Wednesday 13 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
Employers' WCB Crisis Committee
Mr Richard Fink
Hamilton-Brantford, Ontario Building and Construction Trades Council
Mr Mike Grimaldi
United Steelworkers of America, Local 1005
Mr Alan Hodder
Mr Warren Smith
Hamilton Construction Association
Mr Cameron Nolan
United Steelworkers of America, Hamilton Area Council
Mr Ray Kitchen
South West Workers' Compensation Study Group
Mr Andrew Bomé
Ms Doreen McPartlin
McQuesten Legal and Community Services
Ms Chris Austen
University of Guelph
Mr Grant Sharp
Work Return Inc
Mr Carlo Colacci
Hamilton-Wentworth HSO Mental Health Program
Dr Nick Kates
Hamilton and District Injured Workers Group
Mr Vernon Peter
Ms Elizabeth Battaglio
Mr John Battaglio
Hamilton Professional Firefighters' Association
Mr Ken Phillips
Mr Walter Baumann
Niagara Workers Committee for WCB and Health and Safety
Mr Smokey Milojevic
Mr Tim Lambert
Hamilton and District Labour Council
Mr Wayne Marston
Canadian Auto Workers, Local 676
Mr Tim Lambert
Mr Smokey Milojevic
Mr George McDonald
St Catharines Professional Fire Fighters Association
Mr Ross Smith
Mr Dave Wood
Employers' Advocacy Council, Golden Horseshoe chapter
Mr Edward Henrie
Mrs Julie Collie
STANDING COMMITTEE ON RESOURCES DEVELOPMENT
Chair / Présidente
Mrs Brenda Elliott (Guelph PC)
Vice-Chair / Vice-Président
Mr Jerry J. Ouellette (Oshawa PC)
Mr Dominic Agostino (Hamilton East / -Est L)
Mr David Christopherson (Hamilton Centre / -Centre ND)
Mr Ted Chudleigh (Halton North / -Nord PC)
Ms Marilyn Churley (Riverdale ND)
Mr Sean G. Conway (Renfrew North / -Nord L)
Mrs Brenda Elliott (Guelph PC)
Mr Doug Galt (Northumberland PC)
Mr John Hastings (Etobicoke-Rexdale PC)
Mr Pat Hoy (Essex-Kent L)
Mr W. Leo Jordan (Lanark-Renfrew PC)
Mr Bart Maves (Niagara Falls PC)
Mr John R. O'Toole (Durham East / -Est PC)
Mr Jerry J. Ouellette (Oshawa PC)
Mr Joseph Spina (Brampton North / -Nord PC)
Substitutions / Membres remplaçants
Mr Gilles Bisson (Cochrane South / -Sud ND)
Mr Richard Patten (Ottawa Centre / -Centre L)
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 0900 in the Holiday Inn, Burlington.
WORKERS' COMPENSATION REFORM ACT, 1996 / LOI DE 1996 PORTANT RÉFORME DE LA LOI SUR LES ACCIDENTS DU TRAVAIL
Consideration of Bill 99, An Act to secure the financial stability of the compensation system for injured workers, to promote the prevention of injury and disease in Ontario workplaces and to revise the Workers' Compensation Act and make related amendments to other Acts / Projet de loi 99, Loi assurant la stabilité financière du régime d'indemnisation des travailleurs blessés, favorisant la prévention des lésions et des maladies dans les lieux de travail en Ontario et révisant la Loi sur les accidents du travail et apportant des modifications connexes à d'autres lois.
The Chair (Mrs Brenda Elliott): Good morning, everyone. Welcome to the standing committee on resources development. We're very pleased to be here in Burlington this morning.
Mr David Christopherson (Hamilton Centre): Madam Chair, on a point of order: I know that every time I have raised the issue of a motion to extend the hearings you've ruled it out of order, since this committee has already voted on it, but as you know, it is also within the rules that as a member of this committee I may seek unanimous consent to place such a motion. Therefore, I would ask unanimous consent.
In particular, I would draw attention that the parliamentary assistant, Mr Maves, has had some meetings with people in the Niagara region and certainly led them to believe he would do what he could to seek further hearings to allow the people who want to be heard to do so. I'm not saying he made those promises, but certainly he left that impression.
Regardless of that detail, the fact of the matter is, injured workers have every right to be heard and six days of hearings is not near enough.
Therefore, I request unanimous consent to place a motion that would have the effect of asking the government and the House leaders to extend the hearings of this committee around Bill 99 and allow injured workers their opportunity to be heard.
The Chair: Thank you, Mr Christopherson. You are quite right; this committee can only operate under the direction given by the House leaders. The motion is not in order. You can seek unanimous consent. Is there unanimous consent? There is not unanimous consent.
Mr Christopherson: For the record, it was the government members who would not allow the motion to be placed and it's the government that has denied injured workers.
EMPLOYERS' WCB CRISIS COMMITTEE
The Chair: We would like to call now representatives of our first presenter this morning, the Employers' WCB Crisis Committee.
The Chair: Order, please. It is important that all presenters have an opportunity to fairly make their presentation. If presenters are not allowed to make their presentation in an orderly fashion, the room will have to be cleared and we'll continue. It is absolutely important that presenters --
The Chair: Order. The committee would now like to welcome the representatives from the Employers' WCB Crisis Committee. Would you please introduce yourself for Hansard. You have 20 minutes in which to make your presentation.
Mr Richard Fink: My name is Richard Fink. I'm legal counsel --
The Chair: Ladies and gentlemen, courtesy is due to all presenters. Welcome to the committee, sir. Please begin.
Mr Fink: I'll try and persevere.
Mr Fink: It's almost as rowdy as the House.
The Employers' WCB Crisis Committee represents 150 small to medium-sized employers. They've been in existence for approximately seven years. They organized around the issue of fraud at the WCB, which the --
Mr Fink: -- compensation board was refusing to deal with. I've produced a paper for the panel's consideration and I'd like to touch on a few of the items that I believe require a closer look.
Employers are currently sending to the board over $2.5 billion per year in assessments. The employers wish that when their workers are returned to them following their time on compensation, they come back fully recovered and healthy, after having received the appropriate medical treatment.
The compensation board commissioned a secret panel of experts to recommend --
Mr Fink: The compensation board commissioned this panel in September to produce a report outlining how many weeks of treatment injured workers who have chronic pain --
The Chair: Order, please, sir.
Mr Fink: Madam Chair, it's difficult for me to maintain --
The Chair: I apologize. Please try to continue.
The Chair: Order, please. Please continue.
Mr Fink: The expert panel recommended up to 12 weeks of treatment. The compensation board adopted a proposed guideline of four weeks of treatment. The secret report was obtained by us under the freedom of information act. The experts remain secret. The reports by the experts themselves are secret. The only way we got this report was there was a vague reference, in the board's proposed policy, to the experts' report. The experts proposed 12 weeks and the board proposes four.
The problem here is that there are approximately 15 sections in the proposed Bill 99 compelling employers to return their injured workers to work. The new compensation act also sets up the first managed health care system in the province of Ontario in so far as 400 nurses are going to be hired by the compensation board to impose strict guidelines on the return-to-work times for injured workers suffering from chronic pain and other strain and sprain injuries.
The employers' position is, if it takes 12 weeks to return an injured worker to good health, why won't the compensation board allow 12 weeks of treatment? If the compensation board's nurses are now going to have the authority to limit health care in cases of chronic pain and strain and sprains, why won't the compensation board take the resources to return those workers to employers in good health?
Let us say, for example, that the worker goes the four weeks and at that point in time the compensation board says, "Your time is up," and the clinic that's treating the worker says, "We need another two weeks to treat the worker." Under the board's guidelines, that worker would not be entitled to two more weeks of treatment.
In the current system, if the worker is unhappy with the board's ability to pay or not pay for treatment, the worker has the opportunity to go to the Workers' Compensation Appeals Tribunal and state: "I would like to appeal this decision. I wish more treatment." Under Bill 99, workers' ability to go to the appeals tribunal on the issue of, for instance, a simple matter, which is, "I should have six weeks of treatment instead of four," will be cut off because the appeals tribunal must follow the board guidelines and one of the guidelines will be that there are four weeks of treatment.
The appeals tribunal has been the friend of employers on a number of issues. I was hoping Tony Custode from Carborundum would come today. His case was that the compensation board overcharged him $30,000. It's a small company, Canadian Carborundum, of 18 employees. He was overcharged $30,000 because the compensation board ruled that he should be treated as if his company was still the larger Carborundum Ltd of some five or six years ago that had 400 employees.
The costs to Tony of this board guideline, this surcharge that was based on a board guideline, was $30,000. The compensation board over the course of six years refused to change the decision based on the guideline. Tony Custode and myself attended at the appeals tribunal. The tribunal said that the board's guideline was not consistent with the other provisions of the act and other guidelines and overturned the decision.
Now Mr Custode, who's been out $30,000 for six years, has asked for interest on the $30,000 the board has held. The board pays interest to injured workers and the board certainly charges interest to employers if they haven't paid their assessment. The compensation board says: "No, we are not paying interest. Our computers didn't work for the past five years. We're only paying it in 1997." The employer is now again at the appeals tribunal.
There are numerous examples of the appeals tribunal dealing with board bureaucracy against the vicissitudes of the board being uncaring towards employers. A very strong suggestion to this panel and perhaps my central one is that both for the sake of workers and employers, where disputes arise between the appeals tribunal and the board over issues of board policy, it go to mediation, that a mediator could then mediate the difference and then report to the Minister of Labour, leaving the Minister of Labour with the final decision.
Questions of board policy are legal questions. The minister obviously has jurisdiction on legal issues. These matters should go to the minister.
The other remarks I have are in the paper. I invite the panel to read it. I'd be happy to take any questions you have.
Mr Richard Patten (Ottawa Centre): Thank you for your presentation. We haven't had a chance to read your document but we will do that.
Let me ask you, on your final point on WCAT, why not leave it as it is now? I agree with you in your analysis that this will cause some difficulty, that WCAT has been able heretofore to show where board policy doesn't stand up to a general reality or a justifiable claim, or general law, labour law or what have you, or that in fact it doesn't meet the legislation. Rather than bring in another third party, why not leave it as it is now where it has a degree of independence in order to raise those sorts of issues where it believes the policy of the board is inconsistent with legislation or with prevailing general labour law in the community?
Mr Fink: I think the problem is illustrated by the interest policy, which is to say that notwithstanding the WCAT decision, the board still won't pay interest prior to 1997, whereas WCAT will, so you end up with two laws operating at the same time. I think that adds to the confusion of all the parties. It adds to inefficiencies as to how the system operates. It makes it uncertain. There has to be some certainty.
The WCAT's power, of course, is that it brings a lot more legal expertise. They are much faster than the board in terms of changing policy, so the WCAT has some advantages on policy and the board has some advantages on policy. They are the ones, after all, who have to balance the books; the WCAT doesn't. So one looks for a compromise between the strengths of those two bodies, and I think the compromise has to reside, ultimately, in the minister. I think a mediator who could try and bring a reconciliation would be an excellent idea. The final resolution has to be, I think, a political resolution. Does the minister want employers to have interest on their unreturned accounts prior to 1997 or not? Employers would just have to live with what is ultimately I think, in this case, a political decision.
Mr Patten: Given the support you have for the role of WCAT, would you likewise be supportive of retaining the independence of the Occupational Disease Panel? As you know, it has done some excellent work and has been internationally recognized for identifying diseases related to workplace in the past and not only has saved money but has saved many hundreds of thousands of lives with its work and is greatly respected. Would you also see the need to maintain the independence of the Occupational Disease Panel?
Mr Fink: Our group doesn't have a position on that issue.
Mr Christopherson: Thank you, Mr Fink, for your presentation. I note that your slogan is, "We're concerned about the survival of Ontario industry," and I'm sure you can appreciate these people are here today because they're concerned about the survival of Ontario workers.
I'm sure that on most issues -- you only deal with a few in the first couple of pages -- there's no chance in hell we're going to agree on what the government ought to do with WCB. But I am interested in your comments on chronic pain because, from my quick read of what you've presented, you are somewhat critical of the direction the government's going in. Could you just expand on that for me in terms of your concern about the limitation the government is proposing to put around compensation for chronic pain?
Mr Fink: The employers agree that entitlement to chronic pain has to be limited in terms of both benefits and treatment. The key for employers, however, beyond limiting entitlement to reasonable time periods, is that those time periods have to be reasonable for both parties, that is, both the workers and the employers. The reason for that is, right now most of my clients use treatment centres independently and pay for it out of their own pockets to help injured workers recover from chronic pain because it is less expensive to get the workers back up and running than it is to have them come into work, not be able to do modified jobs, go back out, have recurrences and go back on compensation, which is a very expensive situation. It is in the employer's interest to have the workers fully recovered. If that takes six weeks of treatment or 10 weeks of treatment or 12 weeks of treatment, it's a far more economical course than to let the matter drag on and fester.
Mr Christopherson: I'm sure you can appreciate how injured workers feel about the idea of limiting any kind of chronic pain. I would point to you and urge you to read a presentation we received from a medical specialist in this area who, in my opinion, made a clear case that ongoing chronic pain can reasonably and with a certain level of certainty directly relate to any kind of original injury. They have real concerns about what this means for the health of injured workers.
As much as I appreciate that you also don't agree with the government, I'm disappointed that you would see that there ought to be any kind of limitation. If you had followed these hearings and watched the number of injured workers who have come forward who have had their lives destroyed by chronic pain, and who find themselves virtually in poverty and with a quality of life that you wouldn't to wish on anyone, I think perhaps you might feel a little bit differently about suggesting this ought to be limited. It's not fair.
Mr Fink: Outside of my counsel of the committee and the fact that we represent over 100 employers at our office, we also represent 70 employees who are currently appealing various issues before the compensation board. Personally, and the committee I speak for, we recognize that chronic pain does result from accidents and that workers are in bad condition on account of it. The problem of course is that chronic pain in part results from things not related to work and in part is compounded by the benefits being paid for it. Our conclusion is that there have to be some limits on entitlement but the limits should be fair and reasonable.
Mr John O'Toole (Durham East): Thank you, Mr Fink, for your presentation. You know that this report focuses on two very important parts: the early intervention and prevention in section 1, the purpose section, and in part V the early return to work. Those two things, prevention and early return to work and early intervention, whether it's workplace modification, are very important parts of this bill and are changes. Are employers prepared to work with this return-to-work language? Should it perhaps be part of accommodating the workplace where the employer is held responsible along with the employee?
Mr Fink: The employer's template for dealing with compensation claims currently is to provide suitable modified work. This is the way to assist the board in returning the injured worker to work and thus saving employers costs as they pay penalties for higher cost records.
The compensation act, as it is currently proposed, Bill 99, seems to indicate that employers may have to make work, which is different than providing suitable modified work. They may have to create jobs as an obligation under the section. You will see in my presentation that a new section has been added that is similar to the wording in the Ontario Human Rights Code. We're concerned about having to make work, as that really causes a great many inefficiencies within the workplace.
Short of that, my clients have been, over the last five years, attempting to go out of their way to accommodate the requirements of the worker, and certainly the thrust of Bill 99 is to put much more pressure on workers to return and much more pressure on employers to return them. I think overall that's good, but it's subject to the caveats of having the worker healed before he comes back.
Mr Bart Maves (Niagara Falls): Thank you very much for your presentation. You seem to indicate that an LMR was unappealable. As a benefit, though, LMR would be an appealable.
Mr Fink: LMR?
Mr Maves: Labour market re-entry.
Mr Fink: Labour market re-entry would not be appealable?
Mr Maves: Will be. Because it's a benefit and, as such, it would be appealable. I thought you had indicated in your remarks that you thought it wouldn't.
Mr Fink: The problem is that if the board has a guideline, which they're planning to do in the case of chronic pain, that is, there will be guidelines for how many weeks of benefits they pay, how many weeks of treatment, you'll be able to appeal up to the limit of the guideline, but you won't be able to appeal past the limit of the guideline. So although the issue is appealable, the scope of the appeal, which is the quantum of entitlement or, if you're an employer, limiting the entitlement, will not be appealable.
Mr Maves: The WCB is conducting a consultation on chronic pain. I'm wondering if that's what you were referring to.
Mr Fink: Yes, they've made proposals of numbers of weeks.
Mr Maves: It's quite public. We've been talking about that quite often.
Mr Fink: Yes, the proposal is public but the secret report by doctors upon which the proposals are made was not public. That paper has been sitting on the board's shelf since October. It really wasn't until I read what you have in front of you, which is the board's proposal where they keep saying, "The experts told us this. The experts told us that. The experts told us four weeks," that I wrote under the freedom of information act and said, "Could I please have these views of the experts?" All of a sudden, on July 29, I get a report dated September with all the views of the experts summarized -- you don't actually read the experts -- and the experts weren't saying anything in the summary of what the board was saying they were saying.
Mr Maves: Do you have any knowledge of the chronic pain program in Nova Scotia and if it has been successful or not?
Mr Fink: Yes. The board simply said, "Nova Scotia has adopted four weeks; we're going to adopt four weeks." There's no indication in Nova Scotia that the workers are recovering following four weeks of treatment. In fact, the board has been using a four-week community centre program which the Institute for Work and Health says was a complete waste of $100 million.
The new program for chronic pain is going to have various different modalities. We work with the Health Recovery Clinic, which has three centres in Ontario. They've done studies with Dr Mitchell of the board over the last period of time and they report to me that six to 12 weeks is the minimum. The only place where four weeks could come from is Nova Scotia, and there are no scientific studies to indicate that they're having any success there in terms of treatment. They're having success in terms of saving costs, not in terms of treatment.
The Chair: On behalf of the members of the committee, we appreciate your bringing your ideas before us this morning. Thank you very much.
Mr Christopherson: On a point of order, Chair: I would like to request that you direct legislative research to look into this issue of secret reports and what is not being made public and report back to the committee.
The Chair: That's fine. We will do that.
HAMILTON-BRANTFORD, ONTARIO BUILDING AND CONSTRUCTION TRADES COUNCIL
The Chair: I'd now like to call upon representatives of the Hamilton-Brantford, Ontario Building and Construction Trades Council, please.
The Chair: Order, please.
Gentlemen, would you be so kind as to introduce yourselves for Hansard this morning. You have 20 minutes in which to make your presentation. Welcome.
Mr Mike Grimaldi: My name is Mike Grimaldi, and with me is Norm Agnew, who is the president of the Hamilton-Brantford, Ontario Building and Construction Trades Council.
On behalf of the Hamilton-Brantford, Ontario Building and Construction Trades Council, we would like to thank this committee for the opportunity of appearing before you. We would be remiss, however, if we did not express our regret at the fact that this committee will not hear from hundreds, if not thousands, of injured workers who wanted an opportunity to appear before you.
This bill, unlike many pieces of legislation, is not simply housekeeping or a minor revision; rather it is the most significant rewrite of workers' compensation legislation in Ontario since 1914. It is a betrayal of Justice Meredith's historic compromise, where injured workers gave up their right to sue in exchange for a compensation system funded by employers. Now injured workers are also being forced to bear the costs of the system. At least this committee should extend these hearings to allow injured workers the opportunity to make you understand that you are punishing the victims.
The reform is driven by the fallacy of the unfunded liability. Comments that there is a crisis in the system are blatantly false. The unfunded liability would be similar to an ordinary person being asked if they currently had in the bank all the money they would ever need to feed, clothe and house their family for a lifetime. Very few people are in that circumstance. The government, however, is asking the WCB to place themselves in that financial situation. If General Motors, Chrysler, Ford, Stelco or Dofasco were told to fund their pension plans on the same basis, all would have incredible financial shortfalls. Does this government expect private sector employers to meet this standard? I certainly doubt it. Every member of this committee knows that the unfunded liability is decreasing and will be eliminated without drastic cuts to workers' entitlements and benefits.
If the unfunded liability is in such a crisis, how can the government justify giving employers a decrease in their rates at the same time they're cutting workers' benefits? Why does the government not include the banks and insurance companies in the system if they really want to reduce the unfunded liability? Given the historic compromise in 1914, should it not be up to employers rather than workers to fund any liability?
There are a number of aspects of this bill that we disagree with, but we wanted to centre specifically on what we believe is express discrimination against construction workers. Although there are a number of areas we disagree with, we have decided to concentrate on three areas that more seriously impact construction workers than many other workers. The three areas are the application for benefits, the earnings basis and the return to work.
Application for benefits: There is no explanation or rationale for this change. A claim is now triggered by a medical report, an employer's report or a worker's report. Surely the intent should be to ensure accidents are reported, so what difference does it make how they get reported? Why should the onus be placed on the worker to apply for benefits? When this is coupled with the time limits imposed in this bill, it enables legitimate claims to be denied on the basis of no application or the timeliness of the application. How can this possibly be justified? If a worker is legitimately injured on the job, they should be covered under the act.
Mr Maves asked yesterday in the hearings, "How could we amend this section to make it fairer to injured workers?" You could make it fairer to injured workers by taking time limits out. What purpose is a six-month time limit in this legislation? If someone's hurt, they're hurt, aren't they? If they have a legitimate claim, shouldn't it be paid? What difference does it make whether they get it in within six months or not? Is this just to punish workers? What's the reason? If a worker is legitimately hurt, he should be covered.
In addition, what this section does is allow unscrupulous employers to intimidate workers into not filing claims. It will encourage the hiding of accidents and lead to many more unsafe work sites. Currently, section 18 of the act does not allow injured workers, or any worker, to negotiate their rights under the act. This is in the act to protect workers from being intimidated. The new method of applying for compensation and the time limits will essentially render this section meaningless.
This section is detrimental to all workers but has a more severe impact on construction workers. Construction work is characterized by the fact that there are no seniority provisions. The work is transitional and cyclical in nature. Since the work is unsecured, there are few protections from layoffs. The government is asking workers in this scenario to ask their employers for an application form to file a workers' compensation claim.
Mr Maves talked yesterday about perhaps putting them in libraries or doctors' offices or giving them to the union, but it doesn't change the situation that many construction workers work in remote sites, they work in short-term employment where the job may only last for three or four weeks, and they're still going to be intimidated. That doesn't even deal with the question of forms and the complication of the forms. Many workers are going to lose their benefits just because they don't have the ability or don't know where to get or are intimidated from getting these forms.
Many workers will not file rather than being on the next layoff list. Besides the intimidation, what happens on remote sites? Where do workers get the application forms? In how many languages will the forms be? Many of our workers are first-generation immigrants who do not have English as a first language. What happens if the form is not filled out correctly? Will the claim be denied? How will workers be educated to the fact they must fill out forms or lose their opportunity to pursue the claim? None of the answers to these questions are in the legislation.
The result of this section will be huge decreases in reported accidents and, unfortunately, increases in health and safety violations and more severe injuries to workers. This section is a dream for unscrupulous employers and a nightmare for construction workers.
Earnings basis: This section, more than any other, discriminates directly against construction workers. Construction is fundamentally different from other industry sectors. It is by its nature cyclical and prone to boom and bust periods. Section 53 of Bill 99 will ensure that most construction workers will never get even their 85%, which is reduced, as you know, of their net average earnings. In boom years, when workers earn high incomes, they will be penalized because the cap will not allow them to collect higher benefits and in bust years they will be penalized because the WCB will take into consideration their "patterns of employment." It will mean that if there is an economic slowdown or poor seasonal weather, construction workers will be doubly punished for circumstances that are totally beyond their control. Where is the fairness or equity? We believe the hourly rate should be used to establish the earnings basis. The hourly rate is the amount the worker is losing by being injured so that should be reflected in the benefits. It's bad enough that the worker is hurt without suffering financial devastation as well.
Construction unions deliver highly skilled workers to employers on an as-need basis. How can we continue to attract highly skilled workers if they continue to be discriminated against by different levels of government? We are already finding shortages of skilled workers in this province, and this legislation will only make matters worse.
The current legislation does little to protect construction workers in re-employment situations. Most construction workers never meet the thresholds already imposed by the act. There are many small employers in the field, and the work is highly mobile, with workers moving from job site to job site and from employer to employer. It is very unusual, therefore, for construction workers to establish the one year of employment history with the same employer in order to qualify for these provisions.
In addition, because of the physically demanding and strenuous work on most construction job sites, it's very difficult for accommodations to be made. Few jobs can be modified to accommodate a back injury or a repetitive strain injury. Bill 99 gives no indication how this serious problem would be solved. The bill is almost totally silent on re-employment provisions for construction workers. The return-to-work language will mean that most construction workers would be slotted into meaningless tasks if returned to the job site. We believe the minister should form a bipartite committee, with equal representation from the Provincial Building and Construction Trades Council and COCA, to negotiate regulations required for these re-employment provisions.
Taking the word "available" out of the loss-of-earnings benefits will only compound this problem. It makes absolutely no sense. Where's the government rationale to say, "We're going to put workers back into suitable employment, but it may never be available to you"? You're deeming people into phantom jobs. Is that your intent? You're basically stealing money from workers. Is that what this government wants to do? I don't think so. This provision will allow the WCB to place injured workers into phantom jobs and deem earnings rather than pursue meaningful employment.
We also strongly oppose any attempt by the WCB to outsource the formulation of labour market re-entry plans. We believe that return-to-work and vocational rehabilitation should remain with the Workers' Compensation Board and not be privatized. The Workers' Compensation Board has recognized the unique nature of the construction industry and set up a special unit to deal solely with construction adjudication and rehabilitation. We do not believe this expertise should be lost.
In conclusion, we believe this legislation will cause a significant increase in the number of serious injuries in the workplace; however, the impact will be hidden because of under-reporting. This will enable the minister to claim to have created a healthier workplace when the reality will be more shattered lives. We urge you to rethink this legislation, extend the hearing process and allow injured workers to have their input.
I realize there are a number of first-term MPPs on this committee. I'm sure that when people ran to become public servants, to become members of the provincial Legislature, they did not do so with the intent to leave Ontario a worse place than they found it. I'm sure that every member of this committee wants to be able to leave, when their term is done or whenever they decide not to run again, and say, "I made Ontario a little better place when I was in the Ontario Legislature." I would hate to think that when you go back to your communities, when you get up in the morning and read in the paper that another injured worker died in this province, you'll have to say, "That was my legacy."
But I can tell you, by getting rid of the Occupational Disease Panel, by putting in the application for benefits for WCB, by further deindexing benefits, by putting time limits on, by limiting people's right to appeal and by eliminating the independence of WCAT, that's going to be your legacy.
The Chair: Thank you very much. We have time then for brief, and I emphasize brief, questions and answers for our presenters. We'll begin with the third party.
Mr Christopherson: Thank you both for your excellent presentation. A quick statement just to underscore the fact that we've heard in virtually every community we've been in presenters who are also convinced that the end result of the changes that, Mike, you've just listed will be fewer claims going in, fewer claims accepted, but that injuries are going to go up.
I would put the political point to this, that the government knows damn well what it's doing. It's a very clear intent, so that a year or two from now, when they go back out for re-election, they can say to the people: "See, our changes in Bill 99 did make a difference. There are fewer injured workers." The reality will be that there are fewer injuries reported but a hell of a lot more injured workers out there.
Mike, you outlined on page 4 some of the problems you expect your members to have in terms of the new filing process, that workers have to initiate the claim themselves. That's with the benefit of the excellent representation that the trade unions provide to your members. What do you think is the future for those people who don't have benefit of representation of a union?
Mr Grimaldi: Obviously, that's going to be compounded that much more in situations where there's no representation for injured workers. Our concern is especially workers who work in remote locations, workers who don't have English as a first language or workers who depend on their employers to hold their job. Without seniority provisions and without the protection of seniority clauses in collective agreements -- and by its nature, in construction, because it's transitional, because it's cyclical, because there are a lot of short-term jobs, there are no seniority provisions.
How can anyone expect a worker to go up to their employer and ask for an application? If you put it in a library or put it in a doctor's office, the worker has to have the skill level. Although many of our members and many construction workers are highly skilled in their trade, they're not necessarily skilled in the English language or skilled in filling out forms. Anyone who has done representation in front of the Workers' Compensation Board will tell you it's going to be a horror show to have these applications filled out and sent in.
Mr John Hastings (Etobicoke-Rexdale): How many companies in your part of the world, Brantford and Hamilton, do you represent and the number of workers, ball-park ranges? Referring to page 7 of your submission, I'd be curious to know the number of injured workers you've had in your area in the last two years, and out of that, how many of them had a successful return to work through the existing WCB, through the rehabilitation approach that has been there under the current arrangement?
Mr Grimaldi: We have over 10,000 workers who are affiliated with the council. There are hundreds of small employers and large employers who employ our workers. I couldn't tell you the exact number.
Mr Hastings: Five hundred?
Mr Grimaldi: That's as good a guess as any. The number of injuries that construction workers suffer, again you could probably get that information from the Workers' Compensation Board, but I don't have that available.
In the construction trade the current situation with return to work is extremely limited. There are very few workers with any type of permanent disability who are able to return to construction work because of the nature of the work they're involved in. In most cases, it's very heavy, very strenuous work. That's why it's so important that there is the vocational rehabilitation aspect of the current act. For these workers to try to get back to a situation where they can approximate pre-accident earnings, they can get into some type of retraining program, sometimes using their skills, because most of these people are extremely skilled in their area, and transfer those skills into another area so that they can be re-employed in that in some other field.
But as for actual re-employment back to the trade, especially for people who have permanent disabilities, it's currently extremely limited, and unfortunately this bill makes it much more difficult.
Mr Hastings: How many would there be right now?
Mr Grimaldi: I couldn't tell you numbers.
Mr Hastings: Could you submit that, if you can go back and look at your records? I'd be curious to know what the success rate was under the existing WCB vocational rehabilitation arrangement.
Mr Grimaldi: All I can tell you is that we wouldn't have those figures. The Workers' Compensation Board would, but I can tell you that it is extremely limited.
Mr Dominic Agostino (Hamilton East): I want to follow up on your point about the discrimination aspect of the legislation. I agree with what David said earlier, that this is not a mistake. This was something planned. This is their way of trying to show -- as they did with welfare. The government promised they were going to drop the welfare numbers, so they cut the benefits by 22% and said, "All of a sudden all these people are not eligible for welfare, so our welfare rolls have dropped." That solved the problem. Without welfare, they have food banks and they're on the street. The same thing applies with this principle.
I was quite moved by your scenario about the discrimination aspect and how it affects particularly construction workers who have language barriers. My dad, 25 years ago, was injured in the construction industry. He had been over from Italy for two years. He fell 40 feet, because of an unscrupulous employer who didn't want to spend a few bucks on two by fours to secure an elevator shaft, and was paralysed immediately from the waist down. He was unconscious, taken to hospital, the whole bit. He was eight months in a rehabilitation hospital.
I can just imagine in that situation having to go through the process of those forms; someone who spoke no English at all having to worry about filling out forms, having to worry about how to go about filing a proper claim and those types of things. It was non-unionized, it was a small shop, it was in a remote area, all the things you've described here today.
I think there would be thousands of construction workers across Ontario who fit that scenario, particularly language skills and writing skills and so on. This bill penalizes all injured workers, but that aspect particularly penalizes construction workers who would be in that situation.
I agree with you. I don't understand at all the rationale behind doing this, why the current system is not allowed to work. I hope the government will allow an amendment to that as time goes on and will change that provision of the bill.
One point I'd ask you about is the privatization, on the last page.
The Chair: Just very briefly, to allow time for an answer.
Mr Agostino: You said that the return to work and voc rehab should remain with the board and not be privatized. Just so you're aware, that process of privatization in that aspect has already started before the bill has even been passed. What impact do you think this will have when that whole system of return-to-work planning and so on is done through an outsourced privatization mechanism?
Mr Grimaldi: I can only imagine, but I can tell you that it certainly has been our experience that the return to work and the vocational rehabilitation provisions currently, in our opinion, would be far better than a privatized system. I can see, and after hearing the previous presentation people here can well imagine, that you will have outside consultants who are going to be providing private rehabilitation hired by the company. They're going to have private rehab clinics that will doing private functional abilities evaluations for these companies. The companies are going to be the ones paying them. They're going to call the shots. You're going to get functional abilities evaluations saying people can return to work. You're going to have private consultants saying: "Here's your return-to-work plan. We drafted it."
They're going to talk about independence, but their money is going to be coming from the employer. It's just going to be a horror show. At least with the Workers' Compensation Board -- I'm sure people in this room will tell you numbers of problems with the Workers' Compensation Board, but at least you've got an independent agency that's doing the rehabilitation. With all its problems and foibles, at least there's a system there of some independence.
To go back to your earlier comment about the situation with your father, this is exactly it. If you go to the hospital, if the doctor files the claim, what's the problem with that? I don't understand. What are you supposed to do, stop the ambulance along the way and say, "Hold it. Pick up a form"? It doesn't seem to make any sense.
The Chair: Gentlemen, thank you for coming this morning.
UNITED STEELWORKERS OF AMERICA, LOCAL 1005
The Chair: I now call representatives from the United Steelworkers of America, Local 1005. Good morning and welcome.
Mr Alan Hodder: Good morning. My name is Alan Hodder. I'm the benefits chairperson for Local 1005 Steelworkers. With me are Warren Smith, president of Local 1005, and Jim Stevenson, benefits committee member for Local 1005.
Before we go into our brief, we too want to echo the sentiments and comments that have been expressed by people throughout this province, that being the limitation this government has imposed in terms of the time allotted for hearings on this important bill. When we hear consistently on an ongoing basis the fact that 130 people throughout this province, representing all the various stakeholders, have had the opportunity to comment on this bill, yet 1,300 people have applied for standing, we believe there is a grave injustice, not only through the writing of Bill 99 but that of the arrogance of this government in not following due process by allowing people the opportunity to speak in regard to this most important bill.
Having said that, I turn the mike over to Warren.
Mr Warren Smith: Local Union 1005, United Steelworkers of America, is pleased to have the opportunity to present our views and comments in regard to the government's intent to amend the Workers' Compensation Act through the proposed changes contained in Bill 99.
Local Union 1005, United Steelworkers of America, represents an active membership of 5,600 members at Stelco's Hilton works and approximately 7,000 retirees and surviving spouses. We are affiliated to the United Steelworkers of America, with approximately 70,000 members in the province of Ontario.
Workers' compensation makes up approximately 70% of our benefits committee's caseload. We make representation from initial entitlement through to the Workers' Compensation Appeals Tribunal on behalf of our membership.
Local 1005 is no stranger to the Workers' Compensation Board or government, as we have participated in many forms of consultation, whether it be the Minna-Majesky task force on rehabilitation and service delivery, submissions on Bills 101, 162, 165, or, in recent years, Workers' Compensation Board hearings on entitlement and work-related stressors.
We believe that had the present government allowed the Royal Commission on Workers' Compensation to fulfil its mandate under the previous government's objective, then clearly this government, through haste, would not have taken this unprecedented approach of completely rewriting the act clause by clause. We do not state this for rhetorical reasons, as we are not blind to the fact that any new government always determines the needs of all its stakeholders when developing new legislation as it pertains to workers' compensation in Ontario.
Bill 99 in our minds is a regressive and arrogant approach by this government and does not take into account the historic tradeoff of 1914, but merely satisfies the employer community in an unbalanced approach in the hope of reducing assessments and obligations of the employers while stripping away the rights of workers as they pertain to benefits and entitlement issues.
I'm going to turn it back over to Al to make his presentation as chairman of our subcommittee.
Mr Hodder: When we came before this hearing, given that there are only 20 minutes for presentation, we certainly wanted to allow some time for questions by members of the committee. We're going to base our comments on strictly one area of the bill, but as we go further, we will be making a more detailed brief to the committee on all aspects of the bill at a later date.
We want to talk about Bill 99 and the role of WCAT. Having stated the above, primarily our focus and presentation to this committee will be the government's directive through Bill 99 in limiting the role of WCAT.
In 1985 the government of the day passed Bill 101, and one of the greatest gains for workers and employers in this province was the birth of an independent appeals tribunal commonly known as the Workers' Compensation Appeals Tribunal. WCAT was mandated through Bill 101 to be at arm's length from the Workers' Compensation Board and have the final say in the appeals process. WCAT is to act as a check and balance when determining the real justice and merits of any appeal which comes before it for adjudication. It is important that the government understand this, as Bill 99 threatens to strip this balance and handcuff WCAT through subsections 118(l) and (2) of the act collectively. This approach, in our minds, will completely undermine the intent of WCAT's existence, and the real merits and justice of all appeals will be lost, based on the tribunal being overshadowed by board policy.
Presently the board has the sole jurisdiction in all claims filed before it. The board develops policy as a result of regulations of the act and puts into place directives and entitlement issues. WCAT, on the other hand, is responsible for a checks and balances approach and is there to make sure the legislative intent of the act is fulfilled. It's important for this committee to understand that, because as with any government, when we write legislation or amend the act, regulations are put forth as a result. There are meetings between the stakeholders and from that there is input on policy.
This is important from a historical point of view, as the board develops policies which infringe on the intent of the legislation. A clear example of this would be a policy directive of the board, should it be developed, which eliminates compensation for repetitive strain injuries, or RSI, as it is commonly referred to. WCAT, on the other hand, would clearly allow such claims based on the legislative intent as contained under clause 1(1)(a) of the act.
A more simple example is that a worker is off and has been prescribed chiropractic treatment. The worker is in receipt of a permanent impairment award or, previous to Bill 162, a permanent partial disability award which is recognized by the board and he gets a percentage of impairment as a result of the disability. The worker is off and during that period is prescribed chiropractic treatment. The worker returns to work, but the chiropractic treatment is needed as a result of the ongoing disability to maintain that worker back into employment -- maintenance treatment. That's how the board treats that type of health care. In fact, the board has a policy that says a worker is only entitled to up to 12 weeks of chiropractic treatment and anything above and beyond that must be approved by the board.
It makes no sense to me, as a person who represents workers on an ongoing basis and who files hundreds of appeals a year on behalf of our membership, that there be a limitation in place for chiropractic treatment if that chiropractic treatment keeps that worker off the rolls of the WCB; the worker is not receiving benefits on a biweekly basis. Clearly the treatment is what's maintaining the employment for that worker, yet the board, in haste, cuts that worker off those benefits because of the policy. WCAT, on the other hand, would look at the legislative intent of the health care provisions under the act and is more prone to grant the continuing entitlement, taking into account the circumstances for which the health care was prescribed.
This government should not fear the tribunal in its present form, as clearly there is a fair and balanced approach by the main stakeholders, those being government, employers and worker representatives, in determining the real justice and merits of every appeal which comes before it. This is why the need for preservation and the need to maintain the balance that currently exists is more important today than at any other time in the tribunal's history.
The principle of tripartisanism that exists within the system must be maintained if there is to be a fair and balanced approach in determining the government's objective when amending the act. Clearly, the employer community has emphasized this point when they have made similar presentations on this subject. We, the primary stakeholders of the system, are not afraid of dealing in a fair and responsible manner, and we believe from the historical data available through the annual reports published by the tribunal that the government's objective is easily identified. We cannot emphasize this point enough, as Bill 99 will eliminate WCAT as it currently exists.
We could easily spend the remaining allotment of time providing examples to the committee on checks and balances, yet we will leave this to a more detailed brief which we will provide to the committee on the entire bill when we make our presentation on the clause-by-clause provisions.
Having stated the above, it is important that this committee clearly review the legislation contained in Bill 99 as it pertains to WCAT, as this government should have faith in the tribunal performing its original mandate.
We will remind the government that WCAT was established as a result of the approximately 700 complaints per year to the Office of the Ombudsman. In fact, Premier Harris was part of the standing committee on resources development, through Bill 101, which put into place the tribunal as it currently exists today. This is not rhetoric but is clearly a matter of record.
I have included an appendix to our brief which identifies currently existing board policy 03-02-10, which has a detrimental effect on our workplace. We're part of the basic steel industry; we have approximately five miles of plant we work in. The policy I've attached deals with parking lots and employers' premises. The attachments show how we have discussed with the board the policy, and attached to that is WCAT's interpretation, which takes into account the legislative intent of clause 1(1)(a) on the definition of an accident, and the response we received from the board. We leave that for the committee's perusal at a convenient time.
Having said that, we're more than prepared to answer any questions the panel might have of us at this time.
Mr Maves: Thank you very much for your presentation. I note that Local 1005 appeared in 1994 on public hearings on Bill 165. Since most of this brief is on WCAT, I wanted to start with the 1994 one. You said:
"WCAT was mandated through Bill 101 to be at arm's length of the WCB and have the final say in the appeal process, yet we know that this has not occurred. We state this for the very simple reason that the board, through section 93 of the act, has sole jurisdiction as it pertains to the matter of compensation."
I'm just trying to line that up with your brief. It seems like now you're saying WCAT, as it exists now --
Mr Hodder: The focus of our brief on Bill 165 was twofold, first, the issue of the board having the final saying. Through Bill 101, it was the government's intent, we believe, that the independent appeals tribunal would have the final say. We know that was not the case as a result of decision 72, in which the tribunal primarily dealt with a case surrounding the definition of an accident. As a result of that, under section 93 of the act, the board stayed the decision, in fact, reviewed through the board of directors the tribunal's interpretation on an accident and came up with a different directive from that of the tribunal's decision.
Primarily, our focus through Bill 165 was that of taking away the board's jurisdiction under section 93 and having the intent which was originally placed through Bill 101, giving the tribunal the final say in all matters pertaining to appeals through that process.
Mr Maves: You were here at the start of the morning, I assume?
Mr Hodder: Yes.
Mr Maves: That first presenter talked about the possibility of having mediation where WCAT decisions and WCB policy clashed. Would you support that?
Mr Hodder: No, I would not. Our position very clearly is that the stakeholders present at WCAT, whether they are chairs appointed by government, workers represented by appointments through the Ontario Federation of Labour -- and the employer community certainly has the ability to appoint sidespeople to that forum as well. Historically, the stakeholders -- government, employers and workers -- have always come to the ability to make decisions. I believe the evidence provided through the annual reports supports that. Since the inception of Bill 101, there have only been three instances where the board has had to review tribunal decisions and come out with either a directive or implement a policy as a result of those decisions.
Mr Patten: Thank you for your presentation. We've received a number of depositions from your brother and sister workers in different parts of the province.
We're concerned about the position of WCAT. As Mr Fink identified this morning in his example, if WCAT is stuck with living within stated policy, both treatment and compensation will be lost. We agree with that.
There's another aspect that is worrisome that I wonder if you might comment on. Then I'd like to ask you, if the present system is implemented, what you think this really means in human terms.
It seems to me that WCAT plays the role of the mechanism in the organization that provides the organization to continue to change and learn from the reality of what happens. There are changes in the workplace in terms of new chemicals being introduced, new mechanisms, new technologies that provide new hazards all the time. Any organization has to have the most recent knowledge of what's going on there. I think that's what WCAT has performed. It has been the mechanism to help the organization learn and adapt to the reality. If that doesn't happen, it seems to me that the board will be in a position of increased litigation. Would that be your view as well?
Mr Hodder: That's correct. In fact, the act is written in such a way that primarily you have different sections which deal with various entitlements. You have in the act a schedule of diseases. Your point is well taken. Approximately 150,000 new carcinogens are introduced on the market every day of the week without an epidemiological study or without the ability to study the effects on workers. We cannot accept that workers who die as a result of workplace exposure should not have entitlement to compensation because they don't fit into a particular schedule of disease which is recognized by the board or has been regulated through the government as a designated substance.
The act, primarily through clause 1(1)(a), allows the tribunal to explore that avenue through the definition of an accident. If it doesn't fit into a particular category, clearly the tribunal has the ability to go down a path to seek out and look at entitlement as a disablement issue, something that's gradual, with onset over a period of time. It gives them the ability to review other than what's contained in any particular section, looking at all legislative intent put forth by the government when making changes. That's particularly important given that this bill is doing away with the Occupational Disease Panel. It's important that that be maintained because of the evolutionary change taking place within the workplaces and the number of bodies piling up as a result of the employers not cleaning up those workplaces.
Mr Gilles Bisson (Cochrane South): I appreciate your bringing your expertise to this, because I really don't believe that the government members understand the importance of WCAT and what it means when it comes to accessing justice for injured workers and diseased workers.
I come from the community of Timmins, a mining community. I grew up in a community where it was a natural occurrence during the 1940s, 1950s and 1960s to see workers hanging on to sides of buildings trying to catch their breath because their lungs were shot from working underground. The doctors knew, the mining officials knew, our city officials knew and our governments knew, and nobody did anything. What happened is that a lot of these people, unfortunately, died.
For years, the Steelworkers union up in Timmins, of which I'm a member and quite proud of it, did a lot of work to try to shed some light on what was going on so we could find a relationship, if there was one, between what happened in the workplace and these people dying, and we never got justice. Why? Because it was up to the government of the day. It wasn't up to a scientific body. It wasn't up to something called the IDSP at the time. It wasn't up to the WCAT. It was up to the government to say, by matter of policy, that we either accept or don't accept that lung cancer, silicosis and other things that happen to people underground are work-related.
It wasn't until 1985 that the Steelworkers union, Local 4440, up in Timmins, with people like Omer Seguin, Moe Sheppard and others, were able to get before the WCAT, and I was a part of that. What we did simply was this: We found a test case -- there were lots of them; we didn't have to look too far -- we found an individual who had died. We documented his case and we piled all the rest of the other bodies with it and we brought it to WCAT. We were able to say to WCAT that there was a reasonable doubt, that what had happened to this miner is that he had got his lung cancer as a result of his working underground. If it hadn't been for WCAT, workers in this province would have never got justice when it comes to what happened underground. Widows got compensated, but more important, the mining industry today is now recognizing that there is a problem, because it costs them money from their pocketbook because they had to pay it through their assessments. Now we're trying to address the problem to prevent it.
If we know that the WCAT is that important, is it that the government doesn't understand the importance or that they understand it far too well and are not willing to give workers access to justice?
Mr Hodder: Your point is well taken. I think you have hit the nail in both instances. I think this government clearly understands the role of WCAT when it comes to the development and being independent of the board, having the ability to look beyond policy, to look from a global perspective. It makes no sense to tie a tribunal's hands based on what is presently a directive by the board when in other parts of the world we're recognizing occupational disease from other studies, from other parts of evidence or information coming forward.
The Chair: Can you please wrap up? Our time has expired.
Mr Hodder: You've answered your own answer. I think this government knows quite well why they need to limit the role of WCAT.
HAMILTON CONSTRUCTION ASSOCIATION
The Chair: Could we please have representatives from the Hamilton Construction Association. Good morning and welcome.
Mr Cameron Nolan: My name is Cameron Nolan, and I'm the executive director of the Hamilton Construction Association. Our brief has been distributed to the committee members. I'm not going to read it verbatim, but I will talk to a number of the issues we raise in that brief.
I want to start by saying we're pleased to be here to make this presentation, particularly pleased that the needs of the construction industry are well supported by many people in the room. It's an interesting industry. Perhaps I should begin to articulate at least some of the components of the industry that are important.
Operations in a construction industry environment are quite unique compared with the rest of the employer rate groups; hence WCB legislative requirements which might seem obviously suitable to other industries are not really suitable to the construction industry. You've heard some comments about the fact that it is seasonal, that its employment opportunities are varied and wide-ranging; sometimes there's lots of work and sometimes there's virtually no work. The wide variances demonstrate that steady employment just doesn't readily occur, and these variances can occur not only between months of the year but between areas of the province. For instance, Windsor might be very busy and Hamilton as a community has been very slow in construction for many years now. So the type of activity varies not only by month, not only by type of trade, but also by the area of the province.
Employees, therefore, are constantly starting and stopping work -- they don't necessarily work even for one company in particular -- and the industry has found that it has to look to other accommodations. For instance, when it comes to pension plans or benefit plans, of some importance to every worker, health and dental benefit plans, we have what are called multi-employer plans. This has traditionally been the case for unionized workplaces, where a union, for instance the electricians' union or the plumbers' union, would set up a welfare or benefit plan for their members, and as they work for companies A, B, C, D, the money is paid into a plan managed by the union. It's now also true of open-shop type of contractors. We have a situation where the industry has come together to respond to its own unique circumstances.
The other thing I want to point out to you, and it's an important issue, is that construction is one of the largest sectors in our economy. For every $1 million of capital spending, it generates anywhere from 22 to 23 person-years of employment on average, and the costs of construction are significant contributors to the economy.
The other thing about construction is that it involves many smaller, mostly Canadian-owned companies, has a very high bankruptcy rate and a very low rate of return. There is high risk in operating the business, a low rate of return on capital investment, and these things do not bode well when the costs, in areas that the contractor can't even control, continue to jump them out of a competitive edge with the rest of the economy in the world.
Given the workers' compensation system, the unique characteristics and associated variables with construction industry circumstances really limit the effective application of the system to construction. Since larger, more sophisticated firms, however, can respond -- I heard a presentation earlier about being able to fill out forms. While the larger firms have staff and resources available to them to help make those things happen more easily, smaller firms are more focused on survival. They don't have time to worry about filling out a WCB accident investigation report or even investigating an accident that one of their workers may have --
Mr Nolan: It is much more difficult for the smaller firm to do that in an effective way, in a way that benefits all of the people concerned. In fact, in many of those smaller companies it is not necessarily their prime objective. They're trying to survive, as are many others.
For many years the industry has monitored and commented to the Ontario government, be it the present government or preceding governments, with respect to the workers' compensation system. We've done this through the Council of Ontario Construction Associations principally, better known as COCA. We continue to press for changes which will ensure that the construction industry can in fact meet the objectives.
I want to just emphasize that point again. There's an objective in mind -- I'll talk a little bit about that -- and there are ways to meet that objective. The system as it's presently defined works in the construction industry against meeting the objective. The industry itself, as it has with its multi-employer benefit plans, has a duty of care and a responsibility and does in fact seek to make those changes.
Before I get to the one issue I really would like to talk about, which is the return-to-work provisions because they illustrate the point that I'm making, I also want to talk a little bit about the safety record in the construction industry. The primary goal of workers' compensation is to provide a response to injured workers in the case where they can't provide for themselves. But that isn't what our goal is. Our goal is not to have injuries. Obviously if you don't have injuries, you don't have to be providing. Our primary goal is to reduce the number of injuries.
I can tell you, and there are charts in the brief, that from 1989 to 1996, the lost-time injuries within the construction sectors have decreased from 10.2 to 3.86 per 100 work years. That's the comparative average. It's a significant decrease in terms of injuries within the construction sector, and because it's per 100 work years of activity, it isn't because we've had lower activity; it's on a per capita basis almost. But sadly the WCB premiums to construction rate groups have significantly increased over the same period of time. These two things just don't make sense to us. We feel there is a tremendous cooperative effort taking place between management and labour in the construction industry that isn't being recognized in terms of the ability to deal with other aspects of the WCB legislative requirements and certainly isn't being reflected in the rates and premiums that our contractors have to pay.
Someone could say about the rates and premiums our contractors have to pay: "Who cares? That's the contractor." But it makes them less competitive, and it also makes them less competitive, for those firms that are particularly sophisticated or do a good job or really try to do the right thing, with those firms that don't. Even though they may be a small minority of the firms, it still makes it difficult to compete even within the sector, never mind from without the sector.
For COCA and for our industry, we feel that Bill 99 goes a long way to addressing some of the concerns we've raised with the minister and the staff of the WCB, and for that we're very much appreciative. But I'd like to comment on two or three things of particular import.
One is a three-day waiting period. We found that in the province of New Brunswick when they put in a three-day waiting period before benefits kick out -- and I'm talking about payroll reinstatement benefits -- the number of claims dropped by 50%. The research indicates that this arose because somebody who just had a hand sprain or did something of that nature which was particularly minor wasn't taking several days off because it was easy to do that and they had a readily available reason to do it. They were really actively interested now. The claimant had a role to play in the reinstatement back into work in trying to do modified work situations, and that certainly has helped.
The other thing is that no insurance program of any kind, other than the WCB system, doesn't rely to some extent on the claimant's responsibility.
These are things that are important to us.
I'd also like to touch on the return-to-work provisions. Construction actually has 2.5 times more FEL awards than does any other industry. In other words, a worker is 2.5 times more likely to receive a permanent pension in the construction industry. It has been stated and it's noted that there isn't as easy a transition on a return to work for modified work within the construction industry, and certainly there's tremendous sympathy for that within the community, both in terms of doctors and others who are involved in the system. We believe that has had some impact. Consequently, we've asked the government to allow the industry to resolve that problem, because that 2.5 times higher cost impacts on our ability to deliver services in an economic and viable and competitive way.
We propose three specific suggestions, and I reiterate these:
(1) That the legislation direct that the Workers' Compensation Board cause labour and management within our industry to produce a return-to-work regulation. Give us the responsibility and the authority to do that jointly.
(2) Authorize the board to manage that designed system.
(3) Direct that subsection 41(8), subsections (1), (2), (4) through (7) and (9) not apply to the construction industry, and cause the board to direct the labour and management representatives to incorporate the principles that are found in those subsections into the regulations that they are authorized to produce.
These are important steps to letting the industry solve its problems, as it has so successfully in a couple of other areas.
There was a detailed submission produced by the Council of Ontario Construction Associations contained in its brief to this committee of June 25. I did not reproduce it. You already have copies; I'm sure you can review it again. I would urge you to do so. Of particular note, though, I would like to again iterate that COCA identified in their submission five or six points that I think are critical to the understanding of this committee.
(1) Eighty per cent of construction workers presently do not have reinstatement rights.
(2) Injured workers in construction are four times more likely not to have a job to go back to after their injury. The seasonal and transient nature of work is obvious.
(3) Injured workers are 2.5 times more likely to be awarded a permanent pension than average workers of other industries.
(4) Construction workers have limited vocational rehabilitation opportunities. Fewer specific alternative career opportunities exist even within the industry.
(5) The current obligations of the workers' compensation system really act as a disincentive rather than an incentive for employers to reinstate injured workers.
Let me just tell you about that. I worked very closely with the Labourers' International Union two or three years ago to try to define a way that the industry could have a reinstatement, return to work. We found roadblock after roadblock in bureaucratic regulations and paperwork etc to try and achieve that end. It wasn't easy; for example, as it relates to a worker moving from employer A to employer B and who would accept the responsibility for a reoccurrence of an injury. Would it be the new employer or would it be the old employer? Trying to define that was very difficult. It was an extremely difficult thing to get through. Hence the recommendation is, leave it to the industry to try and define its own regulations so that it can accommodate within the context of what it knows is its operation.
In concluding my formal remarks, I'd like to say that we're grateful to the government for the ongoing dialogue and openness with which the government has approached the Workers' Compensation Act reform.
Mr Nolan: I guess everybody has their definition. Anyway, the construction industry is particularly pleased that our input is respected. We recognize that you have a much larger constituency to deal with and we hope to contribute to the positive reform of the WCB act.
The Chair: Thank you very much. We have two minutes remaining per caucus, time for a brief question and a brief answer. We'll go to the Liberal caucus first.
Mr Patten: Thank you very much. By the way, many representations have been made and I think the committee understands now the uniqueness of your industry in many ways, with multiple employers, and how difficult it is.
It seems to me you're suggesting that the associations are prepared to take on more responsibility in terms of return to work. There was a recommendation that came through one of the home builders' associations, I think it was, that talked about a credit system for companies that employed workers who had to be in modified employment situations, that there would be some kind of credit system which would be an incentive to re-employ people in a position who may not be at 100% but at 80% or 90% or whatever it might be. Do you agree with that idea?
Mr Nolan: I'm not familiar with the specific presentation put forward by the home builders so it would be inappropriate for me to comment as to whether it's appropriate or inappropriate.
I can say, however, with respect to you saying the industry has agreed to accept responsibility, that what we're recommending to you as a standing committee member is that you request and authorize and mandate that we develop the regulation, but the responsibility for the management of the regulation, so that there's a neutral responsibility in terms of the control of it, rest with the Workers' Compensation Board.
Give us not only the tools but the mandate to develop the regulations that we know will allow both workers and management to comply, because that's what you want: You want compliance with an objective. You don't want rules and regulations; you really want compliance. You don't get compliance today for a whole host of reasons. You certainly don't get uniform or even compliance. There are disparities within the construction industry within the province about how people can apply. I touched on that when I drew attention to the sophisticated versus the very small company.
You want compliance. Give us the tools to write the way in which we can in fact comply with the objective, and then give the board the authority and responsibility to manage that.
Mr Christopherson: Cam, thanks for your presentation. Welcome. I do want to say at the outset that I've known Cam for a long time. During my time as an alderman on Hamilton city council I worked with Cam on a number of community projects and I respect the efforts he makes on behalf of our community. However, he and I disagree vehemently on an awful lot of political issues, and today is one of those times, Cam. But I do appreciate you being here.
We don't have much time, but I did want to raise with you an issue that the Hamilton-Brantford, Ontario Building and Construction Trades Council raised earlier in their presentation. They're very concerned at the prospect of the return-to-work plans being privatized or moved outside the domain of the WCB, and I share that concern. It's based on the fact that WCB right now, while it's certainly not perfect, is not deemed to have a vested interest in either the employer's or employee's agenda, but to as objectively and at as arm's length as possible work to benefit the injured worker, taking into account the employer.
They're concerned that if it's privatized, he who pays the piper calls the tune. If it goes out to the employer paying for this being done, the plans that are going to come back are going to be in favour of the employer, and the injured worker is going to lose in that deal. I share that concern. Would you give me your thoughts on that, please.
Mr Nolan: Thank you for your opening. First of all, we may disagree on a lot of political things. I don't think this is political, and I think that's the problem, David.
What we propose is not to privatize. What we propose is that labour and management -- there are organizations that represent organized labour particularly in the province of Ontario that work very closely with COCA, and that's who we would propose come together to define the appropriate regulations. There are circumstances that are beyond the control of contractors as they relate to hiring hall provisions and a variety of those things as well that have an impact, so these are critical components. It isn't privatizing the return-to-work provisions; it's allowing the industry to develop the right provisions that it can comply with.
The other thing -- I just want to touch on this -- is something I've believed for a long period of time. The problem with the present WCB system is that it forgets and ignores the most basic and important thing about being a human being and a worker in this province, and that's that what you want to do is to be working for a living to provide for your family. That's what it misses. It misses that completely. It talks about regulations and forms and filling this and filling that and doing this and doing that and it forgets completely that the primary objective is to take injured workers and put them back in a position where they can provide for their families and they feel they're providing a meaningful contribution to society.
That's what I believe, David. That's why I think our industry has to do that, because only we know how it is possible, within the context of the way our industry operates, to achieve that.
Mr R. Gary Stewart (Peterborough): Thank you for your presentation, sir. I will agree with what you just said, that this type of thing should not be political.
Mr Stewart: Maybe people do. I don't believe it. I believe the two groups should work together and I think they can.
I'm very interested in what was said prior from the construction union folks, and that is that they also want to establish their own regulations working with the various associations, but I'm curious what type of regulations there might be. Can you give me just an idea of what type of regulations? I like the idea of the groups organizing it and operating it etc, but what kind of regulations might we be talking about?
Mr Nolan: Ones that will work.
Mr Stewart: Absolutely. But can you give me just some type of an idea? Because I'm hearing about it but I don't hear what they might be.
Mr Nolan: I think it would be premature of me to give you something that is going to answer your question as you'd probably like, but let me just give you one example. I touched on it earlier, so let me expand on it now that you've asked your question.
Workers work for many different employers. The present WCB rules are that you have to return to work with your present employer, and I forget all the ducks in a row and how they all happen, but that just doesn't happen in our industry. Yet that's what the Workers' Compensation Act mandates, that it has to happen. So you have an employer who cannot have a worker return to work, as opposed to if the act regulations said the industry has to return that worker to work. That's a different kind of mandate, because the employer in the act is the individual employer.
In the construction industry, the nature of the industry is that the employer, in the more generic sense, is in fact the industry. It is a multiplicity of Ontario numbered companies, if you will. Therein lies the distinction. The regulation would say the industry has a mandate to return -- I'm obviously being philosophical in answering your question, but that's one distinct example between the present circumstances and how it might be related in future circumstances if you let the industry do what it needs to do.
Mr Stewart: We heard a suggestion up north about pooling of workers because certainly bigger companies may have modified work where a small may not. Do you think something like that could work?
Mr Nolan: It can work as long as you're not transferring the responsibility that exists from individual employers, and in fact probably from a select number of employers, to the larger pool inappropriately.
Once again, let me illustrate. Worker A is with a company and moves to Company B. So Company A today; moves to Company B. They can be reinstated with Company B, returned to work because company B has now got the next contract and Company A doesn't have any; they are estimating other work. By moving to Company B, however, does Company B accept the responsibility for the previous injury and all the costs associated with that that go into the CAD-7 rating and the various other calculations the board does to relate to premiums and surcharges and so forth? The problem we have is, where does that go? The regulation would address that kind of problem as well and make sure that it is properly allocated.
The Chair: Thank you very much. The members of the committee appreciate your taking the time to bring your suggestions before us today.
UNITED STEELWORKERS OF AMERICA, HAMILTON AREA COUNCIL
The Chair: I would like to now call representatives of the Hamilton Steelworkers area council, please. Good morning and welcome.
Mr Ray Kitchen: My name is Ray Kitchen from the United Steelworkers. I'm a workers' compensation rep. With me I have John Roach, who is also a steelworker and also an injured worker, and Bill Ferguson, who is the vice-chair of the Hamilton Steelworkers area council as well as the president of the United Steelworkers, Local 8782.
First of all, I'd like to thank the government standing committee for giving me the opportunity to have input into such an important decision-making process, or at least going through the motions and giving me the impression I've got some kind of input into the decision-making process.
Just a note, and this point has been made before: I feel it's a shame that less than 10% of the hundreds who asked to be heard on such an important issue as this anti-worker bill will be allowed to speak. I would like to make a point. I'm asking the committee to go back and ask to extend these hearings so at least 50% of the workers who asked to be heard -- because their lives are at stake. Workers have been paying for this with their lives, their health, their safety, for years.
Before I go on, I would like to make a comment on workers' compensation. Workers' compensation hasn't been here forever. Workers' compensation evolved in 1914 with the input of one Tory, ironically, Sir William Meredith, which in turn created the Workmens' Compensation Act. When we look back some 80-odd years ago, the Workmens' Compensation Act was based on five basic principles. Right now, to this very day, they're still working on those five basic principles, up until Bill 99.
Number one is a security of payment. The idea behind that is that if a worker was ill or injured from workplace exposure or a workplace accident, that worker would receive some kind of monetary benefit so they can get by until they're able to return to work again. Do we have that with Bill 99? No, we don't.
Workers' compensation, to be a no-fault system, means that if a worker trips over their shoelace and falls down a flight of stairs, and if the employer does not keep those stairs maintained, the worker is entitled to workers' compensation. In turn, the worker gave up the right to sue. That is a big issue -- the worker gave up the right to sue.
Employer-funded collective liability: The workers' compensation system is funded by the employers, as we've all heard before today, not the taxpayers, which is a fallacy. Also, last but not least, it's to be administered by an independent agency. This independent agency is the Workers' Compensation Board.
Bill 99 proposes to discard these principles that have governed workers' compensation for over 80 years. I feel this proposed legislation sets workers' compensation back those 80 years in time, when an employer was able to slaughter and maim, with very little responsibility and accountability to the injured workers.
Next I'd like to talk about Bill 15 for a few minutes. We go back to December 1995. I feel that Bill 15 paved the way to hell by removing the bipartite board of directors, which eliminated the input of the most important stakeholders; that is, the injured workers themselves. They've been paying into the system with more than money for years: their lives, their blood, their families.
The current board of directors has been replaced by a makeup of employers and insurance-oriented people who will ensure that further policy will be geared towards saving the system and employers money instead of addressing the concerns of injured workers.
The Workers' Compensation Board was developed in 1914. Bill 15 also removed the time limits for the Ministry of Labour to issue policy direction to the Workers' Compensation Board. How long does a worker have to wait after a decision is made now?
One of the issues I'm involved with in our workplace, and we've been struggling with it for years, is the return to work. I've heard in some of the previous presentations that return to work is one of the most important parts of Bill 99. If we take a look at Bill 99, it is going to prevent workers from returning to work at jobs they can do, create hurdles and put workers out on the street on social assistance.
Bill 99 is going to force injured workers to return to the workplace and force them into jobs they cannot properly do within the scope of their medical restrictions. In many cases I myself have returned an injured worker to the workforce in a job they could perform with their injury. In a number of these work-related cases, the assistance of the workers' compensation rehabilitation case worker was essential.
Face it, the employers don't want to take these injured workers back to work. Sometimes I call it the Adolf Hitler theory, where the employers only want the able and the physically fit, so they can get the most bang for their buck and get rid of those workers who were injured on the job. By eliminating the initial involvement of the vocational rehabilitation case worker, where are these injured workers going to be down the road?
Bill 99 removes voc rehabilitation assistance and replaces it with a punitive labour market re-entry plan. This will create a climate where the Workers' Compensation Board will have less involvement in assisting injured workers to return to the pre-accident workplace, and in turn result in a more difficult time in returning workers to a job they can physically do -- if we can return these workers to the job. This will also lead to workers being forced into jobs beyond their medical restrictions. This may lead to further injury and/or a suspension of their worker's compensation benefits.
Let's take a look at section 40 of the proposed act. It will require employers to contact the workers, "as soon as possible after the injury occurs and maintaining communication throughout...the worker's recovery or disability." I ask the government, what does "as soon as possible" mean? Does that mean as soon as that worker opens their eyes after surgery? Does it mean when that worker's gurney can be wheeled to the nearest telephone so they can call their employer? Obviously, this legislation will leave the injured worker open as fair game for constant harassment from their employer.
We take a look at subsection 40(2). It requires the injured worker to contact their employer as soon as possible after the injury to help identify suitable work. If the worker fails to do so, the injured worker may be accused of failing to cooperate. We've all heard that before, failing to cooperate. What happens when we fail to cooperate? Hey, those benefits are gone. They can be suspended. We might not see those benefits. I ask again, what is the definition of "as soon as possible"?
For an example, I'll use my workplace. We'll go back to my workplace, which is a very strong unionized environment with the United Steelworkers and where we've negotiated, I feel, fairly good return-to-work language. Although we've got fairly good return-to-work language for those workers who are ill and injured in the workplace, as well as sometimes off the job, we have some difficulties bringing workers back, especially those workers who have permanent disabilities and who need placement for the rest of their working life.
Some of the points we find difficult in situations of bringing these workers back to work are:
(1) The employer will offer modified work to a worker, and when the injured worker returns to work the employer tries to force the injured worker to work beyond and outside their medical restrictions. In turn, the worker has to be laid off again. The worker is going to become more disabled, hurt themselves and not be able to perform and do the job.
(2) The modified work offered is short-term and not for the duration of the injury. The worker may be forced to lay off work, which could provide difficulty in reinstatement of workers' compensation benefits, or a worker may be forced to perform work they cannot do safely. Every worker wants to go to work with dignity, take a paycheque home, look after their family. They may not be able to do that under Bill 99 if they're forced back to work prematurely.
(3) This is a little bone of contention I run into on many occasions when bringing a permanently disabled worker back to work: When a worker has to be accommodated on a permanent basis, all of a sudden the employer tells us, "Hey, we don't have a job available within those restrictions." There are no jobs available for that worker, although if that worker was disabled for two weeks, there would be more than enough modified work available.
Next, subsection 41(3) of Bill 99 indicates that the board is no longer required to determine the worker's level of fitness unless there is a disagreement between the employer and the worker. The lack of Workers' Compensation Board assistance in the injured worker's return to work may pressure the worker to return to work before they are medically fit. This will increase the risk of injury, increase the cost to the system and, in turn, if these claims are allowed, will increase the cost to the employer. I know all the employers are so worried about their dollars.
If in a well-protected union environment like ours we experience significant problems in returning injured workers to work, I expect under Bill 99 our problems will escalate. Let's look at those poor workers who are not from a union environment. It leaves those workers, when they're returning to work under Bill 99, with less representation from the Workers' Compensation Board and in the hands of those employers. All these workers are trying to do is to make a decent living for themselves and their families with dignity and go back and forth to work.
The next point I want to touch upon is the Workers' Compensation Appeals Tribunal. The Workers' Compensation Appeals Tribunal was established in 1985 under Bill 101. The Workers' Compensation Appeals Tribunal allows a decision by the Workers' Compensation Board to be appealed to an independent body. This independent body is outside the structure of the Workers' Compensation Board. This allows an unbiased review of the objections versus the prior internal review system that the Workers' Compensation Board had prior to 1985, which reviewed the issue within the structure of the Workers' Compensation Board. We didn't feel this would review a case based on its merit and justice but basically on policy, how the Workers' Compensation Board interpreted its own policy.
The Workers' Compensation Appeals Tribunal now has the independence to overturn decisions of the Workers' Compensation Board as well as directing the board to expand and create new policy. Bill 99 proposes that the independence of the Workers' Compensation Appeals Tribunal become obsolete. If this anti-worker bill is passed, the Workers' Compensation Board will be able to dictate to the appeals tribunal which policy, if any, will be used in reviewing the case.
This means ultimately that the Workers' Compensation Appeals Tribunal will only have jurisdiction to rule on whether or not board policy can be applied correctly, and will be unable to judge a case fairly on the real merits of the issue and be unable to interpret the act themselves as they have done in the past. I understand by reviewing Bill 99 that in this case, where no policy governs the issue in dispute, the Workers' Compensation Board may allow the tribunal a big favour by making a decision without reflecting on board policy.
This bill will return the power of decision-making to the internal structure of the Workers' Compensation Board as it was previously determined over 12 years ago. We all know it didn't allow an independent and fair review of the Workers' Compensation Board decision in a dispute, as identified by Paul Weiler and the creation of Bill 101.
Bill 99 proposes time limits on filing appeals on issues in dispute. Under the present system there are no time limits on appeal. In many cases an injured worker has little knowledge of the workers' compensation system and does not understand the full impact of the Workers' Compensation Board's decision. The average shop floor worker -- I know in previous briefs there were educational problems and English-as-a-second-language problems mentioned. We don't expect the average person to be a labour lawyer or a Philadelphia lawyer. What we want to see is that an average person, if they injure themselves on the job, should be able to receive workers' compensation benefits without being restricted to time limits.
Once they do understand the full impact of the decision, or if they do, they may have to shop for a representative, they may have to obtain medical information, they may have to make a medical appointment or they may have to wait for a return response from the Workers' Compensation Board. Any reps or anybody who's dealt with the Workers' Compensation Board before knows that sometimes it's like pulling teeth to get a response from these people, so six months can slip by fairly rapidly.
If, in the maze of this confusion, the injured worker commits the crime of not filing within the parameters of the time limits, they cannot file an appeal. Even if this appeal could have been easily resolved in time, at the time the injured worker will have no recourse in the bureaucracy of this proposed system. We'll paint a scenario: A worker falling victim to failing to file within the time limits could quite easily end up on social assistance, with no benefits from the Workers' Compensation Board, and depend upon the social net that's provided by the taxpayers, and the employer would walk scot-free as far as penalties for that injury are concerned.
I just want to touch on the Occupational Disease Panel for a minute, which is a very important point that we've heard before. Bill 99 will eliminate the Occupational Disease Panel. The Occupational Disease Panel has been determining diseases caused by the workplace by participating in independent research for years. Many workers and survivors have been compensated for diseases caused by exposure in the workplace. The Occupational Disease Panel was the only hope for survivors to have their claim recognized by the workers' compensation system when a family member has passed away due to an occupational disease.
Let us not forget that the Occupational Disease Panel has saved the Workers' Compensation Board millions of dollars. How have they done that? By identifying the relationship between the disease and the workplace. In many cases the panel has provided health and safety information to the health and safety people and the employers that feel like participating. We have been able to prevent a repeat of these diseases from occurring in the future.
Without the Occupational Disease Panel, I feel that the number of workers who die due to exposure in their workplace annually will skyrocket. Most of the workers or their families will receive very little or no compensation. Let us lower claims by preventing injury and disease, not by ignoring them and creating legislation to pretend they don't exist.
In summary, in this brief I have voiced my concerns on how this anti-worker legislation will devastate every injured worker and their family in Ontario. I have only been able to touch on the tip of the iceberg of the dangerous aspects this bill will have on workers. After reviewing this proposed piece of -- if we want to call it a piece of legislation, I have yet to find anything in it that will benefit injured workers in Ontario, aside from a few of the farm workers may be covered.
Other damaging aspects of this bill: We're cutting the benefits from 90% to 85% of net. We're reducing inflation protection for unemployed workers and the disabled by 75%; cutting future injured workers' pensions in half; setting arbitrary time limits on chronic pain; privatizing voc rehabilitation; deeming workers to be able to obtain jobs which are not available and setting their benefit levels in the pretence that a job is available; eliminating chronic stress.
The Harris government has not really surprised me in the makeup of this anti-worker piece of legislation. They have followed suit, as they have in other bills they've proposed: attacking labour, the sick, the injured, the uneducated and the most vulnerable people in this province.
It has always been said the workers are the backbone of the country, so why is the government of Ontario creating a piece of legislation that paints them as criminals and abusers of the system when they become injured and unable to work?
I ask this committee to take this back to the provincial government, to the Ontario government, and recommend trashing this piece of garbage we're speaking on. Thank you again. I'll entertain any questions the committee may have.
The Chair: Unfortunately there isn't time for questions, but on behalf of the members of the committee, I thank you for coming forward.
Mr Maves: You mentioned in your brief that you had return-to-work language at your plants. I wonder if the committee could receive a copy of that.
Mr Kitchen: Absolutely.
The Chair: Thank you. That would be appreciated.
SOUTH WEST WORKERS' COMPENSATION STUDY GROUP
The Chair: I'd like to call on representatives from the South West Workers' Compensation Study Group, please. Welcome.
Mr Andrew Bomé: My name is Andrew Bomé. I'm a staff lawyer at McQuesten Legal and Community Services in Hamilton. With me today is Doreen McPartlin. She's a community legal worker with Hamilton Mountain Legal and Community Services. We're here today to speak on behalf of the Ontario Legal Clinics' South West Workers' Compensation Study Group. The study group is made up of various workers in legal clinics in southwestern Ontario who represent injured workers. Some of the more experienced workers' compensation advocates in the legal clinic system are regular attendees at our meetings. Together we've had many years' experience representing injured workers and we know what their needs are.
I'm going to spend a little bit of time talking about the format of our presentation. You've been given a written brief. This was presented to the committee about a month ago. We're not going to be spending a lot of time reading from that brief. We're assuming you've either read the brief or that you will read our brief. What we will do is we will be giving individual case examples that illustrate some of our concerns with Bill 99. I'll be speaking first and my cases will focus on subsections 12(4) and 12(5) of the act, the mental stress sections.
The first case I'll be discussing was my first chronic occupational stress case. This case was allowed by the Workers' Compensation Appeals Tribunal. If you're interested, it's decision 227/95.
My client worked as a commission salesperson in a very high-pressure, high-stress atmosphere. This didn't bother her. What did bother her was the abuse she faced by senior sales staff and by the general manager at her store. The general manager was described by one of my witnesses as having the classic makeup of a schoolyard bully. My client was his favourite victim. He would constantly belittle her and berate her. He would be yelling and screaming at her just about every day. The abuse she faced at the workplace culminated in an incident in the lunchroom, where a senior sales staff person decided she had stolen one of his sales and started screaming at her. The evidence indicated he was approximately this far away, a few inches, when he was screaming at her. He also threw a chair at her. To this day, she doesn't know whether the chair hit her.
Management decided to blame my client for this incident and did nothing to the other salesperson. The abuse continued and within six months my client had a nervous breakdown. This happened about seven years ago. Since that time that I know of, she has been hospitalized approximately three times in a psychiatric hospital. She has also attempted suicide at least twice.
My client suffers, obviously, from a very significant depression that prevents her from returning to work and it is a direct result of the abuse she faced in the worksite. I feel this harassment she faced at work ruined her life. Bill 99, as it reads today, would deny her any compensation for this.
The second case I would like to talk about is one I am dealing with right now. It's working its way up through the appeals system at the WCB. My client is a woman who was a victim of sexual harassment. Her harasser can be described as a workplace Don Juan. He had a history of making advances to his female staff. This worker has since been terminated from his employment for this reason. As a result of the sexual harassment that my client faced, she suffered a year-long bout of depression that kept her off work. Thankfully, she was able to put this behind her. She has since returned to work. She has no wage loss and she has only a very little disability as a result of this. My client clearly suffered because of this sexual harassment, but because that would be considered as a workplace stress claim, Bill 99 would deny her any compensation.
The third case I'd like to discuss with you may or may not be a mental stress case. I've only recently been retained on this case, so I don't know how the board is going to deal with this yet. My client was assaulted many years ago. One day another worker took her, grabbed her breasts, forced her into the women's washroom, where he proceeded to rip some clothes off her, kiss her, touch her breasts and other parts of her body. She suffered no physical injuries as a result of this assault. However, because of this assault, she suffers from very severe depression and post-traumatic stress disorder. The biggest manifestation of this is that she is seriously agoraphobic. She will go for weeks without leaving her apartment.
My client is the most seriously psychiatrically disabled worker I have ever represented. My fear, and I'm not sure whether this is a legitimate fear, is that because she suffered no physical injuries as a result of this attack, this case will be treated by the board as a mental stress case. Current policy says that it has to be sudden, shocking and life-threatening to be compensated. Certainly the assault was sudden, it's clearly shocking; I don't know if it can be characterized as life-threatening, and my worry is that the current board policy would not compensate her for it.
In this kind of case, Bill 99 states that the compensation is for only the acute reaction to a "sudden and unexpected" mental stress. It seems to me that, given that language, the long-term, permanent damage my client has faced wouldn't be compensated by Bill 99.
Each of these three women has suffered horrible experiences at work. These are experiences that nobody should have to face, and if they did, they should have some form of redress.
Since all of these experiences can be characterized as mental stress cases, Bill 99 would take any redress these women and women like them would have. This is not right and this is not fair. Because of this, I would urge you to remove subsections 12(4) and 12(5) from the legislation.
I'm now going to turn it over to Doreen and she'll continue our presentation.
Ms Doreen McPartlin: I'd like to thank the committee for giving us the opportunity to speak today. Since none of our clients have had the opportunity, before I touch on chronic pain I would like to tell the committee about one of our cases, which I hope addresses several issues raised this morning about suitable modified work, but particularly the human cost experienced by injured workers which seems to be forgotten; it's always the financial implications.
One of the first presenters in Toronto on Bill 99 commented that Bill 99 appears to be based on the false assumption that workers would prefer to stay home, receiving benefits rather than working. I hope this case illustrates that this is not the case.
For the sake of anonymity, I'll refer to him as Bob. He came to our office. He was 32 years old. He had two children, was married, living with his wife. He'd had a serious work-related injury to his shoulder and back because he worked with heavy equipment and heavy items, but there was no problem initially. His claim was accepted by the board and he received benefits. The problems arose when it was time for him to return to modified work. His employer had said they could provide suitable modified work. He went back and he began to aggravate his condition. The work was supposedly modified, but definitely not suitable.
What amazed me in this case was that during that first work trial, his employer actually disciplined him twice for not keeping up the pace, which clearly showed they hadn't really offered the work in good faith. Eventually he aggravated it so much he had to lay off again. Of course, benefits weren't paid and that's when he came to us.
We started to go through the appeals process, but then he decided he wanted to try again and went back -- the same pattern, he laid off.
When he went off the second time, the board sent in a worksite analyst. Bob wasn't invited to be present, neither was his union rep; he was in a unionized workplace. Apparently one of the managers demonstrated the job, the worksite analyst decided it could be done and no benefits were paid. He was told this. He wasn't given a copy of the report. He went back one last time, couldn't do it, laid off and the employer terminated him. We then began the appeals process.
We ended up in WCAT three years later. All benefits were restored to him because WCAT determined that the work was not suitable. A month after he was terminated -- he was on welfare for a month -- he found a security job. This company only employed part-time security guards. He took it. It was in Mississauga. He had to commute. At the end of each month he was receiving less than he would have done on welfare, but he wanted to work. He did this for three years.
By the time he was successful, VR granted him two more years of retraining and he ended up getting five years' full benefits. But by the time we reached WCAT, his home had been repossessed, his marriage had broken up and at the time of the WCAT hearing he was living in a basement room of a relative and his life was shattered, he was so depressed. He had worked all that time. It wasn't that he was on welfare. I hope that when this bill is being looked at, the human cost is borne in mind and not just the financial cost. Bob clearly wanted to work, and we see so many cases like his.
Now I'll just touch quickly -- hopefully we still have time -- on the chronic pain. When we were preparing our brief, we had no access to the contents of the proposed regulation regarding chronic pain. We knew it was going to be restrictive but we didn't have the actual wording.
I only received a copy of the proposed draft policy statements a few days ago and I'm appalled by the contents. For those workers who develop permanent disabilities resulting from chronic pain, there is no longer any entitlement to compensation, and there are thousands of workers who suffer from chronic pain. Presently, if someone has very severe chronic pain, they can receive up to 95% in a NEL award.
It would appear that benefits for chronic pain will only be paid for a maximum of four weeks after the normal healing time, and even that has qualifications: only if the worker participates in a pain management program, and even the participation has qualifications, because if more than 12 months have elapsed since the date of the injury or a recurrence, then the worker can't even participate in the pain management program. So presumably this rules out everyone who goes to appeal, because few appeals are resolved within that time period, and for four weeks, perhaps workers won't think it's even worth attempting.
Until now, the medical profession and the board itself agree that chronic pain is real to the worker, disabling from employment and, more important, often not preventable or curable, which the proposed policy assumes. In our respectful opinion, no policy justification of any weight has been offered for the proposed limitations on chronic pain entitlement. It's a shameful attack on the most vulnerable group of injured workers.
We are aware that the board has requested further comments from stakeholders. The deadline is a week Monday. We hope that these restrictions will ultimately be abandoned and some humanity actually shown to those suffering from chronic pain. Chronic pain will not go away, it will just go to another area. People who cannot work because of chronic pain cannot work, and they will end up on social assistance and in poverty.
Injured workers are victims of unsafe, often dangerous workplaces. When an injury occurs, that worker should be entitled to full, fair and timely compensation for the loss of income and the loss of enjoyment of life. Bill 99 does not provide that.
The Vice-Chair (Mr Jerry J. Ouellette): Thank you. That allows us just under two minutes per caucus for one quick question, beginning with the third party.
Mr Bisson: More in the form of a comment is that you, thank God, came here and gave us some examples of what happens to actual people, especially in cases of the issue of occupational stress. In my constituency office, and I imagine if constituents are going to see the Tory MPPs with their compensation problems, they are seeing the same kinds of problems, far too often we fail to recognize that no two people deal with stress the same way. If you limit the ability to have the board deal with the issue of stress in an adequate way, a lot of people in the end are not going to be able to get access to justice when it comes to that whole issue.
I can think of, just off the top of my head, about five or six different examples we've dealt with in the last year and a half, and I call tell the members of the government that it is not easy to get a claim accepted on the basis of occupational stress.
I've got one case where a worker was subjected to an accident where five workers died in a shaft, and the worker in question who survived wasn't able to return to the workplace. He had nightmares. Imagine seeing your best friends killed in an accident. Because of some circumstances that were involved in the accident, the board really had a difficult time in finally giving this guy justice so that he gets compensation: first of all that's he's able to get treatment and the treatment paid so he can deal with the post-traumatic stress, and second of all to allow him to get the time he needed to get his life in order after that accident and then return to the workplace some time later.
I say to the members of the government, through this presentation, you need to understand that if you limit access to compensation because of stress, you're really doing a disservice to a lot of people who in the end are going to get hurt by that action.
Mr O'Toole: Thank you very much for your presentation this morning. It's good to hear of real-case examples -- that's what these hearings are about -- and listening to worker decisions.
I just want to make sure I fully understood your impressions of the current proposed legislation. Andrew, in your presentation you referred to decision 227/95, a sexual harassment case, and Mr Bisson has just suggested that in a traumatic event in a mine where five people died, the worker who is affected by this would not be entitled. I would refer you to the proposed subsection 12(5). I'll read it for the record:
"A worker is entitled to benefits for mental stress that is an acute reaction to a sudden and unexpected traumatic event...."
So there is language to allow stress to be interpreted by the board. I'm sure in that kind of case, without being in a position to make the decision, that would be considered. So to say it's not allowed is misinforming, or perhaps you read it wrong.
Mr O'Toole: I just want to make sure he is aware of subsection 12(5).
I want to pursue a question with you, Doreen, and your particular case. Chronic pain is something we've heard a lot about. We heard from some medical practitioners, and when medical practitioners talk to us, they talk about return to work being a very important part: quick intervention and work accommodation.
I can refer you to a couple of sections in a report issued by Dr Murphy, who is a professor of medicine at Dalhousie University. This was not done for us, by the way. It's an independent professional medical opinion, and I'll read:
"Chronic pain often has no obvious, specific, underlying local pathological cause that can be identified or eradicated and does not respond to the usual treatments for acute pain and is associated with complex pathological behaviour and social factors."
A medical doctor, not me, has said it's very hard to trace specifically a chronic pain. As you said, Doreen, it does vary from patient to patient in response to injury and treatment course. There is, however, in the legislation a provision to deal with usual healing time, normal healing time, that 90% of the population would respond to this kind of treatment course. How do you respond to that, where we're trying to have a reasonable and fair --
Mr O'Toole: Reasonable and fair, that's what this is about -- it's not to be unfair -- for the employee and the employer. That's what it's about.
Ms McPartlin: It seems ludicrous. Chronic pain only comes into play after the normal healing time.
Mr O'Toole: And with age and other factors. That's what this report says.
Ms McPartlin: We could probably find you another thousand doctors who would disagree with that report in part, if not entirely.
Mr Bomé: I have just one comment on that. I've read the bit from that doctor. It was quoted in Mr Jackson's commentary. I find it kind of curious that Mr Jackson and this government had to go to a doctor in Dalhousie to come up with an opinion that seems to support what you want to say. Here in Hamilton, Dr Eldon Tonks of the Chedoke-McMaster Hospitals is probably one of the world's leading authorities on chronic pain. You did not seek his opinion, and there are people like Ramon Evans, Dr Angela Maillis, out in Toronto; I've not seen what they have to say on this. I find it kind of curious that you found some doctor at the other end of the country when we have doctors here who may not have said what you want to say.
Second, with respect to your comments on my reading of 12(5), I did read 12(5) in preparing my cases. I won those cases. I've read not only 12(5), I read Mr Jackson's report on what chronic stress is. I have also read approximately 20 to 30 of the Workers' Compensation Appeals Tribunal cases on chronic occupational stress. I know what I argued in 277/95. That was not a case of sudden and unexpected mental stress, sir; that was a case where this woman faced approximately two years of harassment at the board. Subsection 12(5) clearly eliminates that kind of disability from compensation.
The only case I have presented to you that may fit within the ambit of 12(5) is the last case, the case where the woman was sexually assaulted. Because of the words "acute reaction," my feeling is that may very well be interpreted that that will only cover the acute period of disability, not the permanent disability. I have read 12(5). I have considered 12(5). I do know what it says.
Mr Agostino: I want to follow up on that same section. One of the concerns in this that Andrew well outlined is the whole issue of stress as it relates to ongoing sexual harassment and the stress that causes. In my reading of this, and certainly from what I think has been said this morning, it's very clear that it makes it almost impossible for any woman to come forward with ongoing sexual harassment being a cause of stress, very disabling stress, causing severe difficulty for that individual. Sudden and unexpected: yes, an immediate sexual assault could be interpreted, while five or 10 or 15 years of ongoing sexual harassment would not be seen as sudden and unexpected, but would cause a hell of a lot of stress and mental stress and disabling stress for an individual in that situation.
What this would do is send a message to employers that: "It's okay to ignore it, it's okay to let it go on, because WCB won't treat it as a disability if it has an effect. It's not going to matter." I think that's a danger in all this, not only the punishment and the pain on the individual but the message it sends out with regard to the whole issue of sexual harassment.
Mr O'Toole: There are other ways.
Mr Agostino: I don't think I interrupted you. Andrew, would you agree with that? Does it make it impossible, with the section as written in this bill, for a woman who has been sexually harassed over the years to come forward with that as a claim? Would it almost eliminate it even from being considered?
Mr Bomé: There may be other legislation to deal with sexual harassment. There is the Human Rights Code. I'm not aware of what the Occupational Health and Safety Act has to say about this, but I do know that with 12(5) as written, any woman faced with constant sexual harassment at work will not be compensated for any disability she would suffer. Furthermore, it's questionable whether she would be able to sue for said disability.
The Vice-Chair: Thank you very much for your presentation.
Mr Agostino: Mr Chair, on a point of order: A gentleman in the audience suggested that a member of the government made a slur towards me. Can I get an apology from and a withdrawal from the member of the government who made that comment?
The Vice-Chair: I did not hear any comment, as I believe you yourself did not. I would ask the member, if such member did say something, if he would like to withdraw the comment. I'm not even sure which member.
Mr Bisson: On a related point of order, Chair: I know it's difficult for the government to sit through hearings when their legislation is being criticized. It's difficult at best, and I understand that. I also understand that at times they feel somewhat sensitive about the comments being made by the audience. What disturbs me is that it's not the first time members of the government have called members in the opposition such names. I know it has been done to me on a number of occasions. My good friend Mr Spina has been known to indulge in that practice on a number of occasions. I think it is incumbent upon chairs of committees to try to deal with that as effectively as possible, because I don't think it serves any --
The Vice-Chair: Mr Bisson, should I hear any of those comments, I will make sure they are withdrawn.
Mr Bisson: Thank you very much.
MCQUESTEN LEGAL AND COMMUNITY SERVICES
The Vice-Chair: I now ask representatives from McQuesten Legal and Community Services to come forward, please.
Ms Chris Austen: Good morning. My name is Chris Austen. I'm a community legal worker with McQuesten Legal and Community Services. We are here to discuss Bill 99, an act to replace the Workers' Compensation Act with the Workplace Safety and Insurance Act. The title of my brief is Vocational Rehabilitation: Here Today, Gone Tomorrow.
McQuesten Legal and Community Services is a clinic under the legal aid plan and has been in existence since 1978. We represent low-income injured workers in Hamilton-Wentworth in appeals before all levels of the Workers' Compensation Board. My presentation, I hope, will show you the perspective of our region and the ramifications these changes could have on the injured workers who live in Hamilton-Wentworth.
Under the present Workers' Compensation Act, when a worker is injured and they have lost time from work, they are entitled to temporary total benefits while receiving active treatment. If a permanent impairment ensues, they receive non-economic loss award to recognize this. When they are physically fit to return to work, most injured workers do so. If they have a permanent injury and are unable to return to work, they are referred for vocational rehabilitation assistance.
The vocational rehabilitation assistance -- the case worker, once a file is opened, can refer an injured worker for a functional abilities evaluation to establish their physical abilities; they can refer them for vocational assessments to establish their interests and abilities. Some workers go for formal schooling. Others go for upgrading. Some of my clients attend work-hardening programs to increase their stamina to return to work. Ultimately, most people involved in vocational rehabilitation do job searching with the goal of returning to suitable employment at or near their pre-accident wages.
Some employees or some injured workers are unable to locate a job which comes near their pre-accident wages. Therefore, they are entitled to a future economic loss to recognize an earnings loss. Others are totally unable to ever return to any type of employment, and they receive 100% future economic loss. That's the way it is now.
Current vocational rehabilitation programs, as I'm sure you already are aware, are far from perfect and have a lot of flaws, but they're certainly better than what is anticipated and proposed in the new act. Section 40 of the act sets out the process to be followed by the employer and the worker to facilitate the injured worker's early return to physically suitable employment. The preparation and implementation of the labour market re-entry plans are up to the employer and injured worker. They are required to maintain communication during the recovery and ultimately identify and arrange for physically suitable employment which will, if possible, restore the injured worker's pre-injury earnings.
Although the legislation indicates that the board is to be kept updated on the injured worker's return to work, it appears that there will not be any hands-on approach or assistance by a vocational rehabilitation case worker. Thus it appears that the vocational rehabilitation assistance has been eliminated from the new act.
Elizabeth Witmer's media kit entitled Workers' Compensation Reform was issued in November 1996, and this makes a number of statements which I wish to address. The first is, "This act proposes to get injured workers back to work more safely and more quickly by requiring employers and workers to work cooperatively to achieve this goal."
This sure sounds good on paper, but the reality is that injured workers are often harassed into a return to work before they're physically fit and able to return to those jobs. Such an early return to work may and often does result in further, more serious injury, causes animosity between the workers and the employer, and additional costs result to the employer if the worker is unable to stay at the job and if they're injured further. That is a real cause for concern. It's a cause for concern by the workers because they're not fit to return to these jobs, and it should be a cause of concern by the employers because they're going to have to bear the brunt of the costs.
The next statement I wish to discuss is that the new act would be, and this is in quotes, "sensitive" to the needs of injured workers. What on earth does this mean? Currently, workers' compensation staff, the act and accident employers are seldom sensitive to the needs of any injured workers. Injured workers are often forced back to physically unsuitable employment without modification to the job site, and this often results in further injury. Will this new agency or will the employer be required to attend sensitivity training? I don't think so. I doubt it. The statement makes the act sound kind of touchy-feely, warm and fuzzy, but it is unlikely to have much substance or weight.
The next statement is that Mrs Witmer anticipates that "the system will refocus as an insurance plan for workplace illness and injury to pay benefits for injuries and illness caused by work." As we all know, insurance companies have a reputation for being insensitive to the needs of injured individuals. They set unrealistic goals and use the fact that individuals are not able to achieve these goals as a reason for discontinuing benefits. This certainly bodes ill for all injured workers, as we anticipate that this is exactly what will happen under the new act.
The last statement I wish to address is that the act has a "goal of prevention of workplace illness and injury in the workers' compensation system." Will the new agency have staff in charge of instituting and monitoring employers' health and safety programs in order to prevent illness or injury? Many employers, especially those with unionized shops, have health and safety programs in place. There's a question of how good these programs actually are. After all, workers are still being injured at work, and we anticipate that even under this act workers will still be injured at work.
"The act will make Ontario workplaces among the safest in the world and turn the WCB into a leading-edge institution in the delivery of workplace insurance." This sounds like the impossible dream. We do not see that the implementation of the strategy will assist workers in a timely return to any suitable employment with the accident employer in a safe and timely manner. Many employers in Ontario ignore current health and safety legislation, and without frequent monitoring by government agencies such as this, we anticipate that this practice will continue.
In addition, to return to work the employer and employee must produce a labour market re-entry plan. How will these plans be implemented? With the implementation, will the injured workers be subject to the same unfeeling, uncaring type of individuals who are currently vocational rehabilitation case workers with the board?
We have another concern, and that is a concern for injured workers whose first language is not English and who are not physically capable of returning to heavy labour. There are quite a few of those types of injured workers in Ontario. These people often require extensive school or retraining to obtain physically suitable jobs. It's very difficult currently for these people to receive these services to which they are entitled, and under the new act these services may not be available at all. These people should not be relegated to the ranks of unemployed, nor should any injured worker. There should be a focused effort to assist all injured workers, whether through training or other means, to achieve successful return to work, to physically suitable positions at their pre-accident salary levels.
My other concern is the time limit for an objection for a decision relating to a return-to-work or a labour market re-entry plan. The act, as it is currently written, allows 30 days only for a person, after the initial decision detailing the issues and disputes and grounds, to submit an objection. These are called time-sensitive objections. The reality is that it's impossible for a person to make a well-thought-out objection within 30 days.
The first thing an injured worker must do to formulate an appeal is to obtain a copy of their access file. That's the file workers' comp keeps on every injured worker. This often takes six to eight weeks and sometimes longer. That certainly is far outside the 30-day limit. Often these files are three to six inches thick and thorough review is essential, and it's a very lengthy process. Where an injured worker does not have or know of access to legal services, they may give up and not pursue their right of objecting to what they consider to be an unfair decision. This would be an injustice to all injured workers. This limitation date of 30 days is far too short. We would urge that this time frame be reviewed and changed to recognize the need to allow for the formulation of an appropriate objection.
In conclusion, we feel that there is no need to totally replace the current Workers' Compensation Act. There is need for change but there's no need to totally replace it. It appears that the new act will remove the injured worker's right to vocational rehabilitation. Although the vocational rehabilitation currently offered has many problems and leaves a lot to be desired, it's better than nothing at all, which is what injured workers will receive under the new act. According to the proposed legislation, absolutely nothing will be available for these injured workers under the new act, yet these people are most desperately in need of guidance and assistance in the form of appropriate vocational rehabilitation to return to physically suitable employment.
We urge you to rewrite this act. We urge you to develop a fair and equitable vocational rehabilitation system which will allow injured workers to return to physically suitable employment. We urge you to provide proactive, pleasant staff to assist and guide injured workers back to employment and to extend the limitation date to allow an injured worker the appropriate time to make a proper appeal.
Please keep in mind that these workers didn't ask to be injured. Overcoming a debilitating injury is tough enough. Assistance to successfully return to physically suitable employment is essential, both physically and mentally, to injured workers. Please do not eliminate the vocational rehabilitation assistance to injured workers.
The Vice-Chair: That allows us two minutes per caucus. We'll begin with government side.
Mr Hastings: Ms Austen, how many cases did your agency have in 1995 and 1996, approximately, dealing with WCB?
Ms Austen: Active WCB cases? Workers' compensation is about 55% of our caseload. I don't actually see the numbers very often because I don't work on the numbers side, but I would say a quick calculation is about 250 open files at a time.
Mr Hastings: In 1995 and 1996?
Ms Austen: Each year, yes, and often workers' compensation cases are so involved that they last four to five to six years.
Mr Hastings: Is your primary role at this agency dealing with appeals of compensation issues or with vocational rehabilitation restoration, where it has been terminated?
Ms Austen: I have specialized in vocational rehabilitation since I started there in 1986, but I work with all types of workers' compensation cases.
Mr Hastings: Of the voc rehab cases you've had, how many successful returns to work have you had, either through appeal or through negotiation with the employers, if you didn't have to go that route?
Ms Austen: I don't have those numbers with me.
Mr Hastings: Ten, 15, just an approximation, if you can think of it.
Ms Austen: In two years?
Mr Hastings: Yes.
Ms Austen: Some of my clients are currently involved in schooling, so they haven't entered the workforce. We consider that a success also, where we're successful in getting them in schooling or work-hardening programs. A number have jobs. I would say five to 10, probably, over two years, but you have to remember a lot of this process is after the appeals levels are reached and vocational rehabilitation is allowed.
The Vice-Chair: Thank you, Mr Hastings. We have to move to the official opposition.
Mr Patten: Thank you very much for your presentation. I thought it was very pointed. I would concur with your analysis somewhat.
I'll come back to the vocational rehabilitation because I think that is a big area that will be undercut. Just to underline your term, it seems strange to have a sentence in there that says "being sensitive to the needs of the injured workers," when the whole plan should be a workers' compensation program, not an insurance program that is based on trying to save money and not provide fair services.
You suggested that maybe there should be some requirement -- or will there be a requirement for sensitivity training? That's not a bad idea. Maybe that should be included for everyone.
You refer to Mrs Witmer's comments on the workplace insurance, that it would be a leading-edge institution in the delivery of workplace insurance. The worry I have is that insurance doesn't necessarily mean that is the fairest and best situation for the people who are injured. So the criteria become a different set of criteria on that.
Ms Austen: Another word for insurance is to insure, I suppose. I don't like the use of the word "insurance" either. As I mention in my brief, nobody asked the injured. Surely these individuals have a right to be treated fairly and equitably and to return to suitable employment. Nobody wants to sit at home. I have more clients who go into depression after they have been poorly treated by case workers at workers' comp. This is very common. I have more clients who go into severe depression. I have clients who have been to case workers and then they come and see me and we go together. I go with my clients to workers' comp. I go with them to vocational rehabilitation meetings. Then they look at me and say: "I can't believe how nice she was. You should have seen her last week. She was just awful to me." This shouldn't be happening. These people don't deserve that.
Mr Christopherson: Thank you very much for your presentation, Chris. It was excellent, as always. I want to draw attention to your reflection that the government states that their goal is the prevention of workplace illness and injury in the workers' compensation system. The minister stands up and says nice words, and so does her parliamentary assistant here, but the reality is that they've killed the Occupational Disease Panel, which helps determine that there are causal links between disease and illness in the workplace and what is happening to people. In terms of the representation that workers had, 50% of the board is gone. They fired all the employee representatives. The Workplace Health and Safety Agency is dead -- gone. That was put out there to specifically deal with the need to prevent injury and illness in the workplace. So everything we've seen so far shows the government going in the opposite direction.
Other than the one minor reference in the preamble, are you aware of anything in Bill 99 that concretely will create a safer workplace for workers?
Ms Austen: Unfortunately I'm not. I fear for people in the workplace. I fear they won't get treated fairly or properly under this bill. I fear a lot of accidents initially will not be recognized. You have to realize that workers' compensation currently doesn't go out of its way to get proper medical reporting on injured workers. It's up to representatives like us. We're non-profit. Our clients end up with bills to pay for the medical reports we obtain on their behalf. These are expenses that should not be put on the worker, yet these workers have to try to find some way to pay these people back. With workers' compensation not getting medical reports now, it's a real problem. It's going to become even worse because they will feel the requirement isn't there to pursue the injuries, to pursue the reasons for the injuries and ongoing disability.
The Vice-Chair: Thank you very much for your presentation. That concludes our time with you.
UNIVERSITY OF GUELPH
The Vice-Chair: We will now call on Grant Sharp from the University of Guelph.
Mr Grant Sharp: I had about five minutes to prepare because I'm a fill-in.
The Vice-Chair: Yes, there was a cancellation. The chamber of commerce cancelled.
Mr Christopherson: It can only be an improvement.
Mr Sharp: I'm not here to support one side or another. I'm here to support what works and what is fair. I feel the job ahead for the WCB is not an easy one. If the system is currently not working for workers and employers, then what is the answer? The answer lies in cooperation between doctors, workers and employers; no more royal commissions. We all know the answers.
Please make the system into a workable system. Let's keep it simple. Tell employers that if they have a bad accident frequency or severity, to shape up.
Please tie the Occupational Health and Safety Act and its regulations to the WCB to ensure safe workplaces. This is the bottom line.
Please ensure compliance of reporting of incidents so that we have accurate information on what is happening in workplaces.
Please ensure that employers have meaningful modified work.
The appeal system takes too long and is unfair. Please implement some sort of mediation process.
In summary, please ensure safe work environments for all workers. Please simplify this very complicated system so that people are treated fairly and compensated fairly, and please make the process easy to understand. That's all.
The Vice-Chair: You've left approximately six minutes per caucus, and we begin with the official opposition.
Mr Patten: Thank you, Mr Sharp. Could you give us a little bit of your own background in terms of dealing with the WCB?
Mr Sharp: I was formerly an employee of the board. I worked there for six and a half years. I felt in my heart that there were a lot of injustices to workers and employers. The opportunity came up that I was able to leave, so that was good. Now I'm in a work environment in which we try not to go to an appeal system. We try to make sure that we sit around the table, whether the board is there or not, to figure out what is fair, what the individual -- let's face it, that is what it's all about here -- would like and try to work through it.
Mr Patten: Have you had a chance to peruse the bill at all?
Mr Sharp: Yes.
Mr Patten: The issue we've been struggling with somewhat is trying to find a better alternative than what is in the bill on compliance of filing, because we've had testimony that that is a difficulty in many circumstances. You have heard perhaps the construction industry and the trades bodies talk about the difficulty of that, moving to multiple employers and different sites and things of that nature. From your experience, do you have any suggestions along those lines as to how the filing can be done in instances where it's justifiable?
Mr Sharp: There were proposals on the table to have yet another claim type of system and have a no-pay claim for employers that are large enough that they can pay the individual while the person is off and implement their own return to work. Really what it comes down to is an internal responsibility system. That is the bottom line. Maybe I'm not addressing your question directly, but indirectly, I think employers have to take on the responsibility themselves. The legislation has to support that. The influence of politics within the WCB has always been there. Maybe that is part of the problem. It's always there.
Mr Patten: Could you elaborate on that? What do you mean by "Politics enters into it"?
Mr Sharp: Changes in government. Through my history at the board everything was new, and that was because there was a different flag being waved from a different political party. We're up to four acts now that are running simultaneously, with different policies in each. It is hard to deal with that. How can one decide on one thing or another considering four different types of legislation and four of them pulled in politically different ways?
There are maybe no answers for a lot of these, but my whole point is that the emphasis of the legislation should be in the incident report and should be the responsibility of the employer to report those to an external body. Whether you make that an audit process or whether you make that a simple statement in legislation, I think that's the whole point. You have to drive the internal responsibility system of each employer to take the responsibility for their own people.
Mr Patten: I agree.
Mr Agostino: I'll just follow up with a couple of questions. You know the system fairly well. Do you not believe, though, that the current system for filing a claim, where it can be triggered by a medical report, an employer's report or a worker's, the way it is now, allows for checks and balances and works fairly well because it makes sure it gets reported but doesn't put the onus simply on the worker under any circumstances to do that? It gives some flexibility and allows people who have some expertise in doing that kind of thing to do that. Do you see that system working fairly well as it now stands in regard to the initial opening of the file?
Mr Sharp: I think the new legislation is going to force companies not to report. You've got to be really careful in the approach you take. Yes, the current system is fine and things are being reported to the board, but now we are talking about volumes, we're talking about the front-line people who are handling these situations. Should it be a sticker process where it just comes in and it just goes into a big pile? Maybe.
You have an actual individual who looks at a no-loss-time claim, the one you're referring to about the medical aid. You have an actual process. A person decides yes or no. Why can't they be done at the employer end? There are questions about universal systems and things that have been dealt with a lot. Maybe you just do not have the emphasis in the legislation to say, "You have to report one, two, three, four; these are what the requirements are and you just have to do it." Again I'm getting back to the audit system.
Mr Bisson: I have a couple of comments before we actually get to the question. You made two comments in response here that I need to touch on. In one of them you talked about how the whole process is politicized. Well, it is. First of all, we have to understand that you have two people with competing interests: the injured worker and the employer. The employers do not want to pay the assessment; they are trying to save money to maximize their profits, and we understand that. We're all individuals and we want more money in our homes or in our businesses. That's perfectly natural.
You have the employers on the one side trying to save the bucks, so they don't want to pay the assessment or the claim, and on the other hand you have the worker who is trying to get workers' compensation benefits for what he or she feels is an accident caused in the workplace. How you get everybody to come into a group hug in that situation is beyond me. You never will. I think we need to accept the premise that you have two client groups or two players in the workers' compensation system who have very different interests.
When we talk about, "We have to unpoliticize it," let's not kid ourselves. There are very different needs or very different wants and we need to deal with those, and that is what the Workers' Compensation Act -- the board try to do the best they can. It's not a perfect system, I don't argue it is, but I think it has worked fairly well to a certain extent.
We make the blanket comment that the system is totally in disarray and doesn't work. Listen, I've been working around compensation issues for the better part of 15 years. Most claims don't go to an appeal. Most claims don't go to adjudication. Let's not kid ourselves. A lot of the claims are dealt with. There's an injury; a report is filed. The doctor, the employer or the injured worker files a claim, the darned thing is accepted and eventually the worker ends up back at work or ends up on total temporary disability or on pension.
Some claims, and the ones we're talking about here, are the more complex ones, which are the minority claims. That is where the problem lies. How do you deal with those issues when they're complex? How do you deal with an issue of an injury where there might have been a motor vehicle accident in the past? Or it may happen to be a back injury in an incident at work, but the surveillance company for the WCB took a picture of the person lifting a boat. Which one caused the accident? Which one caused the injury? It's probably a combination of all three.
There is failing in the system. I would much rather see us move away from a compensation system as we know it and move to comprehensive disability and say: "To hell with where the accident happened. I don't care if it happened at home, at work or on the moon. I don't care. The point is, the person is hurt and needs help." We shouldn't look at it from trying to assess blame at the compensation board, the insurance company, the employer's sickness plan, and the more quickly we come to that realization, the more money employers will save and the better employees will be treated. That is what the royal commission on WCB was trying to do: to move away from the system we have where we're always trying to assess blame on one end or another. We can save bucks for employers if we look at it as a comprehensive system of sickness and accident. We can also make it fairer for the workers if we don't have to deal with those complex issues and make the system a hell of a lot easier.
To the question of "fair" -- you talk about what is fair within the compensation system -- I have to ask you this question: This legislation that we have before us says the widows of workers who have died because of an industrial disease like silicosis will no longer be entitled to survivors' benefits. Is that fair?
Mr Sharp: No.
Mr Bisson: Is a system where benefits to employees are being cut from 90% to 85% fair? Is this legislation fair to those workers?
Mr Sharp: As far as being fair, fair is in the eye of the beholder.
Mr Bisson: Ah, that is the point, right?
Mr Sharp: That is the point.
Mr Bisson: That is what I'm trying to say here. The system is politicized --
Mr Bisson: Exactly. It's a question of trying to deal with what the facts are.
The Vice-Chair: Order, please.
Mr Bisson: Thank you. The point I'm trying to make here is that when we make these blanket comments, I think we need to come to terms with what the problem is. The problem is that you have a person who is injured and needs compensation, and we need to figure out how to do that. I don't think this legislation is going to address that adequately. In fact, I think we are going backwards.
From the employer's perspective, we need to figure out a way to distribute the costs so that they are able to find a way to maximize their profits in the end. If we go in this direction, all we're going to achieve is a reduction in cost for employers and no justice for workers. That is what this is all about.
Mr Sharp: The folks who hired me decided to give me a nice, long title and they called it --
Mr Bisson: No salary, just title.
Mr Sharp: They called it WCB-LDT loss control officer. Isn't that funny, when you're saying the marriage of two? We are trying to handle individuals and their requirements and trying to be fair. Again I come back to that: What is fair? That is for you guys to decide.
Mr Hastings: Mr Sharp, did you have any other position at the WCB while you worked there aside from LTD loss control clerk?
Mr Sharp: My position at the board was not that. I was an adjudicator.
Mr Hastings: You were only an adjudicator while you were there?
Mr Sharp: Correct.
Mr Hastings: Would you be prepared to go away from here and bring back to the committee in a written form your comments or thoughts on the following subject: the state of labour relations and employee-employer relations with the board as you knew them when you left?
Mr Sharp: In other words, "Don't think of them as an employer any more"?
Mr Hastings: I said "employer" and "employee" because you had both unionized and non-unionized, and there was probably a different modus operandi at work in the way in which folks were treated.
Mr Sharp: I can leave you my card and you can write exactly what you want responses to.
Mr Hastings: Okay. My second item would be your thinking about whether mandatory reinstatement after 1985 was helpful or a hindrance to both injured workers and the employer in getting people back to work.
Third, M. Bisson made the statement that this system is adversarial and by its very nature political. Thereby it would be interesting to hear from you, either verbally or in writing, what your thoughts would be as to whether the Occupational Disease Panel, when it originated, or especially into the mid-1980s and late 1980s, made its decisions on the acceptance of the various types of cancer claims purely on scientific and so-called objective criteria or whether there is a very strong possibility that some of those decisions may have been made with that but also accompanied by a politically charged atmosphere. I'd be interested to hear our comments on that.
Mr Christopherson: Dead bodies will do that.
Mr Hastings: That's evident in the literature, if you go back and look at how disease decisions were made in the mid-1970s, particularly with respect to laryngeal cancer.
Finally, I'd like to know what your thinking would be in terms of --
Mr Bisson: The dead bodies were faking, right?
Mr Hastings: I don't think I made any comments, M. Bisson, while you were talking.
Mr Bisson: I apologize. You're 100% right. I should not have made that comment.
Mr Hastings: We had a gentleman in Windsor by the name of David Law who at the time had been a lawyer with the WCB for six years. He strongly advocated that in terms of new policy development, whether under this bill or any other bill in terms of decisions made, policy decisions developed, there ought to be some sort of outside policy development approach so that the very nature of arbitrary decision-making could be substantially reduced inside the WCB even as it is constituted today.
Your comments on any of those or in writing; I'd be very interesting in getting your views because I think your views probably would be reflective, deliberative and very fair in terms of how you would see it. You'd look at the issues in terms of the nature of the issues instead of a personality-driven consideration.
Mr Sharp: I'll try.
Mr Hastings: Your thoughts on any of those, Mr Sharp.
Mr Sharp: You've covered a lot of ground. I think that agencies, particularly the Occupational Disease Panel -- that sort of panel is looking towards the future and looking at occupational things that are related in work environments that we may not know about yet. We have lots of doctors at our university who still -- latex gloves, huge issue. But are they willing to stake their 10, 20 years of research and give that up to be retrained to be something else? It's tough.
That panel shouldn't disappear. That is addressing a little bit of it. But that's exactly your point: You can't ignore what may happen in the future and you just can't eliminate those unforeseen -- who would know that brown lung and things like that are around unless you have time that goes by and people who are affected?
Should employers pay for that? I don't know. Should society pay for it? Are we going to go into a New Zealand system that is universal coverage? They didn't do so well.
Mr Bisson: But others have.
Mr Sharp: Others have. It's a tough debate.
Mr Maves: You talked about your new position at Guelph. You've got a return-to-work program. How did you achieve cooperation between the two parties?
Mr Sharp: You sit down and you talk.
Mr Maves: Is there an onus on both parties to do that?
Mr Sharp: Yes: "Sit down and talk face to face and work it out."
Mr Maves: How do you assess a person's functional abilities and what they'll be able to do when they come back to work?
Mr Sharp: I'll give you an example. One particular case we have right now is an individual who is indicating that she is having a really hard time with her return to work. She's been off for quite a bit of time, almost eight months, for a back injury. There are no physical findings, the CAT scan is negative, everything's negative.
The compensation board decided to send her to the regional evaluation centre. The report came back with a lot of physical findings and a lot of limitations. That didn't go over so well because in the history of the claim it doesn't have the information to support that. The adjudicator -- and if I were there at that time, I'd probably make the same call because of the policies and say, "The limitations aren't what they say at all at the regional evaluation centre; they're only this." Now I represent an employer, and I sit down and the worker says, "The regional evaluation centre that I went to" -- people perceive it as just the board. "The board is sending me to this place, and they say I can't do this and this and this". Now our union medical adviser, an adviser to the compensation adjudicator, says, "No, it's just this one thing." Who is being fair in that?
Mr Maves: How do you handle that?
Mr Sharp: My whole response was: "Let's go the middle ground here. How long can you stand, how long can you sit, how can long can you do this, how long can you do that? Let's match the duties to the regional evaluation centre report. Let's forget about what the board said as far as just the no-heavy-lifting type of scenario." That way you have the cooperation of the individual. The board doesn't care. The person is back to work. I'm happy because the person is back to work and doing meaningful work. That's the other point too: meaningful work. You can't be playing cards; you've got to be back to work doing something meaningful. It's hard enough going through an injury, let alone coming back to work after X number of months of being away, your co-workers and things like that -- so accommodating the situation as you see it, being fair.
The Vice-Chair: Thank you, Mr Sharp, for your presentation. We appreciate your coming forward.
We would now call the representative from the Labourers' International Union of North America, Local 837, if you could come forward and identify yourself for Hansard, please. Mr Bathos? Is there a representative from the labourers' union, Local 837? No. I believe we'll recess the committee hearings until 1330 his afternoon.
The committee recessed from 1209 to 1330.
WORK RETURN INC
The Chair: We welcome our first presenters this afternoon, representatives from Work Return Inc. Please introduce yourselves for the Hansard record, and you have 20 minutes.
Mr Carlo Colacci: Carlo Colacci and John Sheard, who's president of Work Return Inc.
I would like to thank you all for inviting me here today.
I believe strongly, after careful examination of the proposed Bill 99 and the Hansard reports to date, that I represent solutions. I am hopeful you will agree. I have looked over the list of speakers presenting before you and I must say I am very impressed. I can't help but notice that ours is one of a few private companies and the only private disability management company that has taken the time to come to see you. Again we thank you.
Our company, Work Return Inc, is a private sector disability management and return-to-work service provider employing vocational experts, occupational therapists, functional ability evaluators, psychologists, and case managers.
The core values of our company are as follows, and you may refer to the inset of the brochure before you. It's right in the inside part:
"Work is the central theme of our society and our lives. Work is a way of life and it is the right, if not the responsibility of every person to be engaged in it. At Work Return Inc we believe that all members of Canadian society should be performing productive work, contributing importantly to the economy and their families."
It is disturbing to note that to date there has been much debate about the proposed act. There are obvious areas of contention that need to be clarified. In my dealings with the Ministry of Labour it has been confirmed that there will be a role for private sector providers of case management or return-to-work services and labour market re-entry planning, as referred to in the new act.
Bill 99 falls short, however, when it comes to clearly indicating where private sector vendors fit, nor does it entrench in law a role for private providers of return-to-work services. It is clear that the responsibility for the return-to-work process lies with the employer, to be coordinated with the worker. If this process fails, then the Workplace Safety and Insurance Board will act as a mediator and provide options. It is at this crucial point that there is a role for a third-party objective facilitator of the return-to-work process. After a work trial has been attempted and failed it is at this stage where reconciliation is difficult, as to some degree the blood has been spoiled and someone, a third party who is an expert, can go in and fix the problem, objectively.
For a mere 5% discount on premium to employers in Ontario, it is required that they carry out the professional responsibilities of the former vocational rehabilitation services department of the WCB, which has been eliminated. Although assistance to employers and workers in this regard is assured, there are no guarantees, nor a process with guidelines.
In fact the proposed Bill 99 includes in part IV under "Health Care," "Entitlement to health care." In part V, which is the "Return to Work" section, there is no entitlement for return to work. Why? Is return to work not the thrust of this legislation? Because it isn't recognized in the act, as it is written currently. It is important in this act to recognize when it will be necessary to employ the appropriate services, as it relates to return to work.
In Bill 59, the auto insurance act, which I'm sure you're familiar with, case management along with other vocational and rehabilitation services are guaranteed. As you know, these are return-to-work services. However, in Bill 99 there are no guarantees. For consistency in lawmaking, it would be obvious that Bill 99 include some guarantee of return-to-work services. There is no such mention in the benefits section of the act. Furthermore, to remain consistent, the government should consider the position of the Ministry of Community and Social Services. To quote the minister with respect to the Ontario disability support program:
"What people want is practical pre-employment and on-the-job supports that would help them enter the labour force for the first time or re-enter it when their situation changes." The quote goes on, "People want to be able to choose the services for themselves, rather than being told what they need."
This new legislation, which replaces the Vocational Rehabilitation Services Act, includes guarantees of the following services: employment planning assistance; interpreters; technological aids and devices; skills development and ongoing job supports. These guarantees don't exist in Bill 99.
You may be interested in knowing that the Canada pension plan has begun a rather large program of return-to-work and disability case management strategies with its 300,000 recipient population. Research and data collection last year produced the report entitled Evaluation of the National Vocational Rehabilitation Project. A conclusion of that report was that vocational rehabilitation works and, if effectively implemented, can indeed be a cost-control mechanism.
By providing return-to-work services, the evidence suggests the project was successful in returning a significant number of Canada pension plan disability beneficiaries to regular employment with the use of private sector, case management services. It is clear, ladies and gentlemen, that the evidence is in place and there is no need to reinvent the wheel.
What I don't understand is why, in a workers' compensation system, equal guarantees are not in place, and quite frankly I don't understand where the unions are on this obvious benefit.
One of the key concepts of this act is to adopt the principles of insurance. It is the insurance industry which currently refers to work return when in need of professional objective services. As with any product or service imaginable, it is important that the worker has a say in who will participate in their rehabilitation and life planning. Similarly, the employer has the right to ensure their premium dollar or other funds are spent on a return-to-work service provider of choice.
It is this concept that will ensure the buy-in of all parties and see to fairness and objectivity in achieving return to work. This concept is not dissimilar to that of mediation and by its implementation an awful lot of unnecessary litigation can be avoided. Every case is unique and this has been part of the problem with some of the inconsistencies with the Workers' Compensation Appeals Tribunal process. There is an opportunity with a third-party, return-to-work expert to build consensus and resolve the problem before the issue perpetuates with no resolve. That is not to say there is no room for an appeals process in necessary circumstances.
The vocational rehabilitation services department, which employs some 400 vocational rehabilitationists at the board, maintains highly skilled individuals expert in their field. The elimination of the VR department has caused concern for case workers and related specialists, as it appears there is no role for them, no jobs. I can assure you that over the course of the last five to 10 years, I have seen former WCB voc rehab professionals effectively integrate into the private sector rehab industry and insurance industry, where they are importantly contributing their talents and providing solutions to a lot of problems. It would be a waste to see these skills unutilized and I would be more than happy to provide employment to this group, as long as there would be a guaranteed role for private sector voc rehab and disability management consultants.
The current act does not include a role for case management; however, it has been mentioned that the new board will hire approximately 300 nurse case managers. I question how this newly created position, which I would imagine will concentrate on medical case management, will make a difference, not to mention that many workers have files and case histories that date back many years. I anticipate this transition will cause much turmoil as consistency of service to workers and employers will be tremendously affected.
I understand that the emphasis of the Workplace Safety and Insurance Board would be more oriented towards a role of adjudication However, by including the role of nurse case manager, the objectivity here becomes questionable, and with the emphasis on cost-cutting initiatives, is not the role of nurse case manager in potential conflict of interest? The case management or disability management concept is not new; it works and has become a hot topic. However, if this principle is not appropriately employed, we risk failure once again.
Many organizations that support business and labour have clearly stated that they wish to see the new board as having a directive role only, to ensure the rights of all stakeholders. As I alluded to earlier, what is necessary is guidelines for when return-to-work and/or private sector service providers come into the picture. The simple reason for this is because the following is required, which I refer to as guiding principles:
(1) The first one would be a role and purpose definition. It is important to distinguish why and what services the private provider will carry out in contrast to the board and their collective responsibilities.
(2) Consumer choice, employer: As the employer is the ultimate payor, this consumer should have the choice to select and buy the professional service it wants.
(3) Consumer choice for the worker: The interaction of the board and other parties in the rehabilitation of the injured worker directly affects the worker's life, and therefore it should be the worker's decision who will participate in his or her life and vocational planning. As indicated earlier, the government already supports this concept at the Ministry of Community and Social Services, but not at the Ministry of Labour, not as it relates to Bill 99.
(4) Utilization guidelines: Some employer groups view Bill 99 as offering fewer services, such as vocational rehabilitation, for the same premium. It is important to examine the criteria for which either the employer or worker receives assistance from the private sector and the reasons why services are made available.
(5) Finally, outcome data: Success cannot be measured if it is not known what is being measured. Without a clear statement of purpose and role, the relationship with the private rehabilitation and return-to-work service providers will be precarious and uncertain.
The current proposed legislation includes a return-to-work process in section 5. However, it must go on to entrench private sector providers of return-to-work services and clearly indicate what the role of private providers will be in contrast to that of the board.
There are no guidelines or service provision for those workers requiring labour market re-entry support because they may have sustained injury that will not permit them to return to their former occupation. For the employer there is concern here that there is no provision of service and that experience rating will be adversely affected and, similarly, who will the worker turn to with the elimination of the voc rehab department? The question is not answered in the act, but this issue will cause many problems that can be avoided if guidelines and goal-oriented vocational rehabilitation planning does not occur.
As I indicated at the outset, at Work Return we believe work is not only a way of life but a right. It is important in Bill 99 that there is an entitlement for return to work and services related to return to work in section 5 to protect workers and to ensure these changes to the act succeed. You must ensure these changes are not just operational but strategic. This bill must recognize and entrench in the act a role for private vendors of return-to-work services, which is supported by a number of organizations that have presented to you, including unions and the employer community.
The Chair: Thank you very much. We'll begin with the third party, please.
Mr Christopherson: It's unfortunate that it's not the government members first. In all sincerity, I would appreciate hearing from the parliamentary assistant some of the answers to the questions you've raised about how far they plan to entrench it, who indeed will pay for it, who will guide its development, who has to buy in, who doesn't. Without that information it's difficult for me to proceed, Chair. I seek your guidance. It's the first time we've really gotten into this much detail about this particular issue. Perhaps with your indulgence I could ask the parliamentary assistant to maybe provide some of those answers.
Mr Maves: I've got my own set of questions that I'd like to ask.
The Chair: My thought is that because the time is so short, perhaps we could do our normal round of questions and maybe there's something you might want to ask for at the end of the questioning round. How would that be?
Mr Christopherson: Fair enough. I would ask the PA to bear those questions in mind in addition to asking his own.
My question then to the presenter: I can't speak for the unions, but I can say to you that some of the concerns we have, and I think they share them, are directly related to page 7, number 2, when you say, "Consumer Choice, Employer: As the employer is the ultimate payor, this consumer should have the choice to select and buy the professional service it wants." I note in number 3 you also say, "Therefore it should be the worker's decision who will participate." So I'm not sure which one you mean or whether you're expecting they'll both work together.
Mr Colacci: As I indicated, after mediation fails it goes to the board. The board decides what has to be done. At that point, this is not dissimilar to the process of mediation where both the employer and the worker agree that some third-party objective service provider of this kind of stuff gets involved and takes care of the problem.
Mr Christopherson: Currently they can do that themselves. What would the benefit be to farming it out?
Mr Colacci: First of all, it's failed at that point, so as I indicated somehow something went wrong; the blood's been spoiled, so --
Mr Christopherson: What suddenly makes it magically wonderful just because it's in the private sector?
Mr Colacci: Because of our expertise.
Mr Christopherson: You just admitted in your brief that the people at the ministry are experts too; in fact you draw on a lot of them and you'd like to hire them.
Mr Colacci: Absolutely.
Mr Christopherson: I don't understand how, just because it's the private sector, it's magically better.
Mr Colacci: It's for our objectivity.
Mr Christopherson: But objectively, in number 2 you've said the consumer's doing the paying, and as I mentioned to an earlier presenter, there's always the risk when someone's paying about the old saying, "He who pays the piper calls the tune."
Mr Colacci: I understand that point, but that's not yet established, nor is that a fait accompli, so we have to see exactly who's going to be paying. I raised those issues in the presentation as well: Who's going to pay? Who's going to do it? Is it going to be the board? Is it going to be private service providers? There has to be a clear distinction there for that to be effective, and I think that's where it will be effective, when those distinctions are clearly made.
Mr Maves: A quick one: How many companies like yours are out there right now?
Mr Colacci: I'd venture a guess at about 100 or so.
Mr Maves: What's your record of success, putting people back in their --
Mr Colacci: What do you mean by "success"?
Mr Maves: Helping people get back into the work world.
Mr Colacci: We have arrangements with a lot of organizations, the employer community, that have taken people on work trials and that's led to employment. So it does work.
Mr Maves: Is it a better record of success than voc rehab at the board? You would say yes.
Mr Colacci: I can't compare it, but --
Mr Maves: In subsection 42(7), on the LMR plan it says, "The board shall pay for, and the worker shall be required to take, such steps as the plan provides for the purpose of enabling the worker to re-enter the labour market." Doesn't that answer your question of who shall pay for those types of services?
Mr Colacci: There are no guidelines and distinctions on who qualifies and for what reason. Why is it that someone gets service and someone else doesn't get service? There are no distinguishing guidelines.
Mr Maves: Could you really write guidelines like that, though, in a piece of legislation, or is that not more operational?
Mr Colacci: I think it can write some kind of criteria that are deserving of service. That's where it goes wrong, because you get people who don't get service, people who do get service. There are inconsistencies and that's where the problems are: How come he got, he didn't get?
Mr Patten: Bart, could you read that last section again, please? It's 42(7).
Mr Maves: "The board shall pay for, and the worker shall be required to take, such steps as the plan provides for the purpose of enabling the worker to re-enter the labour market."
Mr Patten: If that holds up, then it says the board will pay for those services. If on the other hand, as you suggest, it's the employer, then there may be some difficulties or there may be a bias with an employer in terms of choosing which particular facility they may want to have. We'll leave that for a moment.
What I would like to say is that I appreciate your identifying this whole area because there are a lot of questions in the return-to-work area and the clarity within the legislation. There's no question. The registered nurses were here -- was it yesterday? They're queasy about that, the shifting role they have to play, and what is the balance? These are medical practitioners and now all of a sudden, they're case managers. What does that mean? What is the role they have? What's the expertise they bring? Do they need extra training? It's all those kinds of things.
Mr Colacci: It's a potential conflict-of-interest role for them when there are cost-cutting initiatives being implemented, for obvious reasons, because the system is in trouble, yet at the same time they have to carry out objectivity in deciding over a worker's life. But what I want to draw to your attention is why there is entitlement to health care in section 4 and no entitlement in section 5 to return to work. Can I ask why there's no entitlement for return to work?
The Chair: Mr Patten, any further questions? Just briefly.
Mr Patten: He has to answer the question, I guess.
Mr Bisson: I think the parliamentary assistant ought to.
The Chair: Order, please. It's Mr Patten's questioning period.
Mr Patten: I'll give up my time. It's a crucial question. If Bart wants to answer that, I'd be happy to hear the answer.
The Chair: Excuse me, the time has expired. If Mr Maves wants to respond, but it's not necessary.
Mr Maves: It's the same employer obligation as in the current act.
Mr Colacci: You give the right to health care, but you don't give the worker the right to have the chance to get back to work.
Mr Maves: There's the employer obligation, which was under the previous act and which is still here, and there's also a return-to-work obligation on the employer to begin discussing right away, as soon as possible, with the employee about return to work, which is an obligation that doesn't exist now.
Mr Colacci: I don't think you're emphasizing the importance of it, as you do health care.
Mr Maves: Fair enough.
The Chair: Gentlemen, thank you very much for coming before the committee this afternoon.
Mr Hastings: Madam Chair, I'd like to make a request of the legislative clerk. This whole area of return to work is like trying to bottle a cloud. I think we're all having a struggle trying to get some reliable statistical information from this whole industry, such as the Canadian Association of Rehabilitation Professionals. I would like to ask Mr Colacci if he could submit some material to the legislative clerk which would show what the success ratio is of his firm or other firms in this industry in comparison to the public sector. We're not getting much in the way of answers from deputants who come and say that vocational rehabilitation in its present context is working fairly effectively, and I'm saying to myself, "Where's the evidence?"
Even Mr Colacci has made the point that it's work trials, not work opportunities, actual jobs. That's what I'm interested in. How do you measure your success rate ratio, not just counselling or return to training? That's a success partially to getting there. That whole area is something I'd like to see the legislative clerk take a look at to see if we can get some background material on this particular subject from those perspectives.
Mr Colacci: I'm not talking about counselling. I want to make a distinction. The legislation says return-to-work services. That's what I'm talking about, and I specifically wrote this and presented it the way the bill and the thrust of the bill was oriented.
The Chair: Thank you, Mr Colacci. The legislative researcher is taking careful notes and may want to contact you further.
Mr Christopherson: Further to the issues Mr Hastings has raised with regard to the legislative researcher, I think that would be helpful to get statistical analysis of what the success rates are coming out of the WCB, and are there other things in the private sector? I have a hunch that the world isn't perfect just because it's in the private sector, but let's take a look and see what comes up.
But what I would further ask, since the process doesn't seem to allow me to get to the parliamentary assistant, is that the researcher also bring forward whatever documentation or information she can find from the ministry and the minister about what they're going to do with regard to 42. There are a lot of questions here, and we don't have the answers. If she would gather everything that is available, then if there's still a gap in our knowledge base, I will be seeking some opportunity during these hearings to put those questions to the parliamentary assistant so we can get some answer.
The Chair: Thank you. Duly noted.
HAMILTON-WENTWORTH HSO MENTAL HEALTH PROGRAM
The Chair: I call representatives from the Hamilton-Wentworth HSO Mental Health Program. Thank you and welcome. We appreciate your coming before us today.
Dr Nick Kates: My name is Nick Kates. I'm a psychiatrist, director of the Hamilton-Wentworth HSO Mental Health Program and an associate professor with the department of psychiatry, McMaster University. I appreciate the opportunity to be able to present to you today. I come here not as a representative of any management, labour or advocacy group but as a clinical psychiatrist. My comments will be based upon my experiences in working with individuals who have experienced a variety of workplace injuries and disabilities.
The Hamilton-Wentworth HSO Mental Health Program is a program that locates counsellors and psychiatrists within the offices of 90 family physicians in Hamilton-Wentworth. I personally spend approximately two days a week providing psychiatric care for individuals in the office of their family physician.
In this role, over the last two years I have seen approximately 70 individuals who have had emotional problems related to a work injury or an unresolved WCB claim. While some of these have been settled relatively smoothly, in the majority of cases the injured worker has encountered difficulties in negotiating their claim and entitlements with a compensation system that they perceive to be unresponsive to their needs. In many instances, dealing with the WCB has added to the emotional distress being experienced. I have seen many workers who have felt as desperate about their predicament as Roman Brzozowski, even though they have not resorted to a hunger strike to get the benefits to which they were entitled.
I would also emphasize that in almost every case the injuries and distress were genuine and not fabricated to further a disability claim. The workers I have seen are, almost without exception, decent, hard-working individuals whose lives have been changed by a quirk of fate beyond their control but who want to return to work. Many had relied upon their physical labour to support themselves and their families, something that was taken from them as a result of their injury.
My remarks today will also be based upon an understanding of the central role that work and working play in our lives, the meaning that a job can have for an individual and the impact its loss can have. For example, for an injured worker the loss of work means not only the loss of the economic benefits and security that work brings, but also other losses that may follow the injury or financial deprivation, such as the loss of social contacts, supports, an inability to participate in previously enjoyed activities and the loss of certain physical functions. The worker also needs to adjust to an image of themselves as disabled, handle changes in family or social relationships and cope with increased apprehension about their future and the additional stress they encounter.
Above all, however, individuals who are denied the opportunity to work, for whatever reasons, experience a significant loss of self-esteem and self-confidence. Work is central to our identity of ourselves, and to be unable to work leaves an individual feeling isolated, a failure and a non-contributing member of their community. It undermines their image of themselves as a provider for their family, which leads to feelings of guilt and self-recrimination, even though the injury was probably not of their making.
Any reform of the Workers' Compensation Board should therefore be based on two key concepts. The first is recognizing that being unable to work causes significant emotional distress and vulnerability as well as financial hardship, and compensation systems should make it as easy as possible for injured workers to cope with the change in their circumstances. Second, the community has a responsibility to assist these individuals by helping them maintain not only their economic wellbeing but also their self-worth and emotional well-being.
This was one of the founding tenets of the WCB in 1914, when workers agreed to give up the right to sue their employer in exchange for a commitment by the government to support them if they were injured on the job. The current act, however, frequently leaves workers struggling to obtain or being denied benefits to which they are entitled, creating additional stress and despair for individuals whose only crime is to have been in the wrong place at the wrong time. For many, this leads to despair, family distress, financial deprivation and poverty, all of which are preventable with a more flexible, worker-centred compensation system. Workers become victimized twice, first by their accident and then by the system that is supposedly there to help them.
Unfortunately, I see little in the proposed act that is likely to remedy these shortcomings and plenty that suggests it will become harder for workers to obtain benefits to which they are entitled or to receive the assistance they require to again become productive members of the community.
I would like to address five specific recommendations in the proposed act. These are (1) the recommendation to eliminate chronic stress as a compensable condition, (2) to place a limitation on the entitlement for chronic pain, (3) measures that will make it harder for individuals to get assistance to retrain or return to meaningful employment, (4) some economic issues, and (5) some administrative issues.
Beginning with the issue of stress as a compensable condition, there is an increasing body of evidence that stress in the workplace can become a disabling condition for a wide variety of different groups of workers. Work overload, a lack of support in the workplace, difficulty in worker-employer relationships and specific aspects of a job which, while varying from occupation to occupation, all create stress that can lead to significant physical and mental problems, usually depression and anxiety.
Recently, there has been increasing concern on the part of insurers about the incidence of work-related depression and its cost. Rather than acknowledging depression as an increasingly prevalent problem and significant public health problem -- the World Health Organization has estimated that it will be the most prevalent health problem within 20 years -- and looking at strategies for dealing with it, the proposed act seems to want to pretend it doesn't exist, thereby avoiding having to pay for it.
I acknowledge that assessing workplace stress is difficult for three major reasons. The first is difficulty in coming up with objective measures of stress. The second is attempting to identify the source of the stress and to differentiate what is work-related and what comes from other sources. Third, there is great variation in the ability of individuals to tolerate stress from one person to another. Despite these methodological difficulties, however, there is strong evidence that many workers experience severe and sometimes disabling stress because of their job.
Removing stress as a compensable condition has a number of serious implications:
First of all, it flies in the face of scientific evidence that has identified workplace stress as a real problem that needs to be acknowledged.
Second, by devaluing the concept of stress, it makes it less likely that workplaces are going to take steps to reduce the amount of stress that workers are exposed to. There is wide variation in the extent to which workplaces are currently aware of or attempt to modify stress. Anything that appears to reduce its significance is likely to be detrimental to one of the goals of the revised act, namely, to emphasize the prevention of work-related problems.
The third reason is that there are many individuals who experience significant stress-related distress or burnout or depression, which is usually short-term but requires a period away from the workplace to recuperate. If this option is removed, many workers will continue to be exposed to increasingly severe levels of stress which are likely to have increasingly detrimental effects on their health and wellbeing.
Finally, it is unclear from the language of the act whether it refers to stress or to stress-related depression as a non-compensable condition. If it is the former, it is likely that work-related stress will be redefined on claims as depression or anxiety, adding to, rather than decreasing, confusion. In fact the Ministry of Labour, in conjunction with the Ministry of Health, could possibly facilitate and support research into this area to come up with more effective tools for assessing and managing workplace stress.
Regarding chronic pain, while the revised act eliminates some of the most confusing and ambiguous language concerning chronic pain, such as the concept of genuineness, I have serious concerns about the suggestion that the duration of compensation for each episode of chronic pain be limited according to a preset formula. Each individual is different and each back, neck, head or musculoskeletal injury will differ in its recovery time. Physical pain and objective findings of disabling injury often continue long beyond the expected or average recovery time.
The key to the management of chronic pain is to have an individualized program that responds to the needs of individual workers. Having an arbitrary and often random date for recovery is going to exclude a number of workers who will have continuing pain, be unable to work and yet will be denied benefits to which they are entitled. I would recommend that this time limit be removed from the proposed act and return-to-work dates continue to be based upon recommendations of the treating health professionals.
Regarding recovery and rehabilitation and the change in wording from "rehabilitation" to "recovery," the issue of chronic pain I think leads directly into the issue of the need for rehabilitation and retraining to help individual workers return to work. The point of maximum recovery is in fact a meaningless term if it's taken out of the context of treatment or rehabilitation.
For example, one worker with whom I am familiar was deemed to be disabled following exposure to toxins. Because of some of the cognitive deficits resulting from his exposure, he was unable to participate in work re-entry programs. This would have been defined as the point of maximum recovery. After much persuasion, however, the compensation board agreed to enrol him in a head injury program, which worked diligently with him and taught him a variety of new skills for dealing with his cognitive problems. This enabled him to enter a retraining program and to retrain as a tool and die maker, an occupation which he is now able to successfully follow.
My message would be to never give up on a disabled worker. The WCB remains one avenue which is able to offer rehabilitation and retraining that might not otherwise be available anywhere in the community. I would recommend as strongly as possible that this aspect of the board's work be enhanced. If the goal is to get workers back to productive employment, this is one of the most important routes.
Regarding economic issues, on studying the proposed act it is hard to escape the conclusion that its primary aim is to reduce the amount of money being paid to injured workers by reducing the amount paid from 90% to 85% of the worker's wage, by deindexing payments for all but a few totally disabled workers, and by reducing the number of conditions which are compensable.
All of these will cause increasing hardship. The most significant factor affecting the long-term wellbeing of someone who is out of work is the amount of financial deprivation they experience. The harder it is for workers to receive benefits, the more distress they will experience and the more we will see injured workers living in poverty without the option of being able to work their way out of it.
A couple of other administrative issues: Regarding advocacy, as the bill will no longer allow the office of the worker adviser to represent unionized workers, it will be harder for workers to get assistance or advocacy to assist them in dealing with a claim. The existing bodies in this community such as the injured workers' group or community legal clinics are already overwhelmed and have lengthy waiting times. These services will find it even harder to provide service for injured workers and make it less likely that injured workers will have access to resources they require to assist them in filing claims or appeals. This is one of the most consistent findings in the individuals I've been working with: feeling absolutely lost in knowing how to deal with the Workers' Compensation Board when an issue doesn't go the way they imagined and they have no one who can advise them or advocate on their behalf.
Last, to comment about the proposal to reduce the autonomy of the appeals decision, shifting it under the responsibility of the operations branch will reverse what I see as one the recent improvements in the act and should be eliminated.
If I put all the changes together, I see three clear trends in the proposed act. As a physician, I see a document which attempts to satisfy the insurers and employers at the expense of the medical needs of injured workers. It places limits on the ability of health professionals to develop treatment plans that their patients require. There are many changes that could make the WCB more effective, but these should not come at the expense of the clinical needs of injured workers.
As a psychiatrist, I see a reluctance to recognize the psychological sequelae of many work-related injuries or situations or to consider these as compensable disorders. This denies overwhelming evidence that workplace stress can cause significant distress. I can only conclude that concerns about the cost of recognizing work-related depression or anxiety outweigh the desire to assist those who are experiencing these problems.
As a citizen of Ontario, I see a proposed act whose primary aim seems to be to reduce the benefits and resources available to workers, shifting the responsibility for looking after injured workers from the employer to the taxpayer, as many individuals who will be denied benefits will end up on some form of public assistance.
My misgivings are only reinforced when I view this act in conjunction with the proposed changes to the Occupational Health and Safety Act, which make it easier for employers to evade their responsibilities for workers' safety and harder for workers to deal with situations where they may be at risk.
If the government is sincere in its desire to create a progressive view of health and safety in the workplace, then I would suggest it looks at ways in which it can:
Encourage and educate physicians and health providers about the treatment of work-related injuries, facilitating collaboration with the board and its representatives.
Emphasize rehabilitation and the early treatment of work-related injuries. The delays in many of the cases I have seen have actually affected significantly the long-term prognosis and outcome, whether this be head injuries or physical injuries. The sooner treatment is approved and started, the better the likelihood for a complete recovery.
Remove administrative impediments to workers receiving treatments they require, as quickly as possible.
Ensure injured workers receive adequate levels of compensation.
Recognize the reality of work-related stress.
Develop a system that treats injured workers with the respect they deserve.
Mr Stewart: Thank you, Doctor, for your presentation. You make the point on the last page, "Recognize the reality of work-related stress," yet on the front page you're suggesting that emotional problems you're dealing with are related to WC problems. My concern, if you could please answer for me, is how do you differentiate between family stress, or driving-to-work stress, all of these stresses, and not really be able to relate them to workplace stress? I think that's what we're trying to address. It appears to me that the WCB in its present form is creating more stress for the workers and for you than anything else.
Dr Kates: In the comment you refer to on the first page, what I was trying to say was that for a worker who is already injured or distressed, the problems in dealing with the system add to the distress they're facing. They're not the cause of it, but they add to the distress of someone who is already feeling vulnerable, scared about their future and uncertain about their degree of physical recovery.
As to the question of work-related stress, as I think I tried to comment upon, it is a real condition. It's a very difficult condition to measure. There is a need to look at research. There had been research taking place. There are a number of instruments that have been used, particularly in western Europe, Germany, Scandinavia, attempting to define what are not only levels of stress, but what are acceptable and reasonable levels of stress. It is a complex area. The major point I would want to make, though, in this presentation today is to say it is a real problem, a real condition, and it shouldn't just be eliminated from the act. Instead, it should be included as a potentially compensable situation but with a lot more research going into how we do exactly what you're saying.
Mr Stewart: It isn't eliminated; it's still there as it relates to traumatic experiences.
Dr Kates: I think that's a separate condition. I think that's much easier to prove. But the kind of situations that I would consider as chronic stress are not a sudden trauma or a sudden injury. Those are fairly straightforward. My experience has been that for the most part those have been recognized.
These are people who are dealing with work situations that, for whatever reason, whether it be the nature of their job, their working environment, working relationships, are experiencing significant stress on a day-to-day basis, which has a cumulative effect and does lead to real clinical symptoms which are the equivalent of, if you like, repetitive strain injuries in a physical sense.
I would say it does happen. My experience has been that the vast majority of people in those situations don't claim because they don't think they have much likelihood of this claim being approved through workers' compensation.
Mr Patten: Thank you, Doctor. I appreciate your holistic approach to attempting to be of support to those who need healing. It's almost endemic to the system, it seems to me, of trying to relate everything to the workplace. It is almost impossible. I'm sure you're familiar with the concept of comprehensive supports for someone who obviously needs help, regardless of where they're from.
But I would like to ask you one question: Are you familiar with the layoffs that are going on right now in the vocational rehabilitation workers with the WCB? You identified that as one source of retraining. Presumably that will still be there, so the parliamentary secretary says, but it would be probably with the private sector. What's your view of that, given your experience in working with some of these people?
Dr Kates: The first thing is that there need to be adequate rehabilitation programs in place. At the moment, there is a shortage of opportunities for workers to retrain. It's difficult to get involved in those kinds of programs. At the moment, one of the issues I come across more frequently is people who are waiting to get into private programs, not necessarily directly through the board, but who need the approval of the board to get in.
Personally, I would rather see the compensation board provide a comprehensive range of services rather than being divided up on a piecemeal basis and privatized, because once they get privatized, you start to run the risk of certain groups of workers being excluded because making a profit becomes a primary consideration in addition to or instead of the wellbeing of the workers. My preference would still be to see these services government-run, to see them expanded and to see obstacles to injured workers getting into these programs as quickly as possible removed.
Mr Christopherson: Welcome, Nick; a pleasure to see you here. For the benefit of members of the committee who wouldn't necessarily know Nick, he's very well known in our community and highly respected for his work in the community with regard to mental health. I think it says an awful lot when someone of his credibility and with the respect he has says publicly, "As a physician, I see a document which attempts to satisfy the insurers and employers at the expense of the medical needs of injured workers." I would hope government members give that the strength and importance it deserves.
Also, one quick comment before I ask a question. You mentioned stress. You were asked further questions by one of the government members. Earlier in Toronto we had a presentation, and you may know Dr Berman, the executive of the Ontario Psychological Association. She talked about the fact that their association believes you can identify the factors causing stress. I asked her point-blank: Do you believe you can do that well enough now, that you can with credibility identify what is work-related and what isn't? Her answer to that was yes.
Your suggestion that there be further work -- there's a body of evidence; there seems to be some debate. I think it would be important on this issue if the government would pick up on Nick's recommendation and do the studies, do the initiatives, have it done objectively and let's wrestle this to the ground. Until we do, there are a lot of injured workers who aren't going to get the compensation they deserve.
The question I wanted to ask you, Nick -- it'll be shorter than my statements -- is that you said in your presentation, "The most significant factor affecting the long-term wellbeing of someone who is out of work is the amount of financial deprivation they experience." We've heard many employer groups come in and talk to the issue of being pleased that the net pay is being cut to 85%. Some want to drop it to 80%; some want to drop it to 70%; some even want a three-day waiting period. They've said things like, "It creates an incentive for workers to return to the job." What does this mean to you as you hear this? What do you think it means to workers in terms of their ability to go back to work and whether they should or shouldn't?
Dr Kates: What it means to me is that they don't want to pay. It's simple.
I've done a fair amount of research into the psychological impact of job loss, whether it be through layoffs or whether it be through injury, and there is absolutely conclusive evidence from the literature that the greater the degree of financial hardship a worker experiences when they lose their job, for whatever reason, the worse their outcome.
By worse outcome, I mean not only just their emotional wellbeing, but the greater the likelihood of family breakup, the greater the likelihood of other accompanying social problems and the less the likelihood of them returning to the workplace.
Again, I really stress that financial deprivation and the maintenance of someone's self-esteem are far and away the two most important issues for someone who is unable to work.
Mr Christopherson: Nick, thank you very much for putting your personal reputation on the line to support this issue; it means a lot.
The Chair: Doctor, thank you for coming before the committee with your advice this afternoon.
HAMILTON AND DISTRICT INJURED WORKERS GROUP
The Chair: I call representatives from the Hamilton and District Injured Workers Group, please.
Mr Vernon Peter: Good afternoon. My name is Vernon Peter. I'm the president of the Hamilton and District Injured Workers Group. With me are John Battaglio, an injured worker and a volunteer counsellor at our office, and his daughter, Elizabeth Battaglio.
Before I get started I'd like to comment on the fact that we feel privileged, being one of the very, very few injured workers who have got a chance to have any input into this process. The Hamilton and Oakville health and safety WCB committee never got standing, when they've been working months educating the public on WCB and health and safety issues. I think the hearings should be extended so that the injured workers have some input into what's going on.
At this point I'd like to turn the chair over to Liz.
Ms Elizabeth Battaglio: I just wanted to speak on behalf of the youth of this province. I would like to remind all of you of the impact Bill 99 will have on all the future workers of Ontario. As a youth who has experienced the emotional and financial impact of living with an injured worker, I know the devastation that can result due to a workplace injury.
I am not alone in this devastation. Many injured workers and their families have been suffering in silence for years. Every one of us is a potential victim under the system of Bill 99, and my concern now is for all the youth entering the workforce in the future. Will they too be suffering as a result of workplace injuries and diseases? And will they too continue this legacy of devastation for their future families? Under Bill 99, these cases are inevitable.
Bill 99 is a direct attack on the youth of this province. By dismantling the Occupational Health and Safety Act and by revamping the Workers' Compensation Act, the youth of Ontario are being stripped of their only means of insurance within the workplace.
When you take away our right to an independent appeals tribunal and especially the provisions on chronic pain, you will be sentencing the youth of this province to a life of pain and suffering.
I will tell you now that I, like many others of my generation, do not want to be a victim under the system of Bill 99. If I am injured now and if I suffer from chronic pain and if I am subjected to the proposed polices on deindexing, I will be committed to a life of poverty, but in the end I will still suffer from a work-related injury. Who will compensate me? The compliance model of enforcement that you're proposing will not, because this model is only compatible with an employer's interest in profitability and the maintenance of control over the labour process.
I sell my labour power as a condition of employment. I do not sell my body or my health and safety. To tell all the youth of this province that our bodies have been sold to employers for profit is to tell the youth of Ontario that our future is expendable. Why must we pay for a system that has nothing to do with us? It is a system that only had to do with the incompetence and irresponsibility of employers. It is not everyone's duty to pay for the system, but it is the employers' right to cover all work-related disabilities.
The younger generation's future under Bill 99 is very bleak. Where will we go? To the system of welfare? That is not the intention of the system and it should not be now. I would once again like to remind you of the future you are giving all the youth of Ontario and the subsequent future you will be giving your children. Workplace injuries and diseases do not discriminate, and certainly Bill 99 is a failure to my generation.
I would like to thank you all for the opportunity of speaking here today. The way this government is going, I may be the last of my generation to participate in public hearings since these rights too are being taken away from the youth.
Mr John Battaglio: My submission is on chronic pain. Chronic pain is reported to be the largest disability in the world. Chronic pain is pain that persists past the normal estimated healing time. To not acknowledge the legitimacy of genuine cases of enigmatic chronic pain and pain magnification associated with psychogenic pain disorder -- it cannot be questioned in principle.
For the government to say that a worker should only be entitled to a physical organic injury and not a psychological or non-organic disability would be like saying that a person's brain was not part of their body. It seems that the Conservative government of the day believes in phantom minds. Looking at Bill 99, the Conservative government obviously showed the possibility of having this condition.
Bill 99 proposes to limit chronic pain to an "estimated healing time." In 1994 a medical report by Dr Nelson Hendler from the Mensana Clinic and Johns Hopkins Hospital recognized chronic pain as having four stages, which can take up to 12 years to adapt to the disability and learn to live with it permanently.
Also of medical interest related to chronic pain symptoms: When medical science cannot find the organic cause of pain, the worker is disbelieved about the actual pain experienced, but surprisingly, new medical findings from Anthony Freemont and the University of Tours, France, found in bodies of cadavers an unusual nerve growth in the backs of people with pain; furthermore, these nerves were producing substance P, a peptide associated with pain. This indicates that perhaps the nerves and the blood supply were part of some type of healing process after an organic injury.
Further medical evidence on chronic pain past normal healing time can be documented through sleep studies. The tests reveal that chronic pain is beyond the control of the worker. In any event, WCB case 915 deals with the issue of chronic pain and addresses all the concerns on that subject.
The long-term viability of this system must be geared to benefits for work-related disabilities and their results. If this is not the government's priority, then the WCB system is a scam, because the WCB is downloading all disabilities on to the public welfare system and should be closed down. A new no-fault system for injured workers in a legal tort system should be developed to deal with workplace injuries.
The bottom line, to this Conservative government, is: Disabilities cannot be wished away.
Mr Peter: If Bill 99 is passed, it will be an economic disaster for injured workers and taxpayers.
The proposed deindexing formula will guarantee poverty for many injured workers and their families. It will force many on to social assistance, causing the welfare rolls to skyrocket. Time limits placed on chronic pain disability and the exclusion of chronic stress is not only unjust but discriminatory as well. This legislation attacks the most severely disabled the hardest, the very people it is supposed to protect.
As the 1983 Weiler report indicated, the first priority should be directing resources to those with the greatest need. At this, Bill 99 fails miserably. "If the object of disability insurance is to cushion people against the drastic financial effects of a serious injury on their normal life, the available dollars should be concentrated on long-term disabilities." The government cannot just wish away disabilities like chronic pain and pretend they no longer exist when in fact these disabilities worsen over time. These are the injured workers who require the most protection and are currently, by and large, the most abused.
The unfunded liability that is most important, that is never talked about by the government, is the injured worker's family's unfunded liability. Under Bill 99 the injured worker's family becomes poorer and poorer with each and every passing year. As the injured worker's health deteriorates, the economic hardship becomes greater under this scheme; the most severely disabled are punished the most harshly. The system has become not one of compensation but one of perpetual economic torture which is intensified and magnified as time ticks away.
This government ran an election campaign based on economic prosperity for all Ontarians. How can they justify a law which removes any hope for any economic security for the most vulnerable in our society? Bill 99 is, in short, poverty guaranteed.
Also, this government ran an election on being taxfighters, so why is the government putting legislation which downloads the employers' obligations on to the backs of taxpayers? Our health care system is already overburdened. Disentitling many injured workers by discriminating against their disabilities or by administratively denying injured workers benefits with the imposition of time limits on filing claims and appeals only accomplishes one thing; that is, employers are evading their obligations to pay injured workers' benefits, with taxpayers picking up the tab.
The same applies to Bill 99's de-indexing formula. Using the WCB's inflation predictions, an injured worker's buying power will be reduced by 40% over 20 years. This, combined with the lowering of the base rate from 90% to 85%, will guarantee widespread devastation for injured workers.
I have been off work for four and a half years due to an injury caused by company negligence. I have not had any income over that period outside of 15 weeks of UIC disability -- about $4,900, less than my medical costs. I have just been given a hearing date by the WCB. If I had not written a lengthy letter to the editor in the Hamilton Spectator complaining about my abuse, I'd still be waiting today to be put on trial by my abusers, the WCB.
Over the same period, my employer, Dofasco Inc, received, since 1993, $30 million in WCB rebates. This is when they adopted their policy of firing injured workers. Twenty-one of the fired injured workers have asked the Ontario Human Rights Commission to charge the company with systematic discrimination. Some have lost their homes and depend upon welfare and food banks. This is why the NEER program has been such a recipe for disaster for injured workers, as it is what drives employers like Dofasco to inflict these cruel punishments on their disabled workers. This is why rebates should be eliminated.
Injured workers have been dragged into a ruthless money game that corporations play. I believe that when I do get my hearing, my employer will further delay the proceedings, as they have successfully done in all other cases. Although I have no income, I would like to thank the taxpayers for the tens of thousands of dollars in medical care I have received that has been downloaded on to their backs by my employer. I have several other permanent disabilities that I have acquired, dating back to 1980. I have not received any compensation for any of them, either.
My only hope is for an independent WCAT, where I will probably end up, at some time in the next millennium. The WCAT should be given more authority to right the wrongs caused by the WCB and award appropriate actual and punitive damages. This would go a long way in curbing the abusive policies of the WCB.
Injured workers are far and away the most abused people in North America. In the United States, their 1980 census reveals that 81.8% of all people in mental hospitals and residential treatment centres are disabled injured workers; 93.8% of persons aged 16 to 64 receiving health care in homes for the aged are disabled injured workers; 94.5% of persons receiving care in homes and schools for the mentally handicapped are disabled injured workers; and 91.1% of all persons in homes and schools for the physically handicapped are disabled injured workers. I myself am a psychiatric patient due to the abuse and neglect of my employer and the WCB.
Bill 99 should be withdrawn, as it does not address any of the problems faced by injured workers; it merely exacerbates them. It is hostile to both injured workers and taxpayers, as its only focus is to steal billions of dollars from them. It leaves a bleak future for injured workers, past, present and future, as it totally ignores their needs. Thank you.
Mr Agostino: I thank the presenters for an excellent presentation. You talk about the financial changes they have made -- and I think we've got to look at what's behind this -- and we have a ton of other changes they have made in this legislation that are punitive to injured workers: the reducing of benefits, the indexing, some of those changes that have occurred that will reduce benefits. I want to get your view on that.
One must wonder, are they doing it because they believe injured workers want to be there? "Injured workers are lazy and injured workers don't want to go to work, so we're going to punish them by reducing their benefits. We're going to give them a swift kick in the butt. If they try being welfare recipients, that will get them back to work." I think unfortunately that's the mentality.
There's a real lack of understanding that when people go to work in the morning, they want to come back home in one piece, take care of their family and feed their family. They don't want to be on WCB. Anyone in this room who has experienced that knows the hell that it is, and the pain and the suffering. Dr Kates, who was before us, talked about some of the other things that happen around that when someone gets injured. It's disturbing, because I think what is driving many parts of this bill is that attitude that injured workers are there because they want to be there and don't want to go to work.
I want to get your sense. From the injured workers you deal with and that you know, what is the prevailing attitude of injured workers? If the opportunity is there and the proper setting is there, do most injured workers want to get back to work as soon as possible, do they want to go back to what they were doing, or would they rather sit home and take WCB, as some of these guys across the floor believe?
Mr Peter: Oh, absolutely, Dominic. Injured workers want to get back to work. In our office we counsel approximately 1,200 injured workers a year. About half of them, 600, say, are on welfare. With the welfare rates in Ontario being what they are, I don't think anybody wants to live like that, let's face it. The only alternative is work. They want to work; the problem is that they can't get a job. Some of it is because they're tied up by the WCB.
If you look at re-employment, the current section 54 of the act limits re-employment to two years. In my case, and for many other injured workers who work at this company in particular, the company successfully uses delay tactics to go beyond two years so that the re-employment rights are no longer there. You can't get your job back. You win your case five or six years down the road; unfortunately, your two-year limitation to get your job back is up now.
Mr Christopherson: Thank you all for your presentation. Elizabeth, I think all of us were duly moved by your presentation. Certainly it's not easy to come forward at the best of times, particularly when you're younger and don't have as many life experiences, and even more to be talking about personal matters such as this. I think I speak for all members when I say thank you for having the courage to come forward today.
My specific question is, you talk about what this may mean as young people look ahead to the future, thinking, "What if I get hurt?" I can only imagine what it must be like for a lot of your friends when you think about how difficult it is to even get a job. Youth unemployment is sky high, and then linked with that: "What if I get hurt on the job? If I'm not in a union place, I don't have anybody to represent me. If I don't know the laws, how do I ensure that my rights are protected?"
Can you just expand on that larger picture of what it must be like for a young person like yourself to be looking at all these things in the future, thinking about where you're going to be in 10, 20 years?
Ms Battaglio: I don't know. It's difficult, because we are very educated, one of the most educated generations. We go to university, we go to college, we try and better ourselves. There are no jobs out there for us. We get stuck in the worst-paying, low-end service sector jobs which have the most health and safety hazards, and no regulations because employers are not enforcing them. We have high turnover so nobody is going to enforce anything. We're terrified of our employers because we want a job. We're young. We don't know how to relate in the workforce that much because we don't have the experience.
When we go out there, we try to be as optimistic as possible that we will have a job. We want to work and we want to be productive. We want to help Ontario and we want to help ourselves, but the threat of Bill 99 on us makes things even worse. You're taking away our protections, and most of the youth don't even know what our protections are to begin with, so we're losing out already. If you make it even more difficult for us, like with the office of the worker adviser and stuff like that, you make it even more difficult for us to get the help we need or to realize what our rights actually are.
Mr Maves: Just a quick question about not knowing your rights in the workplace and so on. I don't know if you are in high school or if you are now in university.
Ms Battaglio: University.
Mr Maves: There is a young worker awareness program that the government has initiated to do exactly that, to talk to high school students about their rights when they go into the workforce. I was just going to ask if you had participated in that. Obviously not.
Ms Battaglio: I haven't at all. The only place I've ever seen it was the Hamilton labour board. They talked about that to me because I'm taking courses there, but otherwise, no. I remember when I went to my job there was no --
Mr Maves: It's recent. You wouldn't have had it in high school.
Ms Battaglio: There was nothing. Even the job that I have now, there was not very much mentioned on health and safety or what you're supposed to do or what your rights are or anything about the Workers' Compensation Board.
Mr Maves: What's the job you have now?
Ms Battaglio: I work at the Hamilton General Hospital.
Mr Peter: If it's still open.
Ms Battaglio: Yes. I'm luckier because that's a unionized environment, but some of my friends work at convenience stores, things like that, and the labour practices with health and safety in small workplaces are awful. They don't know anything. They'll be walking around injured for days and they won't even know. "Oh, well that's just a condition of my employment," which it's not. It's the employer's obligation to ensure that you have a healthy workforce, and a safe one.
Mr Maves: Which is the point about this program. Thank you very much.
The Vice-Chair (Mr Jerry J. Ouellette): Thank you very much for your presentation.
HAMILTON PROFESSIONAL FIREFIGHTERS' ASSOCIATION
The Vice-Chair: We now ask for the representatives of the Hamilton Professional Firefighters' Association to come forward. If you could identify yourselves for Hansard.
Mr Ken Phillips: My name is Ken Phillips.
Mr Walter Baumann: I'm Walter Baumann.
The Vice-Chair: As I'm sure you're well aware, you have 20 minutes for a presentation. Any remaining time after such is divided equally between the caucuses.
Mr Phillips: Thank you very much for giving us the opportunity to talk to you this afternoon. My name is Ken Phillips. This is Walter Baumann. I am the chairman of the workers' compensation committee for Local 288 of the Hamilton Professional Firefighters' Association. I apologize for not having a brief to present to you, but we have been tied up non-stop for many hours per day trying to take care of the firefighters in Hamilton who were fighting the Plastimet fire. So unfortunately our brief is not as complete or written out as we would have liked it to have been.
Mr Christopherson: A great job you did, by the way.
Mr Phillips: Thank you.
Let me start by reading to you from the Occupational Health and Safety Act. In part V, section 23(3), it states: "A worker may refuse to work or do particular work where he has reason to believe that...(b) the physical condition of the workplace or the part thereof in which he works or is likely to work may endanger himself."
That section is prefaced by section 23(1)(b), and it states that this section does not apply to full-time firefighters, as defined in the Fire Departments Act. I guess it would be Bill 84 now.
I in no way want to infer that Hamilton firefighters want to have the right to refuse dangerous work. We have a job to do and we're proud of the work that we do. We understand the inherent dangers that our occupation and our profession present to us every day. Our profession, through our local unions and through some of the employers, are working to try and take the dangers out of our work so that it isn't as dangerous as it is. But it is still one of the most dangerous professions in the world.
How can this government decimate the Workers' Compensation Act with Bill 99, strip out the vocational rehabilitation sections, neuter the Workers' Compensation Appeals Tribunal, do away with the Occupational Disease Panel, and expect the firefighters of this province to do their jobs without fear for their families' futures?
I haven't been given time to discuss all the ramifications of Bill 99. I know that you've heard all of the facts and figures about the costs of WCB in this province, so I'd like to cover just some of the changes to the act and how they will affect the firefighters in Hamilton.
When you are employed in a profession where studies in the US and Canada have shown that you can expect to get hurt doing your job once every four years, that you could injure yourself every four years, and that you may not have the right to come back after you've injured yourself and be a combat firefighter, and then you read in the paper that Cam Jackson says, and he told the Legislature, that he believes trying to rehabilitate injured workers with training and education programs was a waste of money -- let me tell you a little story.
As you're all aware, on July 9 of this year Hamilton had one of the last disasters this province has had. There were over 239 firefighters at that toxic chemical fire, and one of our firefighters injured himself. I can't, because I'm bound by the rules of confidentiality, release his name to you, but I will tell you his story.
While he was on duty on July 9, he was on one of the first rigs to respond to that fire. I guess you can all assume that when you're putting a fire out, the normal procedure is to put the wet stuff on the hot stuff, and there was a toxic lake created in the area. That toxic lake contained hydrogen chlorides, which turned into hydrochloric acid; it contained dioxins; it contained BCME.
This firefighter didn't just inhale all those noxious fumes; he fell down in it. He almost drowned in it. He ingested it and it went into his ears. That firefighter today is in very rough shape. He has now what we call chemically induced asthma, or reactive airways disease. At a meeting that I was at yesterday with many of the firefighters and some of the experts in this field from the Ministry of Labour and some of the occupational health clinics from around the province, a doctor in the Ministry of Labour told us that 18% of the people who suffer damage from hydrogen chloride can expect to never recover from the injuries they've suffered. This firefighter may never be able to return to being a combat firefighter.
What does Bill 99 do for that firefighter? If he's 25 years old and he's got three children and he's got a family, how is he going to be retrained? He needs a job. He needs to take care of his family. Bill 99 does not address that. All of the vocational rehabilitation has been stripped out of the act. That's just not fair and it's not right.
How can you, in all good conscience, sit here and even contemplate kissing off a firefighter who may be suffering from these diseases, or has even broken his back or burned himself so badly that being a combat firefighter again is completely out of the question? That firefighter we're talking about may have injured himself rescuing one of your loved ones, and now you're proposing that he has no right to be retrained for another job which will adequately take care of him and his family.
Your government is so intent on reducing the welfare rolls that you have introduced the workfare program in this province. Now I guess your intention is to put the bravest and the most respected citizens into your workfare program, because certainly Bill 99 isn't going to take care of them.
Two of the changes that you are proposing are interrelated, in my opinion, and directly relate to firefighters. Those are WCAT and the ODP, the Occupational Disease Panel. What a great way to ensure that workers in this province who are exposed to a toxic and dangerous substance will never be able to get the presumptive legislation to cover an occupational disease that may be specific to the occupation that they have. You're going to do away with a world-renowned investigative group so that no one can prove they're diseased, and then you take the teeth away from the agency that might be able to have forced the WCB into recognizing that occupational disease. I guess the Conservative government members who support this concept feel that certain cancers and heart disease and hearing loss, which are all before the ODP at this time with regard to firefighters, are just the cost of doing business in the business of saving lives in this province.
I look on WCAT as being one of the checks and balances of the compensation board. They not only make sure the board follows its own policies and procedures, but they can recommend to the board where their policies and procedures are wrong. They've done this in the past, to the betterment of workers in this province.
Another section of the act is in stress. Firefighters in this province and all through North American suffer post-traumatic stress disorder, a recognized problem made most prevalent during the Vietnamese war. A study in Seattle has shown that firefighters in North America suffer post-traumatic stress disorder to a rate of 2,500 times greater than the normal population. The board in its own way now covers some types of post-traumatic stress disorder; that is, if there's one critical incident that you can relate your problem to.
The problem with post-traumatic stress is that it's accumulative, it builds up over time, and when you lose it, you may not be in the workforce. It may not be over a specific incident that you've been in. It could be something that has happened in your family. Is the board then going to consider that the stressor outside the workplace caused the problem you're having?
I doubt very much that there are going to be any changes in Bill 99. I don't have the confidence in the Conservative government to do it. This is a government for employers and not for workers. But remember one thing: You are the employees of the workers in this province. Be assured that the workers in this province in the next election are going to exercise their re-employment options.
Mr Bisson: Ken and Walter, thank you very much for coming forward today and bringing what I think is a very powerful presentation. I always find that when people come forward and put things in personal terms, that brings it home to what it means to people in their daily lives. Sometimes we need to talk about the technical, but it's always good to get that other side.
Dave has talked to me about the work you guys have done on the Plastimet fire, about the quite difficult situation and the good job you've done. We talked about that yesterday at some length. As you know, I did a lot of work on Bill 84 and a lot of work with firefighters up in my area, so we had a bit of a chat about that.
To the point: You talked about the whole issue of WCAT and the ODP, or IDSP, as it used to be called. Finally, the ODP was starting to address some of the issues around industrial diseases, namely, lung cancer and brain cancer and the question of heart disease for firefighters. Finally it looked as if there was some light at the end of the tunnel. Do you feel betrayed at this point, considering what the government had said to the firefighters in the last election?
Mr Phillips: Certainly, that's legislation that the firefighters in this province have been trying to get enacted for years. It is known throughout North America that firefighters suffer from those diseases. As a matter of fact, many of the states in the United States have presumptive legislation to cover just those diseases. This government has betrayed us unbelievably. It looks like now we'll never get the legislation we require.
Mr Christopherson: You talked about the stress issue, and this has come up a number of times. I'm going to be very straight up about this: One of the differences with your presentation is that the government has seen police officers and firefighters as sort of their constituency, for reasons that we all understand, and we've got the Police Association of Ontario meeting in Hamilton and you've read the stories in the Spectator. They're up in arms over what is happening under Bill 136. You've already taken your lumps under Bill 84 and Bill 26 --
Mr Phillips: And 136 and 15.
Mr Christopherson: That's right: 136 and 15 and 49 and every other bill going.
This government is rapidly running out of any safe corner to hide in, and the fact that you're here today -- I was responsible for that ministry and I am still haunted by that video of the commitments Mike Harris was making -- he was going to do this and he was going to do that for firefighters -- and I've seen nothing but betrayal after betrayal of everything he ever said.
I want you to know that your coming forward and making the statements you have made has a chance of having an impact. Injured workers know this government doesn't care about them, that they wrote them off a long time ago. But with firefighters there is some hope because they know that somewhere they've got to find a couple of votes in the next election. When you and the police start calling them for what they are and stand up with the rest of the workers and say, "Look, we're workers too and we're not going to put up with this," it makes a difference. Thanks for being here today.
Mr Maves: Thank you very much for your presentation. On the voc rehab and Mr Jackson's comments, I think at the time what he was getting at was that in many cases he had seen that voc rehab was unsuccessful in helping someone to get back to work, not with their original employer or subsequently.
One of the purposes of Bill 99 stated in the act is, "To facilitate the return to work and recovery of workers...." Then, in 42(7) it talks about a labour market re-entry plan and that 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 loss of earnings from the injury.
From within that labour market re-entry plan I don't see that a voc rehab stint can't occur, and you think because voc rehab is not specifically mentioned in that section, that within a labour market re-entry it wouldn't be able to occur.
Mr Phillips: No, I don't think it will. I think you're putting way too much faith in the employers in this province to take care of their employees.
Mr Maves: Do you mean under section 40, under "Return to Work"?
Mr Phillips: You're much more familiar with all the sections of the act than I am.
Mr Maves: I know; I'm sorry. The "Return to Work" section where there must be cooperation between the employee and the employer is section 40. Under that section, is that the one where you think we're putting too much faith?
Mr Phillips: Certainly.
Mr Maves: Okay. The labour market re-entry, though, is the board's duty to the injured worker in concert with the injured worker and the health care practitioner. So my contention is --
Mr Phillips: Is the health care practitioner going to be a medical doctor or a nurse?
Mr Maves: There's a wide definition of "health care practitioner" that has several people within it, including doctors. The definition of "health care practitioner" has both in it.
Mr Phillips: So is it possible for a nurse at the Workers' Compensation Board to override the decision of the person's personal specialist? Is that a possibility under the section you're quoting to me?
Mr Maves: The intention is that it would be with the person's It could be a variety of people: health care practitioners as defined in the act.
Mr Patten: Thank you for being here, and likewise congratulations on your efforts in the recent fire. It must have been quite an experience for you. Dominic wants to ask a question, so I'll be very brief. I think the answer is yes, that the board can overrule the best medical advice, and I think that's anathema, disaster. I don't think that's the way it should go, and if that can happen, then what are the values that will be driving the decisions? They will be economic.
I have worries about disbanding the whole vocational rehab division of WCB too. I don't mind a mix. I think that should be in there as part of the responsibility and stated why it is not utilized, rather than, why do you have to justify whether you need it?
If there are any experts in your profession -- I suppose there may be a few others as well but especially in yours -- able to comment, and probably empirical and clinical studies in terms of what it means for the accumulative effects of mental stress or emotional stress or psychological stress, call it what you like, which leads to physical impairment or difficulties -- it doesn't happen from a single event. It's your profession, and as you point out, it doesn't necessarily happen in the workplace. You may have had 10 in the workplace, you have one outside, at home, and all of a sudden you snap or you have an episode or you fall apart or have a nervous breakdown, whatever it is. I think this committee would be well served to listen very carefully to your experience in your particular profession. I just wanted to say that. Dominic has a question to ask.
Mr Agostino: First, I want to add to what David and a few others have said in regard to the work here. I think everybody in Hamilton and across Ontario knows the risk that you and the men and women who work with you put themselves at that night and the days following. I think that brings to light even more the flaws in this bill and why there should be strengthening of the area they're looking at eliminating, because of exposures and because of the situations you face, like the Plastimet fire, where you have often been and where firefighters go in, and because of the lack of other regulations in this province, are blindly forced into a situation where they haven't got a damned clue what types of chemicals they're dealing with and what is coming out of that particular fire, and then the effects are felt years later.
This bill takes away many of the protections that have been built up over the years. How do you gauge the sense? What is the morale of the people you work with right now as a result of what has happened and as a result of what you see through this type of legislation?
Mr Phillips: I can tell you right now the firefighters in Hamilton are not only extremely stressed out about the Plastimet fire because they're worried about their families and they're worried about the compensation board probably not covering the cancers they may get in five, 10 or 15 years from now, but when they look at the legislation, Bill 99, when they see what the government is proposing to do to the compensation board that already doesn't treat workers with the greatest of respect, then everybody is very scared of what their future holds.
The Vice-Chair: Thank you for your presentation.
Mr O'Toole: On a point of order, Mr Chair: I also wanted to express my gratitude for the exposure to risk that firefighters and police in this province undertake as part of their duty. It's respected and appreciated. That's real.
The Vice-Chair: Thank you. We appreciate that.
Mr Baumann: I just wanted to make one comment about what Mr Agostino mentioned. As my Brother Ken Phillips mentioned, the stress we are under, especially from this Plastimet fire, and with the documentation we've been forced to teach our members to put into effect from the fires we've learned about, like in Kitchener and their dealings with the WCB, one way you would help firefighters in Hamilton would be by not reneging on what the Premier initially said about calling a public inquiry into this fire.
The Vice-Chair: Thank you very much for your presentation.
NIAGARA WORKERS COMMITTEE FOR WCB AND HEALTH AND SAFETY
The Vice-Chair: We'll now call on the Niagara Workers Committee for WCB and Health and Safety, if you could come forward and identify yourselves for Hansard, please.
Mr Smokey Milojevic: The Niagara workers committee would like to thank the government of Ontario for the opportunity to speak at these hearings on Bill 99. I am Smokey Milojevic, chair of the Niagara Workers Committee for WCB and Health and Safety. I'm also the WCB representative for CAW Local 707. That's Ford of Oakville, Ontario. We have with us here Canan Rosnuk, from the Niagara community; and Tim Lambert, member of the Niagara workers committee and the president of CAW, Local 676, Dana, of Thorold. We represent over 32 different groups in the Niagara region.
I'd like to read to you our mission statement so that you know exactly why we're here and what we're going to speak about.
Our mission statement is clear in that we are dedicated to protecting the rights of workers to earn their living in a safe and healthy workplace, to refuse unsafe work, and in case of work-related injuries and illnesses, to receive proper care and treatment without either their dignity or their living standard being undermined. We also believe in the rights of those who lost their loved ones due to work-related accidents or diseases.
Over the past year, because of the proposed massive negative effects of Bill 99, this group's main objective was to have public hearings in the Niagara region and other regions throughout Ontario. During the past year we have petitioned the MPPs in our area, such as Tom Froese, Tim Hudak and Frank Sheehan, all of whom are Tory members, NDP member Peter Kormos and Liberal member Jim Bradley. In each case the request was the same: We wanted public hearings in the Niagara region and throughout Ontario.
We first learned about Bill 99 and its implications through a leaked document. Our group wanted answers to questions we had concerning the document. We planned a public meeting with our group and the local MPPs of our area. Letters went out and phone calls were made to each MPP to attend these meetings. Not one Tory representative came, nor did they send in a letter of regret. Mr Bradley sent in a letter and also made comments on the bill. Mr Kormos was the only government MPP to attend our meeting.
During this meeting, nobody from the government, which wanted these changes to workers' compensation, was there to present their views on why they were needed.
Then, on November 7, 1996, the Niagara workers committee had a live talk show on a local cable community station. We had asked again that the government be present, and again they did not take this opportunity to be present and answer the many questions from the people they are supposed to be representing. As the show got under way, we were overwhelmed with the response from the public. We spoke about the unfunded liability, the rewriting of the act and the changes concerning the cuts to other departments, such as the Occupational Disease Panel, the office of the worker adviser and so on. Oddly enough, not one employer and not one supporter for the government's changes to the compensation act called in to voice their support for the bill.
There was such a response to the talk show that we decided a free community clinic would be set up on workers' compensation and health and safety. With the help of the city of Niagara Falls, the clinic was held on April 3, 1997. Over 75 people came in for help and advice on workers' compensation, a sure sign something is wrong with the way injured workers in our area are dealt with when it comes to compensation. The outcry at these two events left our group with a stronger demand that the hearings for Bill 99 be in the Niagara region.
With this, we went to each city council in our area with a resolution on Bill 99. Port Colborne, St Catharines, Niagara Falls, Thorold and Welland all supported our efforts, that Bill 99 will undermine the rights of injured workers and that these injured workers should be heard from in the form of public hearings. Letters went to the Premier's office, and to date I have not yet received a response to any letter sent by city councils about our concerns.
Let's talk about the bill itself and how it came about. This government's agenda on workers' compensation changes is a direct result of pressure from the big business communities. The government's agenda on workers' compensation has a direct connection with the proposals prepared by the business caucus of the Premier's Labour-Management Advisory Committee dated October 20, 1993. Mike Harris announced in the Legislature that business proposals now formed the Tory's agenda for workers' compensation.
The business caucus document urged a return to the original intent of the Workmen's Compensation Act of 1914. They proceeded to make recommendations regarding entitlement which would move WCB prevention back 80 years, to where there were few diseases recognized as work-related, before the issues of repetitive strain and stress were considered health and safety issues. Perhaps this is why we no longer are going to have the Occupational Disease Panel.
The workers' compensation system is entirely financed by the employers' contributions paid into an account funded and administered by the board. However, some major sectors of the economy are not included. For example banks, insurance companies and law firms are not required to contribute to the WCB fund. How is it that these same examples also post some of the highest profits, billions of dollars in some cases?
Why is this government attacking injured workers and not the employers of these 700,000 workers that do not pay one cent into this fund? Perhaps these companies are too great a challenge for this government. The injured workers, on the other hand, are an easy target.
On January 1, 1997, this government gave back 5% to employers in the way of premium reductions, yet wants to reduce the injured workers' rates from 90% to 85%. What happened to the word "fair" in the act? This government was elected by democracy and dictates by hypocrisy.
Mr Maves, you are the parliamentary assistant to the labour minister. How can you tell me that Ontario employers pay some of the highest rates in Canada, yet 700,000 employees are exempt from compensation premiums? Do the people of Ontario know that in your own riding, your very own riding, Casino Niagara employees are not covered under WCB? This is over 2,500 people. This is a government-run operation. How can you tell injured workers that they will have to make up the difference by reducing their benefits to cover the unfunded liability when you exempt big business, who are making millions of dollars in our own backyard? It's time this government did what was right: Focus on the employers that don't pay anything into this fund, and not further cripple injured workers with this bill.
I'd like to read this letter sent to me by the Minister of Labour. I'd like to just touch on how we got to this letter from the Minister of Labour. We went into Mr Maves's office and requested a meeting with Mr Maves. We had approximately 70 to 75 people there, a great number of whom were injured workers who wanted to present their own cases on Bill 99. As a result of that, because we wanted hearings in our area, this meeting was set up. This is the letter I sent to Elizabeth Witmer, Minister of Labour, requesting a meeting regarding Bill 99:
"Our repeated requests for public hearings in the Niagara region have not been heard. We want public meetings held here in Niagara. We would like to meet with you in July.
"Niagara workers for WCB and health and safety."
We didn't meet with her in July, obviously, but I would like to read the letter she sent back to me:
"Dear Mr Milojevic:
"Thank you for your handwritten note of July 17 faxed from the office of Bart Maves, MPP. Your concerns have been forwarded to me and I appreciate your interest in having public hearings on Bill 99 come to your area. I understand that you've had the opportunity to meet with Mr Maves on several occasions. As parliamentary assistant, Mr Maves sits on the standing committee on resource development which is charged with examining Bill 99.
"Determining the time and location of the committee is the responsibility of the committee itself. As a result, your request to have the hearings come to your region will be most appropriately put to the committee."
Mr Maves, you said you would go to the committee and ask that the hearings be extended. Yet we understand that you were the first to rise and not support our request.
Mr Maves: I didn't say that.
Mr Milojevic: You'll have your chance.
How can this government allow a group that represents over half a million people only 20 minutes to address all the concerns that this bill presents and the lives it will change forever? We are not willing to sacrifice injured workers for more jobs and their so-called unfunded liability. Our request remains the same: We want more public hearing in Ontario so that injured workers can be heard.
Mr O'Toole: Thank you very much for your presentation today. It's very important that we, all members of this committee, hear from injured workers across Ontario and your groups that represent collectively, as you've said, some 50,000 is it in your area?
Mr Milojevic: Approximately, with the 32 different affiliations, over 500,000.
Mr O'Toole: I have myself in my region met, and I'm sure every member meets regularly with injured workers and deals a lot with compensation problems within their constituents. We're all trying to do our best. In my area there isn't a specific hearing. Technically, they appeared in Oshawa. Many of the injured workers had to go to Oshawa.
Mr Milojevic: Just a moment. Oshawa is not even appearing from your region, Mr O'Toole.
The Vice-Chair: Order please.
Mr O'Toole: I just want to make the point that I spoke to Mr Maves about this. I know you had been to his office some four or five times. He did his best, I'm sure, but in southern Ontario, this is considered part of that catchment area, as I suspect the Oshawa area is considered part of Toronto. We are visiting seven cities. The House leaders of all three parties do make the agreements.
Mr Milojevic: Extend the hearings; that's what we're here for.
Mr O'Toole: We are listening. The points you made are very similar to those other injured worker groups have made. What I'm looking for in this particular opportunity to ask a question is -- I suspect we could deal with some of the return-to-work legislation or the proactive parts. The prevention part of this bill is new. You know, certainly, as a group that advocates both through the CAW and the injured workers, that the whole review of the WCB has been ongoing since 1981, all three parties. Presenters here today without exception have complained, and the specific cases we heard about are with respect to the dysfunctional nature of the current legislation. It's been under review by every party; they had two bills that tried to improve the system.
With respect to the sustainability, it was part of our original election promise that the royal commission would be dissolved.
The Vice-Chair: Order, please. Mr O'Toole, you have 30 seconds.
Mr O'Toole: I want to make one statement and ask for your response. The public auditor for Ontario, Erik Peters, who's non-partisan, non-political, in 1995 said about the liability for the WCB -- I'm going to read his statement. This is an independent professional, not some politician like me or anyone else. "A strategy to deal with the unfunded liability should be developed and implemented as quickly and as effectively as possible."
The Vice-Chair: Order, please. Allow the presenters to answer, please.
Mr Milojevic: I'd like to answer that by Mr Bart Maves's own words, that is, that the unfunded liability is falling because of job creation already. It's falling already. If you had gone after those 700,000 people who don't pay a nickel into that fund, it would probably have been greater. That's where the focus should be.
Mr Agostino: To respond to the remark about a supposed agreement by the House leaders, certainly the time limitations on these hearings were not agreed to by the House leaders. The time and date limitations were imposed by your government. There has been a request literally at every hearing by the member for Hamilton Centre to extend the hearings; he has requested unanimous consent on every occasion. The two opposition parties have agreed with that, and the government has continuously been the party that has not given unanimous consent. You still have that opportunity to extend those hearings right now, as you had this morning. You denied that.
I want to ask a couple of questions to the people at the end of the table. With some of the things they've done, I want to ask what you think the impact will be. How do you see cutting benefits from 90% to 85% helping injured workers?
Mr Milojevic: It doesn't help injured workers in the least. I believe the percentage an injured worker receives right now is approximately 15% -- is that what the average is right now? -- 15%, which is a pittance, yet they want to take 5% away from that total yet. It doesn't help; it further hinders.
Mr Tim Lambert: If you take 5% out of injured workers' pockets because they're injured, what you're doing is just reducing their standard of living. In turn, you're just turning around and giving it back to the employers.
Mr Agostino: What benefit do you see in the reduction of the inflation protection for this through the capping and the deindexing? Do you see any benefits in that for injured workers?
Mr Lambert: It doesn't.
Mr Agostino: What about the issue of chronic pain and setting arbitrary time limits that tell you, whether you're well or not, that you're going to be well within that time period? What impact do you see on injured workers? I think that's a key one.
Mr Lambert: All it does is reduce the injured workers' rights, reduce their benefits, destroy their morale. There's nothing positive in Bill 99 for injured workers. It's a shame. We had a meeting with you, Bart Maves, and you said the information from the royal commission was looked at by the Jackson report. That's what you said. You said it was part of the thing of scrapping it. If somebody took the time and looked at the reports from the royal commission that were done already, this Bill 99 wouldn't be looking the way it is right now.
Mr Agostino: On the previous point on the hearings, I think it's really indicative of the members' clout when you have so many members from the Niagara Peninsula on the government side and can't get public hearings in the Niagara Peninsula.
Mr Christopherson: What a lot of injured workers are finding most insulting, rather than employer groups coming forward and saying, "Yes, we think injured workers ought to be hit and here's the reason why," which would outrage people, but at least it would be honest, it's those employers that come in and say, "Oh, this bill is good for workers and it'll make it better and it'll give us a safer workplace." Everybody knows that's patently untrue.
How I tie that into what's happening here is that we have government members and the minister -- the minister wrote this. I'm going to re-read the letter to Smokey. It says: "Determining the time and location of committee hearings is the responsibility of the committee itself. As a result, your request to have the hearings come to your region will be most appropriately put to the committee." The minister knows that leaves the impression that it's our decision where we go. Technically it is, but we can only go so far in six measly days. You said, Mr O'Toole, "He did his best, I'm sure," meaning the parliamentary assistant.
All of this is words. This committee has the ability, with unanimous consent, to put in a motion to the government and the House leaders requesting an extension of these hearings. If we did that, the decision would still be that of the government. Politically, you and I know the minister couldn't withstand the pressure of all of you joining with the rest of us.
Therefore, I want to put it to the government members again today, will you do the right thing? Toni Skarica, although I disagree with his politics, at least has the guts to stand up and speak for our community. I'm asking you to stand up and speak for the injured workers in your ridings. I'm talking to you now as a fellow parliamentarian. Will you give me unanimous consent to place a motion like that so we can have proper province-wide hearings? Will you do it right now?
The Vice-Chair: Have we got unanimous consent? No, there is not unanimous consent, Mr Christopherson.
Mr Christopherson: Who said no?
The Vice-Chair: There are a number of members who have said no, Mr Christopherson.
Mr Christopherson: Which members? All the ones I see over here agree. Who disagrees? Put your name on the record; otherwise, it's unanimous consent. I've got unanimous consent, Chair. I then want to move my motion.
The Vice-Chair: Mr Christopherson, I called the question. There were a number of noes.
Mr Christopherson: Chair, all I want to know is, who said no? I didn't hear anybody. Who is going on the record to say no?
Mr Stewart: On a point of order, Mr Chair: I said no.
Mr Christopherson: Gary Stewart refused. He singularly stepped forward and refused to allow unanimous consent. You explain that to the injured workers in your riding, Mr Stewart. You say you care about injured workers and you won't even let them be heard.
The Vice-Chair: Order, please, Mr Christopherson.
Mr Christopherson: You don't care about democracy and you don't care about these injured workers. Shame on you. You're a disgrace.
Mr Stewart: I suggest I probably care for them more than you do because I want to listen to them.
The Vice-Chair: Mr Stewart, please.
Thank you very much for your presentation.
Mr Milojevic: It's unbelievable that injured workers cannot be heard. That's unbelievable.
Mr Lambert: If you cared more you'd be saying, "Let's do it."
The Vice-Chair: We call the Hamilton and District Labour Council representatives to come forward, please.
Mr Bisson: On a point of order, Mr Chair: The standing orders are quite clear about how we deal with calling for unanimous consent. The consent is asked for by a member of the committee. It is then the responsibility of the Chair to ask if there is unanimous consent. I say to you, the question was asked and no one actually said no, so therefore the motion has been passed and the motion is duly before us now.
The Vice-Chair: Mr Bisson, I was in the chair at the time. I did call the motion.
Mr Bisson: Let me ask the people, did anybody hear the committee say no? Did anybody say no?
Mr Bisson: We've got a whole bunch of people in this room who didn't hear one no from the government side, and only your word. His unanimous consent stands and we're able to put the motion forward.
The Vice-Chair: Mr Bisson, I've been fair on all my policies with all parties. People have not agreed with all my decisions but I've been fair with everybody as much as I can. There were a number of noes at the time of the call. I did call the question.
Mr Milojevic: Mr Chair, I sat here on this side of the panel and not one said no.
Mr Christopherson: On a point of order, Chair: On this issue, you did say you heard some. When I asked one of these members to go on the record, they sat there in silence. When I then said I must have unanimous consent or somebody would say something, that's when Mr Stewart stepped forward and said he was prepared to block it. That's why I said he's a disgrace to the Legislature of the province of Ontario.
The Vice-Chair: That is not a point of order, Mr Christopherson.
HAMILTON AND DISTRICT LABOUR COUNCIL
The Vice-Chair: We ask the members of the Hamilton and District Labour Council to come forward.
Mr Wayne Marston: I'm Wayne Marston, the president of the Hamilton and District Labour Council. Before I start my presentation, I want to say that I am not going to speak to our brief at all. If you're the least bit interested, you can read it. The title of the brief is "A Bill which will Enhance Injuries and Deaths on the Job."
One point I'd like to make right away is that somebody came to me at the back of the room and said, "You're shaking." I just want to be very clear with the members here that it's not fear; that's anger.
Yesterday when I was finishing up that presentation, I found myself so terribly frustrated by having to be party in any form to this terrible injustice about to be perpetrated on the workers of Ontario. To its shame, this provincial government headed by Mike Harris has repeatedly turned the democratic process of Ontario against the most vulnerable in our society. When you consider that under existing WCB legislation thousands of workers with disabilities find it necessary to resort to welfare to sustain themselves, that should be shameful enough. But now we have Bill 99 and the mockery of this committee, hearing only 130 presentations out of 1,300 requests on an issue so critical to the workers of this province as WCB.
Earlier this week, as I made a presentation to the city council of Hamilton on another piece of anti-worker legislation, Bill 136, I said to that committee that I was of the opinion that the overall agenda of this provincial government is to take labour relations in our province back to pre-1946. By the way, that city council, to its credit, passed a unanimous motion to call for the withdrawal of Bill 136.
The communities in which we live are starting to realize how your government has sectionalized us and has tried to pick us off one at a time. You started with the weakest in our society, with people on welfare. To your shame, you cut their incomes. That rippled through the community, because they have to spend every dime they have in the corner variety stores. I've been in variety stores that have said they've lost business because of what you did.
I also told that same committee that as the co-chair of the Hamilton Days of Action, I had been confident enough at the time to tell the city of Hamilton that the Hamilton Days of Action in February 1996 would be peaceful. Today I'm equally as confident that the myriad anti-worker legislation such as Bill 7, Bills 26, l36, 84 and 99 will guarantee the most unstable and downright dangerous situations in our workplaces and potentially on our streets as has been seen in this province since the 1946 strikes. You're going to have to wear that because you are the cause of that. I take no satisfaction in making that statement, because I'm a believer that those of you who are elected are supposed to govern for all of us in the community, not your corporate buddies.
I find myself caught between two opinions of this government. There's a side of me that seeks compromise and balance which says you simply can't all be this out of touch with the workers of the province and the other people you're supposed to represent. The more cynical side of me says you're not out of touch, you just don't give a damn.
I'm here today speaking for over 50,000 workers in the Hamilton district and their families, and I have to wonder if this government really cares. I doubt it. I sincerely doubt it, because the things you repeatedly do can't be construed in any way but as an attack on the livelihood and the lives of these workers.
How any modern-day government can possibly consider the measures set out in Bill 99 is simply beyond comprehension. How many members of this government caucus have worked in a steel plant or a heavy equipment plant where one false move can be deadly? How many of you have had to place your hands in close proximity to heavy equipment machines that can crush them out of existence? How many members of this government have had to repeat a simple hand movement over and over until carpal tunnel sets in and your wrists are inflamed to the point where only surgery can begin to alleviate the pain and you're caught wearing braces on your hands for the rest of your life? How many members of this government have had your backs damaged to the point that the pain is so intolerable that you've -- it's so interesting to see this fellow reading while I'm trying to talk about something so God-damned important. You can read that at your leisure, sir. I'm here to make some points to you today.
The reality is that there are people, some sitting in this audience, with back pain and other pain to the point that they consider suicide. They need the help of their government. They don't need Bill 99. I don't want to believe that those of you who sit here on behalf of the government are so callous and set in your ideological path that you are unaffected by these hearings. I don't want to believe that. I try to look for the good in people. But you're not showing it. You're not showing the workers of this province one bit of sympathy for the situation they find themselves in.
You have got to relent in this. You've got to understand that your government was elected -- we accept the fact that you're elected to govern, but you're not elected to change the fundamental identity of our province and our lives. Surely to God you don't believe that the people who sit here are politically driven, that they're people who are here just manufacturing and lying to you. They're people who care.
We sent a bus to come from Hamilton, and of the people who are in the room today, 20 came on that bus. The rest came on their own hook. They're not paid to be here. They're here because they're trying to get a message to you.
Look at my hands. They are trembling out of honest emotion and caring for what's happening here. I hope to God some of that transfers to you.
Do you not understand that you're the last possible point of dignity for many of these people back here, their last chance to have a life that has dignity at all? I ask this committee to recommend to the government of Ontario a total withdrawal of Bill 99 and a return to some semblance of balance and fairness in the administration of the WCB. Tell the Minister of Labour and the Premier to set aside their personal prejudices that are so apparent to us and meet with our leaders and our health and safety experts. Together we could make this province a healthy and safe place to work, and we're prepared to work with you. Meet with our leaders. Be sure we all understand one another, because we're setting up walls and barriers in our communities as a result of the legislation I have mentioned already that are going to take years to dismantle. That'll be after this government's gone, by the way.
Mr Agostino: Wayne, I appreciate the presentation. I know that the emotion and the passion with which you speak are sincere, because you have an outstanding track record of representing men and women in this community and the labour movement. For the government members who don't know Mr Marston, it is a very sincere and well-thought-out presentation here today. It speaks well of the feelings of many people in the labour movement in this community. I want to congratulate Wayne personally for the excellent presentation and the feeling you brought to it.
It's important for the government members to understand what happens when someone gets injured at work. It's not simply a matter of dollars and cents. It's a matter of dignity, it's a matter of family, of how it affects you emotionally, how it affects your whole life.
There are so many things in this bill. It's so frustrating, as someone who lived until two years ago in the situation where for 23 years, someone was devastated as a result of a workplace injury. Someone who had worked their whole life from the age of 13 on, at the age of 37 ended up in a wheelchair for the rest of his life as a result of a workplace injury. I saw the number of times suicide was an option. The only thing that kept him going were Tylenols every four hours, 24 hours a day, to keep the pain to some reasonable level.
I think that's what Wayne was trying to bring forward, that there is a real human price here to every, single injured worker. It's important to put the politics of this thing aside and to put the interests of big business aside and realize that in your hearts you sincerely cannot believe that what you are doing here in this bill is not going to hurt men and women across this province who get injured through no fault of their own.
I would ask you on the way home to drive by city hall. There is a monument to injured workers right in front of city hall that was put there as a result of work by the labour council and other organizations in this community a few years ago. Stop by that monument for a second and try to understand the impact. I think Wayne reflected that.
Of all this legislation, as atrocious as it is, Wayne, what do you see as the most devastating part of this bill on injured workers, if you had to say to the government, "Change at least this one thing that we think is absolutely the worst"?
Mr Marston: No.
Mr Agostino: Scrap the whole thing?
Mr Marston: The whole thing. You have to look at the damaging tone. What will happen to the relationships between labour, employers and their government? There is not a piece in there that we should stand for. We should be going back to the beginning. Yes, there are things that need to be corrected at WCB, but if you do that on your own hook, if any government does that on its own hook and leaves the worker representatives and the workers out of the process, it will not be fair, it will not be balanced.
Mr Christopherson: Wayne, I know exactly how you felt when you sat down. I reached one of those points yesterday. The motel-hotel association came in and did this whole thing. Three times on one page they said this was a fair deal for employers and employees and ended by saying that the best thing that could happen for injured workers was to pass Bill 99. I reacted much the same way as you did. You can only take so much. Eventually, you just have to let your emotions take over. I understand exactly how you feel.
I can also relate to the fact that you, as the leader of the labour movement in our community, know as well as I the litany -- and you listed some of them -- of anti-worker changes. This government has not made one change to a piece of labour legislation that hasn't hurt working people, yet this government still goes out there and says, "We're being fair and we're being balanced and we're taking care of people." It's just a load of crap. It's not the truth.
Take a look at Bills 15, 49, 7, 136, 84, God knows 99, the Occupational Health and Safety Act white paper you've got out there, the legislation pending for the teachers, and you're going to come back again on a further attack on the Employment Standards Act, and then on top of it all, you went and changed the rules so that you could ram this stuff through even quicker. And you wonder why you come to public meetings and people are so enraged.
The reason the government only gave six days is very clear. Personally, as individuals, they didn't want to face all this. They know this is an attack on working people, that it's indefensible. I wouldn't doubt for one minute that each of these members who thought they might be on this committee lobbied the minister like crazy in the background, saying, "For God's sake don't put us out there for very long, and for God's sake don't come to my community, because I don't want to face the bad publicity." That's the reality of what's going on.
If I'm so wrong and I'm so full of it, fine. Prove me wrong and convince Gary Stewart to change his vote so we can go out into those communities. But you're not going to do that. You've got the chance now. I've been asking every single day. If I'm all that wrong, you can prove me wrong with one move. Any one of you can ask for unanimous consent. Lord knows I'll give it.
Don't sit there and say nothing in this committee to me and just stare and then in the background offer up your snipes and comments. The fact is that your caucus hasn't got the guts to go out across Ontario and face injured workers.
Mr Bisson: I've got 30 seconds, but I've got to leave you with this. I know it's frustrating for a lot of you to come before us and present. You wonder, in the end is it going to make any difference? Is the government going to listen? I think Dave makes the point that it is really important that people come out and do what you're doing today, because in the end you wear these bastards down. Keep on doing it.
Chair, on a point of order: I think I used a word that was unparliamentary, and I withdraw it.
Mr Marston: Mr Chairman, I would like to make the comment that it is time for the government of Ontario to start representing the people to the government and not the government to the people. I have no more comments for these guys.
CANADIAN AUTO WORKERS, LOCAL 676
The Chair: We now call on the Canadian Auto Workers, Local 676. Good afternoon, gentlemen. Of course you know you have 20 minutes for your presentation.
Mr Tim Lambert: Before my 20 minutes starts, coming out of the Niagara area, as it seems that with Mr Stewart's objection we're not going to have any more hearings, shall we wait for Bart Maves to come back?
The Chair: No. Please continue.
Mr Lambert: Mr Maves has made a few comments to us. I think he could give us the courtesy to come back and be in the room while I make my 20-minute presentation. I don't want him saying, "You didn't tell me this and you didn't tell me that," because I'm not finished with my representative in the Niagara area.
The Chair: Someone will go and try and find him. As you know, we sit all day.
Mr Lambert: I've been here all day also.
The Chair: Anything you say will be on the Hansard record. Please begin.
The Chair: Excuse me. If you would care to, you can withdraw at this point and we'll bring the next witnesses forward if they're here. You could come up again later, if you think that will be easier.
Mr Lambert: I've been here all day too, and I've been slotted in on this time period. I'd like Bart Maves here and I'd like to do it now.
The Chair: Then let's go forward please. You can either start now or you can withdraw and start in half an hour or so.
Mr Lambert: Can we not take two minutes -- you've been sitting here all day -- to find Bart Maves and ask him to come back?
The Chair: Why don't we recess the entire committee for five minutes and we'll resume in five minutes.
The committee recessed from 1542 to 1552.
The Chair: Ladies and gentlemen, we'll resume hearings, please, and welcome once again our presenters representing the Canadian Auto Workers. Gentlemen, if you would introduce yourself for Hansard, please begin your presentation.
Mr Lambert: I'd like to thank Bart for the extra little break there. It's been a long day. Also I'd like to thank Bart for being probably the longest presenter over these hearings, giving me more than 20 minutes, with this break included.
I'd like to once again thank you for the opportunity to be here today.
Mr Maves: You're welcome, Tim.
Mr Lambert: Okay.
My name is Tim Lambert. I'm president of Local 676, out of Dana Canada, representing 700 employees. I am also a member of the Niagara Workers Committee for WCB and Health and Safety. We have 32 groups as members.
I also I sit on the CAW council WCB committee which represents workers across the province for the CAW. Also, in Niagara alone, I'm here on behalf of approximately 10,200 CAW members.
Smokey Milojevic -- I haven't got his pronunciation right, but I'm working on it -- is a member of Local 707 Ford Oakville. Smokey is a WCB representative in the Ford Oakville plant and he represents 4,700 workers there. He also is a member of the Niagara Workers Committee for WCB and Health and Safety. George McDonald is an injured worker and he works out of the Ford Oakville facility.
I am here on behalf of the above-mentioned groups to totally oppose Bill 99 and the undemocratic manner in which the Harris Conservative government, through Bill 99, proposes to gut protection to injured workers that the Workers' Compensation Act was designed for since its conception in 1914, with the report of the Meredith commission.
The initial principles that were established were that workers have a right to be compensated for injuries at work. The Meredith commission established that employers had the responsibility to compensate workers in their employment.
Workers also, at that time, gave up the right to sue. I know that in the presentations today we've heard these comments, but I think it's worth saying again and maybe it'll sink in, and maybe you can go back to Harris and let him know.
The Meredith commission established the following principles: employee funded collective liability; no-fault system; security of benefits; administration by an independent agency; and removal of litigation rights.
Bill 99 erodes every one of these principles for injured workers and totally enhances the employer's power over injured workers by reducing benefits and giving them back to corporations. This government's plan, with very little fair public consultation, makes their so-called Common Sense Revolution a total sham being put over workers in Ontario.
I plead with you to recommend to the government to kill Bill 99 and start a procedure to have total fair input from injured workers and their representatives.
It's obvious you've already talked to the business community because Bill 99 represents the business community, but not the injured workers.
The government was to be the go-between for workers and employers for both to have equal input and consultation with both sides.
With Bill 99 and this unfair government this is not happening.
Six days across the province and a few days in Toronto is totally unacceptable. In our last presentation that was our thrust. We were up front with our MPPs and we were up front for the last year. We wanted more public hearings and we wanted them in Niagara also.
What Bill 99 is doing is rolling back benefits to workers, disentitling some and limiting entitlement and restricting the rights to appeal.
This has been stated since I've been here this morning, but it's worth saying again. This unfair government talks about a financial crisis in the WCB through an unfunded liability that refers to future debts and that the Ontario WCB is in bad financial shape. This is not true. The Ontario WCB is in better financial shape than it has been in for years. The Ontario WCB never borrowed money. The Ontario WCB is not in debt. The Ontario WCB payout in benefits has fallen to the lowest rate in 10 years.
Today Ontario WCB is making more money than ever before in Canadian history. In l995, WCB had a surplus of $5l0 million with thousands of employers in the province paying into the system with $2.5 billion a year.
Employers received $350 million in rebates from WCB last year. Employers' bad debts cost the WCB system $173 million. The unfunded liability, without any changes, is projected -- and it's been mentioned before -- to be completely paid off before 2014 without any changes to WCB act.
Does this sound like a crisis? I don't think so. Some would like us to believe it is.
Also, it's worth stating again that Bart made the statement on job creation, and I think it has to be said that if the unfunded liability was going down because of job creation, and if job creation was a goal the government took, then that would be good. You get the casino workers covered under workers' compensation, the banks, the insurance companies and a lot of the people that just aren't paying their fair share of the rates, then that would be even further advantageous to it.
One of the many alarming, unfair things that B111 99 does to injured workers is lowering the benefit rate from 90% to 85% and basically handing it over to employers, and that's a sham. The deindexing through Bill 99, which we touched on 20 minutes ago, will take billions of dollars out of the permanently disabled.
There is one example of the indexing I'd like to discuss. I had an injured worker scheduled to come but he just couldn't make it. He's allowed me to use his name. He's a real person. I won't give you the claim number. His name is Enzo Ventresca. He is age 51 years old now. He lives in Welland, Ontario, and he's a CAW member and he had an industrial accident in 1979.
Enzo had an amputation of his right arm. His disability award through the WCB is 65%. That amount equals, in today's dollars, $1,450. At age 65, through deindexing of Bill 99 using today's dollar, the buying power will be $998.09. This is a loss of benefits due to Bill 99 which is 19.99%. Total loss through Bill 99 is $57,765.59. That only takes it to age 65, and beyond that it would be greater. This is another very cruel, reckless, unfair scam being produced by Bill 99 and should not be allowed to happen.
That is just one person and in that there's a billion-dollar money grab from the permanently disabled.
Another unfair thing that Bill 99 will do is limit occupational stress, chronic pain, limit soft tissue injuries, and limit repetitive strain injuries.
I have here today George McDonald. He has carpal tunnel in both arms. Under Bill 99 an injury of this type could be disallowed, be given limited entitlement, or this type of injury could be undetected for a period of time and be disallowed by Bill 99 through time limits on establishing a claim. This is another unfairness that Bill 99 does to injured workers now and workers injured in the future. George still suffers from pain and discomfort. This is more unfair and reckless legislation of Bill 99.
With Bill 99 eliminating vocational rehabilitation through the WCB, it will mean poorer return-to-work plans for injured workers, throwing them in the hands of the employer. This leaves injured workers very vulnerable, and this says nothing of the job loss throughout the province at the WCB. In St Catharines alone, this could mean 30 jobs in the vocational rehab and I understand it's 60 or 65 through Hamilton and Niagara, total.
Injured workers need the WCB vocational rehabilitation. We know it is needed for most employers to actively try to return injured workers. That active WCB presence is needed.
This is the beginning of giving the WCB piece by piece to the private insurance companies which is a dangerous road for injured workers.
Just on that part, at Dana, where I work, we're pretty successful in returning people to gainful employment, but it's only because it's financially advantageous for the company to work to get the people back to work. When we go to our private insurance company for non-compensable injury, we have a lot of problems returning people back to work, and without a vocational rehab program in Bill 99, we're going to have a lot of problems, because in working with the insurance company, it is a different kind of entity. It's part of the company.
This bill is too massive for a 20-minute presentation. Depending on who you talk to determines what kind of interpretation you get out of it, and if you pull something out of Bill 99 and read it with five other people, you get five other interpretations of where it's going to be. That's one of the other dangers of rewriting the Workers' Compensation Act so drastically. There's going to be so many different interpretations, and whose interpretation is going to be the final result?
It will strip $15 billion from future benefits to injured workers by deindexing benefits, eliminating benefits for chronic occupational stress and chronic pain, cutting of benefit rates to 85% from 90%, restricting WCAT of its independence, putting time limits on appeals, putting workers on probation to receive benefits, giving employers total control of vocational rehabilitation if they feel like it, allowing employers to have private medical information. It will further allow employers to hide workplace injuries and allow working conditions to be more unsafe.
I have to say once you railroad Bill 99 in with the few changes that Bart said might be there, you'll go after the occupational health and safety and cut that, and where will workers be?
What workers need in this province is an improved workers' compensation system:
(1) A safe and healthy job, safety in the workplace so that workers can work and contribute to a society without fear for their health and security, enforcement of safety standards;
(2) A workers' compensation system that guarantees the right of workers to full compensation for workplace injuries and the right to return to a meaningful job;
(3) Maintenance of a publicly administered, not-for-profit system funded entirely by employer funds, as legislated in 1914 in the Meredith commission;
(4) Workers' compensation coverage for all workers, including bank and insurance workers and independent operators;
(5) Equal representation for workers on the workers' compensation board of directors, which you guys got rid of; which was a go-between for labour and business, I feel.
(6) Full cost-of-living protection for injured workers' benefits;
(7) Adequate recognition of injuries based on exposure to occupational diseases, including occupational stress overload;
(8) End the experience rating system that encourages employers to hide accidents by not reporting them and pressures workers to return to work while injured.
I don't know if I'll get a chance to say it, Bart, you mentioned to the young woman that there's a youth awareness program. I think you've got a big job ahead of you in Niagara with part-time seasonal workers in Niagara Falls. There are a lot of unsafe conditions in the Falls and it's worthy of your getting active in that youth awareness program.
Also, Bart, you said -- and I speak to your committee -- there will be some amendments to Bill 99, in one of our meetings, and I welcome that. I hope it's in a positive way, but you still should be going and killing Bill 99 and going to more public hearings and hear both sides of the issue.
I can tell you right now I'm here on behalf of my union, my local and we will be present in the Niagara area to fight it, and also our members who lose or come up short with Bill 99 will be visiting your office, Bart, if they're in your area. I can guarantee you that.
The following pages were unanimously passed by CAW locals in the Golden Horseshoe area, and I'm not sure if the Golden Horseshoe goes to Oakville, and that includes Oakville.
Mr Bisson: I take it one of you work at the Ford plant.
Mr Smokey Milojevic: We both do. I'm George's representative.
Mr Bisson: I'm just curious, because I guess a couple of years ago I was talking to somebody from the Ford plant and they were indicating there seems to have been some kind of difficulty with the return-to-work policy that Ford -- now I know Ford is supposedly one of the model employers in Ontario; quality is job one, after all. How does that actually work? How does the return-to-work policy work?
Mr Milojevic: I think that could best be described by George himself, and he'll tell you exactly how the return to work works at Ford, and maybe some of the horror stories he went through, coming in and going home and coming in and going home.
Mr George McDonald: First off, I'm an employee of Ford for 24 years. I never filed a claim for compensation until my 23rd year or 22nd year, and I'd never been injured on the job, thankfully. Going to Oakville was a whole new scenario for me after 20 years at the Niagara plant, which closed down. What happened was that after two years on the job there, I developed carpal tunnel. My doctor gave me a couple of letters to take to work, and eventually they just basically told me when I presented the letter: "We don't have anything for you. Stay home."
That sent me to the compensation board. I stayed home for a couple of months, took physiotherapy and stuff like that. I went back to work with the job creation program. I was put on a job for two weeks of limited-duty work, and what happened was that eventually it was scaled up to more work, more work, more work. The representation was limited at that time. Smokey wasn't in his position at that time and we didn't have a placement representative with the union. The whole placement situation was handled by a foreman. I was sent out from labour relations to the floor. It's a foreman, who has no training whatsoever, who places you on a job.
Mr Bisson: So quality isn't job one.
Mr McDonald: Quality is not job one. It's numbers; get the numbers out and that's it.
This is my situation. Another month on the floor aggravated the situation worse and I had to go off at that time. I felt I was forced into a surgery situation. After another few months I returned to work again and they told me my restrictions were too severe, to stay home. After another couple of weeks at home, they called me up and I went back to work three days before Christmas. After Christmas I dropped my restrictions, and now I'm working again, thankfully. But it's a poor situation that we're in there, in my opinion.
Mr Maves: Tim, you talk about rebates for WCB last year for employers. I wonder, at your plant has the NEER program helped to make your employer pay more attention to health and safety?
Mr Lambert: I think I said we have a fairly good return-to-work program only because it's costing them and it's advantageous for them to get on board and get people back to work.
Mr Maves: Okay. How long have you had that program?
Mr Milojevic: If I could just interject, we have a new program also with Ford. Ford's main objective is to get relief. I'm sure this committee has heard of L.A. Liversidge. That's who represents Ford, so let's not kid each other here. That's who represents them, and their whole goal is the NEER award system. That's their main objective.
Mr Maves: Right. When the system was brought in, it's a financial incentive to have better health and safety in the workplace.
Mr Milojevic: Liversidge's main concern appears to be to make sure that nobody ends up on compensation. I would know that, because I represent the people at Oakville. I see on a daily basis where claims are denied because of what Liversidge puts on their form. That's understandable: The more claims they can have rejected, the more claims they can get through the SIEF fund, the better they appear. When you ask about the NEER and the SIEF, if we were to see them eliminated, that would definitely help the situation with injured workers.
Mr Lambert: I give my employer a little bit of credit but I'm not giving them all the credit. Part of the reason they have a return-to-work program is because the legislation in the Workers' Compensation Act forces them to. What Bill 99 is doing, as far as I'm concerned, is taking that clout away. It's taking it away and saying, "Here, you deal with it," and if we have any problems, we can try and get involved. I don't know. With so many unknowns in everything you've got in Bill 99, it's hard to make a call on anything, because you don't know who's going to interpret what how.
Mr Agostino: You made reference in your presentation to amendments that will possibly be brought forward by the government.
Mr Lambert: We had some discussion with Bart in his office on one of our visits. We've been really upfront with him, and it shouldn't be any surprise about how angry and disappointed and frustrated we are. We talked with him, and he said that Bill 99 was going to go through and there were going to be amendments.
Mr Agostino: There will definitely be a ton of amendments brought in from both opposition parties, but the reality is that unless they're brought in by the government -- their track record in the last two and a half years is that after a bill has been brought to committee, every single opposition amendment brought forward has been rejected. You may pick out one or two examples, but I would say the percentage is in the high 90s of rejection of opposition amendments. I certainly hope the government sticks to their word and they will bring in significant amendments, as you were promised.
Mr Lambert: Our whole thrust is that Bill 99 should be killed and there should be a fairer system of talking with people. We participated in the royal commission. We participated in other changes in the act. We feel that this six-day road trip on Bill 99 -- with rewriting the whole thing, changing I don't know how many acts and increasing them, having no fair labour representation on the board of directors at the board, interpretations of Bill 99 are going to be really bad. Scrap Bill 99 and call another royal commission and have a fair one, like what was being done before.
The Chair: Gentlemen, thank you, on behalf of the members of the committee, for making your views known to us today.
ST CATHARINES PROFESSIONAL FIRE FIGHTERS ASSOCIATION
The Chair: Would the representatives from the St Catharines Professional Fire Fighters Association come forward. Good afternoon, gentlemen, and welcome.
Mr Ross Smith: Thank you very much. My name is Ross Smith. I'll be the spokesperson for the St Catharines Professional Fire Fighters Association. I am a firefighter from Mississauga, Ontario, and a representative of the Provincial Federation of Ontario Fire Fighters workers' compensation committee. I'm going to ask Mr Dave Wood, the workers' compensation rep from the St Catharines firefighters, to read his statement into the record.
Mr Dave Wood: Members of the standing committee, my name is Dave Wood, and I am here today to represent the St Catharines Professional Fire Fighters Association, Local 485. Today I'd like to speak to you about the drastic changes to section 13 of the Workers' Compensation Act, regarding restrictions to chronic pain.
When I read section 13, I was disturbed and very disappointed. As firefighters in this province, we accept as part of our profession that we cannot refuse unsafe work and also understand that at some point in our career we may become injured -- to what extent? However, we also understood and believed that when and if an injury did occur, we would be compensated.
Members of this committee, you have to understand that there are times when the results of these injuries continue for extended periods of time, and when they do, individual firefighters may not be able to perform his or her duties for these prolonged periods.
Now you are saying that the compensation will be limited to specific time restraints or, as the board puts it, "normal healing times," when these exact injuries arise out of and in the course of their employment. Understand that firefighters and workers will be forced to return to work when they are not ready, thus placing himself or herself, and the communities across Ontario, at great risk.
I became a firefighter six and half years ago. In my second year I was injured while on duty and was incapacitated for approximately 30 days. Being new to my profession and having been questioned by the corporation of the city of St Catharines regarding my injury, I felt that it was my responsibility to return to work. As previously stated, I sincerely believed if my injury recurred, the corporation of the city of St Catharines and the Workers' Compensation Board would look out for my welfare.
However, over the next seven months I experienced recurring, documented complaints relating to my original injury, until I was again incapacitated while off duty. When I applied for benefits I was denied by the Workers' Compensation Board. They stated that no pre-existing condition was present and that it did not arise in and out of the course of my employment.
To this day my condition is still present. If you pass these changes, you are stating to me and every other worker across Ontario that the Workers' Compensation Board, not the treating physician, has the ultimate and final decision, thus punishing us for our work-related injuries while praising and rewarding employers for reduced accident costs.
In closing, I implore that you withdraw these changes to section 13 of the Workers' Compensation Act, allowing every firefighter and worker in Ontario to keep their dignity and self-respect while trying to recover from the work-related injuries they have sustained.
Ladies and gentlemen, I thank you for this opportunity to speak to you this afternoon. Mr Ross Smith will be speaking on several topics on behalf of the St Catharines Professional Fire Fighters Association, Local 485.
Mr Smith: Bill 99, the Workplace Safety and Insurance Act, as it is presently written will severely limit, restrict, reduce and eliminate benefits for any firefighter or worker who has the misfortune to be injured.
This bill in its current form is nothing short of a punitive attack on workers' rights to fair compensation for on-the-job injuries and will allow the employers the right to intimidate, slow the injured worker's claim, free access to medical information and, with the restraints to WCAT, fair and impartial hearings.
Firefighters, as you've been told, work in a very high-risk and hazardous profession. Every firefighter in this province can expect to be injured while on duty at some time during their career. During an average year we have a 50-50 chance of being injured. As Brother Phillips indicated to you earlier, the statistics are growing that you have a chance of being hurt once every four years. It is a documented fact that among professional firefighters in North America, on average, 80 to 100 firefighters per year die in the line of duty. It is one of the most hazardous professions.
In this province, firefighters do not have the right to refuse unsafe work. This bill is an attack on every firefighter's right to fair and reasonable compensation.
Due to time constraints, I'm only going to briefly allude to some of the concerns we have with Bill 99.
Mental stress in the fire service has become known as critical incident stress and is known also as post-traumatic stress. Under the proposed subsections 12(4) and (5), claims for stress will be virtually eliminated, except for mental stress that is an acute reaction to a sudden and unexpected traumatic event. It appears that only physical injuries are going to be recognized by Bill 99 and mental injuries will not be considered injuries.
Firefighters not only see sudden and unexpected traumatic events regularly; they confront stressful situations that build up over time, and many suffer from what is known as critical incident stress.
Firefighters deal with hazards every time they answer an alarm. This is a known fact. What is not commonly known or understood is the fact that firefighters answer more than just fire calls. We do more than fight fires. We attend, on a very regular basis, many other types of emergency situations: accidents, murders, suicides, medical calls that are sometimes quite disturbing, hazardous materials incidents, water rescues, ice rescues and other types of events. The firefighters work in an environment involving dangerous situations, uncontrolled environments and unsanitary conditions in all types of weather.
Our organization is a paramilitary style of command and control, and often many firefighters feel that senior staff officers give little sign of appreciation or recognition.
Often there is a lack of control over a situation and we are expected to be lifesavers. I believe it's hard for you people to understand what it's like when you fail to save a person from a fire or have a child die in your hands, as has happened to me. That is a sudden and traumatic event.
We are exposed to destruction, injuries, illness and death. It has a long-term and definite effect on each and every firefighter. Over time, these things build up and some of our members do break. I've got two members of my own local, one of whom I've worked with for years. He became an officer. Then one day I was told he was off sick and they didn't know what happened to him. Eighteen months later, I got a phone call from him. He asked me: "Smitty, can we meet at a restaurant for a coffee? I want to talk to you." He wouldn't meet in the firehall; he couldn't. He said he went into headquarters and he was giving up his rank; he was going to go back to be a firefighter. He couldn't handle it any more. He said: "I was at headquarters. I was going to meet the deputy chief. The alarm went off, the pumper and aerial were rolling out to a call. The sirens were going." He said, "I don't remember the next six months." He said, "My wife would tell me that when I'd hear a siren, I'd go hide." He broke. To this day, he's not a firefighter on the floor any more. It does happen.
I have another member of my local who -- actually, the baby died as a result of the drowning of a very famous Canadian athlete. He can't handle child medical calls any more. He's off the job.
The rate of divorce is very high in the fire service. Many turn to substance abuse and others handle it in different ways, like I've mentioned. Many firefighters do not share or talk openly with family members about stressful events that happen at work. Often, our friends tend to be other firefighters and we socialize with other firefighters. We hide our feelings from our peers because we do not want to appear weak. We make jokes and cover incidents, excuse the pun, with black humour. You may remember a few years ago a bus that went off the Queen Elizabeth Way. It went into a fence and a number of people on that bus were impaled. That's commonly known now in our local as the "shishkebus." It's black humour to cover up the problems we had having to hacksaw people out of that.
Firefighters have the belief that senior management does not acknowledge or care about us. The proposed Bill 99 blanket exclusion of mental stress in subsections 12(4) and (5) is totally wrong. It's difficult now to take a stress claim before the board, and Bill 99 will make it impossible. Not only firefighters but many other emergency personnel -- police, paramedics, ambulance attendants, doctors and nurses in trauma units -- have documented cases of critical incident stress.
We deserve better from this government. It's our submission that firefighters should have coverage for critical incident or mental stress and that we require this type of coverage, not only firefighters but every worker in Ontario, and not this proposed elimination of this type of injury from the act.
On page 4 we're talking about return to work, or suitable employment. Suitable employment in the fire service is often referred to as modified duties. In the fire service, we have a lack of modified duties for firefighters. In many smaller departments they would be almost non-existent. Very few locals have any agreements or wordings in collective agreements that provide for modified duties. Thus, the modified duties provided are often not meaningful work and do not reflect the injury itself. In many cases, the work site is not altered to suit the injured worker.
Just recently, I had a firefighter who brought a letter to return to modified duties. It said right in the letter "no repetitive stair walking." So what do they do? They put him on the third floor of the fire headquarters in an office with no phone. His supervisor is on the second floor. He estimates that in two days he walked up and down 700 stairs. He's back off the job. When he reported it to the deputy, he said, "I'll speak to your supervisor about it." When he asked him about it, the deputy hadn't talked to him. He'd gone to the chiefs' convention. That's how they care about us.
In many other cases, the corporation or employer only offers modified duties "somewhere within the corporation," with the added proviso, "Get him back, the sooner the better, to keep costs down." Firefighters in Ontario are schedule 2 in the current act. When you're off injured, you continue to receive your salary and benefits, but you pay an administration fee to the board, somewhere close to 17%, so the faster they can get you back on modified, they're saving money. The bean counters are sitting there thinking: "Let's get him back. We'll have him driving a Zamboni at the arena. We'll still have to pay him a firefighter's salary, but at least we're not paying 17% above that." To keep their costs down, they try to rush you to get back.
Our experience shows that there's little concern for the injured firefighter and his or her rights. The only concern is to get them back somewhere, anywhere, as soon as possible. If the firefighter can't get to see their own doctor, try and harass them to use the corporation doctor.
The current act, while it's not perfect, has some checks and balances. The firefighter can work with the employer, the WCB rep for vocational rehabilitation and the firefighter's WCB rep to achieve and place the injured worker, with some dignity, into a suitable modified position.
Under the proposed Bill 99 changes, the employer will have the right under clause 40(1)(a) to contact the injured worker "as soon as possible after the injury." That's a pretty open-ended statement. Without any defined time to be contacted, do they give you 24 hours, 48 hours, seven days? "As soon as possible."
The DCs, or district chiefs -- I'm using terminology you might not understand -- have fax machines in their vans. Maybe we can fax them the return-to-work order and they can pin it to him while he's being placed in the ambulance. No kidding, it can happen. Maybe they'll give him the brief and the chief will come and visit him in the hospital and pin it to his chest then.
That type of wording suggests all types of harassment scenarios. Even under the present system, there are cases of firefighters being contacted within days of their injury to provide medical documents that will enable them to return to modified duties.
I was at work on a Friday, the beginning of my weekend shift. As the workers' comp rep I get the injury reports. I'm reading an injury report on an incident that happened on Wednesday afternoon, a probationary firefighter who dislocated his shoulder at a call. As I'm reading the report, the buzzer at the front door's ringing. I went down to answer the front door and there's a firefighter in a uniform with his arm in a sling in one of the department pickup trucks standing there. I said, "Oh, you're such-and-such." He said: "Yes, I am. How do you know?" "I was just reading your injury report. What are you doing?" "I'm back on modified work." This is Friday. I bet the board didn't even know he was off. He's driving around in a pickup truck with his arm in a sling, getting the mileage out of the trucks. What kind of meaningful work is that?
With this proposal, now there will be no timing of the return to a modified position and very little, if any, medical review prior to the return. The corporation will have their medical file as per subsection 36(1). You've got to ask questions like, what, if any, time will be provided for physiotherapy, or what medical treatment will exist under this proposal? Right now, at least the workers' comp rep and the Workers' Compensation Board will meet with the employer and the injured worker to set up some type of voc rehab plan that'll provide for physio.
Certainly with the elimination of vocational rehabilitation and its replacement with the labour market re-entry plan system, there have to be many unknowns. Job deeming is one scary aspect, the phantom job.
The bottom line is going to be that firefighters will attempt to return to their normal duties while they're still injured or not even report the accident or injury. This will place themselves, their co-workers and the public at greater risk.
The proposed changes to the return-to-work section of the act are opposed by the firefighters of Ontario. The employer will use this section to harass our injured firefighters and place our injured firefighters in unsuitable and unmeaningful jobs. Firefighters themselves may not report the injury in a vain attempt to avoid this return-to-work scenario. The firefighters' position is to leave the current system of checks and balance of the current act in place.
Page 6, medicals and functional abilities: The firefighters oppose these sections of the proposed act. Employers will use every opportunity to gain information, through these proposed sections, on you and your condition and no doubt will use it down the road against you or to get rid of you. The proposal opens the door for unlimited employer abuse. Every injured worker can be required to submit to a medical examination by a doctor chosen and paid for by the employer. I think it was stated earlier today, "He who pays the piper calls the tune." The worker who does not cooperate will be faced with the cutting off of benefits, subsection 35(2).
These proposals are a total affront to all Ontario workers' basic rights. Think about it. You get injured and you lose all your rights to medical confidentiality. You will have to submit, upon the employer's request, to provide a functional abilities report. We're not sure what's going to happen with the functional abilities report; that's open-ended as well. It's our position that many injuries will go unreported due to this proposed section.
The true reality for all injured workers in Ontario will be -- there's a line missing, which I would like you to write in your brief; it got missed by my typing -- that if the employer wishes not to re-employ you, and you cannot return to work, you'll lose your job. You'll be gone. So get injured and lose your job. That will be the bottom line, and it does happen. Remember that they will have the right to gather all evidence they will need to do so with the new Workplace Safety and Insurance Act.
Firefighters adamantly oppose these sections of the proposed legislation.
Page 7, the Occupational Disease Panel: The proposed bill will eliminate section 95 from the act. This will in effect kill any chance that firefighters will receive benefits from the IDSP report no 13, the former title of the ODP. This is the report I'm talking about right here: Report to the Workers' Compensation Board on Cardiovascular Disease and Cancer among Firefighters, September 1994. It's been sitting on a shelf at the board since then. It's never been enacted.
Firefighters for more than 30 years have being attempting to achieve coverage for what we maintain are occupational diseases of firefighting. Firefighters, as evidenced by the recent Hamilton Plastimet fire, risk exposure to many products of combustion, chemical emergencies and hazardous material situations. That recent fire in Hamilton brought it to bear. Firefighters are still exposed to that. They tell me that in the neighbourhood the grass has gone brown and the trees are dead. They've even stated that parts of their trucks have fallen off because of the chemicals there. We'll get them repainted and fixed up, but we aren't going to worry too much about the firefighters because we can replace them fairly quickly.
Many studies have recognized that firefighters have, due to the nature of their jobs, higher rates of heart disease and cancers than the average person. That's what was recognized in this report. IDSP report 13 recognized this fact, and recommends that firefighters should receive presumptive coverage for brain and lymph cancers. The report currently sits at the board and has not been acted on.
Firefighters demand this coverage, not the reverse. Kill the ODP and any hope of receiving it is gone. We deserve better from this government. The ODP is a valuable asset to the people of Ontario. It needs to continue and be independent of government control.
The work of the ODP in all likelihood has saved the Workers' Compensation Board, the employers and the people of Ontario money by helping to identify a problem and taking the steps to correct the problem and prevent it from happening again.
But what does Bill 99 do? It takes a giant step backwards. Firefighters and Ontario workers will continue to suffer with diseases from the workplace and the government of the day refuses to acknowledge it. Employers will no longer have to fight these claims because they will not exist, and therefore they will save money. The firefighters and injured workers will be on employer benefits, which will be cheaper and easier to handle, control and eliminate. The firefighters oppose this backward step of Bill 99 and request that you amend this bill to maintain the ODP.
Due to our time constraints, we have not been able to state our position on other areas of concern contained in the bill. Not covered in our presentation are objections to the reduction of benefits from 90% to 85%, chronic pain, deeming of workers into non-existent jobs, privatization and the end of vocational rehabilitation.
In closing, we wish to state for the record that Bill 99 is nothing more then an attack on the injured working people of Ontario. What the government does not realize is that every working person who is injured is just that: a person, not a statistic. That person is your family, your friend, your neighbour, your co-worker. They are not just a number. They are a real person. Every person out in that room there who is injured is a person, not a bloody statistic.
The Workplace Safety and Insurance Act cuts injured workers' benefits, does nothing to reduce injuries, makes it more difficult for the injured worker to appeal or defend their claims. I don't know how a person with English as a second language is going to deal with it. You miss crossing one little "t" or forget to dot an "i" on a form and you're out of luck. A person who doesn't understand is really going to be out of luck -- all the better for the employer, because now they won't have to deal with the claim. The bottom line is greater benefits for the employer and less for the injured worker. To this, the firefighters say shame on this government, when justice and fairness for the injured worker has been replaced by the profit and loss bottom-line of the corporations.
As was previously stated, I represent not a bad-sized association, or union, if you want to call it that, and I'm a proud union member. By and large the members of my union have been Conservative voters in the past few elections. That ain't going to be guaranteed next time, I assure you. You tried to screw us with Bill 84 and you're trying again with 136 and with Bill 99. You ain't getting our votes.
The Chair: Thank you, gentlemen, for bringing your case before the committee this afternoon. It's appreciated.
EMPLOYERS' ADVOCACY COUNCIL, GOLDEN HORSESHOE CHAPTER
The Chair: I now call upon representatives from the Employers' Advocacy Council, Golden Horseshoe chapter. Good afternoon, and welcome.
Mr Edward Henrie: Thank you very kindly. My name is Edward Henrie. I'm the Golden Horseshoe chapter chair of this division. With me are Julie Collie, who's also a member of the executive, and also Mr Joseph Bairaido. You have before you the Golden Horseshoe chapter's brief. What I would like to touch base on to begin with, just briefly, are definitions and some general benefits regarding the areas I'm concerned with.
Being actively involved as safety manager in WCB issues and chairman of the Golden Horseshoe chapter, representing some 228 small to medium-sized businesses, we wish to speak on several areas of concern regarding the forthcoming changes. Holding the position of safety manager for a local manufacturing and construction installation firm, I must point out that one key area this committee and government should not overlook is the definition of "accident" and its relationship to subsections 12(2), the presumption of an occurrence of the accident, and 21(1), the worker's claim to be filed within three days of the accident.
I wish at this time to share with you an example of an accident that occurred at one of our job sites the other week. On Tuesday, July 29, at approximately 2:30 am, a worker was in the process of fulfilling his duties in changing a propane tank on a scissor lift. During the changing of the tank, the worker did not notice that the main valve of the new tank was fully open, and in the process of connecting the coupling unit, and without wearing the proper protective gloves, sustained a burn to his right hand. As the leaking still persisted, he then proceeded to readjust the connection with his left hand, again sustaining a burn. It should be noted that just three days prior to this incident all workers involved with changing propane tanks were reminded of the proper protective equipment that should be worn.
Some may question why I'm introducing this item to this committee. We as an employer have an obligation to report accidents immediately upon learning about them, and this also falls in under workers' compensation. In this aforementioned accident, the worker did not immediately notify his supervisor that he had sustained an injury. He completed his shift at approximately 7 am that morning and left, still without reporting it. What we've found afterwards is that later that Tuesday morning, due to an increase in pain and blistering that occurred from the burn, he did go and seek outside medical attention, which was now considered to be a first-class burn to both hands. However, it was not until Friday evening, August 1, some three and a half days later, that he finally returned to the job site to report the injury to his night-shift supervisor, and then became quite irate over the response he received regarding not reporting the injury.
One concern I have as a safety manager, and I always stress the point, is that if you have an accident, report it immediately. Even if it's just documented, the thing is we're aware of it. Here again, if you seek outside medical attention, please notify us. We are all familiar, and members of Parliament may not be aware of it completely, but we do receive letters from the board sometimes indicating that we are subject to fines because we have not submitted the complete accident forms.
In a situation like this, I did not actually learn about this until August 3 when I received a phone call from our site superintendent asking what I knew about it. I said, "Absolutely nothing." So it's almost a week and we are still not even advised of it, even though he had gone to the job site on Friday, the 1st.
Although the government does not really feel that it needs to fix the definition of "accident," in cases such as I have just explained, such as injuries, burns and so forth, the same as critical injuries as per the Ontario health and safety act, my feeling is that the worker should be held responsible to ensure that they report this type of injury. Obviously it is quite different if someone should fall and land up breaking a leg or possibly injuring themselves on a piece of equipment or whatever and an ambulance is called. That is something that quite easily can be dealt with. The unknown factor is the minor situation, such as I explained here, that no one hears about until many days later.
The other thing is, with our construction end of it, the area we deal with is a lot of casual construction areas where it could be a weekend shutdown, it could be a two-week shutdown or maybe it could be a six-week shutdown. We are hiring the individuals from the various trade union halls. We have no idea who is coming out to the site, their general health condition, whether they're quite capable of fulfilling the duties of the job that we're planning on hiring them for etc.
The other concern here is, I know the board is looking at waiving the three-day grace period. I am not necessarily in complete fulfilment of that and maybe do not feel it's necessary. The one thing, though, that I would ask is that the board certainly look after situations such as I have described, that if there is an immediate nature in an accident such as there is here, any delay in reporting this should be considered, and the worker himself should be reprimanded, if need be, in that instance.
The second area that I would like to talk about from the construction aspect of it is that, as I mentioned earlier, we're dealing with the various trade union hiring halls. I feel that the government in its hearings committee should review the practices of these organizations. In a lot of cases, they should be considered the same as temporary placement agencies or employment contractors. We do not have any jurisdiction with them. The unions themselves, the union stewards and the business representatives actually the ones who are placing the workers out on the job sites and they are spreading --
The Chair: Order, please.
Mr Henrie: They are placing them out at the various job sites, depending on the number of workers who are available at that particular point. Now when I'm referring to trade unions here, I'm not referring to the automotive industry or anything like that. This would be in the case of millwrights, iron workers, electricians, boilermakers etc. These are not the normal unions that a lot of people hear about and figure, "Okay, this is a union."
Mr Henrie: At this time, it is our feeling that the employers themselves and the unions should be brought into the employers' role. They are responsible for all the benefits, the placement of the workers and the distribution of the workers around the site, not we as the hiring employer.
The Chair: Order, please.
Mr Henrie: In order for this reform process to work as a complete package, the definition of "accident" must be redefined by this government to ensure its success in the insurance program, and that all parties -- the employer, the worker, medical practitioners and the agencies -- be involved with the employment process and be held responsible to participate in the early return to work and the re-employment of workers.
At this time, I would like to turn the microphone over to Mrs Julie Collie. She will speak and then we will take any questions at that time.
Mrs Julie Collie: Thank you Ed. Basically, I'm a human resource professional first, and came into WCB and health and safety later. One of the issues that I have to deal with is making employers realize the value of their human assets, and I agree somewhat with some of the previous presentations in that area.
Mrs Collie: You're valuable. One of the things that I'd like to talk about now is the family physician's role in timely return to work. We as employers recognize that the vast majority of injured workers are honest, hardworking individuals. Unfortunately, the small percentage of those workers who abuse the system have fostered an adversarial environment with all workers and particularly organized labour groups. This, in turn, has resulted in some injured workers not receiving the benefits they deserve on a timely basis --
The Chair: Please, sir.
Mrs Collie: -- only by educating the medical community regarding workplace injuries and diseases and making them aware that they are the logical facilitators of restoring workers' self-esteem and returning them to productive employment.
Physicians should recognize that they are not helping their patients by aiding them to view themselves as disabled. By coming to terms with the facts of their injury, workers can begin to heal. Employers would be more amenable to allowing the claim if there was an honest declaration of previous injuries or underlying conditions, which would not affect the workers' benefits and would provide a fair cost relief on the claim.
Is the family physician's role a conflict of interest? Too often, employers who are proactive in developing return-to-work programs that the board approves of, given the nature of the injury, are blocked because family physicians will not provide restrictions and keep their patients off work without any physical findings. As a person who's responsible for developing modified work, I can't in all honesty bring back someone to modified work, for fear of injuring them further, unless I get some medical restrictions from the family physician.
Employers can only assume that the family physicians are supporting their patients' wishes, and this is where we have a lack of education and cooperation. We in the present system are putting these physicians in an impossible situation. They are sworn to protect and serve their patients. They are required by law to maintain the confidentiality of their patients' records. Often they have had a long relationship with their patients and their families.
We suggest that when an injured worker is absent from employment or is not participating in a modified work program for more than 10 days, the claim should be referred to an independent clinic where there are physicians experienced in workplace injuries and they can facilitate a return to work.
One of the questions we pose is: What is the OMA's position on these issues? Have they indicated that they will endorse the physicians providing the information? Are you creating unenforceable law?
In dealing with non-conformance and consequences, fines may be imposed on employers and injured workers for non-compliance. The apex of the return-to-work triangle is the family physician. What sanctions will there be for non-compliance for the family physician? Will family physicians be required to reveal medical information which has a bearing on a possible underlying condition?
Bill 99 says, "The board may require injured workers to attend another doctor." Whose opinion will prevail? Will the family physician still be considered the primary care provider? There should be stronger guidelines to the adjudicators to ensure that a specialist's opinion or the regional medical adviser's recommendations regarding return to work and capabilities should not be overruled by the family physician.
Physicians' payments should be held until they provide the reports, test results or other information that relates to the fees. Some specialists see so many patients, some every 15 minutes, that they are months behind in their reports. This creates a lot of frustration, both for the injured worker and for the employer, because everything is at a standstill. There's no progress made on the claim and every party gets frustrated.
A refusal to submit to a medical evaluation may result in suspension or reduction of benefits, according to Bill 99, but I think it should read "shall result." It should be made clear to the injured worker that physical restrictions apply to their home life and not just at work. I had an injured worker with carpal tunnel who continues to knit daily. Another case with shoulder restrictions continued to sand and refinish antique furniture. This is to the benefit of the injured worker. Unless they understand that these restrictions apply, they won't heal as they should be healing.
We need to share information. In making decisions regarding underlying conditions, causes of accident, residual impairment, there's no co-ordination of complete medical information. This co-ordination would also benefit the worker and protect their safety and their health. In making decisions regarding return to work, medical information should be gained from the family physician, the employer, the employer's health benefits provider and signed declarations from the worker.
In the general insurance industry, for insureds' claims to be paid, they must provide medical evidence of disability. All medical evidence as it relates to the claim must be available to the insurance company.
Bill 99 says, "A health care worker must provide information regarding the worker's functional abilities.... An employer must contact the worker as soon as possible.... An injured worker must contact the employer about return to work as soon as possible." What does "as soon as possible" mean? Would an injured worker leaving a message with the receptionist constitute contact? If an employer does not receive information of capabilities for three months, and therefore does not contact the worker for three months, would that be considered as soon as possible? As previous presenters have pointed out, that wording needs to be tightened up so that everyone understands their responsibilities.
There's no reference whatsoever regarding the time frame for a health care worker to provide information regarding capabilities.
We suggest that the wording of the above sections needs to be clarified and a time frame stipulated for compliance. Employers are required to report within three days of learning of the accident. Therefore, health care workers should provide information within three days of the request. Employers and workers should contact each other within three days of the accident, and by that I don't mean that they should give them a return-to-work program. I say they should touch base, see how they're feeling, see what their prognosis is, arrange for a comfortable time for them to come and meet with them.
We suggest a comprehensive computer database be established and linked with all the board's departments -- too often one department in the WCB has no idea what's going on in the other department -- as well as other provinces' databases, private insurance companies and government and welfare roles.
These suggestions are not to take away from the benefits that should be received by the honest, hardworking worker. This is to address the small percentage of workers who abuse the system and make it difficult not only for employers but also for those people with genuine injuries.
In summary, we commend the government's initiative to reform workers' compensation and promote a proactive approach to accidents. I've heard references that the only reason employers are doing some of these things is to cut costs. Employers are realizing now that the best way to cut costs is not to have the claim happen in the first place. As you can tell by the imbalances in the NEER program, many employers have already come to the conclusion that preventive measures and an early return to work are the keys to cost containment.
Many of us have suffered great frustration with the lack of cooperation from the medical community, organized labour groups and workers who view workers' compensation as a social safety net and not the insurance program it was meant to be. We feel that the next great hurdle will be the education of the medical community and labour groups to foster a self-directed team approach to timely return to work where each stakeholder will benefit: the worker by regaining self-esteem and being productive again, the employer by realizing the value of its human assets and cost containment, and the medical community by removing the "rock and a hard place."
I don't mean to state that we are harsh in these issues. We strongly believe that there is a problem and that only by working together can we resolve it. By working together, I mean the worker, the employer and the medical profession. If done properly, all of this can be addressed without involving the board at all. If you take a proactive approach to the value of your human assets and look at these people you spent time hiring and training -- they have a tribal knowledge of your organization -- you must do everything you can to keep them within your organization and keep them productive. Thank you.
The Chair: Thank you very much. Unfortunately there isn't time for questions, but on behalf of the members of the committee we thank you for bringing your advice to us this afternoon. It is appreciated.
Colleagues, that's our last presentation for this afternoon. Just to let you know that we begin tomorrow morning at 8:30. This committee is adjourned for the day.
The committee adjourned at 1701.