improve, so the good employers are going to say, "I have to compete. We're on this competitive treadmill that we're all talking about, that at the end of the day the profit is very important; we think about the bottom line."
I'm going to tell you something. In the year I've been chairing this committee, I haven't talked to any employers that have gone bankrupt, but I've talked to an awful lot of injured workers who lost everything they had. I don't think we want to accept that.
The Occupational Disease Panel is something we should all hold near and dear, because it gives workers the opportunity to get research on workplace-related diseases. This is something that's world renowned, but it's also something we use as a tool to make sure workers understand the hazards out there. We can do WHMIS classes till we're blue in the face; the bottom line is that we have to have this research so we can do our job.
I don't know how many people in this room know much about Windsor, but I'm going to tell you, you are probably in the most caring community in Canada, probably one of the most caring communities in North America, because of the things we do with United Way. We have a community that believes in taking care of the people who need taking care of. An awful lot of people are going to be getting a benefit of WCB and the changes in Bill 99 who really don't need protection, because we've got employers out there that always want to categorize themselves as victims. But the very victims I deal with, my friend Tom Noble, are the victims of workplace violence, not the victims of workplace accidents. It is violence, violence in any form, probably in the worst type of form.
I was very touched last week because I watched the news reports about the Special Olympics in Chatham. I think most of you have seen it. Very noble, some of the attitudes from some of the participants, competitors none the less, but competing in such a way that when the person next to them who was competing stumbled, they stopped and helped them up along their way. I think all of us were very affected. We talk about how we really enjoy that attitude. We talk about, "Wouldn't it be wonderful if we had a society where across the finish line we all got there together." Bill 99 doesn't do that. When we as injured workers and future workers stumble, we're going to get kicked. We're not going to be helped across that finish line.
A lot of times those people will not return back to work and they're not going to be given an opportunity because they're damaged goods. Nobody's going to want them with 9% unemployment, which fluctuates from 9% to 10%. Just put yourself in the mind of an employer and somebody came along to you and said, "I need a job, but I've been on compensation." With the number of people you get a chance to select out there, aren't you going to take the most able-bodied person you can? Are you going to take it in your heart and say, "I'm going to give somebody an opportunity because they're going to be good workers"? No, you're not going to do that. You're going to take the best that you can possibly get because you might feel that these people are limited or damaged in some capacity.
In closing, I guess to sum it all up in just maybe a short phrase, the biggest tragedy and insult to humanity is indifference, and that's what I feel this government is doing. They're being indifferent to people and that's what the name of the game is all about.
That's the kind of society that we want to build in this province. You're aren't going to allow us to do that. I want to make sure that this gets forwarded. There's a copy here of Return-to-Work and Bill 99, Tyranny that Won't Work. I've got 50 copies here. I ask you to please accept these, read them on your way to London so that you've got an opportunity to see something put together on the area of return to work.
I will pass the microphone on now to Tom Noble.
Mr Tom Noble: My name is Tom Noble. I'm an injured worker and I didn't have the choice of being an injured worker. You people don't know what it's like to be in this situation. I have got letters from your -- where's Mrs Witmer today? They promised the thing -- where's Cam Jackson? What's going on with this government? Where's the fairness of this government? Mr Cam Jackson called me on his cell phone and said there's nothing to worry about.
Nothing to worry about? I've been in and out of hospital for the last 21 years. Do you think this is right? You're lucky I'm not a bad guy. If I wanted to be bad guy, you'd know what a bad guy is like. You think a mob is a mob. You guys are creating a mob. Start being sympathetic to the injured worker. My children had to put up with this, and my grandchildren. I'm sick of it. I've got a letter here from Mrs Witmer stating there's going to be fairness in compensation. There's no fairness here. Bill 99 is no fairness. It's taking away more.
You people should know the situation. You're human beings. We are not dogs and cats who have to fight among each other. If you were human beings -- all you're worried about is corporate greed. It's got to stop. Enough is enough.
I've been in hospital years and years and I'm on all kinds of pills and medication. This isn't the life I had chosen. I wanted to make a living. I didn't rob a bank. My name ain't Bonnie and Clyde. Okay? Bonnie and Clyde got movies and made millions of dollars off royalties. I did not make anything off workers' compensation. It's bad enough when you've got to take your little cheque every month, you pay your rent and you pay your car insurance. Try it, people, see what it's about. Thank you.
The Chair: Do you have additions to your presentation?
Mr Mike Lawson: Yes, right here. My name is Mike Lawson. You never get a chance to hear from families that are affected by workplace injuries. With me here I have Sherri Ladouceur and Sherri's brother, Mike Ladouceur, and Sherry's boyfriend, Dave Bonanno. Both Mike and Dave were working in non-unionized shops. You talk about you're going to use reliance on internal responsibility and so forth. When investigators came out after their injuries, they hid and got rid of the damaged material that caused their closed-head injuries. Sherri would like to talk to you a bit about being in the middle of two injured workers and the disruption of her life and everyone around her.
Ms Sherri Ladouceur: I'd just like to let you know that my brother remained in a coma for 32 days, and he was given his last rites to live. The trouble that the injury has caused in our family, we've separated and come back together. For the past three years, Michael's been back and forth in hospitals from London to Windsor. They said he'd never walk, he'd always remain in diapers and he'd need to be fed and cared for 24 hours a day and that he'd probably never come home.
When he came out of his coma, he knew no one. He recognized none of the family and he was a totally different person, someone we didn't recognize either. We're still getting to know him after all this time. He has a very difficult time managing his money. Our family has to take care of him. He pays his mortgage, he pays his bills and my family buys his groceries. We take him out. For a long time he wouldn't shower. He was afraid he was going to melt, he was afraid he was going to drown. Just the little things make life so difficult for the whole family. He's very compulsive. If he sees something, he automatically wants it, a magazine, a chocolate bar, and he eats more junk than good food any more. He doesn't realize how important it is to take care of himself and get himself back.
He angers easily. Repeatedly he and my mom have gotten into fist fights where the family has to intervene and it pushes Michael away a little more every time. He's left all of his friends. No one wants to be around him because of the different way he acts and he says silly things that don't make sense. He has a short-term memory now. If you tell him something, he may know it now, but tomorrow he will not. He is supposed to use a day planner, but he forgets to do that.
Michael went through a stage when he was very suicidal. He attempted it twice. He used to call me every other night at 3 or 4 in the morning to say goodbye. We've been there and it's the hardest thing that any of you people can imagine, to not know somebody who was there.
My boyfriend, on the other hand, hit also by a safety device, has headaches beyond belief to the point where he's vomiting. His medication is very costly and we're having trouble with compensation. They'll only cover his medication for a year. He has a bad short-term memory also. His equilibrium is off. He used to be very active in sports and now he can't participate whatsoever. I have a five-year-old son and it's very discouraging for him because he can't participate in anything with my son. He gets headaches sometimes because of the lighting or sometimes because of just being overwhelmed by a lot of people, and his brain injury has caused many other health problems.
I just want to let you know that not only the injured workers' lives change, but our family has been deeply injured as well. Please, somewhere in your heart find it possible to kill this bill.
The Chair: Thank you very much. That concludes your presentation time. Thank you for bringing your perspective before the committee this morning.
ONTARIO ENGLISH CATHOLIC TEACHERS' ASSOCIATION, ESSEX SECONDARY UNIT
The Chair: I'd like to now call upon representatives from the Ontario English Catholic Teachers' Association, the Essex secondary unit. Welcome to the committee.
Mr Rick Meloche: Good morning. My name is Rick Meloche. I'm president of the Essex secondary unit of the Ontario English Catholic Teachers' Association. With me this morning sharing my presentation are Rich Prophet, from the provincial executive, and Victoria Hannah, from the provincial staff.
I won't insult your intelligence by reading my brief, although I'm not sure how intelligent some of you are. What I would like to do, however, is highlight a few sections, if you would follow along. I assume you have it before you.
In the introduction, 1.02, the unit is strongly opposed to several sections of the act as it is written. We are committed in rejecting this document and to maintaining a fair system for injured workers, who are in fact victims.
In point 1.07, something I think you should pay attention to very clearly, the unit firmly believes that in a democratic Ontario, one that we are slowly losing, legitimate government action requires the consent of the governed. I don't think that's something that has been taking place in the last little while.
Under "Public Hearings," 2.01, the unit strongly protests the lack of meaningful public hearings on Bill 99. I can't imagine how I was granted standing. I guess you must flip a coin, roll the dice; I have no idea. But to come to Windsor and have the number of people who wanted to present ignored is terrible.
On page 2, under "General Concerns," I have a number of concerns. I probably could have listed hundreds of them. I pulled out only the ones that are most relevant to me. Point 4.03 is the one that really upsets me. Bill 99 allows the WCB to override your doctor's treatment if it costs too much. I can't imagine putting someone in a position where if the cost is prohibitive, the treatment could be stopped.
On page 3, "Specific Concerns (By Section)," again, if I was to go through the entire act and pick out the sections that are offensive to injured workers, I could probably just take the act and toss it in your lap. What I did, however, was pick out a few of them that are most upsetting. In section 1, the purpose clause removes the references to fair compensation and rehabilitation services. We are looking again at the almighty dollar. We're not concerned with fairness; we're concerned with how much it costs and I guess how much your government can save.
In section 12, other than traumatic events, occupational stress is not compensable. As a matter of fact, stress is the fastest-growing form of disability.
On page 4, section 13, benefits for chronic pain will be limited or excluded by regulation that will provide benefits for chronic pain based on normal healing times, which means you're going to take the average of the healing times and look at that as being the length required. I beg to differ. There is no normal healing time for any chronic pain or any disability. It's all very individual.
In one part of section 21, injured workers must file their claim with the board and are required to provide a copy of their application for benefits to their employer. I believe this will reduce the claims, but it certainly will not reduce the injuries.
Finally, in section 43, in calculating wage loss, the board will take into consideration what a worker may be able to earn in suitable employment. The board will not take into consideration whether or not suitable employment is available.
Finally, under "Noteworthy Statistics," 7.02, the Ontario WCB is one of the top 10 profit-making corporations in Canada. On point 7.03, in 1994 the uncollected employer bad debts were $173 million. Perhaps one reason why this program has not worked in the past is that you are allowing employers to not pay their fair share.
I'd like to conclude my part of the presentation by bringing you back to page 1, 1.03. The repeal of Bill 79, the repeal of Bill 40, and the passage of Bill 26, Bill 34, Bill 104 and most recently Bill 136 capture the direction of present government policy. I have been fortunate enough to be a presenter at Bill 104 and Bill 34, and especially at 104 I felt the hearings were a sham. I am not so sure that these are not a sham as well.
I think we have before us a government that does not listen to our concerns. I'm hoping that perhaps at some point you will be sympathetic to the cause of the Ontario people. We depend on you. We need you. You're letting us down.
Mr Richard Prophet: As indicated earlier, my name is Richard Prophet. I'm a member of the Ontario English Catholic Teachers' Association. With us today is Victoria Hannah, who is a staff officer of OECTA. The local association has taken a position with which we concur, but in the event that the passage of the bill is not postponed, we have presented alternative recommendations.
We appreciate the opportunity to utilize a portion of the time that has been allocated to the Essex secondary branch affiliate of OECTA so that the government may respond to amendments or concerns about the currently proposed legislation. What we do not understand, however, is how the government could not allocate 20 minutes of time to a group that represents 35,000 people, who represent in reality 135,000 teachers in the province of Ontario. This Ontario government would not allocate 20 minutes of time to such a large number of workers who are affected greatly by the passage or the postponement of this legislation.
You have in front of you the submission which indicates 20 amendments that the association believes are vital to enshrining the rights of workers to a healthy and safe work environment. Unfortunately, the way the legislation is written at the present time, it is not about the enshrining of workers' rights, but it is about the erosion of workers' rights and unfortunately has a great negative impact on all the workers; very little positive reinforcement for the workers.
In reality, there are four areas I would like to focus on during this presentation, which immediately come to the forefront when addressing areas which require improvement in the Workplace Safety and Insurance Act. The first is the area of compensation, which is the most critical component for the injured worker.
The association recognizes the need for financial responsibility. However, it should not be totally on the back of the injured worker, as the injured worker is one who is entitled to a fair and reasonable increase in benefits from year to year. However, with compounding etc, this erosion has a great negative impact, to the point where 15 to 20 years down the road it is nothing like what was originally discussed, and for such a paltry amount at that time. In fact, now with the deletion of fair compensation, the overriding principle is fiscal responsibility, with no regard to fair compensation whatsoever.
Consequently, the association recommends that the government amend the indexing formula to provide for the current level of monetary support to both the worker and, in the case of death, their survivors.
Closely related to the concept of the indexation of benefits is the maintenance of benefits. Employers should not benefit from negligence on their part, such that a worker who is permanently injured would collect a reduced pension. We do not wish to see a reduced financial status, something that's going to be further reduced with the removal of the pension benefits. In light of this oversight, the association would recommend that the government amend proposed Bill 99 to eliminate payment by the injured worker for maintenance of the pension benefits.
The second area which causes much concern is in part V, return to work. Here the association believes that a sound and fair return-to-work policy should be developed by the worker and the employer. This process would ensure that no intimidation or harassment would take place on the part of the employer. Unfortunately, we have seen numerous instances where the employer has attempted to coerce the worker to return prior to medical approval being obtained. In the field of teaching this has happened numerous times; teachers have been called and told to return to the workplace because the class is in such a state of disarray or, "This is happening in your work site, and you are much better here." Unfortunately, that is merely coercion or intimidation.
Resultantly, the association has seen it necessary to recommend that the legislation not provide the employer with unfettered rights of contact with an injured worker who has not returned to work. Too often, we have seen employers throw down pieces of paper, form 7, and demand that they be signed within X number of hours if there is going to be any type of compensation whatsoever. This is very simply intimidation on the part of the employer. Tied to this recommendation is whom the employer can contact: Who can be objective in communication with the employer yet not be intimidated? Recommendation 14 states that when a worker, due to a physical or mental condition, is incapable of returning to work, the employer will have contact with the employee through the employee's legal representation.
Another major area which requires review is in part IV, entitled "Injury and Disease Prevention." In the area of injury prevention, the Ontario English Catholic Teachers' Association has been very prominent in promoting the education and training of health and safety representatives as a joint effort between employees and the employer. Further, we have provided various health and safety programs to teachers and board representatives for a number of years. Educational studies indicate that there's a high correlation between ownership and commitment, extremely high.
As a result of this commitment and success in its participation in the development of programs, the association would recommend that the government ensure that any entity which is accredited to provide training is bipartite in the composition of its governing body. Linked to this idea of shared ownership of concepts is the belief that where the association and the school board have jointly developed a number of policies, procedures and practices over numerous years on a variety of issues, the advisory council, if it is established, be bipartite in composition.
The fourth area where the government has a responsibility and duty to respond to recommendations is the employer's obligations. The association is of the opinion that the government should establish mandatory standards for both the certification of health and safety representatives and the accreditation of employers. If an employer does not maintain the mandatory standards, the accreditation of the employer must be revoked. We further believe that there presently are few deterrents for an employer being negligent in creating a safe work environment. Following the example of the media -- whether in written or viewed format, they report individuals who do not adhere to the law. This association follows a similar recommendation, that the government amend the proposed Bill 99 to provide for the publication on a quarterly basis of all employers who are in default of workplace safety and insurance premiums. That would be an onus but also an incentive for the employer to not only meet the standards but to create a healthy work environment.
In summation, these recommendations would ensure that the Workplace Safety and Insurance Act would be exactly what the name implies -- it would be a safe environment -- but it would not be one in which profit is allowed to override the provision of a safe and healthy work environment.
I'd like to ask Vikki to give some examples of a provincial overview, how this is going to have a negative impact on our teaching colleagues.
Ms Vikki Hannah: I have to concur with one of the previous speakers, who indicated that as a staff officer he has been working on this particular piece of legislation for over a year and understands its complexities. It has taken this association also a considerable amount of time, among everything else the government has been doing in the past year in terms of impending legislation and downloading on workers across this province.
The number of changes in here and the magnitude involved in this particular act, both in the restructuring and reorganization, certainly would confuse the most learned worker, let alone the staff officers and the bureaucrats who deal with this particular legislation. That in and of itself is problematic, and the timing is also extremely problematic.
One of the things the Ontario English Catholic Teachers' Association has done over the years is that it has taken a very active role in providing training programs for both employers and employees, for the teacher representative on joint health and safety committees. My particular role in the provincial organization is to assist in the training of these across the province and assist in the 77 school boards that previously existed in terms of developing these programs. We have tried to work very collaboratively with the school board officials in developing programs and have been very successful.
It is disappointing that when the government eliminated the Workplace Health and Safety Agency and incorporated some of the duties and responsibilities of that agency into this act it did not incorporate some of the mandatory requirements with respect to the standards for certification, for the length of program and for the fact that any delivery organization should be bipartite in nature and should be equal in value for both worker and employer. Always, the worker is at a disadvantage.
Also with respect to teachers, the elimination of the Occupational Disease Panel is of particular concern. The general public and in fact the government probably believe that since teachers work in a white-collar environment, we don't suffer any kind of problems with respect to work injury. Someone should have told the people where asbestos was in the schools who over the years have become ill with and even died of those particular diseases that the white-collar environment is not as safe as it's given to be.
The other aspect that the Occupational Disease Panel has been studying, which of course concerned teachers, was air quality. That has become a predominantly difficult thing, both with old schools and with the new schools being built that are closed environments and have new-building symptoms. None of the amendments in the act address these types of concerns, illnesses that come forth from sick building syndrome.
The issues of ergonomics and of stress and violence in the workplace are also of particular concern to teachers, and these have been eliminated from the act.
Finally, return-to-work policy should be through a joint effort. As schedule 2 employers, we have worked very hard to develop exemplary policies. These policies require time, effort and commitment on the part of both workers and employers. The current bill puts expediency rather than quality as a priority in return to work.
Last, the bill belies the purpose of the original premise and principles of workers' compensation. Teachers were only permitted under the health and safety act, and therefore in many instances under workers' compensation, in 1984. This particular title demonstrates that the workplace is the key, not the worker. Workers' compensation and compensation should be for the worker, not for workplaces. Workplaces do not suffer; workers do.
The Chair: Thank you very much for your presentation. We thank all of you for taking the time to come before us with your advice.
EMPLOYERS' ADVOCACY COUNCIL, WINDSOR CHAPTER
The Chair: I now call upon representatives from the Employers' Advocacy Council, Windsor chapter. Good morning and welcome.
Mr Eric Bialkowski: Thank you very much. Ladies and gentlemen, my name is Eric Bialkowski. I'm with the Windsor chapter of the Employers' Advocacy Council. The Windsor chapter of the Employers' Advocacy Council appreciates this opportunity to participate in the discussions on Bill 99.
The Employers' Advocacy Council, founded in 1985, is a non-profit volunteer organization of employers across Ontario. Our mission is to reduce the workers' compensation costs of employers by influencing constructive change to workers' compensation in Ontario and through education of employers on all aspects of workers' compensation and workplace health and safety.
With over 1,700 members in nine regional chapters across Ontario, the EAC represents a broad cross-section of Ontario's diverse economy. Our members include small business owners employing less than a handful of employees and large multinational organizations. We also have many public sector employers and employers from schedule 2.
All these employers have come together under the membership of the Employers' Advocacy Council to voice shared concerns about the financial viability and cost of the workers' compensation system, frustration, and lack of confidence in the system, and a common desire to effect constructive and sustainable change. For the past 12 years the Employers' Advocacy Council has been representing the views and concerns of the employer community on workers' compensation issues. During this we have striven to develop solutions and alternatives that are constructive and achievable. This includes our participation on all the advisory groups and committees established by the Workers' Compensation Board and the government on workers' compensation issues. In 1992 the Employers' Advocacy Council represented the employer community on the bipartite steering committee of the chair's task force on vocational rehabilitation and service delivery and, under the Liberal government in the late 1980s, participated in the green paper advisory committee.
In 1993, under the New Democratic government, the Employers' Advocacy Council played a key role in the development of the employer proposals for workers' compensation reform developed by the business steering committee in support of the Premier's Labour-Management Advisory Committee.
The Employers' Advocacy Council also played a lead role within the business community in developing and marshalling employer opposition to Bill 165 implemented under the previous New Democratic government.
It remains apparent to each and every one of us that the need for reform of the workers' compensation system has been generally accepted. Previous governments have undertaken initiatives to reform, but it is our view that this government is committed to restoring Ontario's workers' compensation system. The Employers' Advocacy Council reaffirms their commitment to work with the government and the Workers' Compensation Board to improve the workers' compensation system for the benefit of Ontario employers and their employees. We resolutely support the continuation of an affordable and viable system of workers' compensation which provides protection to employees and employers impacted by workplace accidents.
The Employers' Advocacy Council wishes to ensure that the changes are durable and in the interests of improving the entire system. It would be a great waste if the changes emerging from this process of reform were to be undone by a future government for political reasons. The consensus of the Employers' Advocacy Council membership is one of support for Bill 99, with specific changes. We are of the view that the constructive comments and recommendations we have proposed will add to the overall effectiveness of the reform.
It is my understanding that members of this committee have already received a copy of our provincial submission. Today it is my intent to emphasize one area of that review. A major concern to members of the Windsor chapter of the Employers' Advocacy Council is the definition of "accident." Section 2 of the bill reads:
"In this act,
"(a) a wilful and intentional act, not being the act of the worker,
"(b) a chance event occasioned by a physical or natural cause, and
"(c) disablement arising out of and in the course of employment; ('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 concerns that a new definition could cause greater uncertainty and generate litigation. The Employers' Advocacy Council remains resolute that the government may miss their chance to fix the system by failing to act on this issue. The Employers' Advocacy Council proposes that clauses 2(l)(a), (b) and (c) remain and that the following be added: "Benefits are payable where the employment is the predominant cause of injury or illness."
Our membership supports that where employment is the predominant cause of injury or illness, workers' compensation benefits and services should be delivered in an efficient and expedient manner. On the other hand, injuries and illnesses in which the predominant cause cannot be linked to the employment are entitled to other appropriate health care outside of the workers' compensation system.
Employers oftentimes receive cost relief through the second injury and enhancement fund for injuries and illnesses in which employment is not the predominant cause. However, there is still a price to pay for all stakeholders.
First and foremost, these additional claims bog down the system in prolonged investigations, appeals etc, taking away from the efficiency of the service. Employers pay a great deal of money towards employee benefits, and, like any other consumer, we expect the best value and service possible for our money. At the same time, the majority of employers expect that when an employee is injured at work they be treated with respect, dignity and, most of all, with compassion and understanding. This employer-funded system should provide prompt and efficient service. Waiting three months for an injured or ill employee to receive benefits is just unacceptable when mortgages have to be paid and food has to be put on the table.
I have had numerous experiences with employees who have found themselves caught in the workers' compensation system even when the company has no issue at dispute.
It is our opinion that by clearly defining the term "accident," claims could be processed through the most appropriate insurance plans.
A personal experience is a claim in which an employee began exhibiting signs of carpal tunnel syndrome in their dominant hand. The employee operated a lightweight press. Ergonomic studies revealed that it was highly unlikely that the employment was the predominant cause of the symptoms. Work-relatedness became the issue.
Over time the employee began to develop pain in other areas, such as the wrists, elbows, shoulders and legs. A claim was submitted to the board by the employer. The employee waited three months for a decision. In the end, the company was granted relief through the SIEF at 90% because medical information provided to the board by the family practitioner indicated this employee was suffering from a serious and debilitating medical condition.
In another example, a young man within his probationary period exhibited signs of psychological problems. He was depressed, subject to crying and fears. This employee later claimed a work-related injury to elbows, shoulders, low back and wrists and went off work. Again, ergonomic studies questioned the validity of work being the predominant cause of the complaints. The Workers' Compensation Board allowed this claim, with the exception of the low-back complaints. The employee was unable to return to modified work and later claimed that his injuries caused a psychological condition that did not allow him to return to work. This was subsequently denied by the board. Had the definition of "accident" been clearly defined, this same employee would have received benefits and appropriate health care through other insurance means, and in a more expedient manner. The time and effort spent by the Workers' Compensation Board, the employer and the employee could have been used in a more productive manner, such as expediting claims in which employment was the predominant cause of the injury or illness.
If the definition of "accident" is addressed, there would be no need for the presumption clause in subsection 12(2).
As I stated at the beginning of my presentation, I am presenting the views of the membership of the Windsor chapter of the Employers' Advocacy Council. I do so in the spirit of continuous improvement, improvement to a system that in principle is designed to benefit both employers and employees by reducing the impact of workplace accidents. It is our opinion that all stakeholders must work together to fulfil this mutual goal. On behalf of the membership of the Windsor chapter, I thank you for your attention.
Mr Patten: Thank you for your presentation. It's good to hear from an employer group that shows some compassion or attempts to appreciate the plight of the worker. But where I'm coming from is that we're talking about a workers' compensation program now shifting to an insurance board arrangement. I think in that shift is a shift of emphasis. I think it is an attempt to be, let's say, less costly to employers, at first blush perhaps. But as we've heard from various representations throughout Ontario so far, it appears there's going to be a lot more litigation taking place. In the end, I suspect we're going to have a mess in many areas, and that will not help employers. It's quite obvious it certainly isn't going to help the workers who are injured, because they've lost benefits, they've lost appeal processes, they've lost certain rights. That will push anybody who is in need of help to systems other than the board itself.
Do you think the current bill, the bill this will replace, is too generous in its benefits to injured workers?
Mr Bialkowski: I wouldn't say it's too generous. Our major concern is the expediency of filing and processing a claim and getting benefits to a worker. To repeat, it's very frustrating for an employer, who does pay a large amount of money for workers' compensation insurance, yet it's the worker who winds up waiting for a decision from the board. They have up to 12 weeks to make a decision. In the meantime, other insurance carriers won't look at the claim until a decision has been made. What is this worker supposed to do in that three-month period? That is our major concern with the definition of "accident." We feel that if it was brought together and defined more clearly these insurance claims could be processed through the proper insurance company and at a much quicker rate.
Mr Christopherson: Thank you, Mr Bialkowski. We heard from a colleague of yours in Thunder Bay who said the WCB should be required to consult with business and labour before they make any changes. He was also very critical of the fact that the government hadn't allowed input into the development of Bill 99. I wondered if your organization had been consulted at all on the development of Bill 99.
Mr Bialkowski: I'm really not sure how to answer that question. I can tell you that there was a provincial paper submitted on Bill 99. The rest of the question I would direct to our provincial office, to our director there, who may be better able to answer that question.
Mr Christopherson: Interestingly, the individual who represented your organization in Thunder Bay is a former member of the board himself and spoke very strongly to the need. Do you agree that in the future, since they haven't done it in the past, and given that there are a lot of regulations and policies about to be developed -- are you prepared to go on record and say that the WCB should be directed by the government to consult with both business and labour before any of these regulations or policies are decided?
Mr Bialkowski: Are you speaking of WCB or board policy?
Mr Christopherson: Both. I'm talking about both the government regulations and the policies the board will be developing.
Mr Bialkowski: Definitely, with the policy being developed at the board, I believe there should be input from all groups. I believe policies should be determined at the board of directors of the Workers' Compensation Board.
Mr Christopherson: Given that there wasn't proper input in the development of Bill 99, do you think the six days of hearings are adequate?
Mr Bialkowski: I'm unable to answer that question. I'm not sure if there was ample time previously to submit to the government.
Mr Christopherson: I can assure you that no labour representative in the province was consulted. Even if business was consulted -- I don't think they were either, except a select few -- labour didn't have any say. Do you think the six days the government has offered up are adequate?
Mr Bialkowski: I believe that if there has been ample time to submit, in the six days everyone is getting a chance to voice to this government what their opinions are, both labour and employer groups.
Mr John Hastings (Etobicoke-Rexdale): Sir, thank you for coming in and making your submission. Even if this government accepted the expanded definition that your organization advocates in this submission, and assuming that would speed up how a claim gets adjudicated and settled, I'd be curious to know how members in your organization would deal with the existing lack of customer service to injured employees. Even if you have a complex case, even if you have doctors who have a large medical situation in terms of patients, how would you specifically inject a more customer-focused culture into a highly bureaucratic, non-functioning organization, in a lot of people's eyes at the present moment?
Mr Bialkowski: That's very difficult to answer simply because it is a very complex organization. As I mentioned before, some claims take forever to be adjudicated, even with a push from the employer. I personally on a number of occasions have I've called the board and asked: "What's taking so long? Can we get a decision? Can we have it in writing so we can send it to our other insurance carrier?" if it's not a work-related injury. Getting information like that from the board takes a long time. It is hoped that with the change of the definition, it will be more clear and it will be a lot easier for us to process the claims more quickly.
Mr Hastings: Have you got any specific thoughts on how you could get a little more friendly, prompter response to even the most simple type of claims, physical injury claims, where there is no dispute by the employer and everything is copacetic?
Mr Bialkowski: We find those types of claims process quite quickly, if it is an open and shut case. If it's an accident that's clearly an accident occurring in the workplace and arising out of work, those claims we don't typically have a problem with. They have an adjudicator at the board who will look at those types of claims and process them very quickly. It's usually the claims that are more complex and aren't so defined that make it more difficult for the Workers' Compensation Board, as well as for the employer and the worker.
The Chair: Thank you very much. That concludes your time. We thank you for bringing your advice to the committee.
LEGAL ASSISTANCE OF WINDSOR LEGAL CLINIC BILINGUAL
The Chair: I now call upon representatives from Legal Assistance of Windsor. Good morning, and welcome to the committee.
Ms Marion Overholt: My name is Marion Overholt, and I am a staff lawyer with Legal Assistance of Windsor. With me is Aaron Atkinson, a first-year law student at the University of Windsor, who is working at Legal Assistance of Windsor this summer; also, Patricia Broad, who is a staff lawyer with the bilingual legal clinic in Windsor. Legal Clinic Bilingual had sought an opportunity to present to the committee and, like so many others, was unable to obtain a speaking time, so we asked them to join us in the presentation.
By way of an opening remark, I'd like to specifically address the government members. I was watching your faces, Madam Chair and members, gentlemen, when the injured workers were speaking. I saw that you were struggling to keep control because of the emotional impact and the incredibly tragic stories that were related to you. I saw that today.
I've read the written record of these hearings, and I am here to tell you that the record indicates unconscionable conduct on the part of the government. There have been so many people who have tried to make submissions who have not had the opportunity. There have been legitimate, honest, very important questions asked of you that have not been answered. I am saying to you that your work will not be done here when you struggle through the rest of these proceedings and move back to the Legislature, because what you need to be concerned about is your legacy. The legacy you will be leaving is one of greater victimization and violence in the workplace. I ask you to trust your guts, because it was clear to me they were wrenching when you listened to those victims. Trust what you feel and go back to this government, because you know what you're doing is not right.
I'll now ask Mr Atkinson to make our presentation.
Mr Aaron Atkinson: Since 1974, Legal Assistance of Windsor has been supplying the unique combination of legal services, coupled with social work counselling, to low-income members of the community. As most of our clients depend on social assistance, we have an intimate understanding of the legal and social problems these recipients face, as well as the problems that plague the system itself.
While the government hopes to lessen the numbers dependent on social assistance, this initiative seems in conflict with Bill 99. Premised on several critical assumptions characterizing the injured worker as lazy and over-compensated, Bill 99 may reduce claims, but injuries preventing work will remain. In many cases, injured workers will be left without financial support should they choose to heal their injuries. Rather than holding employers accountable for poor working conditions, the taxpaying public is left to fill this financial void.
Not only does this result in further burdens on public funds; the recipient of social assistance often faces myriad further problems, both legal and social. Often, the receipt of assistance is humiliating to those accustomed to earning a higher employment income. General welfare itself is grossly inadequate. A four-person family receives $602 for shelter and $516 for everything else. Usually, the rent on a decent three-bedroom house will consume more than the shelter allowance. As vital necessities become subject to greater demands, legal and social disruptions follow quickly.
In order to circumvent these cyclical problems, we wish to highlight some of the most troubling aspects of Bill 99 from our perspective.
The first deals with chronic pain and proposed healing times. In previous submissions, you have heard many medical experts warn of the dangers of setting fixed healing times for "typical" patients. Should the healing time be prolonged, the injured worker is forced into the precarious position of choosing to work with a lagging injury or allowing the injury to heal while receiving public assistance.
The situation is further aggravated for non-unionized workers, who may be pressured by their employer into returning prior to a full rehabilitation. Should the worker suffer the same injury again, he or she will be denied the pain management program, which itself is inadequate. Employers will no longer be compelled to correct the ergonomics of their facilities. While claims will decrease, the injuries will continue, but at no loss to the employer.
Second, discontinuing stress benefits: Bill 99 will eliminate all claims related to mental stress, the presumption being that there is no direct link that can be drawn between a worker's employment and his or her mental disposition, unless of course it is a sudden and traumatic event. While it is acknowledged that mental stress does not form in a vacuum, the Ontario Psychological Association has previously submitted that diagnostic criteria can be developed to document injuries of mental stress. We must abandon the notion that all injuries can be pre-dated to a particular event in the same way that one can determine the date of a sprained ankle.
By denying compensation to workers suffering from mental stress, the problems will not suddenly disappear. Worker morale will suffer, with a consequent decrease in worker productivity. With little emphasis placed on the improvement of the work environment, continuing problems such as sexual and racial harassment will not receive the attention necessary. Of note, in a recent survey by the OFL, women workers cited mental stress and repetitive stress injuries as the two highest-ranking health issues they face. Women are particularly vulnerable to these types of injuries, given their high concentration in small-scale manufacturing and office jobs.
Now workers who suffer these injuries will be forced on to social assistance if the injury no longer allows them to work. Consequently, their wellbeing will deteriorate further. Should long-term treatment be necessary, the publicly funded health care system will be forced to deal with a problem more properly attended to by employers.
Due to the continuing bar to any cause of action, employers are apparently free of all liability when these injuries arise. Section 25 of Bill 99 promises to be the subject of numerous court challenges and costly litigation as this grave injustice is addressed. Perhaps the problem could be remedied by allowing for stress claims, with specific diagnostic criteria being set up.
Third, we oppose the decreases in regular benefits and indexing. Bill 99 aims to decrease costs by cutting benefits from 90% to 85% of net average earnings. Coupled with decreased indexing and the labour market re-entry plan, benefits promise to be substantially decreased if a longer-term injury is suffered. One must first recognize that the current 90% rate fails to allow for the added costs that accompany a workplace injury, both pecuniary and non-pecuniary.
Determining the fallout from this change is not difficult. The 5% decrease, plus the lesser cost-of-living index, will gradually erode purchasing power over time. Eventually, social assistance is again required to provide necessities.
Further, an injured worker who is deemed to receive an income from a job that isn't necessarily available due to a labour market re-entry plan, faces drastic cuts in benefits. Seasonal workers and those new to the workforce face acute difficulty as their net average earnings depend virtually on the whim of new board mathematics. Seasonal workers face lower benefits due to the inconsistency of their income. With decreased net average earnings, social assistance becomes at once the only option for survival.
Fourth, filing a claim: Provided a worker has an injury where compensation is available, Bill 99 requires that all new claims be filed by the employee. This scheme poses particular problems for non-unionized workers, especially if the form is supplied by the employer. Depending on the nature of the injury, a worker may be pressured by his or her employer to forgo a claim and receive unemployment insurance. Workers not fluent in the official languages will no longer be able to have their doctor file a claim as well. At the same time, the employer is under no obligation to reveal the accident report to the worker.
Regarding the limitation period, this also promises to decrease claims and frustrate injured workers. Workers may be diagnosed with various injuries or diseases only to discover too late that it is work-related. With no incentive to improve ergonomics, repetitive stress injuries with a long onset may be effectively barred as well. Once the limitation expires, social assistance is the alternative.
Fifth, dispute resolution: While Bill 99 hopes to foster cooperation between employer and worker, the non-unionized worker will suffer due to his or her lack of bargaining power. The board only becomes involved when a complaint is lodged. In order to be successful in this complaint, the worker may have to acquire legal counsel at an earlier date. Mediation is proposed in some instances, but again the legislation does nothing to address the inevitable imbalance in power between the two parties.
Further, it is troubling that the tribunal will be bound by board policy when it makes its decisions. When the legislation and policy inevitably conflict in some instances, costly judicial review will be the only outcome, and again only available to those with the financial resources to do so. This added time and expense could easily be avoided by allowing the tribunal to act as an independent judicial body.
Finally, we ask that the government reconsider its approach to reducing compensation claims. More focus is necessary on prevention. Employers must be encouraged to invest in improving their work environment. Employers can once again be held accountable for injuries suffered by workers while at the same time reducing the number of compensation claims. While harsher standards will require a further investment of capital, this added expense will be borne by the proper entity, not the taxpaying public.
The government has warmly embraced evidence-based medical care. It must also acknowledge empirical research in the field of injury prevention. By focusing on employers and industries with recurring problems, the focus can be sharpened as to which employers have conditions most in need of improving. Any partnership between employers and workers seems unlikely in this regard unless equal representation of workers and employers is assured on the board of directors. The interests of all must be allowed.
Further, we ask why the government is cutting worker benefits while cutting employer premiums at the same time. It is troubling to understand why employers should not also be held responsible for paying down the unfunded liability. Premiums are not a tax; they come as a cost of doing business. It is absurd to think that employers do not understand that human labour requires a significant investment, part of which covers one's liability for injury. It is also time that the government acknowledged that the unfunded liability is not public debt. It is puzzling that the government would choose to swell the ranks of welfare recipients and raise public debt as workers with legitimate injuries are left with no other recourse.
We recommend that the government allow further hearings so that even a small fraction of the thousands of workers denied a voice in this debate can be given a chance to speak and provide a face for the often-referenced injured worker. Only after this recognition is given to the very people this legislation so drastically affects will the democratic process be vindicated.
Mrs Marion Boyd (London Centre): Thank you very much for coming. I'm very interested in your position, which is very strong, that when people are not found eligible for compensation, they end up on social insurance, because it certainly sounded, from the previous presenters, as though they simply go on to a fallback long-term disability. That's not my experience, not in my constituency office or in any of the work that I've done. Would you comment on that?
Ms Overholt: Certainly with respect to unorganized workers, there aren't collective agreements where there is any kind of protection for them. Should they become injured at work, they are relying solely on workers' compensation. Now we have the dilemma created by this government that when these injured workers turn to welfare for support, we have a drastically redefined disability benefit which many injured workers will not qualify for. The alternative then will be welfare, and this government is intent on introducing workfare, which will take these injured workers back into workplaces and being made to work for their benefits with no understanding of their limitations.
We're very, very concerned that they will be reinjured. There isn't that support. The whole idea of workers' compensation was to provide for benefits when a person was injured, and the erosion of this plan at the same time that the government is redefining our social support is really a frightening prospect for workers.
Mrs Boyd: It has to be taken in the context of all the other bills that this government has brought forward, including the difficulty that those unorganized workers have of balancing the power by organizing it. It really is a very, very domino effect, isn't it?
Ms Overholt: It is and it's so puzzling, because at the same time as you have this government introducing changes to employment standards, saying they want to do away with the wage protection plan because they don't feel that taxpayers should be paying for workers where their employers leave without adequately providing for them, they're releasing the employers from their obligation to care for workers who are injured in their workplace.
Mr John O'Toole (Durham East): Ms Overholt, thank you and your partners from legal aid for your presentation. Your first observation I think is right. I do believe that you or anyone else for that matter don't have the corner on compassion. Your observation's correct. We are here to listen. That's for the record and it's my point of view, and I expect it's the view of others on this panel.
You left a departing remark to suggest that there would be greater victimization. I'm not sure how that would happen, but I'm going to get down to the question --
Ms Overholt: Would you like me to answer that?
Mr O'Toole: No. I've got a question you can answer as you wish in a moment. In your opinion, Ms Overholt or Mr Atkinson, is the current legislation serving injured workers in Ontario, or is it in need of review?
Ms Overholt: I think when we look at the current legislation and look at the process that was engaged, there was a lot of consultation to bring about what was in place in terms of the bipartite system. There is no question that every piece of legislation needs to be reviewed and needs to be examined. If we're going to make change, we need to ask, when we look at legislation, especially this type of remedial legislation, are we going to be helpful or are we going to be hurtful?
In so many ways, when I look at this legislation, I can see ways that workers are going to be worse off. When I look at the time limitations, the work I do in my clinic, I constantly see people who do not have good English skills, who don't understand communication, who bring in documents that have been sitting in their houses for a couple of weeks because they were waiting for someone to come who could read and translate it.
When you're talking about people accessing services and engaging something like the Workers' Compensation Board, there's always room for improvement. I would be thrilled if I thought your government was really intent on improving that access and improving workers' ability to receive benefits when they're injured. But when I look at what you've put in place, I'm seriously concerned. When I look at the changes you've made to the Workers' Compensation Appeals Tribunal, you had a body there that was independent of the board, and that's ever so important.
If you parallel this Workers' Compensation Act with the changes that you're making in terms of the Social Assistance Reform Act, there are identical emphases. You're taking the appeal tribunals and robbing them of any kind of independence. You're saying that they have to follow the ministry policy, whatever it is. Why would you rob yourself of an independent voice that can sit there and say, "Maybe there's a way of doing things better"? If you were truly motivated to make things better, to make workplaces in Ontario safer and to have much more labour harmony, you would want to keep that kind of independence, you would want to keep the Occupational Disease Panel because of the quality work they do. I don't understand why those are the areas that you're cutting back and making cuts on.
Mr Pat Hoy (Essex-Kent): Thank you very much for being here this morning. The normal healing time, which has been stated before and we don't always get to ask a question about it, I did ask a physician what he thought about it. I suppose normal healing time would take a medical definition or opinion, but what about a legal sense? I'm curious as to how you see that phrase, "normal healing time," being implemented. Do you think it has predictability to it that can be relied on?
Ms Overholt: What's so difficult about this legislation is that we don't have the interpretation of what those things are going to be, what is going to be the normal healing time, how that's going to be interpreted by the board. In terms of looking at it legally to say what the alternatives are going to be, we'll have to look at what information is there in terms of board policy, what the intent of the Legislature is. We're very much concerned that with the board policy, if it's extraordinarily restrictive -- if you look at the language of this legislation, there is not a lot of flexibility. A great deal is left to the discretion of the board. That makes injured workers incredibly nervous because that has not been a source of helpfulness in the past.
Mr Hoy: So it's possible that workers with similar injuries might be treated differently.
Ms Overholt: It's possible, especially when you're looking at something like chronic pain. I'm not trained medically but in our experience with clients who have had chronic pain, there is incredible diversity just from one year to the next in terms of what they're able to do. Those are the type of illnesses and diseases that we need to be very careful about when we assess their impact on the worker. I'm really concerned about a normal healing time being an artificial standard that will rob workers of benefits they deserve.
The Chair: Thank you very much for coming before the committee to make your presentation and contributions.
OCCUPATIONAL HEALTH CLINIC FOR ONTARIO WORKERS (WINDSOR)
The Chair: I'd like to now call upon representatives of the Occupational Health Clinic for Ontario Workers (Windsor), Jim Brophy. Good morning and welcome.
Mr Jim Brophy: My name is Jim Brophy. I am currently a member of the Ontario Occupational Disease Panel. I have been active in the field of occupational health for over 20 years. I am a member of the cancer committee of the Essex County District Health Council and co-chair of the cancer prevention committee. As well, I am a senior visiting research fellow and completing my PhD in public health at DeMontfort University in England.
I'm here today to ask for your reconsideration regarding the proposed legislation that would abolish the existing structure of the Occupational Disease Panel. I also wish to discuss the larger questions regarding occupational disease and how this proposed restructuring of the Workers' Compensation Act will affect both workers and the public's health.
Normally, I would applaud the committee for engaging in public consultation. Such a process is an important hallmark of our democratic society as well as an essential component of effective public policy. However, I do wonder if we are unknowingly participating in a hoax. How is it possible for the government of Ontario to radically alter one of its largest single social programs with a consultation that amounts to only 3.5 hours of public input in communities such as Windsor and London?
Windsor and Essex county is one of the manufacturing centres of Canada. Thousands of our fellow citizens work each day in environments that pose a potential risk to their safety and health. If one is going to alter the historic compact that was first initiated by a Conservative government in 1914 between workers, employers and government with regard to the right of workers to compensation for work-related injuries and diseases, then simple justice requires that our citizens be given a more serious opportunity to express their opinions than a half-day consultation.
I will tell you frankly my reason for participating today is because I believe a broad section of our community realizes the importance of an independent Occupational Disease Panel and fully supports the work of the current ODP and wishes to see it continue. I hope in some small way to give voice to their sentiments regarding the continued public health issues that the ODP has attempted to address.
Nothing could more dramatically highlight the public support that exists here for the work of the ODP than the recent Windsor Star articles regarding the panel's difficulties in securing a literature review on breast cancer and occupation. The panel had dedicated a portion of this year's budget to review what is currently known about the occupational causes of breast cancer, which is a disease that is becoming more and more prevalent among Canadian women.
When the chair of the ODP, Ms. Niki Carlan, attempted to initiate this review, she was told by Ministry of Labour officials that she would not be allowed to spend this money. It was only after the Windsor Star, members of the Liberal and NDP caucuses and Cathy Walker, national health and safety director of the Canadian Auto Workers, demanded that this decision be reversed that the Minister of Labour changed her mind. The Windsor Star wrote a supporting editorial which lauded this reversal.
This story exemplifies the current crisis in occupational health and safety. It also acts as a harbinger of what is to come if the current proposed legislation is allowed to destroy the ODP.
Why should the Occupational Disease Panel continue to exist? There are historical reasons. The ODP arose out of the recommendations by two royal commissions: the Royal Commission on the Health and Safety of Workers in Mines, known as the Ham commission, and the Royal Commission on Matters of Health and Safety Arising from the Use of Asbestos in Ontario; and from Professor Weiler in his report, Protecting the Worker from Disability. Both these royal commissions and Dr. Weiler's report recommended the establishment of an agency that would later evolve into an independent Occupational Disease Panel.
These two royal commissions were both appointed in response to the demands of workers and their unions regarding occupational disease, particularly occupational cancer.
The Elliot Lake uranium miners triggered strikes and political action after government-appointed researchers established what the workers themselves had been witnessing and saying for almost a decade, that they were dying of cancer and respiratory disease caused by their exposures at work. Ministry of Labour epidemiologists found three times the expected rate of lung cancer among the uranium miners, many of whom had only a few months of exposure.
In 1991 the United Steelworkers claimed there had been at least 800 deaths from lung cancer among uranium miners in Elliot Lake since the mines opened. Approximately half of these deaths were compensated. Each month there are approximately three new cases of lung cancer among the former miners and this disease pattern will continue into the next century. All these deaths and all this suffering could have been prevented, but government negligence allowed these horrendous conditions to exist until a social explosion called a halt to such complacency.
Dr Ham's report documented these conditions and recommended that these mistakes be corrected before other workplace catastrophes could emerge.
Within a few short years the provincial government once again established another royal commission. This time it was to study the cancer epidemic among workers exposed to asbestos. It was estimated in 1978 that asbestos would cause 8,200 cancer deaths per year in the United States, rising to 9,700 by the end of the century, then dropping to about 3,000 per year until the year 2025. In Britain asbestos "now kills between 3,000 and 3,500 people every year and this death rate will increase to between 5,000 and 10,000 in the first quarter of the 21st century."
These needless, preventable deaths are the result of a conspiracy that involved employers, governments and medical professionals for over four decades. As early as 1931, executives of Johns-Manville were already aware that signs of asbestosis had appeared in over half of their Quebec textile workers. In 1948, Johns-Manville physicians X-rayed 709 workers at the Jeffery Mine and Mill in Quebec. The physicians discovered that only four workers had normal lungs, and then left without informing anyone of their findings.
This negligence continued into the 1970s when world-renowned asbestos expert Dr Irving Selikoff issued a serious warning about the dire health consequences for workers at a Manville plant in Scarborough.
This same tragic story was uncovered in our community in the late 1970s. The Bendix Automotive plant had ignored government orders to control asbestos exposure for over a decade. In the summer of 1979 Windsor learned the consequences of this negligence when it was discovered that a 34-year-old employee, Mr Tommy Dunn, was dying of mesothelioma after working in the plant for only 10 years.
I mention these historical experiences because it helped to shape the ideas and the concerns of royal commissions and Professor Weiler in their deliberations. They recognized that employers and government agencies such as the WCB had a vested interest in not recognizing occupational diseases, and therefore called for a mechanism like the ODP, which was both at arm's length from government and would also bring the major stakeholders together to focus on the work environment and its impact on the health of the workers.
Based on these recommendations, a Progressive Conservative government created the Industrial Disease Standards Panel -- later the ODP -- in 1985. This decision was based, I believe, on the sound assumption that we could not repeat the historical experience of the hardrock miners or the asbestos-exposed workers if we wished to have a decent society. It did not serve the interests of society as a whole or government or employers for occupational diseases to go unrecognized and for conditions of work to have a deleterious effect on the health of working people.
Have we corrected the problem and learned from our mistakes? Is it possible we no longer need an Occupational Disease Panel because we have learned from our historical mistakes and have improved the working conditions to the point that the workplace no longer poses a serious threat to the health of workers? Unfortunately, I think the powers that be, in a mad grab to join the global economy, have suffered from a form of collective amnesia that forgets that by prioritizing profits over all other social considerations, workers' health is one of the first things to be sacrificed.
Due to reasons of time, I won't go through the stats from Labour Canada, but there are millions of workers that Stats Canada has identified with workplace health and safety problems. Dr Grayson, the author of the report, concluded: "A substantial proportion of Canadians exposed to potential workplace hazards believed that their health had been affected.... Fully 70% of the workers exposed to poor air believed their health had been affected. Dangerous chemicals or fumes were perceived as having an effect by about half the workers exposed to them, while more than 40% of those exposed to dust or fibres or to loud noise considered them to have been harmful."
Dr Allen Kraut, in a recent article in the American Journal of Industrial Medicine entitled Estimates of the Extent of Morbidity and Mortality Due to Occupational Diseases in Canada, estimates that between 77,900 and 112,000 new cases of occupational disease and 2,381 to 6,010 occupational disease deaths occur in Canada each year.
Dr Kraut further concluded that occupational diseases are a significant and underestimated cause of morbidity and mortality in Canada. He stated that in Ontario, "less than 50% of the individuals dying of asbestos-related malignancy, compensable under the Ontario WCB," actually receive benefits.
In a recently released article in the Archive of Internal Medicine, American researchers estimate that currently job-related injuries and illnesses are more common than most people believe, costing the United States far more than AIDS or Alzheimer's disease and at least as much as cancer and heart disease. Dr Leigh and his colleagues found that US government estimates of 9,000 non-fatal injuries per day was four times lower than the real figure. They also discovered that government figures were over two times lower than the actual number of new ailments. The researchers said that direct costs of injuries and illnesses cost $65 billion in 1992 while indirect costs, including wages, were $106 billion. This made for a total of $171 billion in 1992, $468 million a day.
A study commissioned by Macmillan Cancer Relief in Britain estimated that there will be an increase of 56% of new cancer cases by 2018. The World Health Organization has predicted that cancer cases will double around the world over the next 25 years.
In Ontario, it is well known that we have a serious cancer problem. Ministry of Health officials have told us there has been a 50% increase in the incidence of cancer in the past decade. The Ontario Cancer Treatment and Research Foundation estimates an approximately 3% to 4% increase each year. In some cancers, such as breast cancer, the rate has doubled within a generation and the latest estimates are that it will double again, affecting one in four women in Canada.
In Essex county, a study sponsored by the public health unit and the district health council found excess lung, prostate and rectal cancer among men and excess lung and colorectal cancer among women. It is projected that by 1998 the incidence of the four most prevalent types of cancer in Essex county, namely breast, lung, colorectal and prostate, will have increased by 40%.
It is acknowledged that the workplace is a contributor to this increasing cancer incidence, and yet there is not a single piece of legislation that specifically addresses the exposure of workers to carcinogens, nor is there any governmental body, other than the ODP, which specifically examines the impact of workplace carcinogens on the health of workers.
The ODP sponsored ground-breaking scientific research when it formed a partnership with the Windsor Cancer Treatment Centre and the Occupational Health Clinic for Ontario Workers (Windsor) Inc to register the occupational history of local cancer patients. Even though the workplace is one of the important contributors to the incidence of cancer, no other cancer treatment centre in the province records any information about the work history of their patients. This lack of data hinders society's efforts to reduce the disease.
Since 1992, the ODP has looked at the issue of cancer among firefighters, hardrock miners, metal-working-exposed groups such as auto workers, and health care workers exposed to antineoplastic drugs.
In 15 epidemiological studies of firefighters, 12 found excess brain cancer. Firefighters in Toronto, for example, had a statistically significant twofold excess of brain cancer. Six other studies found excess brain cancer ranging from twice to almost five times the expected. Firefighters also bear an excessive and disproportionate cancer burden in other sites. Lymphatic and blood cancers such as leukaemia are two examples. Out of nine health studies of firefighters, a strong association was identified in six studies, ranging as high as two and a quarter times greater than the rest of the population.
Benzene is a known cause of leukaemia. After carbon monoxide, benzene is generally the second most commonly found organic constituent of fire smoke, typically present in high concentrations in the fire environment. Bulk samples performed at various fire scenes found concentrations that were two to four times Ontario's current limit. Measurements of individual samples were as high as 16 times this maximum allowable concentration. A recent study shockingly found benzene in excess of the legal limit inside the self-containing breathing apparatus of firefighters.
In addition, the ODP reported a probable connection between firefighters and cancer of the colon, bladder and kidney, as well as certain other cardiovascular diseases. The ODP report has not only been lauded and utilized by researchers and government agencies across Canada; there is also a heightened awareness about the potential risks that exist in the course of their work.
In 1993 the Canadian Auto Workers asked the ODP to examine the possible health effects of exposure to metal-working fluids. Based on these findings by the ODP, the CAW and the Big Three car makers in their last round of bargaining agreed to reduce the level of oil mist to five times below the current Ontario limit. The auto companies have now agreed to provide the union with all health studies. They have also jointly embarked on pilot projects to find substitutes for oil-based products.
Dr Peter Infante, the director of standards with the United States Occupational Safety and Health Administration, addressed the President's cancer panel about the lack of concern regarding carcinogens in the workplace. He stated, "We know the majority of substances known to cause cancer in humans and almost 100% of human lung carcinogens have been identified by studying workers overexposed to these toxic substances."
I'm sorry; I'm moving ahead because of time.
Is the ODP biased and its work faulty? I believe it is important that we acknowledge the truth and say clearly and directly who is forcing these retrograde measures that threaten over two decades of change in the area of occupational health. In spite of the fact that all of the reports of the ODP in the last five years have had the unanimous consent of all the stakeholders, including the business representatives on the panel, in spite of the fact that our work has precipitated significant steps in the area of prevention and particularly cancer awareness and in spite of the fact that the ODP's reports are respected throughout the scientific and medical communities, the panel has faced a continuous barrage of criticism from essentially one quarter, the Ontario Mining Association and Inco.
The ODP has released three reports on cancer among hardrock miners in northern Ontario. The ODP did not engage in its own research but relied on the previous research of either the WCB, the Ministry of Labour or reports commissioned by the corporations themselves.
In the case of the update on lung cancer among nickel workers at Inco and Falconbridge in Sudbury, we relied on the work of Dr David Muir -- whose curriculum vitae I've supplied the committee -- an internationally renowned scientist from McMaster University. Dr Muir was hired by the mining corporations to conduct their own investigations. The ODP believed he was eminently qualified and his expertise to investigate these issues accepted by all the stakeholders.
When an updated report was formally requested of the ODP by the Workers' Compensation Board, the ODP commissioned Dr Muir to conduct a cancer morbidity study of the nickel workers. This study was recognized as the most significant and exacting look at the nickel workers yet undertaken. It unfortunately produced findings that would strengthen the contention of the miners and their union that there were significant work-related cancer cases that should be compensated. Dr Muir found a fourfold increase of cancer of the larynx, excess lung cancer and a phenomenal risk of nasal and sinus cancer.
When the results exposed the mining industry to additional compensation costs, then the ODP was accused of biased and even faulty science. Ironically, this research was being conducted by the very person the mining industry had used previously.
The mining association had the same reaction to the ODP report on stomach cancer among gold miners. Dr Jan Muller, another renowned scientist recognized internationally for his work in epidemiology, conducted four separate investigations to determine whether there were other possible causes of the excess stomach cancer found among the gold miners. He was hired by the WCB and the federal Atomic Energy Control Board. Each time he determined that exposures in the workplace were the cause of this excess.
Relying on Dr Muller's findings, as well as all the other epidemiological evidence, the ODP issued a unanimous report recognizing the probable connection between stomach cancer and the work environment of gold miners. This brought an immediate campaign by the Ontario Mining Association to suppress the findings and discredit the ODP. In November 1996, Mr Pat Reid, president of the Ontario Mining Association, wrote to the chair of our panel insisting that the ODP immediately refrain from making any presentations about ODP findings regarding stomach cancer among gold miners.
I think Dr Muller summarized it best when he wrote to the panel and said:
"I was deeply disturbed by your statement that the government has ordered that the Occupational Disease Panel cease operation as of December 31, 1996. Is this a way to create a good business environment, or do we want to transform the province into a developing country or province?"
That seems to me to be the choice of this committee. Will you follow the dictates of one powerful employer group to protect their narrow economic interests at the expense of hundreds of thousands of workers and their communities? Will you allow occupational disease to be covered up until the social and human costs can no longer be borne? A head-in-the-sand approach will not be able to conceal the inevitable human costs of unbridled toxic exposures in the workplace.
I ask you to reconsider your decision and reinstate an independent Occupational Disease Panel in the act.
The Chair: Mr Brophy, thank you very much for your thorough presentation to the committee this morning. We appreciate your taking the time.
WINDSOR AND DISTRICT CHAMBER OF COMMERCE
The Chair: I now call upon representatives from the Windsor and District Chamber of Commerce. Good morning. Welcome to the committee.
Ms Loretta Stoyka: My name is Loretta Stoyka. I'm a barrister and solicitor in the city of Windsor. My practice is restricted to acting for employers in all matters pertaining to workers' compensation. I'm in my 10th year of practice. I'm the past chair of the chamber. Along with my colleague David Law from Toronto, who is also a barrister and solicitor and former employee of the Workers' Compensation Board and a hearings officer for several years with the Workers' Compensation Board and author of several papers and participant in the Bill 162 policy etc, I'm here today to provide you with an overview of the local chamber's concerns. My colleague Mr Law will give you that overview, and then I choose to speak on one specific issue. Then we hope very much to have time for questions.
Mr David Law: My past experience at the Workers' Compensation Board covered essentially two areas: trying to implement the last major legislative change, Bill 162 in 1990-91 -- I was the implementation coordinator for that exercise; subsequent to that, I had five years of hearing appeal cases, primarily in re-employment, rehabilitation and also in claims. I left the board about a year ago and now represent employers and of course am associated with Ms Stoyka.
I offer that experience simply to give you some idea of where I get some of the things we have to say with respect to the Workers' Compensation Board's approach to these issues and the key concerns we'd like to leave with you this morning.
First of all, with respect to the act itself, you have copies of our papers. I would encourage the committee members to keep what I consider to be three basic questions in mind with respect to whether this act works or doesn't work. They are very elementary things. The first simply is whether it ensures that people are getting the compensation they're entitled to in a just and speedy fashion for the work-related injuries and illnesses they suffer, and just as clearly, whether it ensures they're not being compensated for things not attributable to their work. In my view, that's an absolutely critical problem with the existing system: the overinclusion of non-compensable items and extended disabilities within the workers' compensation insurance system. The act, as it stands, takes some measures to move forward on that. I think we could do more.
The second question I would encourage you to ask with respect to whether the act is working is simply, does it ensure fairness to employers and among employers with respect to cost allocation and the burden of administration and benefit provision? I'll talk about that a little more.
Third, and this is old-hat stuff when it comes to workers' comp, does it do anything at all to make the system simpler or more efficient, to streamline it, to make it easier for people to deal with the board?
What are the core issues in the current workers' compensation system that this act ought to address? In our view, essentially, the first and critical one that it begins to touch on but may not really resolve is that of overinclusion. This doesn't mean so much that more claims come in that are actually real. There is a certain degree of fraud. But the real issue is that claims go on forever, often far beyond the time in which an injury would normally be expected to heal. There was some discussion of that this morning in the committee.
All we're encouraging is that the system begin to apply its attention to the question of whether other factors in a person's life are extending their disability beyond that which is reasonably attributable to their work. In my experience, and it's considerable, very little real attention has been paid to this with respect to policy at the board and certainly not a whole lot of it with respect to application of policy.
Second, there's a trend now towards moving accountability and administration from the board itself on to the parties. This is viewed by a lot of people as a very positive thing, and it's tied in to some extent with this idea of mediation of disputes. You'll see that theme within the new act and within past practices at WCB in appeals, trying to get the employers and workers to be more involved. Everybody thinks this is a wonderful thing. It is in theory, but I note that it does shift a burden from the system itself on to the parties. With respect to employers in particular, the new act really moves a lot of responsibilities from the act with respect to voc rehab; it appears to, anyway, on paper, shifting it over to employers to exercise a voc rehab function.
That really creates problems for two parties, I think, first of all, employers, who are being asked to take on what essentially is return-to-work formation and labour market re-entry plans, if you will, for the worker to come back. It has to be done within a certain time frame, with penalties hanging out there; we don't yet know exactly what they're going to look like. I'm also sure my counterparts on the labour movement side of this would not be so thrilled to have employers managing voc rehab either.
All we're asking you to do is to realize that what this act essentially is doing is privatizing vocational rehabilitation from a board-administered function on to employers. That's what it appears to do. If that's what you want to achieve, fine, but be aware of what it is, because employers will be bearing much greater costs on an individual basis on their own budgets as opposed to the system bearing these costs if the act is interpreted the way it reads.
That said, this is not an endorsement of the exiting voc rehab process. I have a lot of experience with it. I can't say that it serves workers particularly well, and it certainly hasn't served employers particularly well. Our paper details a rather different approach to it, which I will leave for you to consider. I'm not going to take up all the time this morning talking about the other approaches that you might follow up or recommend.
Another issue -- I think this is key, and if you can do anything about this, I'd strongly encourage you to do something about it -- is that within the Workers' Compensation Board itself there is a culture of arbitrariness, a culture of exclusion with respect to making decisions. The experience I've had in this area, and it's considerable, is that the stakeholders tend to get managed, to get manoeuvred. They get a chance to speak, but those words sort of drop down a well. They all are supposed to feel better, but nothing really changes.
On a day-to-day basis, that's just irritating. It's irritating for all parties. But now it's really a critical problem, because what we have on our hands is a big fat document that's a whole new act. It's being administered and implemented entirely from within the walls of the Workers' Compensation Board, as far as we know. With no disrespect to the efforts they make at outreach or to listen to the stakeholders involved, we strongly encourage the committee to move forward and encourage the board to create real, concrete measures to enable the stakeholders to have real input, because what we've had historically is essentially a process of taking submissions and then putting them somewhere on a shelf. I know this because I put them on a few shelves myself in my time.
I know what happened in Bill 162 was a very elaborate process of implementation consulting that essentially resulted in something which made almost nobody happy. I'm asking you to try to encourage the board to be more inclusive and really listen to what people are saying.
I asked three questions at the beginning of this about workers' entitlement to things for work-related and not for non-work-related things, for ensuring fairness among and to employers, and for speedy adjudication. How does Bill 99 achieve that? There's a list of ways that it works. That's on page 4 of the document I've given you. I'll leave that with you because I want to get to a couple of the problem issues and then I'll let my colleague speak to you.
In short, the problem areas that we view with Bill 99 provisions, and these are just a few; Ms Stoyka has another one she wishes to discuss in more detail:
The return-to-work procedure, as I've said, essentially is another offloading of responsibilities from a government agency, in this case, on to employers of all sizes. We don't know what the rules will be. We don't know what the penalties will be. Right now we're largely in the dark as to what will ultimately pan out with respect to this, and it's going to be a considerable cost to employers. I think the committee ought to understand that.
The party that wins with these return-to-work provisions in terms of the employers having to do all this is the board, because it presumably reduces their administrative costs or it may give them a pretext to eliminate their voc rehab personnel if that's what they're after, if that's the agenda. Understand that where that work will shift to is the parties, and understand that of course they'll pay for it. If that's what you want to achieve, fine, I suppose. We're not so thrilled with it. I leave that with you to consider.
More specific, some smaller provisions I would ask you to reconsider in your review of the legislation include the elimination of the second non-economic loss exam. All parties use the second NEL exam essentially as a quality check. If you get something bizarre or ridiculous on the first go, you tend to try to get a second exam. It's a very good process. It allows for a certain degree of quality checking. It eliminates to a certain degree the arbitrariness of the NEL. I don't really know what is served by eliminating it. The NEL provisions are so ridiculously convoluted as it is, chopping the one thing out of it that really seems to make sense seems like the wrong thing to do.
Thirdly, Ms Stoyka is going to speak to you about functional abilities information. I would offer you a suggestion that may be perhaps more extreme, if you will, more radical in some respects, or at least a blanket provision: Eliminate the distinction between functional abilities information and relevant medical, and simply say that the worker has to provide relevant medical. I fear what's going to happen when we get into what's functional abilities and what's medical and the endless debate we're going to go about with that. Ms Stoyka has more detailed comments on that concern in her own remarks.
Next, a small thing perhaps, but in my view something that you ought to consider talking about is the name change. What does it achieve? It seems to produce confusion. It will cost everybody lots of money and time. And it doesn't really do anything good. I suppose it projects a change in stance. That's the idea of it. It is cosmetic in that respect. We understand that, but it's enormously costly for everybody, all the stakeholders and the board itself, and it doesn't really produce much value. I recognize this is a long shot in terms of saying that the thing should be changed, but I would encourage it because it doesn't seem to produce much of value to the system, and that, after all, is what we're supposed to be doing here.
Finally, I repeat, please do something if you can, either within the statute or in some other form, to encourage the Workers' Compensation Board to open up its process of consultation and to ensure that stakeholders -- employers and labour alike -- have a real voice and are heard. This is an enormous new act. It's very complicated and it's being implemented right now somewhere, we don't know where, and we don't know what it's going to come out like. That's a real concern, a real problem for everybody involved, all the stakeholders. We would ask you, if you could, to take measures to prevent that from getting out of hand, which is what I suspect will happen based on my own experience.
Finally, in closing, there's a list of provisions in Bill 99 on page 4 of my document which we support. Ms Stoyka will mention some of them. We simply want to remind the committee that this system has been in place now for a long time with the reputed objective of offering injured workers speedy and humane compensation for the things that occur to them arising out of work. "Speedy and humane justice" was the term once coined. It is not just for the system to support costs which are not work-related. It is not just for employers to support costs which are not attributable to the injuries in their workplace. It is not just to move more costs on to employers in the form of administrative offloading from the WCB.
Thank you very much for your time. I'll turn this over to my colleague.
Ms Stoyka: I want specifically to deal with the benefits and entitlement. The chamber members found the current benefit level of 90% of net average earnings generous by Canadian standards and have supported a much lower benefit level. Many chamber members still believe that 85% of net remains an incentive to remain off work. The chamber believes the 85% level may be suitable only if the return-to-work provisions of Bill 99 -- worker cooperation, health practitioner participation in providing functional abilities information, 14-day appeals for information to the board, mandatory consent to release functional abilities information etc -- are properly and effectively administered by the board.
I want to speak next to claims reporting. In keeping with the employer's principle of efficient administration and simplification of the workers' compensation system and a more harmonious relationship between the stakeholders, I'm addressing the following concerns as they pertain to claims reporting.
The reporting of the claim under Bill 99 includes the release and issuing of functional abilities information for return to work. The chamber recognizes that this is pivotal to return-to-work planning and accommodation of the worker. The chamber is concerned that Bill 99 fails to require prompt information being provided on the part of health care practitioners as the persons responsible for providing functional abilities information. The chamber believes that Bill 99 and board policy must address several issues to do with functional abilities, including timeliness and penalties for delaying authorizing or releasing functional abilities information.
My position on the present form for functional ability information: In its present state, it will lead to confusion with health care professionals and employers. The health professional is advised on this form to provide only physical precautions and told not to provide diagnosis. Then the physician is warned that this form does not replace the clinical report and requirements of the WCB.
First I'll address the issues of diagnosis. We're dealing with a workplace injury arising out of and in the course of employment. The employer financially supports this system completely. It is our position that the employer has a right to know all information pertaining to workplace injuries, including diagnosis. The average employer does a complete investigation of a workplace injury immediately after notification. There are supervisory reports, witness statements and a worker's statement. The employer then provides this information to the WCB in the form 7. At that point, the employer has a reasonable knowledge of the type of injury sustained by the worker.
Given all of the above, why should the employer be kept in the dark about the diagnosis? How is the diagnosis of a workplace injury confidential? Is this committee aware that well over 90% of the medical notes received from physicians treating workplace injuries contain diagnoses? Is this committee aware that the employer is provided with a diagnosis on all sickness and accident medical forms? It is a mystery to the employer as to why the diagnosis must now be hidden.
Further to that, I refer you to the Report of the Commission of Inquiry into the Confidentiality of Health Information, 1980, carried out in this province by the Honourable Mr Justice Horace Krever. In dealing with the issue of medical certificates pertaining to return to work, Mr Justice Krever quoted from the Gilbarco and Canadian Union case, and I have cited that on page 3 of my document. He quotes:
"...employers and trade unions would be well advised, for their own protection and also for the protection of employees, to make representations to the medical profession with a view to standardizing the form of certificates issued by doctors and to impress upon doctors the need to recognize their professional obligation to issue accurate and informative certificates. Two types of medical certificates are commonly required. One is required to justify the reasons for an absence from work, the other is required to certify the employee's fitness to return to work following. It ought not to be difficult to prepare standard forms for use by all doctors."
As a result of that inquiry, Mr Justice Krever made a formal recommendation as follows:
"That the Ministry of Labour in consultation with the Ministry of Health prepare a form that will be sufficient to: (a) justify an employee's absence," ie, diagnosis, "and (b) certify an employee's fitness to return to work."
These recommendations, ladies and gentlemen, were made in 1981. I ask this committee, are we going forward into the future or back in time?
It is the position of the employer that the average worker who is injured will not object to the employer knowing the diagnosis of a workplace injury. Further, it is our position that this is not confidential information, but time does not allow the argument of that issue today.
Another issue of concern pertaining to the same form is the requirement by the Workers' Compensation Board to make it the responsibility of the employer to obtain the signed consent of the worker before sending the health professional the functional abilities form. Again I refer you to the sickness and accident benefit forms, which have an area included on the actual form for the consent of the worker to release the information to the employer.
Going back to our first premise, in keeping with the efficient administration of this issue, it is the position of the employer that common sense -- no pun intended -- dictates that it would facilitate the whole process if the employer provided the form to the worker before they attended with the health professional. While in attendance with the health professional, the worker could sign his consent on the form before the doctor provides his input. This ensures that the doctor has confidence in the worker's consent and takes the onus off the employer which properly rests with the workers' compensation system.
The Chair: Excuse me. Just to let you know you have a minute left.
Ms Stoyka: Last, the health professional must be made to understand that this form is mandatory and must be provided in a timely fashion. The employer would expect that the workers' compensation system has liaised with the College of Physicians and Surgeons to provide education for a smooth transition for what is considered a new procedure.
I'm sorry we haven't time for questions. Thank you very much.
The Chair: Thank you very much for your presentation this morning. As with the other presentations, I know the members of the committee will read it through.
Ms Stoyka: We appreciate it.
Mr Hastings: Madam Chair, I have a request for information. Would it be possible to have Mr Law, who seems to have a tremendous amount of experience and involvement with the WCB, see if in conjunction with the Windsor Chamber of Commerce he could provide us with a more specified policymaking approach to get through the arbitrariness which you have highlighted regarding the existing WCB process and structure?
Mr Law: I would be happy to consult the chamber on that and produce a document which I could forward to the clerk's office of your committee. I can do that in short order.
The Chair: Thank you very much. I'm sure that will be helpful to all members of the committee.
LABOURERS' INTERNATIONAL UNION, LOCAL 625
The Chair: I'd like to now call upon representatives from the Labourers' International Union, Local 625. Welcome.
Mr Wally Dunn: My name is Wally Dunn, business manager of the Labourers' International Union of North America, Local 625. I represent labourers in the Windsor area, Essex and Kent counties.
Before I begin, I would like to apologize to the panel. I do not have my presentation to hand out to you because I received my confirmation just before lunch Friday past, when I was on my way out of my office, out of town. This lack of notification seems to be consistent with the amount of time the construction industry is being given to have our input involved in this Bill 99.
The Labourers, who number approximately 26,000 strong in Ontario, are vehemently opposed to Bill 99, with its proposals to cut benefits by 5%; the elimination of cost-of-living protection; giving employers control over return to work; making chronic stress and chronic pain claims impossible; mandating which doctors injured workers must see; giving the employers access to confidential medical information; and last, reducing the right of appeal.
The Labourers' major concern is the absence of a definition of "construction" in this new act. As I stated earlier, there are approximately 26,000 Labourers in this province, many thousands more who belong to other building trades unions, and thousands of non-union construction workers, whom the Harris government fails to acknowledge in this piece of vicious legislation.
The construction industry is entirely different from the industrial sector. We have no seniority protection. Layoffs are an ongoing part of our industry due to short-term projects. It is not often that we have major projects that are of a duration of a year or more. The majority of our projects are less than a year, some only a few months, some a few weeks. Due to this type of work, workers often move from one area of the province to another, following the industry as one part of the province is in more of an economic upswing than other areas.
Now if an injury occurs, the WCB claims process starts immediately after the claimant's doctor determines that an injury is work-related. Under this new legislation, the workers are forced to ask their employer for a form in order to make a WCB claim. There is no doubt in my mind that workers will be intimidated not to file these claims or to ask for these forms.
In the construction industry, a great many companies are not from the area where the workers live, thereby making it more difficult for injured workers to have access to these forms. Further delays will result due to these logistics involved. If an injury occurs under this new legislation, will the injured worker be allowed to see his family physician? Will they deal with the board in their home town or in the area of the province where the company originates? Will the injured workers have to travel long distances to see doctors the companies wish them to see? If so, who will cover these added expenses? These are some of the questions that will surely arise -- more stress added to an already stressful situation.
In regard to return to work, who will determine the criteria regarding this issue? There is no such thing as light duty in the construction industry. Now rehabilitation becomes even more important to get these workers back in a position to return to their jobs, jobs that in many cases they have had for many years. Due to the elimination of the Workplace Health and Safety Agency, lack of funding for the workers' health and safety centres and the elimination of the Occupational Disease Panel, who is going to carry on with the gains made within these agencies? Surely it will not be the private sector, because their only concern is the bottom line for the companies. Rehabilitation will not be a priority in this climate of corporate profit at the expense of workers.
There are other issues that have to be raised at this hearing pertaining to the construction industry, but time constraints prohibit raising all these issues.
In closing, I would urge any individual who is considering supporting this legislation to take a long, hard look at the consequences that will occur under this bill. There will be an increase in workers' injuries and/or deaths in the construction industry, and the people involved in passing this legislation will have to accept the responsibility for these tragedies.
Mr Jack Carroll (Chatham-Kent): Just a couple of short questions. Is the emphasis properly placed on return to work? Is that a good place to put the emphasis?
Mr Dunn: As I said in my presentation, there is no such thing as light duty in the construction industry. We are not in an industrial setting where we can move somebody here to maybe run a machine that's not as stressful on a back.
This government has to realize that the major tool for construction workers is their body, the whole body. If something happens, no company is going to take a worker back to sit at a desk all day and do nothing. That's just not there. What we need with these injuries is rehabilitation, to get the individual in a position where he can get back to work in our industry, because probably the lightest thing we would lift all day is 30 to 35 pounds. In most return-to-work instances you can't lift more than five pounds.
Mr Carroll: We should all be interested in helping that injured worker somehow get back to something because that's best. We've heard from many people who talk about the frustration of not being able to work, what an impact it has on their family. So to put the emphasis on the return-to-work part of this is the right direction. You don't agree with the way we're doing it, but do you think that's the right place to put the emphasis?
Mr Dunn: Yes, I believe in getting workers back to work, making them more productive, giving them pride in what they're doing.
Mr Carroll: Who is in the best position to make that happen? Is it the government? Is it the Workers' Compensation Board in Toronto or is it the worker and the employer?
Mr Dunn: I think it's the worker and the people who represent the workers. Obviously, as I said before, the construction industry has not been consulted here. I think the construction industry and the workers involved in the construction industry would be the people to have input into this bill concerning our concerns of return-to-work and how that would be best suited to the injured workers.
The government obviously does not understand the construction industry because there's nothing in the bill really defining "construction."
Mr Maves: I can just quickly address that. Subsection 40(3) under "Return to Work," for construction:
"Employers engaged primarily in construction and workers who perform construction work shall cooperate in a worker's early and safe return to work and shall do so in accordance with such requirements as may be prescribed."
We're having COCA and the provincial trades councils right now working together with us to help us come up with something a little different, a little more tailor-made to return-to-work programs in the construction industry. I just wanted to let you know of that.
Mr Dunn: Yes, but the time frame, the way we're going, there doesn't seem to be enough time to get all this information and input it to the government, the way this legislation seems to be ramrodded through. It takes time to address all our concerns. I understand that the different building trades are involved in this.
Mr Maves: That regulation, though, can be worked on now and even after the bill is done. There is time for that to occur.
Mr Jerry J. Ouellette (Oshawa): In Sudbury we heard that in the construction industry an individual regularly would take a day off to go to the doctor, see the doctor the next day and then come back and they wouldn't have the job available for him. Is that something you're finding fairly regularly down here or is this just an isolated area?
Mr Dunn: If one of our employees gets injured on the job -- just to take an example, if we're breaking concrete and it's a back or a shoulder injury -- naturally they cannot return to that job. If the doctor gives them, say, two weeks off, the employer will need another body to replace that individual who is off. Like you say, that's what happens and they're on the list. That job could only last maybe a week or two weeks, then that individual contractor is no longer in the area and is gone. Yes, that's what is happening. Workers are being replaced after an injury.
Mr Patten: Thank you for your presentation. The consultations that presumably are going on that the government talks about at the moment don't involve your union, then. They're not part of that?
Mr Dunn: No. We are not affiliated with the building trades right now.
Mr Patten: Are there union workers in the construction industry who are?
Mr Dunn: Yes.
Mr Patten: As Mr Ouellette said, when we were in the north, the presentations that were made there communicated quite vividly the difficulty of return-to-work, as you've identified. You said: "Look, it's just not workable. In our areas where people have to follow where the jobs are, they may be of short duration," and that job has to be replaced immediately because of the timelines etc. What would you recommend under that circumstance?
Then you also said that the benefits were less, of course, which they are. What would compensate for an unrealistic return-to-work arrangement in many of these situations?
Mr Dunn: To return to work, where do we put them back into work for that original company, number one? Do you know what I mean? Before any other company would take them, it would have to be assured that they're physically fit and able to go back to work.
You're saying to release information to employers. What are you going to do if he comes back in and you want to hire him, instead of the other employer? What happens is that he's got this medical record out there -- "He's got a bad back. I don't want to touch him, I don't want anything to do with him." This is an issue we're going to have to come to some kind of consensus on: What is the best way to handle this in our industry to get these people back to work? With this releasing of medical forms it's just going to be a nightmare for the people in our industry. These people will be intimidated to go back to work, there's no doubt in my mind.
I really don't know. Even in our own organization, just because we're not affiliated with the building trades, we're still a construction industry as a whole in regard to compensation and injured workers. We're still working together on that issue.
Mr Patten: It seems to me there are two areas. One is that there's adequate compensation in the meantime and any emphasis has to be on occupational rehabilitation, vocational training or whatever it is. As you say, it's like an athlete. If an athlete is injured and can't run any more, then that person has to consider areas that may not be his to compete and maybe in another sector completely.
Mr Dunn: Like I said, right now with labour involved -- they've started their soft tissue clinics -- if we're going to take that away with this new bill and put it in the hands of the private sector that has no knowledge of our industry, this is what concerns me personally. I think the construction industry should be looking after its own workers and coming up with a system that could best benefit them. Not all runners can't run again; once they're rehabilitated, they're back on the track and winning again. That's what we'd like to see our injured workers go back to: the jobs they know and the trades they've been involved in most of their lives.
Mr Patten: If they can. That's right.
Mrs Boyd: Thank you very much for coming and talking to us about this problem. I think it is a very big one. I'd like you to talk a bit more about this release of medical information. We've had suggestions from the chamber of commerce, for example, that it should be an even greater release of medical information. Can you talk, from your experience in dealing with this sort of thing, about why your workers would be concerned with this release of information and why a lack of privacy you think would impact on their ability to work again?
Mr Dunn: What concerns me is that in the construction industry, as you know, we're highly ethnic. There are a lot of workers who are not well versed in the English language. Hell, I'm not even that well versed in it. I can't keep up. These people now are going to have to go to the company, number one, to get a form to file for comp. Then they've got to go and get a release form from their doctor about the medical.
What would happen if, say, something happened to the individual years ago and now he has hurt his back. Something fell on him on one of the construction sites. This information that would be released would say he's already got an injury from before, which probably had no bearing on this, and now this is going to come out and say: "You've had this injury before, so it's not really this piece of cement that fell on your back there last week. This stems from the injury you had before." These individuals will not understand. In order to avoid this they'll just say, "Okay, I'll go back to work," and they will not be ready to go back to work. I think it will add more injury to the injury they've already incurred.
Mrs Boyd: You talked about the employer very often being at a distance from the job and normally the administration would be done far from the site. This whole issue is really very urgent in your business -- it is in others too -- where the personnel function, the human resource function, might be hundreds of miles away and the issue of even trying to get the whole thing started becomes quite complex. Then, as you say, the short term of the jobs makes that even more complex, because what if the injury happens in the last week of the job and they haven't got the form by the time the job is over? They're no longer the employee. Can you see that kind of complication just being magnified?
Mr Dunn: I'm seeing it right now. As everybody knows, we have the casino project here. There are numerous subcontractors on that job who could be here for a week, a few days, a month. Then, when we have an injury, to try to get this paperwork and we call their office, the individual in charge is on vacation -- "Yes, the form has been sent." We've gone through one now and it's been four or five weeks. Finally we had to find out where the individual was on vacation and call him. He said the file should have been sent out. This individual was there for at least five to six weeks doing his job, went to his doctor, went to the compensation board and now the forms weren't in for the company.
When these workers have to go and get these claims forms from the employer, surely they will be intimidated. As we all know, no employer wants to have a lost-time injury. We're seeing it now and I think it's just going to get worse.
Mrs Boyd: You're saying even the introduction of this bill has given permission to employers to be much less active on behalf of their employees?
Mr Dunn: Precisely.
Mrs Boyd: I think we've been hearing that a lot. One last question on the whole issue of previous injury: We've heard the emphasis from the employer advocates and the chamber of commerce on this issue of defining the injury as having occurred at that particular place and not anything that was previous, but most of your people would have had along the way a number of injuries that would not necessarily have any impact on the injury they had received at this particular site of work. This is a real concern for you because of the multiple employers. It sounds very good to say we'd assigned the cost to the employer who was responsible, but when you have multiple employers the way you do in your work, it would be very hard to assign and distribute the cost of a final injury that prevented somebody from working.
Mr Dunn: That's true. We can have an employee, a worker, work for five, six different companies in one year. The paperwork will be a nightmare.
Mrs Boyd: Yes, particularly because some of these injuries take a while to really show themselves to be serious injuries. Some of the knee strains, for example, or a shoulder strain can take two or three weeks to show that it really is a very work-limiting injury.
Mr Dunn: We found mostly shoulder strains or knee strains, especially on our sites where you're up and down and there's always stuff in the way. A construction site changes. It's like the water, it's like the ocean; it's never the same. You can go one minute and a minute later it's entirely different. But if these workers, the ones who go off, stay off for the two weeks, get it fixed up, looked after and then come back, that injury is no longer there to hamper them any more. But if they start going back before they're ready, what's going to happen then? They're going to aggravate it even more and have more lost time. That's something nobody wants to see.
The Chair: Thank you very much. We appreciate your taking the time to come before the committee with your perspective on this issue.
GREATER WINDSOR HOME BUILDERS' ASSOCIATION
The Chair: I'd like to now call the representative from the Greater Windsor Home Builders' Association, please. Hello, welcome to the committee. You have 20 minutes in which to make your presentation.
Mr Albert Schepers: I don't think we'll take all of that time. You probably heard the OHBA presentation in the past, so I won't try and restate a lot of that but perhaps give you a perspective of what's happening in Windsor and draw on what the province and the statistics have as well.
I'm the vice-president of the Greater Windsor Home Builders' Association. We have our own health and safety rep -- unfortunately, he can't be here today -- who sits on the committees in the province with the OHBA dealing with workplace health and safety.
Our organization in Windsor, the Greater Windsor Home Builders' Association, constitutes 133 member companies, builders, renovators, professionals and the like. Throughout Ontario there are 3,400 member companies with 34 locals, us being one of them. We make up about 80% of the new housing in the province. That's what we are responsible for.
In the last few years, our industry has made great strides in improving its safety performance. The Construction Safety Association of Ontario reported at its spring annual meeting that despite increases in fatalities, a record low in lost-time injury frequency was established in 1996. In fact, the LTI frequency has been reduced 11 years in a row. I think in Windsor you'll find that the statistics are comparable to that of the province. Unfortunately, our industry is saddled with much higher assessment rates than all other provinces except Quebec. In fact the home building rate group witnesses a 22% annual increase in its standard assessment rate for 1997 to $9.56 per $100. The median across Canada is $5.77 per $100.
There are a number of reasons for this anomaly, and I think that's probably not atypical in the province. Some of that is the compensation rates. Pre-injury earnings: Sometimes they make as much as 90% of their rates. We believe that the proposal to reduce benefit levels should be modified somewhat. For short-term disablements, we believe 80% of the net average earnings would be fair and appropriate as a way to reduce duration and cost of claims. Long-term disablements should be compensated at 85%, as Bill 99 already proposes.
There are some things here that I'm not familiar with so I'm not going to go into them: Future economic loss or non-economic loss, I think you've probably heard that before.
Return to work: When construction activity was at depressed levels during the 1990s, there was less opportunity for gainful employment, so workers remained on compensation. That doesn't mean they weren't able to go back to work, but there may not have been work for them to go back to, whether it was a union environment or an open shop. This obviously increased the overall system costs and resulted in injured workers being on compensation longer than they should have been.
"OHBA has been advocating the implementation of a three-day waiting period in Ontario for a number of years. We told the Royal Commission on Workers' Compensation that this approach should be investigated:
"'There needs to be more time to assess moderate injuries and arrange modified work in consultation with the medical practitioner before the case becomes a lost-time injury and the experience rating incentive is lost.'"
That was a presentation made to the royal commission on March 23, 1995, by the OHBA.
We understand the Ministry of Labour has rejected the notion of a three-day waiting period for three reasons: We will cite the commitments made to the minister at the ECWC conference on June 19, 1997, and then provide what we believe are logistical answers and/or solutions.
You probably already have these questions and answers. I can go through them. I won't at this time. If there are any questions on them, we can look at that.
The financial incentives or penalties have proven to be useful methods to influence site safety through the internal responsibility system. I think that's very true in our industry. I see that from the outside because I'm a consultant working for the building industry and I know that irrespective of the need for owners to reduce their costs, keep their costs down, and perhaps give the appearance that they ignore safety requirements, it is a part of their doing business. In fact, a lot of our members realize that having a safe site and working with their people mean they actually get better production out of their people. It costs them less in the long run.
In construction, a separate experience rating program was created and this has proven to be an effective way to encourage accident prevention. In fact, the CSAO confirmed in a 1994 annual report that CAD-7 has played a major role in reducing Ontario's lost-time injury rate. CAD-7 has been so successful that there has been a slight off-balance compared to the board's other experience rating program, NEER, because the board has underestimated our industry's ability to reduce its rate of lost-time injuries. I think that goes back to having a safe site means that people can work more effectively.
What is required is a way to make the rebate potential more meaningful for small construction firms. We understand that the board of directors of the WCB will be meeting -- this was August 13 -- in Ottawa to discuss small employer experience rating. These discussions are most welcome, but unfortunately there has been no consultation with the construction industry as to how to make the program work effectively.
Fraud: OHBA fully supports the steps that have been taken by the board to stem fraud, whether it emanates from employers, workers, physicians or even board staff. There's been too much abuse of the Workers' Compensation Board system for many years and a clear signal must be sent that fraud will be punished. In the long run, this will enhance overall system health and will allow the board to assist those injured workers who truly need compensation. The new name for the board, WSIB, may not roll off the tongue as easily as WCB but it is symbolic of a fresh start for this institution.
To conclude, we support Bill 99 with the modifications we have suggested. We urge the committee to help expedite this reform process so that the changes can be effected as of January 1, 1998.
With respect to fraud, I'm familiar with several cases where people have been injured doing their own thing in their own homes and then they come into work and claim they've got injuries as a result of being in the workplace. I don't think it happens all that often, but those are examples of the types of fraud that can go on.
That's our presentation. If there are any questions, I'd be pleased to try and answer them.
Mr Hoy: Good afternoon and thank you for being here today. You talked a bit about assessment rates in your presentation. Just prior to your presentation, Mr Law was talking about rehab being shifted over to the employer and that this would create an additional cost for employers. So here we have, from your point of view, assessment rates that are high and now this additional cost being put on to employers that involves rehabilitation. What's your feeling on those two equations?
Mr Schepers: That's a good question. Unfortunately, I'm probably not able to answer it completely. I will say that with respect to rates, what I was referring to was that we had significant increases in the rate, but there was not justification if you look at the accident ratings we've had. Should rehab be borne by the employer? That I can't address. Obviously, it'll increase cost, but if we're paying the workers' compensation, I don't know where the view would be. I think what we're looking at is that the cost becomes very high, and can we justify that cost? In some respects I don't think we can, particularly in an industry that tends to police itself. There are small businesses, a lot of them are five or six people working in a firm, and when these costs come into place they affect them. A lot of them are family businesses, fathers and sons with their wives working in the office, and it's in their interest, obviously, not to have the injuries. With the larger businesses I can't answer that question, will it affect them? Obviously, anything that increases costs is borne ultimately in the cost of construction and goes down to society anyway.
Mr Hoy: I don't believe that the employers of Ontario are looking for more costs of doing business at the current time. It would seem to me that if they are going to incur more cost as employers in the rehab area, they may decide just how well a job they would do in that regard, or they will say, "Our premiums are too high because we have this additional cost being brought about by Bill 99." I can envision that coming down the road some day as well.
Mr Schepers: I agree. I think if costs go up, they will reassess that, and if they're going to pay for the rehab and they're going to pay the other side, they're going to say, "Hey, we're paying twice." I think we need to be reasonable and fair in the entire system.
Mr Christopherson: Thank you, Mr Schepers, for your presentation. I'd like to ask you a couple of questions in the context of the historical compromise of 1914 that created WCB as we know it now. As you are aware, the compromise was that employees would give up the right to sue their employer in exchange for a no-fault system where employers paid the premiums into a pool of money that would give them their wages and benefits when they're hurt on the job through no fault of their own. That was the agreement.
You've made the suggestion that if there's a short-term -- I tried to write it down but I may not have it verbatim -- injury, you thought that reducing further, from 90% to 85%, from 85% to 80%, would be more appropriate because that would reduce the duration of the claim. Can you tell me how that makes the injury go away more quickly?
Mr Schepers: I don't think it'll make the injury go away quicker, but if it's a short-term injury, there may be more incentive for persons, once they have been rehabilitated, to find work. I can't say that I know all the facts around workers' comp and how it was originally brought about and even how they arrived at the 80%, whether 80% is the right number or 82% is the right number. I think what they're looking at is, "We've got to find a way to reduce costs and give incentive to those people who can to go back to work. If we paid everybody to stay home, I'm sure they would stay home. If there's a drive and there's a need to go out and work, they will. I'm not suggesting that we want injured workers back in the workplace, but we want those people who can work back in the workplace. We need to give them some incentive to do that.
Mr Christopherson: But you can appreciate that their incentive is to get well. Most people -- I don't assume that because you're in business, you're a crook, and I'm sure that you don't think that just because a worker works for a living, he's predisposed to fraud. Yet this sounds very much to me like you're penalizing someone. I mentioned the historical compromise to show that the original concept was if a worker is hurt on the job. If the officer who has to follow us around because the Tories are terrified out of their minds of all those who are carrying signs were shot on the job in the line of duty, the concept is that there ought not to be a penalty for that, that his wages and benefits ought to continue until he's well enough to go to work. What you would be doing to that police officer is saying to him, "You're only going to get 80%, and that's to make sure your money dries up quicker so you'll get back to work as fast as you can." Most of us would assume that officer wants to return to work because he wants to get better.
When you talk about that, I would tie that to, "Oh, I'm going to run out of time." It's the same thing with the three-day waiting period. It's penalizing workers and it's seen as if you're disciplining someone who has already been victimized because they've been hurt on the job, and that's the unfairness. The system, by the way, is there to serve injured workers first and foremost. There needs to be fairness for employers but it's not designed to be cheap for employers; it's designed to be efficient and provide benefits to workers who are injured on the job. That has to be the priority.
A lot of people are angry here and in other communities because they're seeing what they get when they're off sick, because they're injured on the job, is off by 5% at the same time employers are getting a 5% reduction in their premiums. So injured workers are naturally outraged that they're paying the price of decades of financial problems on their backs and employers are getting a tax break.
Mr Schepers: There are a number of issues, none of which I can really address, but I think the root there is that you're right in that the worker wants to get better so he can go back to work. If we go on that premise, then I think you will find that all the costs will be reduced and that's really what we're looking for. We want to make sure it's fair for everyone.
Our industry has never gone to the government and asked them for support in terms of, "We want tax breaks so we can build homes, we want incentives so we can hire people to build homes." We've always asked not to have any government involvement in that.
I think in the housing industry it's true as well with workers' compensation -- not workers' compensation -- injuries. If there is an injury, yes. If it's a legitimate injury and the employee is truly -- the word I'm looking for, sorry.
Mr Schepers: Well, everybody is responsible. We can look at victimization, we can look at disabilities, but I think what we really want to look at is, is the system fair for all parties? Nobody is saying the employer is at fault when the injury happened or that the employee is at fault. We're saying there needs to be fairness in all this.
Mr Christopherson: Let me ask you, how can it be fair if injured workers are going to get 5% less and employers are paying 5% less in their premium? How is that fair?
The Chair: Mr Christopherson, I'm sorry, we should go to Mr Stewart, please.
Mr R. Gary Stewart (Peterborough): Sir, I appreciate that we've heard today that the construction industry is unique and there are some major concerns on behalf of the workers as well as the employers on this. In one of the areas where we were last week, there was a suggestion made -- I guess we're all looking for recommendations and solutions -- that possibly the pooling of finances for rehabilitation across the province might have some thought. As well, we're looking at a pool for those who may be partially rehabilitated but may be able to do less or modified work. Has your industry in this part of the country talked about something like that?
Mr Schepers: They may have. I can't answer the question.
Mr Stewart: Do you think it would work to try and address a rather unique part of our society?
Mr Schepers: I think it can. Again, if we can treat the injured employee fairly and treat the way the system is being funded fairly, then it can work.
Mr Stewart: One of the concerns was that there are some very, very large construction companies and some very small ones, and of course some of the workers may get hurt and be off for a couple of weeks and want to go back and the fellow has either moved out of the province or is not in business or whatever. I guess what we're looking at is some way to make sure the worker is protected but have everybody contributing to the cost of it who is within the industry itself, because they're all going to benefit by it.
Mr Schepers: If somebody is coming in from out of town -- particularly in the housing industry in Windsor we've had a lot of out-of-town contractors coming into town, small and large, over the last few years. Pooling across the province certainly would work. At least the resource you're drawing from would be a broader base.
I don't know whether that would address the high costs we have, though, in the assessment rates. The assessment rates have jumped --
Mr Stewart: Maybe it would if both large and small were part of it.
Mr Schepers: It's possible.
The Chair: Gentlemen, that concludes our time. Thank you very much. You're our last presenter of the morning. We appreciate you taking the time to come before us today.
Colleagues, we'll reconvene this afternoon at 3 o'clock.
The committee recessed at 1224 and resumed at 1500 in the Westin Hotel, London.
The Chair: The standing committee on resources development is pleased to be in London and welcome members of the public to join us here this afternoon.
Mr Christopherson: On a point of order, Chair: As I have done in every community we've been in, and particularly after what we heard this morning, fresh on the heels of listening to injured workers and their legitimate right to be heard at these hearings, I wish to place a motion before this committee that we recommend back to the government and the House leaders that these hearings be extended and that in particular the committee schedule another full day in London to give the people, who deserve an opportunity to be heard, a chance to do that. I now place that before this committee.
The Chair: As you know, Mr Christopherson, that's very similar to the other motions that you have placed before the committee. This committee does not have the power to extend its hearing time. That is determined by the House leaders in negotiations at the Legislature. I'm afraid I have to rule your request out of order.
Mr Christopherson: I then of course seek an opportunity to have unanimous consent. If we got unanimous consent of every member here, my motion would be in order. And let's not forget, it wasn't the three House leaders who decided, it was the government that decided, that there would only be six days. Therefore, I request all members of the Legislature on this committee to agree to unanimous consent that would allow a motion to extend the hearings and have this committee come back to London in particular and hold the kind of proper democratic hearings that injured workers are entitled to.
The Chair: Is there unanimous consent? I do not see unanimous consent. I'm sorry.
Mr Christopherson: Who opposed that, Madam Chair?
The Chair: There are several. We move now to our presentations.
The Chair: Order, please.
Mr Christopherson: For the record, those who opposed were members of the government, the very people who limited these hearings in the first place.
The Chair: Order, please.
LONDON HOME BUILDERS' ASSOCIATION
The Chair: Our first presenters are representing the London Home Builders' Association. I believe it's Mr Low. Welcome, sir. You have 20 minutes in which to make your presentation. You may choose to allow time in that 20 minutes for questions.
Mr Ian Low: Good afternoon. My name is Ian Low. I am the president of the London Home Builders' Association and the owner of a second-generation business established in 1963 which acts as a supplier to the new construction industry and renovation market.
The London Home Builders' Association was formed in 1952 and currently has a membership of 220. The membership is made up of builders, land developers, renovators, housing industry suppliers and subtrades, professionals, apartment owners and managers and numerous other small businesses which provide a wide range of services to the housing industry. The London Home Builders' Association is a member of the Ontario Home Builders' Association and is the fourth-largest local home builders' association in Ontario. Our members produce over 75% of the new housing and renovations in London and surrounding areas. We are in support of comments made by the Ontario Home Builders' Association and its committees to the government and opposition parties.
We wish to highlight for this committee that the constituents of the London Home Builders' Association represent both the employers and employees of the non-union construction sector. A large constituency of the London Home Builders' Association is made up of small home businesses versus large corporate entities. Many of our members work on the sites side by side with their employees, thereby ensuring their employees are working in safe and healthy environments.
The Chair: Order, please.
Mr Low: As a result of this, we take all the recommendations in Bill 99 and existing WCB legislation very seriously in our day-to-day operations. In view of our membership's direct interest and the implications of Bill 99, we are grateful for the opportunity to address the committee on this important topic.
The residential construction industry has made great strides in improving its safety performance. The Construction Safety Association of Ontario reported at its spring annual meeting that despite a regrettable increase in fatalities, a record low lost-time-injury, or LTI, frequency was established in 1996. In fact the LTI frequency has been reduced 11 years in a row. Ontario also continues to outperform every other province in construction safety. Unfortunately, our industry is saddled with much higher assessment rates than all other provinces except for Quebec, and in fact the home building rate group witnessed a 22% annual increase in its standard assessment rate for 1997 to $9.56 per $100 of payroll. The median across Canada is $5.77 for 1997.
The London Home Builders' Association, in conjunction with the Construction Safety Association, continues to educate our membership to increase awareness and safety in the workplace.
It is our belief that the current practice of 90% replacement rate for an injured worker is set too high. When the tax implications are worked into this rate, the worker is most often earning more than their pre-injury rate. We believe the proposal to reduce benefit levels should be modified somewhat. For short-term disablements we believe 80% of net average earnings would be fair and equitable to both the employee and the employer and would be an appropriate way to reduce duration and cost of claims. Long-term disablements -- lasting more than five weeks -- should be compensated at 85% of net, as Bill 99 proposes.
The benefits structure was amended in 1990 under Bill 162 when the dual award system was introduced: future economic loss, FEL, and non-economic loss, NEL. While we have no major qualms with the concept, there are cases where FEL pension payments continue to be made even when the material circumstances of the worker have changed, ie, the worker has returned to work and has suffered no wage loss. Situations like this invite other workers to abuse the system.
A few cases of unwarranted compensation might not result in a major financial burden, but when there is systemic overcompensation, this creates a tremendous burden not only for WCB but on employers in particular. As these FEL pensions are locked in after a final review five years after the date of initial determination, we are only beginning to feel the effects of FEL. The first wave of these FEL pensions became locked in last year and eligible workers will continue to be paid until age 65.
Between 1990 and 1996, construction was essentially in a market trough, and one of the characteristics is high unemployment. Workers who were able to return to productive work did not have the opportunity. This is a major reason why the proportion of costs which are attributed to FEL are much higher in construction than in other industrial sectors. We predict that these costs will continue to grow, even with the positive changes being contemplated under Bill 99.
It should be added that when benefits are so generous there is little incentive for workers to return to work even if work is available. We understand that the early return to work is one of the major objectives of Bill 99, and we fully support it.
Three-day waiting period: The London Home Builders' Association has been advocating the implementation of a three-day waiting period in Ontario for a number of years. The Ontario Home Builders' Association told the Royal Commission on Workers' Compensation that this approach should be investigated: "There needs to be more time to assess moderate injuries and arrange modified work in consultation with the medical practitioner before the case becomes a major lost-time injury and the experience rating incentive is lost." This presentation was made to the royal commission on March 23, 1995.
Unfortunately, we understand that the Minister of Labour has rejected the notion of a three-day waiting period for three reasons. We will cite the comments made by the minister at the ECWC conference on June 19, 1997, and then provide what we believe are logical answers and/or solutions to the minister's concerns.
The minister was quoted as saying, "Firstly, there is no compelling evidence that a waiting period by itself has any significant impact on workers' compensation systems."
Our response: While the statement by itself may be true, the London Home Builders' Association has received correspondence from the chair of the New Brunswick Health, Safety and Compensation Commission, which asserts that "the impact of the waiting period has been significant but cannot be examined independently from the other legislative changes which took place in 1993.... We are unable to unwind all these changes into single components." This program is viewed as a success in New Brunswick because of its role as "gatekeeper" to the system, and the WHSSC continues to use the three-day waiting period.
The minister was then quoted as saying, "Second, it penalizes workers who are legitimately injured, particularly workers whose duties expose them to danger, such as police and firefighters."
Our response: The New Brunswick commission, as part of its consultation process, has heard that emergency workers should not be subject to a three-day wait while in the line of duty. By this fall, the commission will be making recommendations with regard to legislative changes for injuries sustained by these workers. Another solution would be to adopt a voluntary three-day waiting period.
The minister was then quoted as saying, "Third, such a recommendation would have required inappropriate intervention in collective bargaining relationships since the benefits waiting period, to be effective, would have required a prohibition on negotiated top-ups."
Our response: We believe that if the government is able to facilitate an orderly transition for public sector workers in the complex area of hospital and school board amalgamations and mergers, then surely this aspect could be handled relatively easily. It is our experience that many long-term and short-term insurance plans have a waiting period often in excess of the three-day period we are proposing. A waiting period of this length is not uncommon in the insurance industry.
We believe that financial incentives or penalties have proven to be a useful method to influence site safety through the internal responsibility system. In construction, a separate experience rating program was created, and this has proven to be an effective way to encourage accident prevention. In fact, CSAO confirmed in a 1994 annual report that CAD-7 "has played a major role in reducing Ontario's lost-time injury rate." CAD-7 has been so successful that there has been a slight off-balance compared to the board's other experience rating program, NEER, because the board has underestimated our industry's ability to reduce its rate of lost-time injuries.
The board of directors of WCB is meeting to discuss small employer experience ratings in the next few days. It is with great regret that our industry has not been consulted on how this program will work and its implementation. Not only has our industry been lumped in with non-construction but also the costs incurred on any claims have not been included in the calculations for rebates or surcharges. It is our hope that our industry will be consulted when dealing with this issue because of its complexities and its potential impact on our industry. LTIs have been greatly reduced over the last few years with RTW implementation. This has reduced the cost to WCB, but in conjunction with FEL and NEL has motivated employers to focus on health and safety issues. It is our industry's belief that RTW objectives are key to workers' compensation and their goals.
I indicated earlier in my presentation that the mass majority of our membership are small employers who do not have the opportunity to offer modified work. As a result, we feel the employer should be given the opportunity to find modified work for his injured employee and receive benefits through a credit system for their initiative. When the worker will not return to work with the injury employer, the situation should be identified as early as possible and a transitional work program developed. The priority will be to keep the worker in the construction industry.
It is our belief that workers' compensation rates are extremely high for the construction industry and are a hindrance to job creation in our sector. Our association fully supports the steps taken by the board to eliminate any attempts of abuse within the system whether it be by employers, workers, physicians or even board staff. This initiative must continue to send a clear message to those who have been abusing the system and instil confidence in WCB. The result of these actions will be a system which provides assistance to those workers who truly require compensation.
An honest assessment of Bill 99 shows that it is not a radical change; in fact, the basic tenets survive and are strengthened by our changes. Bill 99 brings forward new expectations of cooperation and communication between employers and workers along with a renewed sense of accountability. The London Home Builders' Association fully supports Bill 99 with our modifications, and we urge the committee to help fast-track this reform process so that changes can go into effect by January 1, 1998.
On behalf of London Home Builders' Association I wish to thank the committee for the opportunity to appear before you here today.
Mr Christopherson: Thank you for your presentation. There's a lot I'd like to take up with you, but the one I want to focus on is your thoughts that a three-day waiting period is okay for everybody except emergency workers, and I'd like to hear why. I agree that emergency workers shouldn't be penalized, but I'd like to hear why it's okay to penalize other workers.
Mr Low: When we were going through committee reports and recommendations, it was felt that certain sectors of the workforce have a higher degree of danger involved in their day-to-day activities.
Mr Low: Construction is obviously one of them, as my fans behind me are pointing out. The one thing we see with critical services is that they have to make split-second decisions in their line of work, as all of us do in our day-to-day activities, but theirs is just at a higher degree of danger. That was the rationale behind it, as well as the fact that New Brunswick saw that as a major concern and they're a few years ahead of this process here in Ontario.
Mr Christopherson: The difficulty I have with that is, after an injury has taken place, paralysed is paralysed, dead is dead, and it doesn't matter what you do for a living if you've been injured on the job through no fault of your own. It sounds to me more like the politics of worrying about public reaction. Because the police, firefighters, ambulance workers and others are held in such high regard, the politics of this is, "Don't touch them but it's okay to go after everyone else." That's the reality, sir. The fact of the matter is that it's discriminatory and it suggests that everyone except this group of people want to defraud the system.
Mr Low: The one thing that you'll see as a result of the construction industry in the last number of years, as I have pointed out, in the last 11 years we have been bringing down the length of time for people to return to work. Return-to-work action is key to any implementation and we feel that it's justified. It has been tried in other areas such as New Brunswick, and we truly believe it will work in Ontario.
Mr Christopherson: But if you care that much about your employees, why would you want to penalize them if they've been hurt on the job through no fault of their own? Why should they be out of money?
The Chair: We have to go to the Conservative caucus, please.
Mr Christopherson: Why should they be out of pocket money?
Mr Stewart: A number of times the Ontario home builders' associations have made presentations regarding -- and I asked this question this morning -- a pooling of resources for rehabilitation and modified work. The problem, as we understand it, is unique within the construction industry where there are a lot of large operators and a lot of small independent ones may be out of business by the time the person returns or whatever. Certainly a lot of it is heavy lifting and heavy work, but some other types of construction may have the opportunity for modified work. Do you think a pooling in that type of vein might work within your industry?
Mr Low: I definitely believe that it will work just for the simple fact that, as you can see in my initial outline, locally 220 members, we are a diversified group of companies ranging from one extreme to another. As a result, if a worker is injured on site, there may be another company within our local association that may be able to network and find another opportunity for employment.
Mr Stewart: How about pooling for the rehabilitation portion of it as well because of the type of industry it is where it's so diversified on the size of companies?
Mr Low: Most definitely. We'd be able to do that and join forces province-wide to initiate that action.
Mr Patten: Thank you for being here, Mr Low. There was another home builders' association this morning in Windsor. My question is related to your statement that you don't see this as a radical shift. I'd like to ask you about that in light of, as we look at the bill, we see employers getting a break on premiums, we see the board centralizing power in the board body with policies to be determined by them, we see a loss of independence of research, we see a loss of benefits for workers and a loss of eligibility of what heretofore was considered to be a legitimate possible claim. Just considering some of those factors, and there would be others, do you really believe this is not a radical change, at least from the point of view of injured workers, which is what the plan was to be? It was a workers' compensation plan; it was not an insurance program.
Mr Low: Most definitely, and the one thing that I would like to point out to everyone here is that our first priority is our employees because they are our lifeline to begin with. In order for us to ensure their safety and our prosperity as organizations, that's one reason the home builders' associations throughout the province have been bringing forward education for health and safety issues.
One thing you can see in my presentation, once again, is that our construction industry has been hit hard too: a 22% increase over last year's premiums and they've just been continuing to escalate. That only means one thing coming back to the table, increased costs and a chance of fewer jobs being created. The biggest thing is education, just ensuring that everybody is aware of what is safe on a job site, what is not safe on a job site, letting the workers know what their rights are. We're not here to take away their rights and their privileges. We're here to ensure that they're working in a safe environment, that they're able to prosper and continue a long career.
Mr Patten: If you're concerned about the safety aspect, health and safety of the workplace, would you not agree that it would be important to maintain the independence of the Occupational Disease Panel?
Mr Low: On that one, to be honest with you, I would have to respond in writing because that would go back to the committee. I don't know that one in depth, and that's being honest with you. Would you like me to get that in writing to you?
Mr Patten: That would be great.
The Chair: Thank you very much, sir. We appreciate your taking the time to come before the committee today.
Mr Low: Thank you very much, one and all.
LONDON CHAMBER OF COMMERCE
The Chair: I'd like to now call upon representatives from the London Chamber of Commerce, please. I believe it's Mr Redmond, Mr Blazak and Ms Landgren. Good afternoon. Welcome to the committee.
Mr Gary Blazak: Good afternoon. My name is Gary Blazak and I'm the president of the London Chamber of Commerce, London's oldest and most representative business organization. We thank you for the opportunity to appear here this afternoon. With me is Catherine Landgren, who sits on the chamber's human resources committee and chaired the task force that resulted in the presentation we're making today.
Workers' compensation reform has been a high priority issue with our corporate membership for some time now. Collectively our corporate membership employs more than 50,000 people in the London area. In 1994 and 1995 we conducted surveys of our membership to identify issues related to WCB reform. A large part of our presentation today is based around the framework of the issues that were identified in those surveys of over 1,000 corporate companies which form our membership base. We'll refer to several of those issues in our presentation, focusing specifically on the issues related to definition of "accident," benefits, return to work and release of medical information.
First we'd like to comment briefly on the government's direction with respect to workplace safety and workers' compensation issues in particular. We believe that the direction of the legislation is, in general, positive. We applaud the increased emphasis on the responsibility of the workplace parties for occupational health and safety. Employers believe it is appropriate to keep a strong focus on accident prevention and early return to work. For the most part, we can accept the employer's obligations in these areas as set out in the bill. In several instances, however, we believe that the legislation as now worded may open the door to administrative decisions or WCB policies that would make it difficult, if not impossible, for employers to fulfil those obligations.
For more information on our detailed presentation in the areas of "accident" definition, benefits, return to work and release of medical information, I'll turn the microphone over to Catherine Landgren.
Ms Catherine Landgren: Thank you, Gary. As a member and volunteer of the London Chamber of Commerce for five years, and having to deal with the workers' compensation boards across Canada for the past 15 years, I was nominated to present to the committee this afternoon.
Given the many changes put forth in Bill 99, it was difficult to narrow our choice of topics within the time allowance. We have settled on four issues which we believe are critical components to the success of this reform, especially if it is to have common sense. The four topics include definition of "accident," benefits, return to work and functional abilities information.
Considering the proposed definition of "accident," it is the government's intention to preclude chronic stress and limit chronic pain. However, with respect to chronic stress, there is no specific wording addressing this item, and with chronic pain, the question is, how will it be limited? Actually, we would like chronic pain eliminated.
What the employer community would like to see are regulations written describing the parameters of entitlement. The threshold needs to be specifically stated and may be worded such as "where the employment is the predominant cause of the injury or illness." The difficulty employers have is with such diagnoses as repetitive strain injury and chronic pain where the entitlement is too subjective. Regulations would provide a clear direction for entitlement.
Benefits were high on the list of our membership when we conducted a survey in 1994 in response to the royal commission. Three changes were demanded: reduce the rate to 70% of mid-average earnings; institute a three-day waiting period similar to other disability management programs; include workers' compensation benefits as taxable income.
In response to part V of Bill 99, this is a welcome change on two fronts. It restores the employment relationship in managing return-to-work matters and it will hopefully eliminate the WCB's rehabilitation services. The trend to change WCB's role in this area to alternative dispute resolution would be more appropriate but only if specific regulations can be established by the government. The interpretations and leeway given by the WCB in this area over the past 10 years are clearly why the changes in Bill 99 are proposed but also demanded by the stakeholders.
Accredited bodies in rehabilitation and alternative dispute resolution should be required and thus part of the legislated regulations. This part of the bill should have an exclusion similar to the re-employment obligation for small employers who will be unduly burdened both financially and administratively by the return-to-work obligation.
Lastly, functional abilities information is the only information the employer community is asking for when responding to the re-employment obligation set out in Bill 162. Although it is currently proposed that the worker and health care professional will provide such information to the employer, it has been the experience of the employer community that this is easier said than done.
Successful return to work, both early on and safe, is dependent upon such information, but how can this be accomplished without a specific regulation? How will the process continue throughout the period of rehabilitation once the worker has returned to the workplace? These are questions which the government must answer and respond to by way of regulations included with this bill.
In conclusion, a systemic disease exists as the fundamental cause of the erosion surrounding occupational injury management in Ontario. The disease is at two levels: with the government, where no one political party has provided clear or concise legislation so as not to allow for varying degrees of interpretation of the intent of the law, and with the administrator of the law, the WCB, which has not consistently applied the law when writing the policy and in their daily practices which vary from office to office and decision-maker to decision-maker.
Our theme has been to show this committee that the government needs to provide more specific language as well as include regulations to this Bill 99 to avoid misinterpretation of administration and appeal at all levels.
Mr Hastings: Thank you very much for making your submission, but I am rather disturbed and even mystified as to why you were asking for an exemption on the return to work for small business employers under 20. That would clearly indicate to me that the small business community hasn't really thought through how you can develop comprehensive and effective return-to-work programs. It gives me the impression -- I'm completely uncomfortable with it -- that the small business community, for those under 20, are abandoning people in their employment, simply by the numbers. I'd like to know what your substantial rationale is rather than simply asking for an exemption because it's 20 or under.
Ms Landgren: In response to that, it's the same premise that is used when you looked at the current section 54 that has to do with re-employment. That also applies to employers less than 20. I don't think that the small employer under 20 has abandoned return-to-work processes, but the intent, as I understand it, of this piece of law, which is section 40, is asking more for a formalized return-to-work program that will not exist for small employers. Fundamentally, they cannot administer that and, at the present, there is not enough information for even a small employer to consider whether it's feasible for them to do it.
Mr Hastings: Aside from your request for an exemption, I'm also rather mystified in this presentation as to why the chamber wants to ensure there is a return-to-work program without the WCB's presence in terms of a financial penalty. How will we ensure for those in businesses that are over 20 employees that in fact we will get a successful return-to-work program implemented?
Ms Landgren: It is not the elimination of the WCB from the process. It is simply that the WCB should not be the driving force behind it. The difficulty lies with the barrier that is created between an employer and employee during the process. The board should be there, as I stated, as an alternative in dispute resolution and that's clear in the legislation. How that process will come about and what the penalty should be needs to be addressed further in the law.
Mr Maves: What is it exactly about section 40 that you find so onerous?
Ms Landgren: It's too broad. It's not specific. I'm not sure what the word "cooperate" means --
The Chair: Order, please.
Ms Landgren: -- and I think in my experience over the last 15 years leaving that word open to interpretation by the administrators can cause a lot of difficulties and not accomplish what the intent of the law is.
Mr Maves: What has been your experience with return to work?
Ms Landgren: Depending on who is driving it, whether it's a joint venture by the employer and the employee, then it's always been my experience that it is successful. When the WCB becomes involved and there is a degree of interpretation that varies, the return to work is not successful.
Mr Hoy: Thank you for your presentation. I also want to talk about this rehabilitation to the employee by the employer, that working relationship. This morning it was described as privatizing, having this working relationship go on. However, if an employer has 20 or less, I can rather understand that they wouldn't have the administrative resources for rehabilitation of that employee. This gentleman was, I believe, talking about employers who hire many more than that, and he said it was going to bring about an added cost to business, and in many of the presentations business wants to reduce costs.
I have some problem understanding why you want the WCB removed as that third party. Do you not agree with the other presentation that perhaps employer costs would go up? I can envision employers saying, "You've got to reduce my rates because I have this other cost now," some time in the future. Apparently you don't see the value of having the WCB involved at all times.
Ms Landgren: I disagree with the other presentation wholeheartedly. I believe that the legislation and the trend over the past 15 years has been that employers are taking a greater interest in the management of occupational injury, one component of that being return to work. In fact, I don't think the employer community sees that as a cost in administering return to work but rather as a reduction in their costs. When an employee is off work for any reason, that's costing them money. To see just an earliest return to work possible is always their goal. I don't see it as down the road them asking for a rate reduction because of that.
Mr Hoy: But you also say if there isn't a workable solution between the employer and the employee, you would go back to the WCB for an arbitration type of ruling, right?
Ms Landgren: I believe alternative dispute resolution, as the board is now calling it and is using it, is a good thing as long as there are accredited people looking after it, and not necessarily the administrators at the present.
Mr Hoy: A good body for that type of work would be a body of employers and employees.
Ms Landgren: If they are fully accredited in alternative dispute resolution, yes.
Mr Christopherson: Thank you, a fascinating presentation. I want to first of all say that listening to Mr Hastings, I wonder if instead of the 401 from Windsor to London it wasn't the road to Damascus. Perhaps by the time we get to the end of these hearings I can get them to agree to unanimous consent so we can put a motion on the floor and have some real hearings.
Ms Landgren, I have to tell you, when you've got the Tories criticizing you, you've really got to wonder where you are. This is about as far out as we've seen so far. One thing you said, that I didn't see in your script but that you did say, was "the changes in Bill 99 as requested by stakeholders." I just wondered what part of Bill 99 you think injured workers had asked for.
Ms Landgren: I don't think, in my experience, that the injured workers are extremely happy with the rehabilitation process currently at the WCB.
Mr Christopherson: Do you think they asked for what's in Bill 99?
Ms Landgren: No, I think they asked for a change.
Mr Christopherson: I want to move on just a little bit. The other thing I wanted to ask you -- again you went off your script. You said that chronic pain ought to be eliminated. Could you explain to me what you mean by the fact that chronic pain ought to be eliminated?
Ms Landgren: Unless chronic pain is clinically diagnosed, it shouldn't be accepted at the WCB. If it's not accepted at the WCB, it shouldn't be part of the law. There's a difference between chronic pain that's accepted at the WCB and the clinical diagnosis that exists out there. If it's been clinically diagnosed and it's been established that it relates to the work injury, we don't have a difficulty with it. It's when chronic pain is diagnosed and the clinical diagnosis isn't the same. Because somebody calls it chronic pain and because it's not the actual clinical diagnosis -- they are two very different things. There is medical testing you go through to diagnose chronic pain: trigger points, behavioural differences, all those things. There's a difference in what's being accepted and what truly should be accepted.
Mr Christopherson: But we are at the point where we're actually talking about the law, the regulations and the policies of the board which would decide where those thresholds are. A statement like yours means that the policy ought to be that there is no chronic pain that's allowed to be covered, that it's not compensable.
Ms Landgren: I think one of the things of our whole presentation is that the policy differs greatly from what the law says, and that's part of the problem. There has been no one government that has actually sat down and added some regulations and specifically said what the intent of the law is. For example, FEL awards: As we sit today in 1997, there is no policy for review of FEL awards, yet they are being granted every day.
Mr Christopherson: I want to move to one more area before my time expires. We've been watching almost an auction in reverse as we move from community to community. The first time was in Thunder Bay, when I saw someone recommend that cutting injured workers' income from 90% to 85% wasn't good enough, that it ought to go to 80%. I saw that repeated again this morning. Now you've lowered the ante and gone to even 70%. Can I ask you why you want to make second victims out of people who have been hurt on the job through no fault of their own? Why do you want to penalize them as if they've done something wrong?
Ms Landgren: That figure comes from a survey that was done three years ago. There is no subjective question that followed that; I simply have the percentage to offer you today.
Mr Christopherson: But it says here, "We urge the government to consider further reducing" --
Ms Landgren: That's what the membership said three years ago.
Mr Christopherson: Can you tell me why?
Ms Landgren: We didn't go back to ask the membership the reasoning for it. That survey was conducted for the royal commission, and when the royal commission was disbanded when the new government came into power, we didn't go back to ask the questions, which we normally would do.
Mr Christopherson: I'm sorry, I guess I'm a little unclear. You make a recommendation urging the government to do something but you have no idea why you would put that in your own presentation.
Ms Landgren: Because our membership did indicate previously that they wanted people's income to be equivalent with other disability management programs.
Mr Christopherson: Perhaps you could send us a secondary document that outlines which of these recommendations you really mean and which ones you only pretend to sort of mean, because it's very unclear.
The Chair: That concludes the presentation time. We thank you for taking time to come before us with your views this afternoon.
LONDON REGIONAL ADVOCATES GROUP
The Chair: I now call upon representatives from the London Regional Advocates Group.
Ms Sue Green: Hello. My name is Sue Green. I am a member of the London Regional Advocates Group. I am an injured worker, one of the major stakeholders that this committee is trying to ignore. Information about Bill 99 and its effects on those already injured has been minimal. I have had dealings in the past with a lot of injured workers in my capacity as past president of the injured workers group WRIST, a member group of the Ontario Network of Injured Workers Groups.
Poverty is no stranger to the injured worker. It is a companion. They did not choose it; it became an unwanted and undeserved way of life. Permanently disabled workers are weaned off money. To have an injury is to learn to be poor. I was introduced to poverty when I became injured. Let me demonstrate what I mean. If I was able to work last month, my wages would be equal to $3,130 net. This is based on the current wages for an industrial maintenance millwright mechanic in this area. With this $3,130 I would be able to pay my mortgage, my groceries, utilities, clothing, insurance, transportation etc, and by the time I had reached the point that my financial obligations had been met, I would have had money left over to save, possibly for retirement or a family vacation. I would be contributing approximately $129.68 to the Canada pension plan monthly and contributing my fair share to the tax base.
I was injured in 1984. That means that my injury falls into the pre-Bill 162 category. I would have to assume that I will be fairly compensated for my injuries and by law I cannot sue. I receive 90% of my pre-accident wages, or $2,717, a difference of $413 per month. Time passes, and my injuries, although healed as much as they are going to, will not allow me to go back to my old job. The words "vocational rehabilitation" ring out, words that are unfamiliar to me. Instead of 90% of net, my cheque becomes 50% of my wages, or approximately $1,500 a month.
Meanwhile, through all this the injured worker strives to live within his income and maintain a life. Life savings are dwindling or gone, homes are lost, credit ratings destroyed and marriages and family life break down under the financial and emotional stress and physical suffering. Then the feared words come: "You are unemployable due to your injuries." I was able to work before the accident, but due to my compensable injury I am exempt from the workforce through no fault of my own. Reality hits you hard. Another cut to your income is about to occur.
Now the real figures of the finances of the injured worker: My total monthly income from WCB now stands at $985.93, irrelevant of whether I have a family to support or am single. This is composed of a 30% permanent disability pension, the 147.4 supplement and the $200 supplement, a far cry from the $3,130 I could be earning if not for my injuries.
The main feature of Bill 99 is the deindexing for all 29,879 147.4 recipients. This is to offset the unfunded liability. Compensation for our injuries will no longer be fully indexed to the cost of living, a direct violation of Justice Meredith's principles. Groceries, accommodation, clothing and transportation prices will steadily go up according to recent market forecasts on inflation. Our ability to make ends meet dwindles with each passing month. Many injured workers will be forced to become a burden to their families and society and go on welfare and Canada pension just to keep up with the rising cost of living.
Let's look ahead into our future under Bill 99. Take the pension I would receive for a month in the year 2014 and exchange it for this year's dollars. Because the cost of living has not been fully added each year, I would be able to purchase about $214 worth of goods. That does not go very far in paying bills, not for a family or even one person. It certainly doesn't meet Justice William Meredith's principle of security of benefits: "Compensation should be paid as long as the disability lasts and the amount of compensation should have relation to the earning power of the worker." This is the effect for workers injured before 1990; 29,879 will be affected in this same manner.
Anyone receiving a FEL award or those permanently injured with no 147.4 supplement will also feel the clout of this bill of death. Their cost of living will be deindexed another quarter of a percent. People receiving an FEL will have the pension portion of their retirement reduced from 10% to 5%. Please remember that an injured worker is no longer paying into the Canada pension plan, or if they are working and receiving an FEL benefit, they are paying into the Canada pension plan at a reduced rate reflective of their loss of wages due to the limitations imposed by their work-related injury. Vocational rehabilitation failed miserably in many cases to put the injured worker back to work at their pre-accident earnings. Bill 99 is further failing to give even the right to vocational rehabilitation or the right to return to work. Instead of strengthening the return to work, section 54 of the bill undermines it.
Permanent injuries are just that. Injured workers must learn to accommodate their permanent injuries for the rest of their lives. Now it seems that we must learn to do it on nothing. We gave up our right to sue for fair compensation, and now it seems that fair compensation is being swept out the door. Does this mean that the door will also remain open for us to sue?.
Ms Jody Jones: My name is Jody Jones. I'm a WCB representative for the American Federation of Grain Millers Local 154 and an active member of the London Regional Advocates Group.
Laws are passed to protect working people because without them employers will act in their own interests, which is usually financially driven. This puts every death and injury on the back of this government. Bill 99 clearly has one main objective, that is, to reduce employer premiums and liability at any price.
Presently it is mandatory that an employer must report an injury or disease within three calendar days when that injury or disease results in the worker requiring health care -- sounds pretty straightforward, but as clear as this sounds, we argue over the definition of health care. Just the other day I was told by a manager of the London WCB that if a medical doctor examines a worker on company premises it doesn't count as health care. Can you believe that the definition of health care can be stretched this far?. Well, it has. Bill 99 just further complicates, restricts or eliminates the reporting of injuries or diseases.
Contrary to popular belief, employers are not currently eager to file WCB claims. In the workplace, harassment is alive and well, discouraging workers from reporting injuries as work-related. Workers are reminded of the hassle-free insurance plans and are given rewards for the most days without a lost-time accident. If you believe these rewards are in the name of accident prevention, you are sadly mistaken. This is simply to discourage reporting. Imagine, your department is just about to win a new spring jacket for six months accident free. You feel a sudden sharp pain in your back while making an awkward lift. Do you risk your co-workers missing out on their jacket and enter the dreaded workers' compensation system, or do you report the injury as non-work-related and pray for recovery?
Now, enter Bill 99. Same scenario, only you must fill out a form, a form obtained from God knows where, that you might not even be able to read or understand, and give a copy to your employer. This bill permits the employer to suppress claims and intimidate workers rather than preventing injuries.
Statistically, Ontario will be the safest place on earth. In fact the key here is prevention -- not prevention of injuries but prevention of claims filed with the WCB. If the government can prevent injured workers from filing claims by making it as difficult as possible to file, then its job is complete. No files claimed equals employer rebates equals the happy employer.
Actually, there's not really any need to ram the rest of the bill through. Think about it. If this government concentrates strictly on prevention, the prevention of filing, the employers will be happy and thus the injured workers will be offloaded to the taxpayer. If no record of the injury exists, the employer wins. Welcome to the new Ontario, a place where fairness and justice and equality no longer have standing, a place where survival is based on wealth and power.
We have before us legislated harassment. I promise you that the working people of this province will be here to remind you of your responsibility for each worker killed or injured on the job as a result of employer self-interest.
Now, just in case a few workers do get the courage to file a claim, the most obvious way to keep the employer costs down is to tamper with the appeal system. Enter sections 118 and 119 of Bill 99. If the WCB gains full control of the decision-making power of the Workers' Compensation Appeals Tribunal, then no worker will ever significantly challenge decisions again. I guess it's kind of like putting the fox in charge of the henhouse. Now we have control at the source: filing of claims controlled by the employer and an appeal system controlled by the employer.
Bill 99 clearly limits the decision-making power of the appeals tribunal to board policy, where one exists. What happens if there is an unfair or incorrect policy? Could there be any bad policies? I'd like to bring your attention to policy 05-04-06, titled "Reduction or Suspension of Benefits." This is a policy that clearly discriminates against women. The policy permits the WCB to reduce or suspend benefits if the injured worker discontinues or refuses treatment that may bring harm to an unborn child. In 1993, members of London Regional Advocates Group and two area MPPs challenged the WCB on this very policy. One example was a pregnant worker whose doctor refused her an X-ray because of the risk to the unborn child, and the other example was a woman who refused prescribed medication because of the risk to her unborn child. The response of the WCB chair and the WCB vice-chair was that they were aware of the problems with the policy and committed to us, in writing, in 1993 that a review of the policy would be a top priority. Guess what? It's 1997 and the policy sits today unchanged and dated July 26, 1990.
In the future under Bill 99, the appeals tribunal will be bound by this policy. Restricting the appeals tribunal to board policy removes our ability to challenge and correct unfair or clearly unethical policies. Is this what this government wants? Is this what the employer wants? Where is the justice when a policy that could clearly risk the lives of unborn children, and obviously discriminates against women, becomes enforceable by the highest and most respected level of appeal?
The appeals tribunal must maintain its independence to maintain credibility. What kind of government do we have that eliminates the only hope of a fair and just workers' compensation system? On behalf of the many who were denied access, I thank you for this opportunity to speak.
Mr Hoy: Thank you very much for both presentations. Presentations from injured workers and those who are learned in what happens to injured workers probably benefit us the most. We get firsthand knowledge and firsthand examples of your plight and your experiences.
You had a great deal of concern for the appeal process towards the end of your presentation. How do you envision the future rights of the injured worker after Bill 99 is passed? What major effect will the appeal process, or lack of, have on injured workers?
Ms Jones: In the example I gave, had a decision been taken to WCAT on that policy, chances are policy gets rewritten. Policy is an interpretation of the law by whomever, and if there is something wrong with that policy, WCAT has the respected decision-making power to change that. They interpret law.
This policy was an example, and there are lots of policies like that, but they don't always come to light. We tried to change it without taking it through the appeal system, because we noticed it early, and we got nowhere. We appealed in 1993 and a lot of people wrote the government. I have all the documentation here and the response in writing from the board, where they assured us it was a top priority, the policy would be looked at and they were well aware of the problems, and nothing has happened. So WCAT would now be bound by that policy and there would be no hope for change in policy.
Mrs Boyd: Thank you both very much for your presentations. Sue, it's very helpful to see that graphic erosion of income you've presented. I think that's the thing most people don't understand, that even if we were not to see a huge decrease in benefits such as was suggested, to 70% of earnings by the previous group, the reality is that this already builds in a huge erosion of benefits, and we can foresee very clearly in the future that people have no future security with the kind of erosion that's implied in Bill 99. You showed that quite graphically in your presentation. Thank you for doing that.
Do you think most workers really understand how severe that erosion is?
Ms Green: No, their concept is that the injured worker is well-paid, and when you're getting temporary total you are getting 90% of net. You're not getting more than you were paid when you were working; you are getting 90% of what you were paid.
Mrs Boyd: And not only that, you have no opportunity to have increases in your salary or to gain experience and therefore improve your circumstances. You're constantly on a slope that drives you backwards. I think that's something most people don't understand, and if you add that to the attitude that most people who are on workers' compensation must somehow be cheating the system; it becomes very hurtful to workers.
Ms Green: Very hurtful. It's hard to hear somebody say there's so much worker fraud. If you were injured, you're injured. There is no fraud there, you know. It hurts in more ways than just the injury. It hurts your family life. It hurts everything.
Mrs Boyd: If you had your druthers, obviously you'd like it to just go away.
Ms Green: Three thousand, one hundred and thirty dollars a month, yes.
Mr O'Toole: Thank you very much, Ms Green and Ms Jones, for your presentation. You bring real clarity to the plight of the injured worker. We've heard that this morning as well. I just want to touch on a couple of points, if I could. We are listening. It's not as if we're characterized as some dark spirit or something.
Just to pick up on your particular case -- 1984, was it, or 1985 when you were getting $3,100?
Ms Green: It was 1984.
Mr O'Toole: I'm not trying to politicize; I just want to line up the facts here a little bit. At that time Richard and Mr Hoy were in the government, the Liberal government at that time, and then the next period of time I heard about you -- you started off with $3,100 and now you're down to some $900 -- you both talked about the appeals to WCAT and to the appeal process at that time having failed you, or that they would have failed you. The administration at the time you talked about in 1993 was in fact Mr Christopherson's and Mrs Boyd's reign.
The appeal system didn't do you any good at that time. In fact what we've heard across this province very clearly is that there have been reviews in good faith by all three parties since around 1985, and currently. The previous government had a couple of bills. In fact your benefits may have been affected: Bill 165 affected the Friedland formula. It took $18 billion out of workers' entitlements.
Mr Christopherson: We gave her a supplement --
Mr O'Toole: The previous government reduced the Friedland formula. It's clear that the previous government did take away in their adjustments to the indexing formula. Are you clear on that? I'm just making sure she is clear on how we got into this --
Ms Green: The Friedland formula was applied to the under 100% FEL and the Friedland formula was applied to permanent disabilities. However, if someone was on a 147.4 --
Mr O'Toole: Which they didn't; not affected.
Ms Green: They were exempt, yes. The 147.4 -- deemed unemployable because of their injuries. We have no chance of topping it up.
Mr Christopherson: And we didn't give $6 billion back to the employers.
The Chair: Mr Christopherson, please.
Thank you, ladies, for taking the time to come before the committee with your views this afternoon.
LONDON HEALTH SCIENCES CENTRE
The Chair: I'd like to now call upon representatives from the London Health Sciences Centre, please. Good afternoon, gentlemen, and welcome.
Dr Robert Teasell: Thank you, Madam Chairman and members of the committee, for inviting us. I'm Dr Robert Teasell. I work at the London Health Sciences Centre, university campus. I'm an associate professor at the university and I'm also chairman of the department of physical medicine and rehabilitation. Dr Warren Neilson is the director of the rheumatology day care program.
We'd like to thank the committee for an opportunity to speak. We represent a group of university-based clinician-researchers who deal with patients who have chronic pain on a regular basis and also who study it as researchers. Part of our group is Dr Harold Merskey, who is professor emeritis of psychiatry and editor of the Journal of Pain Research and Management; Dr David Bell and Dr Manfred Horth, who are professors in rheumatology, Dr Bell being the chief of the rheumatology division; and Dr Kevin White and Dr Hillel Finestone, who are chronic pain specialists at the London Health Sciences Centre.
I've enclosed two documents. The first is a summary of what I'm going to go through in terms of the points I'd like to make that I think are important. The second is an editorial that has been submitted and has been accepted and will come out in the next Journal of Pain Research and Management, which directs some of our concerns about Bill 99 and which goes out to 20,000 pain clinicians in Canada and internationally.
We agree that chronic pain and associated disability have certainly increased over the last few decades. It's interesting that it parallels a rise in disability for all medical conditions, but there seems to be a disproportionate increase in the amount of chronic pain disability. The cause of this increase is not known. There are many people who have speculated why it's happening, but the truth of the matter is that we don't know why this increase is occurring.
There are three points we would like to make that we think are important that don't seem to be evident in the debate at the present time. The first is that chronic pain has an organic cause. I think it's important to realize that most of the chronic pain conditions we see follow a soft-tissue injury. There has long been a misconception that soft tissue injuries heal after six to 13 weeks. It's interesting when you go into the medical literature and you try and find out where that came from: It comes from a few animal studies looking at collagen healing and it comes from the observation that most injured workers fortunately recover. However, when you follow patients who develop acute low back pain, neck pain, whiplash, repetitive strain, whatever you want to call them, there's a significant subset of patients in all those groups across numerous countries who don't get better and are left with chronic pain. That's just the reality of what we deal with.
The thing we have concern about is that there seems to be this concept that chronic pain really is not a legitimate entity after six to 13 weeks because soft tissue should have healed. But we're on the verge of very exciting evidence that has occurred over the last five to 10 years that's pointing out a physiological basis for chronic pain. Certainly in an area like, for instance, whiplash, a condition that has long been thought to be a factitious disorder, there's very exciting research now that has clearly identified the little joints at the back of the neck called facet joints as the cause of pain. In fact, the Australians have gone and experimentally now can remove patients' pain for six to eight months and can then repeat that procedure, simply because they didn't give up on chronic pain but accepted it had a legitimate cause. Now we're starting to see people, at least at the experimental stage, with cures for theses types of conditions.
In conditions like fibromyalgia and regional pain syndromes, the typical low back pains we see in patients, there is increasing evidence that we're seeing central nervous system changes that we can document. Pain neurotransmitters, the biochemical substances that transmit pain in the body, are increased to very high levels in these patients when compared to controls, when you examine their cerebral spinal fluid, which is the fluid which bathes the spinal cord and the brain. We have good evidence that the spinal cord changes in animal studies, which can provide plausible explanations for chronic pain, and we're beginning to get very good evidence with our sophisticated technology for changes within the brain. We can actually identify the brain areas that identify pain lighting up when patients say that it hurts.
We have this type of evidence now. We also know that patients who have more severe acute pain -- and this has just come out recently -- who have no pain initially, are more likely to go and develop chronic pain, which seems to indicate what we all knew intuitively: The more severe the initial injury, the more risk that it may not heal properly.
We also know there's evidence that biomechanical factors can increase the risk of both injury and pain. So people who do heavy lifting are five times more likely to get injured and develop chronic pain than individuals who work in an office. I think it's clear, and this is what we're concerned about, that the scientific evidence of an organic basis for chronic pain seems to be being ignored. That makes the scientific validity of this type of bill somewhat questionable, if that's the basis for the bill.
The second point that I think is important to make is that chronic pain is not due to psychological causes. I think that's becoming increasingly clear, because there's that implication there in the readings. Certainly, the best research we've had over the last four to five years is clearly pointing to the psychological distress that patients are experiencing as a consequence of the pain they have, not vice versa. We're not seeing patients who had pre-morbid psychological problems suddenly develop pain. That is not the rule. The rule is that they develop their psychological difficulties after they get their pain and injury and can't perform like they used to.
I think it's also important to point out that compensation is often listed as a reason why we have chronic pain and continuing disability. But when people have looked very carefully, the net analysis -- the 32 studies of compensation patients versus non-compensation patients -- the variance in pain is only 6%. So when we look at compensation patients, it only accounts for 6% of the pain we're seeing.
Certainly, compensation does have a gradational effect on the number of claims, and that's clear. If you're collecting 100% of your wages and you have moderate back pain, you're more likely not going to go back to work and tough it out than if you're collecting 30%, and I think that's quite clear and the literature points that out as well.
Our greatest concern, though, is that when you look at the literature, when you look at the science and you say: "Whom is this most likely going to affect? Who is going to be affected by this type of legislation? Who gets chronic pain? Who becomes disabled with chronic pain?" the literature clearly points out that there are grourps that are highly represented in chronic pain disability groups: lower socioeconomic groups, people who are less well educated, patients who don't have transferable skills, who don't have work autonomy, they're older or they do heavier or repetitive-type physical work.
These are the people who are going to be targeted. These are the blue-collar workers whom we would call the working poor. In particular, if you really want to know who is targeted, it's working women. This is a big problem now. They not only have to work and do physical work, they are also responsible for household and kids, so they've got double duty to perform. You add a work injury to that and they have a lot of difficulty.
There are immigrants who have poor communication skills. They can't make the change from doing heavy physical work. They don't have the English skills to be able to do that. This legislation is particularly going to affect these people and we're concerned. This legislation is going to affect those people or target those people who are most vulnerable to this type of change.
That vulnerability nowadays is even enhanced by changes in the workplace. Certainly, the economy is changing. There is increasing demand for specific technical skills that these people tend not to have. Also what we're seeing in the workplace is a decreased willingness of employers to accommodate injured workers. They're trying to cut back on their workforce and an injured worker can't do as much. There's a mindset out there that's changing, that says, "I need to get guys to do twice as much as they did so I can maximize my profits," and there's less of an impetus to look after injured workers.
I think you need to understand, and this is what we're concerned about, that there's going to be, and we can see it coming, a significant cost to denying the reality of chronic pain and limiting benefits. People aren't going to go away. Research suggests that such an approach is going to have little or no impact on chronic pain per se. Also, it's not going to have a huge effect on disability claims. For the majority of injured workers and families, it's going to stigmatize them, and it's going to leave some of them destitute. It is certainly going to increase suffering. My biggest concern is that it's going to transfer the problem to the welfare sector or to other jurisdictions. That's a big concern.
In summary, as researchers, as clinicians who treat chronic pain patients, who do research in this area, who are well aware of the literature, our biggest concern is that this literature doesn't appear to be based upon a solid scientific basis. Second of all, we're very concerned that it's probably going to hurt those individuals who can least afford it.
Mrs Boyd: Thank you very much for your presentation. It's very helpful to have that clinical perspective, particularly when we were hearing from the representatives of the chamber of commerce that there is a huge difference between clinical pain and compensable pain. It's quite a relief to know that indeed this work is being done and that the reality of chronic pain is recognized by clinically practising people. Very often in these hearings, the sense you get from employers is that this is some kind of myth or paranoid fantasy, as opposed to reality. So it's very helpful to have this evidence there.
Can you tell me clinically: If someone who is experiencing what you have described here in terms of organic chronic pain then goes back to work and attempts to work, even though that problem has not been resolved, what is the likely result?
Dr Teasell: I think the most important thing I should mention is, it's very important that we try to get patients back to work. Patients want to work. Chronic pain patients want to work. They're very unhappy not working.
Mrs Boyd: I agree with you absolutely.
Dr Teasell: It very much depends on whether they can manage the work and to what extent we can adapt the workplace. If the workplace is adaptable enough and the patient's pain doesn't reach severe enough levels, he or she will successfully return back to work. But in many cases they just can't manage it, because the type of work that tends to injure workers tends to be the type of work that's hardest to do when you have chronic pain. That's just the reality of what we deal with on a day-to-day basis.
Mrs Boyd: When we couple the reality of this bill and the people it will target in terms of their vulnerability with some of the other policies that are reducing the possibility for adult students to go back and build some of the skills they haven't had with the kinds of reductions we see in social housing and other areas that can help to support people who are trying to change their way of life and their ability to work, it really magnifies the problem.
Dr Teasell: The key to managing chronic pain is adaptability. If you remove the mechanisms by which people can then adapt, retraining programs etc or modifying the workplace, then no, the results aren't going to be as good in terms of getting people back to work.
Mr Maves: If there's evidence that chronic pain has an organic aetiology that's compensable -- for instance, carpal tunnel syndrome is something that provides chronic pain but it's proven to have an organic aetiology, so it's still compensable. I just wanted to point that out at the outset.
I wonder if you have any knowledge of the Nova Scotia experience right now?
Dr Teasell: What do you mean by the Nova Scotia experience?
Mr Maves: With their guidelines for chronic pain --
Dr Teasell: Who made their guidelines?
Mr Maves: Nova Scotia in concert with the medical community.
Dr Teasell: I'm not aware of the Nova Scotia experience.
Mr Maves: Okay, thank you. The WCB is currently conducting, with some stakeholder input, a study on chronic pain and chronic pain management. Are you aware of that and participating in that?
Dr Teasell: No.
Mr Maves: What kind of experience have you had in treating chronic pain? What could you tell me about getting people with chronic pain treated and then perhaps back to work?
Dr Teasell: It's probably 75% of my practice, so it's a key component of what I do. My experience with chronic pain patients is that they are very hard to treat, very difficult to treat, because pain is a very difficult thing to manage and it's very limiting for these individuals. The key for them is that we have to try to get them to adapt to their pain and change. Some of them can't. They just don't have the skills, they don't have the ability, they don't have the education. They're not going to be able to do it. They're not going to be able to get a nice cushy job like mine or yours; they're just not going to get to that level.
The second thing is that sometimes you get great employers who are prepared to make the changes, who are prepared to adapt the workplace, and you're more successful then. Sometimes you get well-educated patients who can move into lighter-duty jobs, and you're more successful then. It very much depends upon so many factors, the disability these people experience, but the basic problem is that they have pain and it limits them.
The thing that I notice most in dealing with my chronic pain patients -- and Dr Nielson can talk about it -- is that these people aren't happy. They don't have it made. They are very unhappy, very depressed, very anxious, very angry. They're living in poverty. They're having a hard time. Many of them get divorced, their families break apart, their kids have trouble. This is not a pleasant condition. The trouble is that the system doesn't help them that much. It tends oftentimes to add to their woes by denying the reality of what they're experiencing.
Mr Carroll: I have a sister who is affected very much with chronic pain, so I understand the issue, but is the workers' compensation system the place to take care of those people?
The Chair: Order, please.
Mr Carroll: You've talked about all the socioeconomic reasons for chronic pain and the --
Dr Teasell: No, that's not what I talked about.
Mr Carroll: Only once did you mention work.
Dr Teasell: The issue is that these people whom I see for workers' compensation are injured on the job, and then all these socioeconomic factors play a role. But if not the Workers' Compensation Board, who is going to help them?
Mr Carroll: We're talking about the workers' compensation system here and what should be compensable there. If it's not related to work, do you believe it should be compensable?
Dr Teasell: No.
Mr Patten: Thank you, Dr Teasell. I found that presentation very helpful. I have two questions. One is whether you might have a comment on the criteria proposed in terms of normal healing time and the eligibility for support, compensation. Second, is it your opinion that we are better and better able to diagnose and analyse and provide data to a system like the compensation board that would enable them to make better judgements about the case at hand and not be so sceptical as perhaps they are now?
Dr Teasell: In terms of the healing time, I think it's become increasingly clear to all of us who work in the area that that is an archaic concept. Even in the United States, the leading pain experts call it archaic. They find it bizarre that people are still talking this language, and I find it very bizarre, actually. That's the reason I bothered coming here. It's odd. It makes no sense to me. It doesn't fit clinical reality.
In terms of how to deal with them, it's tough, because the problem is not chronic pain; the problem is disability. If a guy's got chronic pain and he goes back to work, no one questions him; they don't question his pain. It's legitimized because he went back to work. Let's be straight and upfront: The problem is that of disability. Disability is a complex issue in a changing and complex world and there are many factors that go into it. If we're going to deal effectively with these people, we have to admit it's a complex problem and not go for simplistic answers.
The Chair: Thank you very much, gentlemen. We appreciate your bringing your ideas forward to the committee this afternoon.
LONDON LABOUR COUNCIL
LONDON DISTRICT BUILDING AND CONSTRUCTION TRADES COUNCIL
The Chair: I now call upon representatives of the London Labour Council. Welcome. Your 20 minutes allows you either to make a presentation or to allow time for questions.
Mr Joe Zsoldos: I am Joe Zsoldos, on behalf of the London Labour Council. We will be sharing our time with Terry O'Neil from the building association. I will start out.
Who are we? We are the London Labour Council, which represents both the private sector and public sector unions in this community and surrounding area.
The London Labour Council represents 23 unions, with 71 local unions, and a membership of 26,000. London Labour Council represents a very wide cross-section of workers who are affected by the changes that will take place under Bill 99. This submission is being submitted on behalf of all the unions and workers represented by the London Labour Council.
It usually is an honour to have an opportunity to appear before a government standing committee to make an important contribution in the decision-making process that affects approximately 10 million workers throughout this province. We do not share that feeling of honour with Bill 99.
What we have is a mockery of Bill 99 hearings by this government. The Harris government is only allowing 117 submissions to be heard in this province. There were 1,300 applications for standing to make submissions before this body. This is the largest request for any bill in the history of this province. It is a mockery of every working person in this province by this government to show so little concern for the working-class people who are affected by the changes in Bill 99. It is also a disgrace that this government only gave London 11 standing, of which labour received two and injured workers' advocate groups received one.
Our concerns: Bill 99 involves a complete rewrite of the Workers' Compensation Act. This bill affects the entire future of safety, labour relations and the treatment of injured workers on the job.
It was the promise of this government that they would not attack the disabled in this province. Well, what is an injured worker? Is this worker not a disabled worker who has, through an injury, been denied the ability to earn a living? This government sees fit to deny compensation or restrict benefits to such persons.
We have many concerns with all the rewrites in Bill 99, but with the time limits imposed, I will only touch on a few topics.
In workplaces across Ontario the incidence of injury is growing, particularly repetitive strain injuries, occupational stress and occupational disease. This is due to the speed-up and downsizing to become more competitive. Bill 99 dramatically reduces the right to entitlement to benefits for these injuries and reduces the number of claims for other injuries.
Certain injuries will be disqualified from entitlement to compensation. Bill 99 mandates limits on entitlement for chronic pain, leaving the definition of that limitation entirely to regulation.
Compensation for mental stress caused by working conditions or harassment will be prohibited by Bill 99. Injured workers will also be cut off by application of "normal healing times." Under this policy, the board determines the amount of time a worker will require to heal, based on an arbitrary "meat chart." If the worker is not healed in the required time, that worker will be cut off benefits. This is a violation of the fundamental concept written by Justice Meredith, of the Meredith commission, a former leader of the Conservative Party, that injured workers will receive benefits because of their injuries.
The Meredith commission established:
Employer-funded collective liability, where the vast majority of employers will have to contribute to a liability fund from which benefits would be paid.
A no-fault system: It will not be necessary to prove negligence on the part of the employer in order to receive benefits. Negligence on the part of the worker will not prevent workers from receiving benefits.
Security of benefits: Rejecting employer arguments regarding time limits, Meredith stated, "Compensation should be paid as long as the disability lasts, and the amount of compensation should relate to the earning power of that worker." That comes from the commission's response.
Administration by an independent agency: This was the beginning of the Workers' Compensation Board. A compensation law should render it impossible for a wealthy employer to harass an employee by compelling a worker to litigate their claim in a court of law.
Removal of litigation rights: To receive workers' compensation workers gave up the right to sue their employer.
With Bill 99, the Ontario government has attacked the principles of this commission. Under Bill 99, we are seeing an attack on the benefits for injured workers: a cut in benefits from 90% to 85% of net pay and handing rebates of 5% back to the employer on the backs of injured workers, who are actually disabled workers; the revised cost-of-living formula, which is half the consumer price index minus 1% to a maximum of 4%, further penalizing workers with permanent injuries. This cost of living will cut $9.3 billion from workers' income over the next 17 years.
In Bill 99, other changes threaten the earnings of injured workers, the basis on which the workers' 85% is calculated. The sections dealing with earnings are written very loosely. Earnings can be reduced by such factors as periods of layoff in the previous year. It also threatens workers who may have been off work in the previous year due to illness.
Bill 99 can effectively cut off workers' compensation benefits by deeming the worker able to earn a wage in suitable employment, which means the worker does not actually have an alternative job.
A worker can be deemed at any time after an injury, and it is not necessary that the deemed employment be available. If "deemed" is applied, the worker is then paid 85% of the difference of the injured worker's net average wage before the injury and the wage that injured worker is deemed to be able to earn. Example: If a worker earns $20 per hour before an injury and is deemed to be able to earn $12 per hour, that injured worker will receive 85% of $8 an hour.
Injured workers' benefits are effectively cut under Bill 99. This approach will affect workers with both short- and long-term injuries. This provision under Bill 99 will be used to cut workers with chronic pain and repetitive strain injuries.
Under Bill 99, workers must file their own claims. Under the old act, the doctor would file the claim. Workers will also have to provide the claim to their employer. This is the first of many steps built into Bill 99 to intimidate and influence workers' decisions not to file for compensation. The workers must authorize the release of their medical information to the employer. If the injured worker should refuse to release this information, the injured worker's benefits will be cut off.
The employer will be in constant communication under law with a worker who has filed a claim. This is to mean the employer's involvement in an early return to work. It will mean just that, but not for a safe and healthy return to work for the worker. If the injured worker fails to cooperate, this means the injured worker will be cut off benefits.
The employer, not the board, is responsible for the injured worker's return to work. The board has no responsibility to monitor the progress of the return-to-work plan; nor does it have to make any determination as to what work is suitable and consistent with the worker's functional ability.
If the employer decides not to cooperate in returning the worker to a job, under Bill 99 the employer has no penalties. The Board can simply place the worker on a labour market re-entry. This leaves the injured worker in search of another job with another employer, with no guarantee of a job.
Vocational rehabilitation also does not appear in Bill 99, thus eliminating rehabilitation for an injured worker. This eliminates the injured worker from returning to an equal or better position than the injured worker had pre-accident.
Bill 99 no longer defines the goal as restoring the worker's pre-injury earning capacity, but rather "when possible" restoring the worker's pre-injury earnings.
Bill 99 requires only that "a labour market re-entry plan determine the suitable employment or business for the worker." The board, or whichever private agency is developing the labour market re-entry plan, need only "deem" a worker to have a suitable job. Under Bill 99 it is no longer necessary that a job be available to that worker. After a minimal amount of job search training, the worker will be deemed to have a job and will be left to fend for himself or herself.
This is in direct violation of the Meredith commission, which firmly established that workers have a right to compensation for any injury at work and that employers have a responsibility to compensate workers injured in their employment. I ask, is Bill 99 not giving power to employers to play God with the wellbeing of workers and a way for employers to not accept the responsibility to provide a safe and healthy workplace?
Bill 99 has only two objectives: to cut workers benefits and to reduce employers' cost and liability for those workers injured and/or killed on the job.
In conclusion, the London Labour Council sees many dangerous aspects in Bill 99 which reflect employers' demands and which we have concern with:
(1) Reducing by 75% the inflation protection of unemployed workers with disabilities.
(2) Forcing workers to undergo risky operations or take drugs which they might prefer to avoid because it is cheaper than treatment recommended by their physician.
(3) Privatizing vocational rehabilitation so that making a profit from a worker's injury becomes a higher priority than the worker's wellbeing.
(4) Cutting future disabled workers' pensions in half when the government knows that most injured workers have no employers' pension plans.
(5) Cutting benefits from 90% to 85% of net pay to get tough with worker legislation and rebates of 5% to employers, which is get-soft legislation for employers.
(6) Setting arbitrary time limits for injuries, disabilities, chronic pain and stress.
(7) Eliminating the independent appeals system and WCAT decision-making being brought under the control of an employer representative appointed by this government.
(8) Deeming workers to be able to obtain jobs which are not available and then setting their benefit levels under the pretence that a job is available.
The London Labour Council with its affiliates has only one recommendation to this standing committee: that the standing committee vigorously oppose Bill 99 and recommend that the Harris Conservative government rescind Bill 99.
Mr Terry O'Neil: My name is Terry O'Neil. I'm business manager of the London District Building and Construction Trades Council. As such, I represent the 6,000-odd highly skilled men and women in the construction industry within the five-county immediate area.
I had originally thought of beginning my presentation by taking a look at some of the mythologies that surround the Workers' Compensation Board, its funding, its operations and its usefulness within our industrial society, but I imagine you've already been bombarded with enough of that today and on previous occasions, so I will skip over that.
That being the case, I would like to answer the proposed legislation in the most positive and constructive manner possible and from an all-too-often-ignored point of view, that of the construction industry.
Whether or not the sharp pencils and bottom-line baskers are prepared to accept or even recognize it as an immutable truth, the health of our industrial, institutional and commercial construction sectors and the health of our trades workforce are joined at the hip. It therefore stands to reason that our collective energies should be directed towards providing the healthiest of workforces, capable of supplying their finely honed skills and talents in an environment of trust and understanding rather than treating them with suspicion, subjecting them to punitive roadblocks and attempting to return them to the workplace before they are truly ready.
You wouldn't treat your car this way, you wouldn't treat your colleagues this way and you certainly wouldn't treat your family members this way. It must be remembered that any enlightened businessperson will tell you that while items of machinery may perform according to established business formulae, workforces don't, and that's because they're comprised of individuals whose value must be recognized, whose creativity and inventiveness must be encouraged and whose ability to perform to their highest level of proficiency must be protected and encouraged.
There is no doubt that workers' compensation reform is necessary to ensure fair compensation for injured workers today and into the 21st century. Increased workplace safety and more effective rehabilitation and back-to-work measures are in everybody's interest. That's everybody's: workers, employers and all taxpayers. Compensation dollars should go to injured workers, not administrative structures, consultants, private insurers and lawyers. All employers should be treated equally. Injuries and industrial diseases of the technological age, such as chronic stress, need to be better understood.
All workers' compensation reforms need to consider the unique circumstances of the construction industry, where soft tissue injuries account for over two thirds of all work-related injuries and rehabilitation efforts have been woefully inadequate in the past. If the government is serious about addressing workplace safety, lost productivity due to workplace accidents and ineffective rehabilitation, the construction industry is the place to start.
It was certainly surprising that such a reputedly astute observer as Cam Jackson in his discussion paper made no mention whatsoever of construction and that many of the changes considered in that document are irrelevant to the 251,000 unionized construction workers for whom workers' compensation is literally and figuratively a life and death issue. This is not the common sense of which you so often and so proudly speak.
It is our fervent hope that the current government will not repeat or continue the oversights of the past and of past governments, that it will recognize the often-understated value of the construction industry and that it will both acknowledge and attempt to understand the uniqueness of our industry.
It is in this light and in the spirit of the judicious and well-reasoned protection of such a valuable workforce, that we offer the following recommendations:
(1) Launch a comprehensive study of soft tissue injuries in the workplace, including prevention and rehabilitation, prior to introducing any legislative amendments. Focal points of such a study must include the construction industry.
(2) Reaffirm the principle that each case be determined on an individual basis. Whether disabilities such as chronic stress should be compensable depends on the individual worker's circumstances and, in the absence of updated medical knowledge, should not be a matter of general policy imposed by Queen's Park. Legislated health is an oxymoron.
(3) Retain the WCAT in its present form with adequate funding to perform its function efficiently.
(4) Retain the offices of the worker and employer advisers.
(5) Immediately reassure the thousands of recipients of permanent disability pensions that the financial woes of the WCB, however mythological, will not be solved at their expense and that their pensions will not be reduced.
(6) Study the human and financial costs prior to commutation of pensions being adopted as board policy. Commutation must not be viewed in isolation from or as an alternative to rehabilitation.
(7) An industry standard for the calculation of earnings basis should be developed that considers the class and character of the work, particularly in industries characterized by seasonal or cyclical work.
(8) Decision points for future economic loss awards should be related to an individual worker's rehabilitation plan, not be subject to arbitrary time limits.
(9) Develop obligation to re-employ measures, following consultation with the construction industry, consistent with the principle that construction employers have a collective responsibility to restore injured construction workers to productive employment.
(10) Recognize the distinctiveness of the construction industry in the design of employer incentives to accommodate or provide light or modified work and institute a definition of "sustainable employment" that is suitable to a project-oriented cyclical industry. Again, consultation is necessary.
(11) Retain the Workers' Compensation Board as the most efficient provider of coordinated vocational rehabilitation services.
(12) Extend workers' compensation coverage to all employers in Ontario.
(13) Work with the appropriate federal and provincial agencies to give the WCB greater priority in distribution of assets when employers dissolve or become bankrupt.
A great deal more study and sincere, well-informed, in-depth consultations are required before the government should even consider amendments to this legislation. The construction industry, since it represents 5.2% of the total provincial employment, second only to retail, not only has a right but a responsibility to be energetically and constructively involved in that process.
We are holding out a skilled and productively talented helping hand. Now let's get to work, together.
The Chair: Gentlemen, thank you for your thorough and thoughtful comments on the bill today. We appreciate your taking the time to come before this afternoon. Unfortunately, there isn't time for questions.
REGISTERED NURSES ASSOCIATION OF ONTARIO
The Chair: Colleagues, I would like to now call upon representatives from the Registered Nurses Association, please. Good afternoon. Welcome.
Ms Jacqueline Choiniere: My name is Jacqueline Choiniere. I'm the director of policy for the Registered Nurses Association of Ontario. I would like also to introduce Jan Kainer, who's a policy analyst; Kelly Waddingham, our legal counsel; and Glenda Hayward, who is one of our chapter presidents from the London area.
First to tell you a bit about RNAO. The RNAO is the professional organization for approximately 13,500 registered nurses who work throughout the health care system, and we are very pleased to be here today to have the opportunity to comment on this very important legislative initiative.
We have a number of issues with the current legislation which are outlined much more fully in the brief, the submission that has been circulated to you. However, because of time constraints, we will concentrate on two major issues arising from this legislation that we particularly want to draw your attention to.
The first concerns the impact of the bill on nurses who are having to work in an increasingly stress-induced environment, which is the consequence of financial constraint, restraint and restructuring. At a time when nurses are experiencing high levels of stress, they will have reduced access to compensation benefits when they most need them. We are concerned about how nurses will be affected as users of this compensation system.
The second issue we will be discussing is the role nurses are assigned within the administration of the compensation system itself, specifically, that nurses are being recruited to act as case managers in the processing of claims. One of our concerns here is that the proposed legislation, at least certain components of the bill, may prevent nurses from performing their professional responsibilities fully.
Now I'd like to expand on both of these points a little more.
For the first one, nurses are users of the compensation system. In the current context nurses are confronting an uncertain work environment. Stress-inducing factors such as workplace reorganizing, increased work load, understaffing and job insecurity are commonplace throughout the health care sector.
In this environment of restructuring, we are witnessing health care providers who are increasingly exposed to high health risk situations. It is well documented that high stress environments increase people's vulnerability to injury. In the hospital sector, for example, nurses are experiencing work intensification as hospitals re-organize their operations, increasing the volume of patients and improving efficiencies. People are much sicker.
Patient security is progressively increasing as length of stay in hospitals decreases. These workplace changes are putting tremendous physical and mental strain on nurses. Registered nurses are particularly at risk of stress as fewer of them are available to attend to patient needs or to supervise other providers. Budget cuts have compelled hospital administrators to reduce staff levels, one of the major complaints commonly heard by our members, and we hear by our members, is the problem of understaffing.
Understaffing can result in nurses having to work alone without the benefit of assistance from others, particularly problematic when work with critically ill or difficult patient-clients, and if this situation puts the nurse at a much higher risk of injury. Indeed, data from the Workers' Compensation Board on the number of injuries in nursing occupations by source of injury indicate that the largest category of injury is related to "persons," that is, the largest number of injuries reported are related to activities such as moving and lifting patients or from patient assault.
Understaffing of health care personnel also means that nurses are less likely to receive sufficient breaks during their shifts, and without adequate staffing nurses feel it's not possible to take a break without compromising quality patient care. A nurse who is responsible, for example, when overseeing the smooth operation of a unit, may just never risk leaving it if it's a particularly busy time.
When nurses are working a 12-hour shift, the absence of breaks over a prolonged period time may lead to leg, foot and back injuries due to the long periods of standing and walking. Recent research indicates that nurses are put at greater risk of injuries when hospitals are understaffed. A landmark study in the US analyses work-related injury in a time of hospital reorganization and concludes that restructuring in hospitals increases back, neck and shoulder injuries for nurses.
Another ongoing trend occurring in hospitals that can incur health risks to nurses is the implementation of multiskilling or cross-training, which requires nurses to practise what is already a broad range of skills but over a much broader space or type of patient or type of unit. The RN in this instance practises in more than one area or speciality, and this means, as a result of merging, that our nurses must work intensively, covering a larger number of patients using a diverse range of skills, cover a much larger physical space, and problems such as tendonitis have appeared, which is a result of walking over a much larger space in a much shorter time period. Again, data from the Ontario Workers' Compensation Board show that a higher percentage of injuries in nursing occupations is associated with running, walking and climbing.
The proposed six-month time limitation in which to file a claim will preclude the nurse from being able to make a claim who has symptoms of tendonitis or back injury that appear, for example, in month 7. In other words, registered nurses will be significantly disadvantaged because the reality of nursing injuries does not fit this very narrow and restrictive old.
The RNAO has much more to say and certainly more data to share about the chronic pain issue and we would like the committee to know that we will be submitting a separate response before the August 25 deadline to these issues.
In addition to physical strength, nurses are experiencing greater mental stress because of the increased pressures and demands from the workplace. Nursing has long been identified as a high-risk occupation. However, the occupational stressors in nursing are exacerbated in this period of restructuring and budget cuts.
Today increased workload, chronic short staffing, workplace reorganization, multiskilling and insecurity of employment are just some of the stress-inducing factors that nurses confront on a continual basis. Our office has received calls from more and more members who are experiencing these problems due to the reality of the current workplace.
Many of us who have encountered an emergency room lately can attest to the incredible stress and pressure that nurses encounter for hours on end. In spite of this reality, nurses, indeed any worker, will not be compensated for this intensive stress because it does not fit the following acceptable definition, and I'm quoting here, section 12, sub (5) of the proposed bill that states: "an acute reaction to a sudden and unexpected traumatic event arising in the course of...employment." In effect, the relentless ongoing stresses and trauma of the current health care restructuring scene will not qualify.
The proposed bill clearly states, again section 12, sub (5), that there will be no benefits for mental stress caused by an employer's decision or actions related to employment, including the decision to change the work to be performed or the working conditions. We're very concerned that this will place our members in an impossible situation.
As restructuring proceeds, nurses have to have access to fair and appropriate compensation benefits and to a rehabilitative system that offers support for the injured to return to work. Legislation must be maintained that recognizes occupational stress and that provides income support for employees who have incurred both psychological and physical injuries at the workplace.
The other major dimension of the proposed changes we're concerned about relates to the administration of the workers' compensation claim. We understand the WCB is implementing a new service delivery model and that nurses will be assigned as case managers to administer claims. The implications of this are both positive and negative for nurses. On one hand, we fully agree that nurses should be case managers, as they have the knowledge base about health, health problems and appropriate treatments that will enable them to effectively operate within the compensation system. On the other hand, nurses will be required to make decisions in accordance with the proposed legislation that could seriously compromise the quality of care for injured workers.
We're referring here to subsection 33(2), which states that the board "may provide a special surgical operation or special medical treatment...if, in the opinion of the board, doing so is the only means of avoiding substantial payments under the insurance plan." It will be extremely difficult, if not impossible, for nurses to work under legislation which ultimately requires them to make decisions about appropriate treatment solely on the basis of monetary considerations rather than principles of sound practice. In fact, doing so is contradictory to the nurse's accountability regarding professional practice.
Another clause in the legislation that concerns us is subsection 33(8), which states that the board "shall determine all questions concerning...the necessity, appropriateness and sufficiency of health care provided to a worker." What is considered necessary health care will be controversial if compensation payments are the primary consideration. RNAO therefore recommends deleting subsections 33(2) and 33(8) of the bill.
Under the proposed legislation, the nurse case manager is required to facilitate an injured worker's early and safe return to work, but the labour market re-entry plan as defined by the bill does not guarantee an injured worker access to training or to a job re-entry plan. The nurse case manager will also be required to make decisions in regard to adjudicating claims on a three-person team, including herself or himself, a WCB adjudicator and an employer representative. Within this team approach, the nurse case manager may find himself or herself at a disadvantage relative to the other team members who might be focused instead on a quick return-to-work strategy to avoid WCB payments rather than on quality-of-life and health issues. However, the nurse case manager will not have the legislative mandate to effectively argue and carry out the rehabilitative strategy.
In conclusion, RNAO is very concerned that the proposed changes to the workers' compensation system will have a very deleterious effect on registered nurses. RNs are particularly vulnerable now to mental and physical injuries, given the range and pace of health care restructuring. This is not the time to restrict entitlements.
In addition, while we applaud the utilization of RNs as case managers in processing these claims, we also strongly urge the government to ensure that these very valuable professionals be allowed to practise in accordance with their professional standards and responsibilities.
We thank you for the opportunity to present our views to the standing committee and urge your support for our recommendations.
Mr Maves: Thank you very much for your presentation. It covered a lot of topics, and I guess I'll just talk about one. It may not be a fair comparison, but I think it goes to the heart of the idea of compensating for chronic stress. In your workplace, if you have restructuring at the hospital you're working at and as a result you are required to now become responsible for some additional patients each shift, what I'm reading is you're saying that adds stress to your job because you're responsible for more people and it should be something that's compensable if you decide to file a claim.
What I'm worried about is the Pandora's box you might open in that instance. Mr Carroll used to sell cars. If he could say to his staff, "You used to have to sell six cars a month and now you've got to sell 10," someone could say: "That's adding a lot of stress. It's extra performance. I'm going off on a claim." I'm not trying to diminish. I'm trying to show you where I think a lot of people are really nervous about the idea of compensating for chronic stress.
Ms Choiniere: I suggest, though, that I think a worse scenario for our members would be not being able to receive compensation if something did happen in that situation. I'll turn this over to one of my other colleagues.
Dr Jan Kainer: I don't think you understand what we were trying to say. We're talking about multiskilling, changes that are being made at the hospital level in which nurses have to cover more physical ground. That means more walking. There are more patients the nurse has to care for, which makes her job more intensive, much more work. It isn't a question that we think nurses should be compensated for having more patients; it's more that the context of the work has changed. It's much more intense now for workers. They're more vulnerable to injury as a result of a changing workplace.
Mr Maves: I understand that, but as it relates to chronic mental stress, it appears that because of what you've just told me, that should be something for which you could file a claim for compensation.
Dr Kainer: No. I think that's a different issue. We're talking about mental stress. Mental stress is not clearly in the legislation, and what is defined is that it's only under certain conditions that you can file a claim for mental stress. We're saying that mental stress is endemic to some units in the hospital sector, for example, working in emergency, and that nurses should have the right to make a claim for mental stress in that particular instance.
Mr Maves: Are you aware of the OMA's position on chronic mental stress?
Dr Kainer: No.
Mr Maves: They don't think it should be compensable, but I wondered if you knew about it.
Mr Patten: Thank you for your presentation. In my previous incarnation, I worked in the health field at a hospital, and so I have great appreciation for your profession. I know that there is increased pressure from all sides to do more, to learn more and to be expected to always come through with shining colours, a smiling face and tremendous demureness as you deal with a variety of issues.
On the section on mental stress, I don't know if you heard the doctors who were here a little earlier, but they were quite good on illustrating the clinical basis of chronic pain and under the area of mental stress, many of the community legal clinics have said that if there wasn't a recognition of the legitimacy of that, it would be akin to discrimination of recognizing something with legitimacy which is documented and can be put forward and that it would probably be contested on the basis of our human rights charter. Do you have a feel for that area as you talk about this area? I know this area is a big issue for your profession.
Ms Kelly Waddingham: I would assume that probably the people from the legal aid clinics were referring to a case that was before the Supreme Court of Canada a couple of years ago, and it was differentiating between discrimination that was based on people who were suffering from psychiatric problems as opposed to people who were suffering from physical disabilities.
The Supreme Court held that it was unconstitutional to differentiate between the two, and our position would be the same. Right now, as the proposed bill stands, there is no compensation unless you fit a very narrow definition. We believe that (a) it's wrong not to have compensation for mental stress, and (b) that very narrow definition is just bad. Within our submissions we talked about the fact that for an emergency nurse, for instance, who works in emergency, what is a traumatic event? It becomes very difficult to measure that.
Mr Patten: I was just going to get to that point. I agree with that. How can you differentiate from one event and which one it was, because in a hospital there are so many events that are traumatic. How can you differentiate a series of what I might call traumatic, over time, for highly specialized RNs? It wears you down.
Ms Waddingham: Right. It's a cumulative effect. So in effect, after a while someone eventually says, "I can't take this amount of stress any more."
Mr Patten: I know in intensive care at the Children's Hospital where I worked they would rotate nurses after a while because it was such a traumatic experience for them over a period of time, seeing the loss of children and dealing with parents and this sort thing, that they just had to shift them to other wards within the hospital for a while.
Ms Waddingham: What's important to remember is that stress is very individualized, so the question we had over here, if you increase someone's workload, does that mean they automatically get compensation? I don't think the RNAO would agree with that at all, but we want a recognition that as there are more demands on RNs working in a ward, some individuals will succumb to that cumulative stress and it will mean that they should have some entitlement to workers' comp, we believe.
Mr Patten: Talking about stress, I'm sure Bill 136 will add to that as well.
Ms Waddingham: That's correct.
Mrs Boyd: Thank you very much for coming and for presenting. We were very pleased to see the RNAO on the list of presenters and very pleased that you got an opportunity to talk about some of these issues. Very often people forget that professional people are often exposed to workplace injury and disease in a very real way. So it's very helpful to have input from professionals.
One of the things that struck me in your presentation where you were talking about stress, and I may have just missed it, is that the restructuring is also causing your patients to be sicker. Because they're leaving hospital sooner and not coming into hospital early, every patient you have is very ill in a way that wasn't true 10 years ago, where people would come in the day before surgery and there would be a preparatory period and they would stay for longer afterwards.
When we talk about accumulated stress, we're talking about more patients but we're also talking about sicker patients and we're also talking about professionals who are constantly under scrutiny in terms of their professional practice. You are professionally liable in terms of your practice.
It is nothing like selling cars, Mr Maves. How you could even make that comparison is beyond me. We are talking about people who are providing human services in an increasingly technological way so they need to increase those skills all the time. Patients are sicker, there are more of them for each professional to look after and what we are really looking at is a situation where a series of traumas build up in a very different way than they would in the car salesman business, or even in many of the blue-collar areas, where stress is also high for other reasons. Productivity stress, so many widgets per minute and that sort of thing can be very stressful. We all have seen that sort of thing. I think it really did disservice to the professional nature of your work.
Ms Choiniere: The only thing I would add to that is that restructuring, unfortunately, reduces the options for the nurse to get away from it, to find an alternative venue, to seek that relief. We can't underestimate the cumulative effect that has.
Mrs Boyd: I would agree, and Mr Patten's comment about the rotation of nurses from one service to another may have worked in a day when all those services were not subject to the same kind of stress.
I'm really concerned about the point you raised about professional capacity in terms of the suggestion that you be case managers. I don't think that has been looked into clearly in terms of your ethical obligations and what is anticipated here in terms of cost control. That's a very good point. Thank you for bringing it forward.
The Chair: That concludes the presentation time. On behalf of the members of the committee, I thank you for bringing your brief before us today.
BREWERY, GENERAL AND PROFESSIONAL WORKERS' UNION
The Chair: We'd now like to hear from representatives from the Brewery, General and Professional Workers' Union, please. Welcome, sir. Please introduce yourself.
Mr George Redmond: My name is George Redmond. I'm the business agent for the Brewery, General and Professional Workers' Union. We represent over 5,000 workers in Ontario in a multitude of different industries and offices.
I'd like to thank the committee for the opportunity to present the viewpoint of the Brewery, General and Professional Workers' Union and highlight what we feel will be some of the significantly negative impacts the changes in Bill 99 will have upon our injured members and their families as well as all workers who will be injured and their families.
I would be remiss if I did not point out as well that with the limited amount of time the government has scheduled to hear briefs, a very small portion of those who requested an opportunity to appear before you to express their concerns will be heard. It's clear that the government has a cavalier attitude towards the public and the impact these changes will have on hundreds of thousands of working people and their families in Ontario.
The list of problems with Bill 99 are numerous, and although not an exhaustive list, includes:
Unclear and vague language in the act;
Reduction of benefit levels from 90% of net average earnings to 85%;
Deindexing of pensions and benefits;
Intimidation and coercion of injured workers by requiring them to file claims where there may be language and literacy issues;
Dismantling of the independent Occupational Disease Panel;
More reliance on experience rating, making non-reporting and underreporting of workplace injuries profitable;
Weakening return-to-work requirements and development of labour market re-entry plans with the possibility of little or no injured worker input or treating physician input;
No requirement to have available and suitable work at the end of those plans;
Release of confidential medical information without appropriate safeguards;
The gutting of WCAT by destroying its independence by requiring them to follow board policy instead of law;
Further limiting WCAT independence by moving to a single vice-chair, thereby allowing a singular political appointee;
Appointments being made with no labour or injured worker input.
Arbitrary time limits for appeals, both at the board and WCAT.
Limiting time for reporting of injuries and disease at risk of losing benefits;
Reducing budgets for legislated obligations like the OWA, WCAT, the Occupational Disease Panel and occupational health and safety initiatives like the Workplace Health and Safety Agency and the Workers' Health and Safety Centre;
Privatization of rehab services and reduction of voc rehab case workers at the board;
Downsizing and limiting access to workplace analysts and ergonomic specialists at the board;
Introducing material change with no policy or regulation in place, leaving injured workers with little if any understanding of how or what may reduce or cut off their benefits for not cooperating;
Limiting compensation for chronic pain to usual healing times. The entire issue with chronic pain is that it goes beyond usual or normal healing times. I think the presenters earlier made that point quite clearly;
Making it more difficult, if not impossible, to claim benefits for repetitive strain injuries and work-related stress;
Elevation of policy above the letter of the law, thereby impeding natural justice and the right to appeal;
Making the board responsible for medical treatment, as opposed to the injured worker, in consultation with their doctor of choice;
Reduction of assessment levels at the expense of injured workers or their survivors' benefits;
Reduction of retirement benefits from 10% to 5%;
Before addressing some areas of concern that I've raised, I'd like to comment on the foundation that Bill 99 was built upon;
In the Cam Jackson report, which was issued prior to the introduction of Bill 99, he states in the executive summary: "These reforms will allow the government to remove significant barriers to job creation and economic competitiveness by keeping its commitment to lower WCB assessment rates." Prior to introducing Bill 99, the Minister of Labour, Elizabeth Witmer, stated in the House that the changes to be introduced later today "provide a balanced approach to reform by preserving fair and secure benefits for injured workers while at the same time restoring financial viability to the Workers' Compensation Board."
These statements suggest that current assessment rates in Ontario are higher than in other comparable jurisdictions and impede competitiveness, require lowering and that there's a crisis at the board with the unfunded liability. The government and employers have alluded to this unfunded liability as putting Ontario in a negative competitive position for employers, and that the public is on the hook for the cost. This is clearly not the case. The unfunded liability lies solely with employers in Ontario.
This unfunded liability did not come about on its own. It has grown bigger over the last 15 years and the board has developed at least two separate funding strategies over that time to retire the unfunded liability. Each time employers have been successful at keeping rate increases below what those strategies have suggested. They have dodged suggested increase assessments by using employer representatives on the board of directors of the Workers' Compensation Board to keep suggested rate increases down for at least a decade.
It's curious that they're not nearly as concerned with pension fund unfunded liabilities and see nothing wrong with paying them off over 10 or 15 years. The general public has unfunded liabilities with their home mortgages. They don't seem to be in crisis, nor the banks that carry those mortgages, yet their personal unfunded liabilities are paid down over a 20- or 25-year period.
To understand what employers have done to create this unfunded liability at the board, I'd like to draw a simple analogy. If I were to look at my mortgage for my home as part of my personal unfunded liability and my mortgage payments were $800 a month and I chose to pay only $500 a month, provided my mortgage company allowed me to do that, would I be surprised that after five years I owed more than what I started with? I think not, yet the employers and the government are surprised. I see this as a concerted effort to create a non-existent crisis.
In their fight to reduce assessment rates, employers have suggested that the average assessment rate in Ontario of $3 per $100 of payroll is too high and should be reduced. In a study produced by the Bureau of Labor Statistics in the United States, the average WCB assessment is 70 cents per hour or 4.1% of an average blue-collar worker's average total compensation of $17.28 per hour. That amount comes to $4.05 per $100 of total compensation US funds, or US$4.05 times C$1.38, $5.59 per $100 of payroll.
Looking at another study conducted by KPMG Management Consultants in 1995, titled A Comparison Of Business Costs in Canada and the United States, they have looked at labour wage rates, statutory benefits and taxes in a number of cities and representative industries throughout Canada and the United States. In both Ontario sites, London and Ottawa, workers' compensation costs were significantly cheaper than in all seven similar cities and industries in seven separate states in the United States.
In general the KPMG study shows, "While the 1994 results showed Canadian jurisdictions to be cost-competitive, the results for 1995 show significant cost advantage for Canadian locations." In the House, Minister Witmer suggested that this KPMG study was a selective survey, yet the study looked at similar industries in Canada and the United States in cities of similar demographics. I would like to ask the government: If these are selective studies, where are the empirical data the government relied upon in developing Bill 99? I would suggest it was built upon a general shopping list to reduce employer costs and increase their profits, not to provide fair compensation and prevent injuries.
When we turn to the issue of benefit rates, employers have said that injured workers are overcompensated at 90% of net earnings. During the time leading up to Bill 165, a bill to amend the Workers' Compensation Act, I had the opportunity to participate in one of the task forces for the Premier's Labour-Management Advisory Committee regarding workers' compensation. Our task at the time was to come up with a base scenario to see what kind of financial impact other changes would have on the workers' compensation funding strategy.
At that time the employers' representative on the committee, Ted Nixon from Mercer consulting, raised the issue of overcompensation, and other employer groups have raised that same issue here today. When I asked the board to provide examples, or Mr Nixon, the employer rep on the subcommittee, he indicated that it was an employer perception and that there were no concrete numbers; this was a perception they relied on, that people were being paid too much. This perception made it into the employers' recommendation to the House, brought forward by the third party of the day, the Conservatives, and subsequently into the Cam Jackson report to amend the Workers' Compensation Act when the Conservatives came into power.
Someone recently said to me that perception is everything. I suppose they where right. Bill 99 recommends reducing benefit levels to 85% of net earnings on a perception, not empirical data. If the unfunded liability, cost competitiveness and overcompensation are the underpinning of Bill 99, and this premise is built on quicksand, why the urgent need to introduce such massive change to the Ontario's Workers' Compensation Act? The answer is clear: This Conservative government has a promise to keep to their employer friends no matter how ill founded their reasons are and they intend to follow through regardless of the facts.
I'd just like to ask a question: What time did I start at, seeing the other people went over a little bit?
The Chair: You started at 5:05; you've finished 11 minutes of your time.
Mr Redmond: I just want to make sure I cover some specific areas of this representation.
Section 1 of the Workplace Safety and Insurance Act amends the previous concept of fair compensation and rehabilitation services and substitutes instead, under paragraph 3 of section 1: "To provide compensation and other benefits to those workers and to the spouses and dependants of deceased workers."
We would suggest that the words "fair compensation," as stated by Minister Witmer in the House prior to the introduction of Bill 99, and "to provide rehabilitation and programs to facilitate the worker's return to work," be reintroduced into the act to ensure there is not a future erosion of benefits, as well as returning to 90% of net earnings. Rehabilitation is fundamental to injured workers in returning to pre-accident earning levels.
We would further recommend that the government not reduce assessment rates for employers. If their intent is to retire the unfunded liability and the board is in crisis because of the unfunded liability, why give their business friends a $6-billion gift? We keep hearing that the government's job creation and the economy are improving. If that's the case, current assessment rate levels are not impeding competitiveness, nor growth, and should remain at current levels.
Bill 99 purports to change the intention of the act from one of compensation to focus on health and safety and prevention. Yet in the time leading up to the introduction of Bill 99, the government has dismantled the Workplace Health and Safety Agency and reduced the budget of the health and safety division of the labour ministry by 25%. They are also internalizing the Occupational Disease Panel. The board of directors of the Workplace Safety and Insurance Act, which is employer controlled, will decide what workplace studies to undertake to determine relatedness of exposure and occupational disease.
The bipartite board from the Workplace Health and Safety Agency is gone, so health and safety programs and training will be entirely employer controlled, and the delivery agency of choice of workers, the Workplace Health and Safety Centre, may be incorporated into one of the employer-controlled delivery organizations, controlled by employers again.
If the government's intent was to level the playing field for employers, I would hate to see what you might do if you intended to give employers the upper hand in areas of workplace health and safety, prevention and workers' compensation. If we remove research by internalizing the ODP, minimize and control the training by closing the agency and amalgamating the Workplace Health and Safety Centre, then the problem won't exist, or at least we, the workers, won't notice it.
I'd like to flip through this to go to some of the recommendations on return to work. I've listed a fair bit between pages 7 and 9 about some of the concerns, but to ensure we get them in I want to talk about the recommendations on page 10. But I want to cover one other thing on return to work.
In a study titled Post-Injury Employment Patterns in Ontario, prepared for Challenges to Workers' Compensation in Canada, School of Industrial Relations, Queens University, April 30, 1993, they looked at 11,000 workers in Ontario who were permanently and partially impaired. It was conducted on injured workers between 1974 and 1987 so the researchers could follow the return-to-work probabilities for at least three years. They state, "Our results imply that employers are more likely to provide job accommodation to union members than to unorganized workers, therefore improving unionized workers' probabilities of retaining post-injury jobs." The study also indicates that older workers, women and less educated workers are more likely to follow employment patterns that end in premature withdrawal from the labour force.
I think it's clear that this legislation that is in place, even when we introduced the NEL and FEL system, is still not addressing the concerns of some of those disadvantaged groups. The recommendations that Bill 99 has go a long way to making that even more difficult by introducing the two-tier possible return to work with the pre-accident employer or labour market re-entry plan. I want to talk about the recommendations specifically and about the changes we'd like to see to the sections of the act that impact returning to work.
First, section 21(1): "A worker or the worker's treating health professional shall file a claim as soon as possible after the accident that gives rise to the claim, but in no case shall he or she file a claim more than six months after the worker learns that the injury arose out of the worker's employment or, in the case of the occupational disease, after the worker learns that he or she suffers from the disease."
Again, we want to return to where the physician can initiate the claim so that injured workers who are disadvantaged because of literacy skills, English as a second language or have limited education will have an opportunity to ensure that they get their claim filed in a timely fashion.
"(2) A survivor who is entitled to benefits as a result of the death of a worker shall file a claim as soon as possible after the worker's death, but in no case shall he or she file a claim more than six months after it has been determined that the worker's death arose out of the worker's employment."
"Consent re functional abilities
"(5) If an employer operates a return-to-work program which has been accredited by the board under subsection 82(4), a worker must consent to the disclosure to his or her employer of information provided by a health professional under subsection 37(3) concerning the worker's functional abilities, when filing a claim. This disclosure is for the sole purpose of facilitating the worker's return to work."
This is fundamental to make sure that these programs are accredited prior to the release of this information. If there isn't an accreditation of any sort of return-to-work program -- the language in 40(1)(b) talks about "attempting to" and "may" and doing a bunch of things like that. As you noticed, when the London Home Builders' Association presented they talked about how maybe we should get exemptions for smaller ones because they have difficulty in doing this. If you don't have an accredited program in place first, they're not going to get back to work. That's going to defeat the entire purpose of your suggested changes.
"Notice to employer
"(7) The claimant shall give a copy of his or her claim to the worker's employer at the time the claim is given to the board and the employer shall give a copy of the employer's report of the accident to the claimant or the claimant's representative at the time the report is given to the board."
We'd like to see subsection 32(2) deleted and section 34 deleted.
"Employer request for health examination
"36(1) Upon the request of his or her employer, a worker who claims benefits under the insurance plan shall submit to a health examination by a health professional selected and paid for by the employer. It is an offence under this act for the health professional or board employee to disclose diagnostic information to a worker's employer. Such information will be used by the board solely for adjudication purposes."
That information is not required for return to work. That isn't functional abilities; this is diagnostic information, not what the person can do on return.
"Reports re health care
"37(1) Every health care practitioner who provides health care to a worker claiming benefits under the insurance plan or who is consulted with respect to his or her health care shall promptly give the board such information relating to the worker's claim as the board may require."
The same applies for other medical information.
I'd like to look at page 12:
"Obligation to re-employ
"41(4) When the worker is medically able to perform the essential duties of his or her pre-injury employment, the employer shall, in consultation with the workplace return-to-work committee described in subsection 41(6)," and then it goes through that section.
The workplace committee and functional abilities evaluation: If I were to give you a form with the information ticked off on it, there's very little skill in a lot of workplaces, if there isn't some training in place, to tell you how you apply those functional abilities. That tells you what you can do in certain aspects of the job. There's still a matter of doing a job search, looking at how the job can be accommodated. Without some sort of accommodation in the workplace, return to work just isn't going to work.
Chronic pain: The doctors who were talking about that said the ability to change is one of the biggest things an injured worker has to do, but for them to be able to change how they do the job, the workplace has to be able to accommodate those changes. That has to be introduced into it as well.
"41(4)(a) offer to re-employer the worker in the position that worker held on the date of injure; or
"(b) offer to provide the worker with alternative employment of a nature and at earnings comparable to the worker's employment on the date of injury."
What we're trying to do is re-establish pre-earnings accident levels.
"Duty to accommodate
"41(6) The employer shall accommodate the worker or the workplace for the worker to the extent that the accommodation does not cause undue hardship. The employer shall implement a joint return-to-work committee consisting of equal numbers of management and worker representatives:
"(a) the minimum number of committee members is four
"(b) the employer will ensure the committee members are adequately trained
"(c) where a union exists, the union will determine the committee's worker representatives."
It's important. To have a return-to-work program without the skills to implement it does very little for you.
"Suitable and available employment
"42(2) In deciding whether a plan is to be prepared for the worker, the board and the worker shall consult to determine the suitable employment or business for the worker. Such employment or business must be practically available in the vicinity of the worker's community. If the employment or business is available and suitable, the board shall also determine the earnings from the employment business."
This is an important feature. You've heard other people talk about what we had before in deeming and now with the labour market re-entry plan, where you may get some training. Whether there's any job at the end of that tunnel, who knows? This has to be implemented in a fashion where there is something concrete available to the injured worker when they're done that training.
The Chair: Mr Redmond, could you please sum up?
Mr Redmond: Could I please sum up? Okay.
There's more, on the independence of the WCAT panel.
I just want to make one comment, I suppose, on clause 41(4)(b). I talked about vague and unclear language:
"(b) attempting to identify and arrange suitable employment that is consistent with the worker's functional abilities and that, when possible, restores the worker's pre-injury earnings."
I find that interesting language. My job is basically about 80% negotiations and grievance handling. In that role, what I deal with all the time is drafting language and interpreting language. I have to tell you, if I were to get that from an employer representative across the bargaining table, where I had some actual power to deal with it, which isn't the case here -- it's not worth the paper it's written on. It does nothing. It's subjective. It's unclear. It's open to interpretation. That just doesn't do anything.
Actually, I made a whole page of things I'd like to comment on in other people's briefs, but I apparently don't have time for that. I'd like to thank you for the time you've given me. I guess there is no time for questions.
The Chair: No, there isn't, but on behalf of the members of the committee, I thank you for your thoughtful and very comprehensive brief. I know we'll take the time to read it carefully.
Mr Redmond: I'm going to check later to make sure you do.
The Chair: Okay. Thank you.
ONTARIO KINESIOLOGY ASSOCIATION
The Chair: I now call representatives from the Ontario Kinesiology Association of London.
Mr Greg Gillam: My board of directors is mostly in Toronto. They weren't able to attend today, so I'm presenting solely. On behalf of the Ontario Kinesiology Association, I would like to thank you very much for inviting me to speak before the standing committee on resources development regarding Bill 99, the Workers' Compensation Reform Act.
The Ontario Kinesiology Association is the only professional association representing the interests of kinesiologists in Ontario. Founded in 1981, the association is an incorporated non-profit organization, and we currently represent over 900 members. The board of directors consists of certified member volunteers elected annually by the membership. There are three levels of membership, those being student, affiliate and certified, with the certified status having full voting privileges.
The efforts of the board of directors have been extremely fruitful, resulting in the creation of many professional policies and standards which include but are not limited to mission and philosophy statements, scope of practice, standards and ethics policy, educational syllabus, continuing education standards program, professional disciplinary hearings and appeals process, procedural bylaws, a professional exam and a voluntary college, both in process.
Through the efforts of the board of directors, the association has also enjoyed a heightened professional profile from its membership and involvement with both the Rehabilitation Council of Ontario and the Alliance of Environment, Health and Safety Professions of Ontario. A lot of the professional policies I mention are provided in the submission.
The Ontario Kinesiology Association believes that a kinesiologist is a highly educated and uniquely qualified health care professional. Our certified members receive the designation of certified kinesiologist after completion of a honours bachelor of science degree in kinesiology from an accredited university. They are bound by and accountable to the professional policies and standards mentioned above. With reference to the purpose of these public hearings, the Ontario Kinesiology Association feels that kinesiologists are significant providers of therapeutic interventions such as exercise prescription, work hardening and work conditioning, education as it pertains to safety, health and lifestyle, ergonomics, case management and vocational rehabilitation. Additionally, kinesiologists are regularly employed in evaluative procedures such as functional abilities evaluations, physical demands analysis, worksite analysis, cardiovascular assessment and strength testing.
Many of the ergonomic specialists within the current Workers' Compensation Board have their educational background in kinesiology. Kinesiologists are widely employed in regional evaluation centres, community clinic programs and rehabilitation clinics throughout Ontario. For the purposes of this public hearing, we wish to address the issues of injury and disease prevention, health care and return to work, as outlined in the act.
Firstly, as pertaining to part II, injury and disease prevention, the OKA is very pleased to see a major focus placed on this component. We feel this is an essential issue in the promotion of health and safety for the worker. Realizing that work-related injuries and occupational disease lead to very costly losses in production and revenues, we also believe that this focus will be equally beneficial to the employer. We recognize and support the functions of the board as outlined in part II, section 4(1), items 1 to 11, of the act. The association holds the principle of workplace safety and injury prevention in the highest regard. Our educational background and professional philosophy equip us with the necessary tools and perspective to provide and promote these key services to both the worker and the employer. Resultingly, kinesiologists have been proficiently performing these services for many years.
As a point of information regarding part II, section 4(1), items 4 and 5, we ask that you carefully review the standard of the certified kinesiologist as a qualified person who is required to be certified for the purposes of the Occupational Health and Safety Act. We feel that the certified kinesiologist offers an excellent and appropriate level of skill and education which is relevant to the guiding principles laid out in the Occupational Health and Safety Act. The content and structure of that certified kinesiologist designation is also in the submission.
Again, the OKA is very encouraged with the government's focus on injury and disease prevention. We regret that we have not been more involved in the early development stages of the act, but we ask that the standing committee on resources development would recognize the special skills and abilities that certified kinesiologists can bring to the further development, implementation and day-to-day operation of such an issue. We offer our expertise, commitment and enthusiasm to the future success of the Workers' Compensation Reform Act.
Pertaining to part IV, section 32, health care, we recognize the content of items (a) to (g), noting that we are currently involved in the activities relating to items (a), (b), (e), and (f). We ask that certified kinesiologists continue to be involved in any future developments or modifications to these items as the board deems appropriate.
Pertaining to part IV, section 33(4), the association requests that the board would invite the association to be involved in the establishment of fee schedules, should this be undertaken. We feel that kinesiology is a key stakeholder in the health care of injured workers and, resultingly, we would have valuable information to provide to such an endeavour. As an example, the OKA has been directly involved with the establishment of similar fee schedules for Bill 59, the Automobile Insurance Rate Stability Act, since first being invited in August of last year.
With regard to part IV, sections 35(1) and 36(1), we request that certified kinesiologists be included to the list of health professionals selected by the board for the purposes of providing components of a health examination to a worker who claims or is receiving benefits. Such components may include a functional abilities evaluation or physical demands analysis.
Concerning part IV, section 37(3), we also request that certified kinesiologists be included in the list of health professionals that may be requested by the injured worker or employer to provide information as may be prescribed concerning the worker's functional abilities. As many kinesiologists are regularly responsible for performing functional abilities evaluations and work site analysis for injured workers, we believe we are a key stakeholder as well in the delivery of that information regarding the worker's functional abilities.
Finally, with regard to part V, return to work, section 40(b), the Ontario Kinesiology Association asks that certified kinesiologists, recognized as being key stakeholders in the injured worker's recovery process, be consulted and involved in the identification and arrangement of suitable employment which is consistent with the worker's functional abilities. The understanding and information gained by the health care worker during the recovery process is extremely applicable and beneficial to the matching of a rehabilitated worker to suitable employment.
In conclusion, the OKA is very supportive of the government's plan to revise the workers' compensation system in a manner that will improve health and safety for workers and effectively address the unfunded liability of the current Workers' Compensation Board. We thank you sincerely for inviting us to present our ideas and we strongly encourage the new board to maintain a close and effective relationship with key stakeholders such as certified kinesiologists.
Mr Patten: Mr Gillam, thank you for that. Do you feel your profession is left out?
Mr Gillam: Yes, a little bit.
Mr Patten: A bit. Okay.
You say that you're very pleased to see a major focus being placed on injury and disease prevention. Where do you see that as a major focus in Bill 99?
Mr Gillam: Just with regard to looking through the act when I was preparing for this public hearing. It seemed that there was a fair bit more content and focus on injury prevention; as well, it was included in the long title of the act. From that I concluded that it was a bit more of a focus than health care and return to work.
Mr Patten: Sometimes you see titles on these funny newspapers when you come out of the grocery store. I saw one today and it had "Elvis's Tomb Was Empty," implying that probably he's somewhere else. So titles don't always convey the content of what may be there.
The reason I asked this, Greg, is not to be cynical, but when we see the threat to the disease panel and we see the closure of some of the clinics and functions related to the prevention side of things, I just don't see where that is. I think it's a net loss from what exists now. That's why I asked you. If you have any other information on that, I'd be very pleased to see it.
The other part is in relation to the role. As you are now, you work in a team concept with other professionals. In the initial assessment I suppose a doctor may refer someone to you. Would that be the case?
Mr Gillam: Yes.
Mr Phillips: How would that work? How do you feel your profession can better make its contribution? I know you've listed them here, but so we can all understand it, how might an ideal situation work so that the best of what your profession has to offer comes to the fore?
Mr Gillam: It seems that a lot of times in the process, the family physician or even the employer physician don't refer people for evaluations such as a FAE or a physical demands analysis, period, or sometimes not nearly as soon as they could. The communication is often poor. The history for the worker is often poor. Resultingly, we can perform the task, but not knowing a worker's background or history, the kind of work they do, it's a little harder to take that into perspective when modifying the functional abilities evaluation, let's say, more towards what they need. It's not something that's absolutely "One size fits all." We can modify the test.
Mrs Boyd: Thank you very much for coming. I was interested to know whether you were here when the RNAO made its presentation.
Mr Gillam: Yes.
Mrs Boyd: They raised concerns about sections of the bill, particularly section 33 around what the requirement would be for registered nurses if they were case managers. I gather that part of the gist of what you're saying is that you also are professionally qualified to do many of those adjudication issues. Do you have the same concerns, given your ethical standards in your profession, about the requirements within section 33 around the focus of treatment being to save the workers' compensation plan money, as opposed to determining questions according to the appropriateness of health care itself?
Mr Gillam: We do have similar concerns, yes.
Mrs Boyd: Have you taken a position on that? I didn't see it in your presentation. I wondered if you had communicated that in any way to this committee other than the presentation.
Mr Gillam: No, not thus far.
Mrs Boyd: If you are successful in getting the attention that -- really, you are professionally qualified to do it. I know from going through the registered health professions process that there was a lot of work done to help all of us understand what the actual profession did and what its qualifications were and what the scope of practice actually meant. I think it's important always that those ethical concerns, when we're trying to get that scope of practice recognized, need to be stated quite explicitly.
Mr Gillam: We have approximately the same attitude as nurses. Educational background is very similar, looking at the whole person with regard to rehabilitation. If we had to make a choice, it would be the welfare of our patient rather than the overall fiscal responsibility, although I didn't accurately state that.
Mr Christopherson: I appreciate the fact that a lot of this is making sure that your share of the turf is covered off. I don't have any problem with that whatsoever; that's part of what your job is as an association. However, when you offer up the kind of blanket support you have, I feel compelled to press the issue a little.
In giving your support to the government and Bill 99 -- and I'd appreciate you explaining it to me if you do -- do you think it's fair that the injured workers who are affected by the changes are going to lose 5% of their income at the same time that the corporations responsible for funding WCB get a 5% cut in the premiums they pay?
Mr Gillam: I don't necessarily have any real comment on that.
Mr Christopherson: Given your emphasis on health and the prevention of injury, I'm sure you're familiar with the Occupational Disease Panel, and as such you'd be familiar -- I can read out letters and give you copies, if you wish, from around the world showing support for the kind of work they do. Do you agree with the fact that the ODP is being folded back into the WCB as part of your support of Bill 99?
Mr Gillam: No, that's not something we formally support. I had about a week and a half to prepare the submission, and I work in a different aspect of rehabilitation. I really have not had a lot of opportunity to prepare absolutely everything we have an opinion on.
Mr Christopherson: It's possible that not only the ODP's folding in but perhaps other aspects of Bill 99 don't get quite the same general endorsement that maybe your presentation leads one to believe.
Mr Gillam: That's right.
Mr Carroll: Mr Gillam, I'm going to stick the areas you've ventured an opinion on rather than try to trap you. Are you familiar with the return-to-work functional abilities proposed form? Have you had a chance to look at this?
Mr Gillam: Just briefly.
Mr Carroll: Have you looked at it enough to be able to comment on a couple of things? First, does it ask that a medical practitioner provide information that somehow should be kept confidential? Second, can you design an effective return-to-work plan without an evaluation of a person's functional ability? The second question's probably more important than the first.
Mr Gillam: No, we very much feel that we would be unable to provide a return-to-work program without an assessment such as a functional abilities evaluation or a physical demands analysis. We would very much prefer to have that information.
Mr Carroll: In your professional opinion, can a return-to-work program be designed without the information provided by a functional abilities evaluation?
Mr Gillam: No.
Mr O'Toole: Greg, I'm pleased to have a chance to ask you a question and I thank you very much for your informed presentation. All of that little preamble may be a bit biased, because my daughter's in third-year kinesiology here at Western. I hope there is a future for her and for you as well, and for your organization.
I just want to deal with a couple of little sections here. The prevention language within this act you commented on. This new bill is an important part, the upfront part. It's the bringing it into and making safe workplaces. Then the return-to-work provisions are an important part.
I'm going to qualify that by saying we've heard from other health care professionals just in the last week that the early return to work is an important part of the healing, recovery and getting back to what can be normal for an injured worker. Your new profession specializes in work accommodation. These are new kinds of things; ergonomics and workplace design and all those kinds of things are recent developments, perhaps in the last decade. A lot of people here perhaps didn't know what a kinesiologist was. It would be evident to me that you're supportive of the bill for those reasons, the prevention and the accommodation, return to work. Can you give me some feeling on that, on whether I misunderstand?
Mr Gillam: You are correct. The reason my submission was somewhat vague is that it seemed that the language of the act was a bit vague in that there was no real mention of the meat and potatoes of what was going to be happening with prevention: time lines, the steps that were going to be taken. But we very strongly agree and promote the principles of return to work and injury prevention through education and safety.
The Vice-Chair (Mr Jerry J. Ouelette): Thank you very much for your presentation.
STEVENSON AND HUNT ASSOCIATES
The Vice-Chair: We now ask for a representative from Stevenson and Hunt Associates, Mr Ed Holder. As I'm sure you're aware, you have 20 minutes for your presentation and any remaining time available can be divided between the three parties for questions and answers. Thank you for attending today.
Mr Edwin Holder: I appreciate the opportunity to be here in front of you to make some representations with respect to Bill 99. If I may, in appreciating that you've now just received this text, I'll work to the test and be within our time lines.
As an employee benefits consultant working with employers across the province, the issue of workers' compensation has always brought about mixed responses about the workers' compensation process. Whether the issue is the length of time it takes to get a decision on a workers' compensation claim right to the unit costs associated with this program, the Workers' Compensation Board does not typically receive high marks for performance from either employers or affected employees.
We applaud the initiative in reforming workers' compensation as something whose time has certainly come. A major public relations effort may be necessary, though, to convince employers that these initiatives will have the desired effect.
In general, employers to whom I speak talk in terms of the massive, unaccountable bureaucracy making decisions, often inappropriately and slowly, that affect their employees and have a significant impact on the expense side of operating their business. To be fair, much of the criticism relates to historical experiences with the board and this reputation is one, deserved or otherwise, which the board needs to overcome.
Another general feeling is the sentiment expressed by employers that most employees have legitimate claims. However, it is the actions of a minority of employees in terms of abuse of the system that causes a growing sense of frustration with workers' compensation.
It is with this broad backdrop that the responses to restructuring the Workers' Compensation Board which I have heard range from a sense of relief to marked cynicism. The comments from various employers are primarily anecdotal, as concerns were expressed by some that to be particularly public would not be perceived by their employee groups in a positive way. I'd be pleased to expand on that in more detail.
Employers recognize the need to deal with the massive unfunded liability, hovering around $12 billion. Whether that number is plus or minus $1 billion, there is an underlying sense that while much needs to be done on the entitlement side, little can afford to be done on the employer cost side. The unfunded liability is just too massive. Positive feedback was generated on the issue of decreased entitlement, not to be punitive to affected employees but rather to be more in line with other benefits programs, both public and private.
Employment insurance, the federal program, has a disability benefits program which provides 55% of weekly earnings to an overall plan maximum, and this benefit is taxable. The Canada pension plan has a disability benefit which, upon eligibility, provides a fixed minimum monthly benefit and a percentage of a disabled person's retirement pension to the tune of about $835 approximately. Even privately insured plans typically range from 55% to 70% of earnings for disabled individuals. To reduce the entitlement from 90% to 80% of the difference between the net average pre-disability earnings and the net average earnings that the worker is earning is still considered on the high side of benefit entitlement.
The feedback I received in terms of workers' compensation reform also cited the myriad programs providing income replacement. To the extent that the government's role would be that of referee to allow private plans to administer the program, or at least give employers the choice of the government or to subcontract out to comparable private plans, was referenced many times.
In the case of compensable conditions, the issue of removing mental stress as a potentially compensable circumstance is a positive step. It is often difficult to determine what is a bona fide claim. The fact that long-term disability contracts in the province of Ontario are required to include mental and nervous conditions as legitimate causes of disability should accommodate employees' legitimate claims. The impact on private plans, however, has been dramatic increases in long-term disability unit rate costs for employers, as mental and nervous conditions have potential major impact on plans.
I acknowledge that the spirit of these reforms is considered significant, including making prevention of illness and injury a primary focus; restoring the financial viability of the workers' compensation system; re-establishing the system as a workplace insurance program; improving the return-to-work process; enhancing worker and employer self-reliance in resolving disability and return-to-work issues.
The objective to manage claims and establish the financial viability of workers' compensation to stand alone is considered a positive process. Introducing means to reduce the current unfunded liability and to streamline administration and speed up the appeal process and time frames is also considered a very positive situation.
Employers are consistent in their view that workers' compensation must be more consistent in handling and adjudicating claims. It must allow more flexibility from a cost standpoint, to have target rates more accurately reflect the composition of the workforce; reduce the bureaucracy in dealing with claims; treat employers as clients, not as parties who only pay the bills; get its financial house in order and reduce the duplication with other programs, public and private.
We appreciate the opportunity to make this presentation to the committee. I look forward to your comments and questions.
Mr Christopherson: Thanks for your presentation. You raised the issue of the long-term disability plans and their costs rising for employers. How many employers do you think, as a percentage of all employers, have a comprehensive long-term disability plan available?
Mr Holder: In our estimation, some three quarters to 80% of employers in the province would have long-term disability programs.
Mr Christopherson: That's an interesting figure. I'm not questioning your comment. I haven't seen anything to the contrary, but anecdotally I find that a little high. Do you have any documentation?
Mr Holder: I'd be pleased to provide some for you. I could forward it to the standing committee for your purpose.
Mr Christopherson: I'd appreciate that. Thank you. Next, I'd like to raise the fact that those long-term disability plans, as you know, are for injuries and illnesses not related to work. The WCB is strictly for work-related injuries. The tie-in, the reason I raise it this way, is that for a lot of workers who don't have a plan -- even if you're right, 20% don't, although I really think that's very low. But for every worker who doesn't have any kind of LTD, if they're denied WCB they're on social assistance, which in effect means all taxpayers are paying for something that originally was meant to be an employer cost since that injured employee can't seek justice in the courts any longer.
Mr Holder: I didn't bring anyone with me.
Mr Christopherson: Well, you're learning, aren't you?
Mr Holder: Yes. This is an interesting process.
If I may, the statistics I'm prepared to provide you will also indicate and the general sense would be that most employees covered by -- forgive me, again this is anecdotal, and I will come back to that comment in a moment. My best sense is that most employers who have workers' compensation in fact have long-term disability plans.
One thing I did want to clarify, though, because there are certainly exceptions to that -- we're not suggesting, by the way, the removal of workers' comp. Let's be clear on that. That's not what we're talking about. But long-term disability would typically treat the benefit as a 24-hour benefit, with workers' compensation more as an exclusion as opposed to an exception. That is to say, we have long-term disability programs that if there is no workers' compensation -- and there are some firms that have no workers' compensation -- long-term disability is written on a 24-hour coverage, just so you know and just for your reference; short-term disability as well, by the way.
Mr Christopherson: We hear a lot about how many small businesses are affected and how many small businesses there are, and that's the new area. I know for a fact that there are very few extensive benefits available in a lot of the smaller firms, perhaps for good economic reasons, but the reality is that they don't have them.
I'd like to come back to the top of that same page where you say, and I'm a little unclear what you mean: "And whether that number" -- meaning, as you call it, the "massive unfunded liability" -- "is plus or minus $1 billion, there is an underlying sense that while much needs to be done on the entitlement side, little can afford to be done on the employer cost side." I'm unclear what that means.
However, my question to you would be regarding the unfunded liability. If indeed one buys into the argument -- we don't, but if you buy into it -- that that $1 billion over three years is significant, over a period of time the unfunded liability will be taken care of. However, if you don't agree with that -- and you don't -- if you feel it is such a crisis, how can one justify, from an actuarial point of view, giving back $6 billion of revenue when you're saying the unfunded liability is such a crisis that it necessitates going after injured workers to the extent of taking away 5% of their income?
Mr Holder: Let's press that forward. To quote you, sir, I wouldn't suggest that $1 billion is a crisis, but I would certainly argue that $11 billion or $12 billion is clearly a crisis.
From our perspective, the issue is that the modest reduction that is perceived to go into the employers' hands -- and I say "modest" in terms of overall benefits and other costs related to the social net that employers take responsibility for -- is more than offset when one looks at the history of the rise in long-term disability increases, which have gone up dramatically, in fact partly as a result of legally requiring that mental and nervous conditions be considered part of a compensable claim in Ontario. As such, long-term disability rates have gone up dramatically, frankly to offset the need to cover off the potential exposure that's there.
It is certainly not my objective here to speak for employers across the province, but for those with whom I do business, who have the sense that workers' compensation is an increasingly expensive component of their business, the reduction in the rate is a modest one. But I'll suggest to you that it's a step in the right direction. I think employers will look at that reasonably positively.
Mr Christopherson: Sure. Why not? I find it interesting that --
Mr Holder: I'm sorry. I didn't realize we were going to have a discussion about the creators of wealth. But I'll suggest to you that when it --
Mr Christopherson: It's interesting that $12 billion is a massive amount, but suddenly $6 billion is not when it's being given back to the employers.
Mr Hastings: Thank you, Mr Holder, for a very succinct presentation. There seem to be two evident themes coming out of these hearings by the various deputants. One, there's the perpetual denial that there isn't any dollar crisis at all, that in fact it's minor, if that, and events will look after itself after a while, and we have the NDP's total monopoly on compassion -- nobody else could have the remotest understanding about injured employees or anything do with them, which of course is absurd -- and also the union movement's proclivity for pretty well accepting the untimely, totally unacceptable status quo in terms of getting compensation benefits, pension benefits or anything else to injured employees. I'd be curious to know how you would specifically structure, from some of the points you allude to on page 3, particularly with respect to "treat employers as clients" -- I would assume you'd also expect the WCB staff to treat employees as customers -- how you would structure a more focused customer service environment in what is now an excessively bureaucratic, unresponsive, unaccountable, insensitive approach to its customers, whether they be employers, injured workers, rehabilitated folks, retirees or the medical community.
Mr Holder: Thank you. If I may, I'll come back to my first comment that employers feel that most employees have legitimate claims. I'd like that to be the backdrop. I think workers' compensation recognizes that there are two components to the client base: One is the employer and the other is the employee, whether you call that client or customer, and we see that in our business, with our various suppliers in the insurance company field. Certainly you have the employers who in part foot the bill, and I'll make the point that in long-term disability benefits employees often pay some or all of the costs. It is important to know that employees have a great stake in this as well in the long-term disability sense.
But in that regard, we certainly view our suppliers' responsibility as ensuring that the way their customers or clients, as we call them, from the employer right through to the employee, are treated in a very fair way and with some dignity.
It's interesting, and I'm not sure how historical this gets, but again in the feedback I have gotten, and why I referenced a couple of times in this presentation the need to do some public relations, is the sense that there is workers' compensation on this side, and they're the bad guys, and it's the employer always fighting with workers' compensation. But further than that it doesn't care about employers, and I have the sense in some cases that they don't care about employees either, if I may. So it isn't just employers; it cuts both ways and that's a tragedy.
I think that to be customer-focused to the extent that we're going to survive in business and have meaningful jobs for employees in the future is going to predicated on organizations like workers' compensation, if they wish to survive, treating employers and employees like they're customers and treat them best. That's certainly the theme you hear often now in advertising, and frankly, it's damned time.
Mr Hastings: How do you get, Mr Holder, into this culture? There are some who try their best as employees to --
Mr Holder: I think accountability is part of it and it's what I've understood and read from the position of reform in Bill 99, the talk about bringing the service that much closer to the customer, to the client, to the extent that some form of regional responsibility is there. One initiative I can tell you I've got some mixed feelings on, and I'm not certain what's going to happen, is the sense of bringing the employer and the employee back together following the disability or during the process of rehabilitation to try to get them back to some meaningful, positive, forward direction.
To the extent that some employers indicate to me that there's not a willingness on the employee's side -- and I know employees who would say from the employer's perspective it's not there -- I think that workers' compensation has the opportunity to be the conduit and to maintain the customer focus.
I don't think that when an employee goes out on disability, the employer's objective is to get rid of him. That's certainly not the sense I have had in 21 years of dealing with disability benefits and rehabilitation as they relate primarily to the insurance companies' side and them as supplier. In broad terms in most times, the objective of certainly the insurance company is to rehabilitate because it's financially in their interest to do so. But the other component is for employers, I think, as long as there's an opportunity and a reasonable window of time, to the employee back to a meaningful position.
I think it's working more closely between employer and employee, and to the extent that this reform does that, it will certainly be perceived as a positive step to break down some of the potential animosity, and in some cases real animosity, that is there in what is deemed to be a very high stress time when someone is disabled.
Mr Hoy: I am glad to see you here. We're now into evening. You talked about the unfunded liability and others have done the same from time to time. What is your definition of an unfunded liability?
Mr Holder: The right question: Ultimately it's looking at the current resources of a facility or an organization based on, if you will, its present value and trying to determine whether it's solvent or not solvent to the extent that there are sufficient funds to accommodate on a present-value basis those obligations for which they are contractually required to pay out.
In reference to workers' compensation it would be that if you took the present value of the debts that are obligated -- a case in point would be again from the insurance company's standpoint -- if we moved a contract away from an insurance company, sir, from any insurance carrier to another, that insurance company would be left with a liability. In other words, they have a reserve they must set aside with the anticipation that based on the type of disability it is, they are going to pay out for so many months, so many years or to the normal retirement date or whatever the terms and conditions of a contract might be.
The unfunded liability for that party would be that if there were nothing in existence today, if there were no offsetting premiums to offset the expense required, then that would be deemed to be an unfunded liability, which is why insurance companies are required to set aside massive reserves -- and I'll use that word quite specifically -- that can range in the $1-million, $2-million range for someone who is in their 30s who has a circumstance or condition from which they might not return.
From the perspective as it relates to workers' compensation, I'd suggest to you it's the present value, based on premium, which is the workers' compensation unit rate, relative to the payouts that I would deem the definition of unfunded liability to be.
Mr Hoy: In other insurances, a lot of their reserves can be garnered not through premiums but other ways. True enough?
Mr Holder: Like investment income, that sort of thing? Exactly. They would have to specifically set aside dollars, and even on a present-value basis. So if someone were disabled and had a $1-million payout, for example, the insurance company is not required to set aside $1 million, but they would be required to set aside a sufficient amount that with interest would accommodate that need.
Mr Hoy: And these insurance companies assume, and I'm relating it to WCB as well --
Mr Holder: Yes, that's reasonable.
Mr Hoy: -- that not everyone is going to have a claim.
Mr Holder: You're right. In fact, that's how the morbidity tables are determined and what they are designed to determine. But when you set aside a reserve, it's an actual dollar reserve that you have to set aside for an actual condition. When we talk about the unfunded liability, in my view, as it relates to workers' compensation, we're talking about actual claims and circumstances where there are dollars to be paid out.
Mr Hoy: On another point you made you talked about the laudable goals of the bill as it relates to prevention of illness and injury. Do you have any opinion on the elimination of the Occupational Disease Panel?
Mr Holder: If I may, the reference to occupational disease as it relates to the mental and nervous condition component is one I'm sure gave the group some difficulty in assessing, but in group disability contracts, compensating for mental and nervous conditions is required by law. As such, to the extent that you remove the mental and nervous condition references to the workers' compensation compensable claim issue, I think to that degree it will have less impact on those claimants simply because that will not be a legitimate claim against the program.
Mr Patten: The panel had been doing illnesses that it had suspected in the workplace, and indeed you can make the case that it saved this province a lot of money and a lot of resources and a lot of heartache and a lot of tragedies by being able to identify and pinpoint the situations of asbestos, for example, or carcinogenic exponents that arise from the workplace in mines or whatever the workplace may be, chemicals, this kind of thing. They look at the big picture in some of those areas and diseases that people are afflicted with that are highly suspected to have come from the workplace.
The issue is that under this bill they would lose their independence to be able to move on those kinds of issues. The only two big groups that have been against them are in the mining business, as you can imagine, the Ontario Mining Association, Inco and maybe Falconbridge. This is a group that is internationally recognized for some of the work they've done and have been successful with relatively humble resources to work with, like about $1 million or so, which is not much money in research, as you well know.
Mr Holder: For your reference, ladies and gentlemen, in preparation for this meeting today I undertook to survey a number of our clients across the province to get some sense of their feelings about workers' compensation. I must admit to you that notwithstanding some who had hope and some who had cynicism, many weren't even in the loop as to some of the changes that are even being considered. No employer of the I would suspect 50 employers with whom I had contact had any opinions or comments with respect to the occupational diseases board, so I can't comment how they would have felt about that.
The Vice-Chair: Thank you very much for your presentation.
LONDON OCCUPATIONAL SAFETY AND HEALTH INFORMATION SERVICE
The Vice-Chair: We will now ask the representatives from the London Occupational Safety and Health Information Service to come forward and identify yourselves for Hansard.
Mr Michael Klug: I'm Michael Klug.
Ms Melanie Purres: Melanie Purres.
Mr Klug: Good evening. I'm a labour lawyer here in London, Ontario. I represent workers and trade unions in this area on a variety of issues, including workers' compensation matters. I speak to you this evening on behalf of the London Occupational Safety and Health Information Service, which is a community-based information service that focuses on preventing workplace accidents and injury in this area.
By way of background, LOSH, as stated, is primarily involved in providing information to employees and employers regarding how to prevent injuries at work, and it's from that perspective that we give this presentation today. In addition, though it's not a focus of LOSH's work, it's not unusual for us to become involved in dealing with some of the consequences of workplace injury after they occur, and as a result LOSH has some considerable familiarity with the WCB system and some strong feelings with regard to it.
LOSH has been in existence for some eight years now; has responded to thousands and thousands of inquiries from workers and employers in this area; employs a trained and experienced staff on many occupational health and safety issues; and offers a library available to the public on occupational health and safety issues.
I will be speaking on a number of issues, not comprehensively or in any detail on Bill 99 as a whole, simply because of, obviously, the lack of time that has been made available for presenters as a whole. I will be speaking in particular about the impact of Bill 99 on those individuals who suffer repetitive strain injuries, which is a critical issue in this province economically, socially and morally, and which LOSH has very strong feelings with respect to, in large part because almost half of the inquiries we receive from the public are related to repetitive strain injuries. LOSH is a recognized leader with respect to RSI and has published a well-recognized and well-received book by the title of When Aches Become Injuries. The second edition is due this fall. LOSH, and in particular Mr Frank Stilson, the executive director of LOSH, who wishes he could be here but unfortunately cannot, is a recognized expert in the field of repetitive strain injury.
As indicated, we're not going to be able to deal comprehensively with the many significant issues that are raised by Bill 99. It is, as the government itself has deemed, a complete rewrite of one of the most significant pieces of legislation in the province. I have 10 to 15 minutes and I'm going to focus my discussion on health and safety issues as opposed to what happens after the injury occurs, in particular on three issues: the elimination of the Workplace Health and Safety Agency, the partial transfer of that agency's work to the Workers' Compensation Board; repetitive strain injury, the impact or lack of impact of Bill 99 on those who suffer from repetitive strain injuries; and the elimination of the Ontario disease panel, about which there has been some discussion already this afternoon.
I preface my more detailed comments to follow with some general comments with respect to Bill 99 and specifically how Bill 99, in our estimation, will affect the issue of prevention of accidents. It has been duly noted and repeatedly pointed out by members of the government that Bill 99 is about prevention of accidents, and it certainly makes sense that a workers' compensation system should place pre-eminent importance on avoiding the tragedy before it occurs. The concern with respect to health and safety, with which the government has attempted to justify the passage of Bill 99, has attempted to sell Bill 99, if you will, with this notion of health and safety, is reflected in the new name of the new Workplace Safety and Insurance Board, the name of the act, of course, and prominently in the new section 1 of the act, which states the pre-eminent concern of the new WSIB to be the promoting of health and safety in the workplace.
LOSH obviously agrees with the government's stated objective of promoting health and safety but has serious and grave doubts as to whether or not Bill 99 will do anything whatsoever to promote health and safety in the workplace. In fact, quite to the contrary, LOSH is of the view that Bill 99 will actually lead to more dangerous workplaces in Ontario and that in point of fact this discussion of health and safety and how the government has played up that Bill 99 is about health and safety is really an indication of little more than the government playing lip-service to the idea of health and safety when the reality is something quite different, and it requires us to look at some of the details of the act. But most generally the act is about reducing compensation to employees through a whole litany of nicks and bites and cuts, a little bit here, a procedural change here, 5% off the top there, taking away powers from WCAT and so on and so forth, the issues that have been talked about. When you really get down to it, it's about taking money from injured workers.
LOSH has some concerns with that on its own, but it also in particular has concerns with the general direction of taking money from injured workers because it will, in our view, have an impact on the safety of workplaces as well. It's our view that if you make it cheaper to injure workers, more workers will become injured. I think the members of the government side, as attuned as they are to the needs and thinking of the business community in this province, are well aware that it is the bottom line which drives these matters. If we as a society make it less costly to employers to injure workers, it is reasonable to assume that there will be more injured workers at the end of the day. It would be LOSH's view that as a general policy prescription it makes sense not to reduce the cost of injury in this province.
It has been noted by other commentators -- in fact Ms Witmer has indicated that it is her intention to make Ontario statistically the safest place to work in the country or on the continent. LOSH's view is that it is quite possible that there will be a radical decline in the amount paid to workers and in the actual number of claims made under the WCB. It is obviously only common sense, though, that a reduction in claims does not necessarily mean a reduction in injuries. It is from this very basic, self-evident proposition that the government seems to go off the rails with respect to its concern. Its concern more properly put, from our perspective, is a reduction in claims as opposed to a reduction in workplace injuries.
We see this in the new reporting provisions, of which many workers will fall through the cracks, which will reduce claims but will leave them at home without benefits, still injured and probably uncounted and uncalculated with respect to the total of workplace injury in this province as a result. We see this in the back-to-work provisions which will limit payment to workers and put them back into situation which they should not be in. We see it significantly in sections 12 and 13 of the new act, which appear to potentially completely eliminate entitlement in the chronic pain and stress areas. We see it in the limitation provisions with respect to appeals and so on and so forth.
What LOSH is concerned with is not the reduction of claims; LOSH is concerned with the reduction of injuries and the consequences of those injuries. Again, we see little, if nothing, in this act which will actually improve the situation for workplace health and safety in this province.
LOSH, in my experience, is not a supporter of the status quo with respect to health and safety and the board's involvement in health and safety. The board, as most everybody knows, is very passive with respect to health and safety issues. You have instances in claims which come before the board, and time and time again the board will take no action other than to actually process the claim, decide if benefits are payable and so on and so forth.
Claims which reveal faulty working conditions, dangerous working conditions, should in LOSH's view automatically, as a routine matter of course, lead to a referral to some specialist, whether it be an ergonomist, a kinesiologist, a registered nurse or whatever; somebody who has some expertise in these matters. When a claim comes in and reveals that the injury is a consequence of the working conditions, the matter should be referred to a board employee and contact should be made with that employer to ensure that the faulty working conditions are addressed. That individual, in LOSH's view, should have the power to enforce the Occupational Health and Safety Act, and if need be, ultimately to order the employer to rectify the dangerous working conditions at issue.
That, at least in my understanding, has never been the case with the Workers' Compensation Board, and it is only -- I hesitate to use the term -- common sense that the Workers' Compensation Board become involved on that level.
I have provided in the organization's written submissions a case example of an RSI sufferer. This woman was 42 years old, worked some 18 years with her employer, contracted repetitive strain injury, went off, was denied benefits, is on welfare. It's not an unusual story. The significant point, though, relating it to my earlier comments, is that some time after she was off work, the other individuals she worked with were contracting exactly the same condition.
Repetitive strain injury is oftentimes quite easily preventable with a new chair, sometimes, or proper positioning of a computer monitor. If there was a system within the Workers' Compensation Board by which employers could receive intelligent advice from specialists in this area -- LOSH is not in favour of the Workers' Compensation Board necessarily acting as a hammer with respect to employers -- I'm sure most employers would see the wisdom of altering the workplace so that it's ergonomically correct. But there simply is no mechanism currently in place for the board to become involved in those issues, and LOSH recommends that some alterations be made in that regard.
With respect to the Workplace Health and Safety Agency, Bill 99 of course kills this agency, and LOSH regrets the fact that the Workplace Health and Safety Agency no longer is. Some of the powers of that agency have been transferred to the new Workplace Safety and Insurance Board. LOSH, as a general matter, is opposed to this transfer of responsibilities to the board. There are a number of reasons for this. Prominent among them are the concerns with the bureaucratic nature of the board and the fact that the very important work of the Workplace Health and Safety Agency may very well become lost within the board and not receive the attention it deserves and consequently not be as effective as it should be.
LOSH is also very concerned that the representation of workers on the Workplace Health and Safety Agency which existed prior to Bill 15 has been eliminated. It is absolutely axiomatic within the field of occupational health and safety that it requires involvement of the employees. On the larger scale of the changes within occupational health and safety, to have the issues of training and accreditation of employers and the review of employers left in the hands of individuals who have no immediate connection with the workplace or with workers automatically casts some question on the effectiveness of the board taking over the duties.
On a more technical note, the former functions of the agency were noted in section 16 of the Occupational Health and Safety Act. LOSH notes that the agency, prior to the Bill 99 amendments, had the power to advise the WCB if accredited employers operate in such a manner as to reduce the hazard to workers in the workplace. That's clause 16(1)(k), and clause (l) also had the power to advise the WCB if employers fail to take sufficient precaution for the prevention of hazards in the workplace. In other words, the agency not only accredited employers who were deemed to have safe workplaces and therefore had the effect of reducing their premiums; they also had the opportunity to continue to monitor such employers.
The concern LOSH has is that those responsibilities have not been transferred to the board, whereas most of the other functions of the agency have been. So we have what appears to be, on the face of Bill 99 -- section 4 sets out the new functions of the board, which are essentially, in many respects but not all, the functions of the old agency. They do not include clearly the obligation or even the power to continue to monitor employers once they have been accredited.
I don't know if this is a drafting error, but obviously we have a concern that the issue is not just getting the employer in the door as having a safe and healthy workplace. It's one thing for an employer to be able to dress up their workplace as having all that's needed in terms of workplace health and safety processes in place, but it's another to maintain that process over time, which is what's required, obviously, and should be required if an employer is to receive the benefits under the act for being accredited.
Moving on to the issue of repetitive strain injury, I note in some of the materials that came out with the act and some of the comments by government members that Bill 99 is a modernizing type of legislation which is supposed to take the WCB system into the 21st century and deal with the modern realities of work. But one of the modern realities of work and workplace accidents and injuries is repetitive strain injury. It is an epidemic, as indicated in this province, with untold thousands of workers suffering -- and not just workers, for that matter. These are our colleagues. These are people from all walks of life, though primarily, to be fair, women.
This is a leading occupational illness. For the government to introduce a piece of legislation dealing with occupational illness and deal not at all with repetitive strain injury is scandalous. There is absolutely nothing in this legislation which at all deals with this pressing social and workplace problem.
As indicated earlier, RSI is often very easily prevented. There should be and must be, in LOSH's view, some mechanism put in place for the WCB to educate employers, to become involved with employers, to ergonomically, correctly construct their work stations as it relates to computer keyboarding.
The Chair: Excuse me. You have about a minute left in presentation time.
Mr Klug: On the RSI issue, very quickly, it's not just a matter that nothing is being done. That would be bad enough. There appears to be serious backward steps, particularly with regard to section 13, the chronic pain issue. Many other side claims get bounced into chronic pain type cases. As has been noted numerous times, section 13 appears to presage this notion that chronic pain benefits will be limited to the usual healing time, which is absurd, given the definition of "chronic pain" that currently exists.
Also with regard to RSI, section 21 is the limitation with respect to reporting. The employee has to make their own claim now and has to do it within six months of the accident, except for an occupational disease. RSI cases oftentimes will be gradual onset cases, and often an employee will grin and bear it, stick it through, often not seek medical attention for some time. There is a possibility with section 21 that when the claim is made, if they've been seeking medical attention or if the date of accident is identified, let's say, at any point of time more than six months before the reporting, that they'd be denied. So it's not just a situation that the bill doesn't address RSI, but it in fact will make life more difficult for RSI sufferers in this province.
We recommend that the board hire some ergonomists. There is no ergonomist presently employed at the London board.
Finally, very quickly, we can see absolutely no possible justification for the elimination of the Occupational Disease Panel. If the government were truly concerned about health and safety matters, they obviously would not be eliminating the Occupational Disease Panel. Employers cannot make their workplaces safer if they don't have the information necessary to do so. We urge the government to restore the Occupational Disease Panel.
The Chair: Thank you very much. We appreciate your taking the time to prepare your brief and to present your ideas before the committee today.
EMPLOYERS' ADVOCACY COUNCIL, LONDON CHAPTER
The Chair: I now call upon representatives from the Employers' Advocacy Council, the London chapter. Good evening. Welcome. Please introduce yourselves for the record, and you then have 20 minutes in which to make your presentation or to allow for questions.
Mr Don Whiteford: My name's Don Whiteford. I'm on the executive council of the London chapter of the Employers' Advocacy Council.
Ms Jo-Ann Zomer: My name is Jo-Ann Zomer, and I'm also on the executive.
Mr Whiteford: The Employers' Advocacy Council, EAC, is a non-profit volunteer organization of employers across Ontario. Our mission remains "to reduce employers' workers' compensation costs by influencing constructive change to workers' compensation in Ontario and through education of employers on all aspects of workers' compensation and workplace health and safety."
The London chapter of the EAC welcomes the opportunity to comment on this important legislative initiative and endorse the government's foresight in recognizing the necessity for reform.
The EAC of London represents a broad cross-section of our local economy and employer community. Our 120-plus membership consists of small businesses employing less than a handful of employees, to large multinational organizations employing thousands. We also have many public sector employers and employers from schedule 2. All these employers have come together under the membership of the EAC to voice their shared concerns about the viability and the cost of the workers' compensation system in Ontario.
For the past 12 years the EAC has attempted to develop solutions and alternatives that are both constructive and achievable. We have participated on all the advisory groups and committees established by the Workers' Compensation Board and the government concerning workers' compensation issues.
Under the Liberal government in the late 1980s, the EAC participated in the green paper advisory committee. In 1992, the EAC represented the employer community on the bipartite steering committee of the chair's task force on vocational rehabilitation and service delivery. When the New Democratic government in 1993 formed the Premier's Labour-Management Advisory Committee, the EAC played a key role in developing the business steering committee proposals on workers' compensation reform. The EAC also played a lead role in the business community by voicing the employer community's concerns with respect to the implementation of Bill 165 by the New Democratic government.
It is our view that this government is committed to restoring the viability and the integrity of the Ontario workers' compensation system. The EAC wishes to reaffirm its commitment to work with the government and the WCB to improve the workers' compensation system. We are of the opinion that Bill 99 will benefit both the workers and employers of Ontario through accident prevention. We resolutely support the continuation of an affordable and viable system of workers' compensation that protects both employees and employers from the impact of workplace accidents.
The EAC wishes to ensure that the changes implemented are durable and in the interest of improving the entire system. The consensus of the Employers' Advocacy Council membership is one of support for Bill 99 with specific changes. We are of the view that the constructive comments and recommendations that we propose will add to the overall effectiveness of this reform.
The London chapter had a number of concerns, and we're going to deal specifically with three if we have time.
The initial one was section 42, the labour market re-entry plan, which is found on pages 14 to 17 of our formal submission. The Employers' Advocacy Council has several questions in reference to Section 42 of Bill 99. To some of our membership this particular section is a black hole and in their opinion may just be another name for vocational rehabilitation.
Identified as a major concern is the lack of uniformity in wording with sections 40, 41 and 42.
Specifically, clause 41(4)(b): "offer to provide the worker with alternative employment of a nature and at earnings comparable to the worker's employment on the date of injury."
What determines comparability? "Comparable" has been defined as "equivalent," "corresponding," "equal," "as good as," "alike," "akin," "similar," "proportional," "analogous."
EAC proposes that comparable earnings be identified in board policy as those that would remunerate at a percentage not less than 85% of the pre-accident earnings.
Second, "if the worker's employer has been unable to arrange work for the worker that is consistent with the worker's functional abilities and that restores the worker's pre-injury earnings."
This section states that an employer must restore a worker's pre-accident earnings and is inconsistent with clause 40(l)(b) and 41(4)(b).
Subsection 42(1) reads:
"If any of the following circumstances exist, the board shall decide whether a labour market re-entry plan for a worker is to be prepared:
"1. If it is unlikely that the worker will be re-employed by his or her employer because of the nature of the injury or for another reason.
"2. If the worker's employer has been unable to arrange work for the worker that is consistent with the worker's functional abilities and that restores the worker's pre-injury earnings.
"3. If the worker's employer is not cooperating in the early and safe return to work of the worker."
EAC proposes that Section 42(l) be amended to read:
"The board shall, after notice of accident, and in a timely manner, in consultation with the employer and the injured worker determine if a labour market re-entry plan is to be prepared. All determinations shall be made within a six-month period."
The EAC proposes that a labour market re-entry plan be contingent upon any of the following:
(1) If it is unlikely that the worker will be re-employed by his or her employer due to the nature of the injury, notwithstanding an employment or economic situation that would subject employment to layoff.
(2) If the worker's employer is unable to arrange suitable work that is consistent with the worker's functional abilities and that restores an earnings base of no less than 85% of the pre-injury earnings.
(3) If the worker's employer is not cooperating in the timely and safe return to work of the worker.
Subsection 42(4) reads:
"The plan must provide for such steps as may be required to enable the worker to re-enter the labour market and to reduce or eliminate his or her loss of earnings from the injury."
This section does not appear to have the corresponding monetary obligations as imposed on an employer. If an employer is required to provide suitable employment that restores the injured worker's earnings, then the LMRP should provide the identical monetary benefit.
EAC has additional concerns in relation to the terminology "reduce or eliminate his or her loss of earnings from the injury." If an employer can provide suitable employment, consistent with the functional abilities of the worker, but cannot restore the pre-accident earnings, will the LMRP kick in immediately? If so, will the plan eliminate or reduce the loss of earnings as a result of the injury or restore the pre-injury earnings?
EAC proposes the following criteria to determine who is eligible for labour market re-entry plan: an accepted disabling claim; cannot return to regular work as a result of the injury.
EAC proposes the following criteria to determine who is not eligible for labour market re-entry plan: no significant permanent impairment; accident employer can provide reasonable and suitable employment which pays 85% or more of pre-injury earnings; failure to cooperate or provide pertinent information; LMRP will not be prepared for claimants over age 65.
EAC proposes that the LMRP be limited to 18 months inclusive and provided on a one-time basis only.
A subsequent concern in terms of subsection 42(4) is the use of the word "enable" when paragraphs 2 and 4 of section 1 of Part 1, "Interpretation," use the word "facilitate." It is our opinion that these words have distinct meanings that may not be consistent with the intention of the legislation: eg, "enable" is defined in Webster's New Revised Dictionary as "to supply with the means, knowledge, or opportunity"; "facilitate" is defined as "to make easier."
"The board shall consult with the worker and may consult with the worker's health care practitioners and employer in preparing the plan."
EAC totally disagrees with the premise that the employer may not be consulted in preparing a labour market re-entry plan. If the employer is required to fund the plan, they have every right to be consulted and updated on the success or failure of the plan.
EAC proposes that subsection 42(5) be amended to read:
"The board shall consult with the worker and the employer and may consult with the worker's health care practitioner in preparing the plan."
EAC requires clarification concerning the measurement of fully implemented LMRP. What criteria will be used to determine when the LMRP is fully implemented? For example, if an LMRP requires that the worker return to school to upgrade his or her skills to facilitate his or her return to employment, has the LMRP been fully implemented, or does "fully implemented" intend that the worker has acquired suitable employment within this same 18-month time period?
It is the opinion of the Employers' Advocacy Council that a fully implemented LMRP restores the injured worker's ability to return to work. EAC proposes that the board establish a policy statement clearly indicating that a fully implemented LMRP does not guarantee employment.
Another concern we have is subsection 22(2), which reads:
"Effect of non-compliance
"If the person fails to comply with subsection (1), the board may reduce or suspend payments to him or her while the non-compliance continues."
EAC proposes that if the person fails to comply with subsection (1), the board shall suspend payments to him or her while the non-compliance continues. Benefits will be reinstated and payable from the date of compliance, unless the claimant demonstrates it would be unjust to do so.
Finally, section 32, "Definition":
"In this part,
"'health care' means.
"(a) professional services provided by a health care practitioner,
"(b) services provided by or at hospital and health facilities,
"(d) the services of an attendant,
"(e) modifications to a person's home and vehicle and other measures to facilitate independent living as in the board's opinion are appropriate,
"(f) assistive devices and prostheses,
"(g) extraordinary transportation costs to obtain health care."
Members of the EAC are concerned re the inclusion of non-regulated professions, eg, massage therapists, social workers etc. Some professions are not regulated by law, but many have voluntary professional bodies. Some of these voluntary bodies provide certification courses and registration, which may be valuable to get work in the profession. However, membership in these professional bodies is not mandatory. Our concern is one of quality and accountability. EAC proposes that the WCB establish policies that assign limitations on unregulated health care practitioners.
As I stated at the beginning of our presentation, I am presenting the views of the membership of the London chapter of the Employers' Advocacy Council. I do so in the spirit of continuous improvement to a system that, in principle, was designed to benefit both employers and their employees by reducing the impact of workplace accidents.
It is our opinion that all stakeholders must work together to fulfil this mutual goal. On behalf of the membership of the London chapter, I thank you for your attention.
The Chair: Thank you very much. There is about three minutes remaining for questions, so we'll go to the Liberal caucus only.
Mr Patten: Three minutes only.
You've done a fair amount of work on this. I have three or four questions, quickly. You said at the beginning, "We are of the opinion that Bill 99 will benefit both the workers and employers of Ontario through accident prevention." I've asked this question three or four times, and I don't know if you've heard other presentations here today. What, in your opinion, does this bill do in terms of supporting prevention of injury in the workplace?
Mr Whiteford: I think it brings the health and safety issues into the fold of the Workers' Compensation Board. Much like the presenter previous to us, there has not been that contact between the health and safety associations and the Workers' Compensation Board. I think it lends itself to open the communication levels more directly.
Mr Patten: All right. You've put down, "If the worker's employer is not cooperating in the timely and safe return to work of the worker." Would you elaborate a bit on "timely"?
Mr Whiteford: We're not only interested in returning injured workers to work as soon as possible, but when it's most safe for them to come back to work. That's what "timely" specifically refers to: when, in a rehabilitative sense, it's time for them to be back at work.
Mr Patten: In this context, it could be read in pejorative fashion, though. In other words, if it said, "is not cooperating in the safe return to work of the worker," you'd have another criterion on which you need to make a judgement. Presumably, that is part of the discussion that I imagine happens today about when someone should be returning to work, and that is through the advice of health professionals for that to take place.
Then you had under subsection 42(5) consultation with the employer. It could be read that there need not be any consultation. Actually, on that one I agree with you that obviously the employer should be part of a return to work. They have a major role to play and if they are feeling their nose is out of joint and that they haven't been consulted, for whatever reason, that would probably be a mistake. On that one, I would agree with you.
The last point you made in your report was: "...courses and registration which may be valuable to get work in the profession. However, membership in these professional bodies is not mandatory." A number of professions are self-regulating and are recognized, and that provision could be made, that in order to be recognized and used by the WCB -- of course it's going to have a new name -- they would be members of their professional body, with the ethical obligations that go along with that, for their profession.
The Chair: Thank you very much for your presentation. We appreciate the detail you've outlined for us. Thanks again.
Colleagues, that concludes our last presentation for today. I would just draw to your attention the fact that Mr Christopherson has filed a request for some research information. I think you have a copy of that letter. With that, we stand adjourned. We'll reconvene tomorrow morning at 9 o'clock.
The committee adjourned at 1852.